1. In these Conditions:
"Carrier" means InTime Distribution Pty Ltd its successors, assigns, servants and agents (and where the Company acts as an agent, its principal) and shall, except where the contrary is expressed, include Sub-contractors;
"Services" means the transport of Consignments including any incidental storage thereof;
"Client" means the person or persons with whom the Carrier contracts to provide the Services, and includes the Consignor;
"Goods" means such goods as may be transported by the Carrier for the Client from time to time;
"Consignor" means such person as may be authorized by the Client to dispatch Goods at its request;
"Consignment" means the Goods accepted from the Consignor together with any containers and packaging supplied by or on behalf of the Consignor;
"Sub-contractors" means any person, firm or entity with whom the Carrier may arrange for the cartage of the Consignment and any person who is or shall be a servant, agent or sub-contractor of such person, firm or entity.
2. Any obligation, responsibility or liability under this agreement which relates to the Consignor is also an obligation, responsibility or liability (as appropriate) of the Client, and the Client accepts primary responsibility for any such obligation, responsibility or liability insofar as it is not fully met by the Consignor. In the event of the Carrier having a right to take legal action against the Consignor in relation to any matter arising from this agreement or otherwise the Client agrees that such claim may also be made directly against the Client in lieu of it being made against the Consignor, or alternatively the Carrier has the right to hold the Client jointly liable with the Consignor in relation to any action commenced against the Consignor.
3. This agreement is made under or deemed to be made under and subject to the laws of the State of Victoria, and any proceedings against the carrier shall only be brought in Victoria.
4. The Carrier is not a common carrier and accepts no liability as such. The Carrier reserves the right to refuse the carriage of goods of any description for any person firm or entity without giving explanation for such refusal. All Consignments are carried and all storage and other services are performed by the Carrier subject to these terms and conditions.
5. The Carrier excludes liability and responsibility in tort, contract and otherwise in so far as may be consistent with and subject to the provisions of the Trade Practices Act 1974 or similar or equivalent State Acts, for any loss of and /or damage to or deterioration of Goods or mis-delivery or failure to deliver or delay in delivery of Consignments including chilled, frozen, refrigerated or perishable Goods either in storage or transit for any reason whatsoever including but not limited to the neglect or willful act of the Carrier or third parties. Should the provisions of the Trade Practices Act 1974 or similar or equivalent State Acts concerning implied warranties and conditions apply to this agreement then the liability of the Carrier under this agreement relating to such implied warranties and conditions is restricted to the supply of the Services again or the payment of the reasonable costs of having the Services supplied again.
6. The Carrier excludes liability and responsibility for loss, damage or injury to any person, property or thing during or resulting from the performance or purported performance of or want of performance or breach of this agreement howsoever caused including but not limited to any negligence, recklessness or wilfulness of the Carrier.
7. The Client agrees to free, release, hold harmless, indemnify and keep indemnified the Carrier from all claims, liabilities, damages, costs and expenses arising out of any matter whatsoever about any aspect of the Consignments or the carriage or purported carriage of or storage or purported storage of or failure to carry or store the Consignments or in any way arising out of an act or omission or any breach of or failure by the Carrier to comply with any of its obligations under this agreement and otherwise howsoever arising and whether such claims, liabilities, damages, costs and expenses be direct or indirect consequential or inconsequential past, present or future.
8. The Client hereby authorizes the Carrier to sub-contract the carriage of Consignments hereunder and any such Sub-contractor, its servants or agents and all persons who are or might be vicariously liable for the acts or omissions of the Sub-contractor or its servants or agents shall have the benefit of all the terms of this agreement and in particular clause 5, 6 and 7. The Client accepts that the Carrier may be acting as an agent for the actual carrier of the Consignments under this agreement .
9. The Carrier reserves to itself the determination of the mode of transport and method of handling and storage to be used in the performance of this agreement.
10. The Carrier is authorized to deliver each Consignment at and to the address given to the Carrier by the Consignor and it is expressly agreed that the Carrier shall be taken to have delivered the Consignment in accordance with this agreement if at that address it obtains from any person a legible printed name or signature as receipt on a consignment note and/or run sheet for the Consignment. If it appears to the Carrier that no person is in attendance at the address given by the Consignor, the Carrier may leave the Consignment at the said address, or at the discretion of the Carrier store the Consignment and if the Consignment is stored by the Carrier the Consignor shall pay or indemnify the Carrier for all costs and expenses incurred in or about such storage and return of the Consignment to the Consignor. Failure to complete a consignment note and/or run sheet will not violate the Carriers right to charge for the delivery.
11. Consignments are accepted by the Carrier subject to the condition that the Carrier accepts no responsibility for the collection of cash on delivery or any other payments on behalf of the Consignor or any other person. When Consignments are tendered by any person with instructions for the Carrier to collect any such payments the Carrier will make its best efforts to do so but shall not be bound by such instruction and responsibility will remain with the Consignor for such collection.
12. The Consignor or Client as the case may be warrants that it is the owner of the Consignment, the authorized agent for the owner of the Consignment or in some other manner entitled to possess and part with the possession of the Consignment the subject of this agreement and by entering into this agreement the Consignor and Client accept these terms and conditions for the recipient of the Consignment and/or for all other persons on whose behalf the Consignor or Client is acting.
13. It is agreed that any person who delivers the Consignments for carriage to the Carrier is authorized to do so and sign the consignment note and/or run sheet.
14. The Carrier shall be entitled to its charges when the Consignments are loaded and despatched from the Clients or Consignors' premises as appropriate. The Client agrees that the Carrier shall be entitled to its proper charges and costs (including any road tolls) incurred in the performances of this agreement and the Carrier is expressly authorized to expend (at the Client's cost) such sums as it may deem necessary in its sole discretion to preserve the Consignment in the event of accident, delay or necessity.
15. The Consignor and Client warrant that they have complied with all laws, both State and Federal, relating to the packaging, labelling, carriage and delivery of Consignments and will disclose to the Carrier the contents of each package or other Consignment container upon receipt by the Carrier of the Consignments. The Client agrees to indemnify the Carrier in the event that the Client or the Consignor fail to fully comply with the provisions of this warranty, and loss or damage results from such failure to comply.
16. The Consignor and Client warrant that the Consignment is not and does not contain explosive, flammable or dangerous goods and the Consignor and Client indemnify the Carrier in respect of all liability of any nature occurring in consequence or part consequence of the Consignor or Client's failure to comply with this warranty.
17. In addition to any other rights of the Carrier it shall have a lien upon the Consignments in its possession under this agreement for all monies payable to it and if part of the Consignment has been delivered, removed or despatched the Carrier shall have a lien upon the remainder of such Consignment for such monies until paid to it.
18. Insofar as it may be permissible by law to do so if the Carrier's charges in respect of any Consignments despatched with it or held by it shall be unpaid for two years or the minimum period prescribed by law for the remedy of the sale of the Consignment to be operative ( whichever shall be the lesser period ) the Carrier shall ( after sending a letter by post to the Consignor and/or Client (at the Carrier's discretion)at its last known address giving one months notice of the Carrier's intention to sell such Consignment or in the event that no address of the Consignor or Client is known to the Carrier then one month after giving notice in a public newspaper) have full power to open and examine any part or the whole of the Consignment and to sell such Consignment or any part thereof by public auction and after deducting the costs in connection with the storage, notification and sale retain and apply the residue of the proceeds of the sale in payment of or towards all charges payable by the Consignor to the Carrier.
19. The Carrier's trading terms are payment within seven days from invoice date. A discount (if any) applied to the Carriers' standard rate is deemed to be forfeited if the invoice remains unpaid after seven days from the due date. All collection costs including but not limited to legal costs on a solicitor/client basis are payable by the Consignor in the event of failure to pay the Carriers charges within a reasonable period.
20. The Consignor agrees to pay costs incurred by the Carrier, at such rate as set by the Carrier from time to time, for any copies of documentation or time spent in collating and delivering same although no warranty, either express or implied, is given by the carrier that such documentation will exist or has ever existed. No set-off or abatement or deduction is permitted in respect of any of the charges or other monies due to the Carrier. The Carrier reserves the right to vary its charges and trading terms and the notification of such changes by ordinary surface mail to the client is deemed to be notice of the variation. The Consignor agrees that to the extent that the Carrier is or becomes liable to any GST pursuant to making a taxable supply under the A New Tax System (Goods and Services Act) 1999, the Consignor will be liable for that GST liability, and the Consignor must pay the Carrier for GST in respect of the taxable supply within the trading terms provided by the Consignor in the tax invoice relating to that taxable supply.
21. The Consignor or Client as the case may be acknowledges that the Carrier has an agreement with its Sub-contractor and its staff and agents and warrants to the Carrier that it will not cause or induce nor seek to cause or induce the Sub-contractor or the Carrier's staff or agents to terminate their agreement with the Carrier or offer any employment (whether directly or indirectly) to the Sub-contractor or any member of the Carrier's staff or agents.
22. The Consignor or Client as the case may be also warrants that it will not engage, employ or appoint the Sub-contractor, its staff or agents for a period of 12 months subsequent to the termination of the agreement between the Carrier and its Sub-contractor, staff or agents. In the event that this clause is breached, the Consignor or Client agrees to pay to the Carrier a sum equal to the previous 6 month's gross charges to the Client for Services provided by the Carrier, or such other sum as the Carrier reasonably calculates as liquidated damages for the breach (including the Client's legal costs on a Solicitor/Client basis), without affecting the continued operation of any other clauses in this agreement.
23. INSURANCE WILL NOT BE ARRANGED BY THE CARRIER. IT IS THE RESPONSIBILITY OF THE CLIENT AND CONSIGNOR TO ENSURE THAT ADEQUATE INSURANCE COVER IS ARRANGED IN VIEW OF THE APPLICATION OF ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT UPON WHICH THE CARRIER ACCEPTS CONSIGNMENTS FOR CARRIAGE.
24. The Carrier will endeavour to arrange for insurance of Consignments in transit as the Client's agent if the Client requests the Carrier to do so in writing (in a form prescribed by the Carrier) and notifying the value of the Consignment for the purposes of such insurance. The said insurance shall be at the Client's expense both as to premium and as to the Carrier's administration charges and in accordance with the conditions of insurance selected by the Carrier with the insurer selected by the Carrier.
25. In entering into this agreement the Client and Consignor warrant that they have conducted their own enquiries and relied on their own judgement and not on any representation made by or on behalf of the Carrier and all such representations are hereby excluded.
26. No waiver by the Carrier of any breach of any term of any agreement with the Client shall be deemed to be a waiver of any subsequent breach of any kind. Singular words shall include plural and vice versa.
27. The portion on the Account Application entitled "IMPORTANT NOTE" is to be taken as a warning only and the provisions of that note shall not be taken as limiting any other terms of this agreement, but simply an expression of the intention of this agreement and the exclusions herein.
28. If any clause herein is or becomes void or illegal or unenforceable for any reason then such clauses shall be rectified and read down in so far as maybe possible so as to be valid and enforceable and to such extent as it is not valid and enforceable shall be severed and omitted from these conditions which shall otherwise remain in full force and effect.
29. No one clause shall limit the generality of any other clauses.
30. In the event that the Client or the Consignor uses or attempts to use or issues or attempts to issue at any time any letters writings instructions forms or delivery notes or the like containing any terms or provisions inconsistent with these conditions then they shall not form part of any agreement with the Client and these terms and conditions shall prevail.
31. These terms and conditions bind the Client and its executors administrators successors and assigns.