Terms and Conditions

1.1.

Booking means a booking or order placed by the Customer with the Carrier from time to time for the supply of the Services via online web portal, email or any other method of communication in writing, verbally or by conduct.

1.2.

Broker means person or a company acting as an intermediary between Consignor and Carrier.

1.3.

Carrier means MRL Express Pty Ltd trading as Sampson Express (ABN 81 619 072 669) which forms part of the MRL Global branding and, where the context requires, includes any Contractor and its servants, agents, employees and assigns.

1.4.

Consignor means the sender or owner of any Goods to be transported or stored by Carrier.

1.5.

Contractor means any sub-contractor or other third party engaged by Carrier to assist in the provision of the Services (or any matter ancillary to the Services).

1.6.

Customer means the Customer named in the Credit Application or specified on any proposal, quotation, invoice or other documentation and includes any person or persons acting with authority of the Customer.

1.7.

Dangerous Goods means any Goods which are or may become noxious, dangerous, hazardous, explosive, radioactive, flammable, or damaging or injurious in nature, or are likely to harbour or encourage pests and vermin.

1.8.

Days means calendar days.

1.9.

Goods means any items which the Customer tenders for provision of Services, including the packing material and equipment to transport or store the Goods.

1.10.

GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth), at the rate prevailing from time to time, including any tax levied in substitution for such tax, but excluding any penalties or interest in respect of such tax.

1.11.

Intellectual Property means all intellectual property rights and interests (including common law rights and interests) in any jurisdiction, including copyrights, logos, patents, trade-marks, trade names, service marks, registered designs, domain name, applications for any of the foregoing, goodwill, know-how, ideas, concepts, tools, techniques, inventions, discoveries, developments, trade secrets and information (whether or not reduced to writing or other machine or human readable form).

1.12.

Online Portal means the Carrier’s EziShipping Client Portal through which Customers can make online Bookings and which contains all information relating to a Customer’s account (including current and past Bookings, invoices and statements). All information contained in the Online Portal is also available by request from the Carrier.

1.13.

Perishable Goods means newspapers, magazines, flowers, vegetables, herbs, live plants, fruit, food stuffs, fresh and cooked meat products, fresh and cooked fish and seafood, live or dry ice (packed with sufficient quantity to survive a transit time possibly exceeding the intended transit time by eight hours) and no others.

1.14.

PPSA means Personal Properties and Securities Act 2009 (Cth) and includes the Personal Properties and Securities Regulations 2010.

1.15.

Proof of Delivery (POD) means any signed delivery docket or consignment note (or other receipt) by wet ink or digitally on an electronic device by any person (either holding themselves out to be an agent or representative of the Customer or Recipient or not), or by photo of the delivery, evidencing delivery at the delivery location.

1.16.

Recipient means the receiver of the Goods as contained on the consignment note or other delivery instructions.

1.17.

Service Guide means the Service Guide (as may be amended from time to time) relevant to any additional Services required or requested and issued by Carrier on a needs basis only at the time any additional services are requested or required.

1.18.

Services means all services to be provided by Carrier and which is quoted to a Customer and includes all additional and incidental services including but not limited to moving, storing or leaving the Goods at any location and, where applicable, loading and unloading the Goods from any means of transport or location.

1.19.

Terms means these terms and conditions which will include any other document provided by Carrier to the Customer which outline the rules, obligations and procedures for the provision of the Services and including but not limited to quotes, consignment notes, waybills and any other delivery documents and also includes the Service Guide where applicable.

1.20.

Website means www.sampsonexpress.com.au.

1.21.

In this agreement except to the extent that the context otherwise requires:

1.21.1.

reference to legislation or a provision of legislation includes change or re-enactment of the legislation or a legislative provision substituted for, and legislation and statutory instruments and regulations issued under, the legislation;

1.21.2.

words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, reference to a document or agreement includes reference to that document or agreement as changed, novated or replaced from time to time, words denoting any gender include all genders;

1.21.3.

headings are for convenience only and will not affect interpretation;

1.21.4.

where a word or phrase is given a definite meaning in this agreement a part of speech or other grammatical form for that word or phrase has a corresponding meaning; and

1.21.5.

Reference to a party includes their successor’s executor’s administrators and permitted assigns.

2.1.

All Services will be governed by these Terms which constitutes the entire agreement between Carrier and the Customer and which are deemed accepted on the earlier of execution of this Agreement or provision of instructions to Carrier to commence provision of the Services whether through the Online Portal, in writing, verbally or by conduct and which will continue to be in force until such time as they are terminated by Carrier or the Customer in accordance with these Terms. For the avoidance of doubt, any statements, promises, warranties, conditions or representations made by an agent or representative of Carrier which are not provided in writing by a manager of Carrier will not be binding on Carrier.

2.2.

Carrier may update or amend these Terms at any time and publication of the updated or amended Terms on the Website will be deemed to constitute sufficient notice whether or not the Customer reads the updated or amended Terms and the updated or amended Terms will apply from the date of publication.

2.3.

Where Carrier and the Customer vary or waive these Terms, or any provisions of these Terms, such variation or waiver is required to be in writing and signed by a director of Carrier and the Customer.

2.4.

These Terms shall be construed in accordance with the laws of New South Wales.

2.5.

Despite anything to the contrary clauses 8, 12.3, 13, 14, 15, 19.5, 19.6, 19.8 and 19.9 survive expiration and termination of this Agreement.

3.1.

Carrier is NOT A COMMON CARRIER and has no obligations as such nor does it accept any liability as such. The provision of Services by Carrier is expressly in accordance with these Terms and Carrier reserves the right to refuse carriage of any Goods in its sole discretion.

4.1.

The provision of all Services is at the Customer’s sole risk.

4.2.

Carrier is reliant on the information provided by the Customer and/or contained on any consignment note or other instructing document in the provision of the Services. It is the Customer’s responsibility to ensure the accuracy of the information provided and/or contained on any consignment note or other instructing document.

4.3.

Any signature on a Consignment Note by Carrier is for acknowledgement of collection or delivery only and does not constitute a warranty that the information provided by the Customer and/or contained on any Consignment Note is accurate nor the condition or quantity of the Goods to be collected or delivered.

4.4.

Carrier will consider and attempt to accommodate requests for specific modes of transport or particular routes of delivery however is entitled to provide the Services by any mode of transport or route whatsoever in its sole discretion including any deviation of any specific mode of transport or particular route previously agreed.

4.5.

The Customer is responsible for the loading and unloading of all Goods and will provide all adequate and suitable facilities/equipment to do so. Carrier will not be responsible to load or unload the Goods at the Customer or delivery address nor will it be responsible for the provision of plant or other machinery necessary for loading or unloading the Goods, unless arranged prior.

4.6.

Where there is any delay caused or refusal by the Customer in loading or unloading the Goods within the allotted time, the Goods may be loaded or unloaded by Carrier (at its option) at the sole risk of the Customer and the Customer will be responsible for all costs incurred by Carrier in loading or unloading the Goods.

4.7.

The Customer is entitled to inspect the vehicle the Goods are to be transported in at any time prior to loading the Goods. The vehicle will be deemed suitable and acceptable where there is any failure by the Customer to undertake any such inspection or to make a complaint as to any inspected vehicle, and Carrier will have no liability for any loss or damage caused by the inadequacy of the vehicle.

4.8.

Carrier will be entitled to move any Goods between storage locations (whether storage is primary or incidental to the provision of Services) at any time in its sole discretion and at the sole risk and expense of the Customer.

4.9.

If at any time Carrier is of the view the performance of any obligations by it are or will be affected by any risk, delay, difficulty or disadvantage which, taking all reasonable measures, cannot be avoided then Carrier may treat its obligations as terminated on providing written notice to the Customer and will be entitled to leave the Goods (in whole or in part) in any place deemed safe and convenient in its sole discretion.

4.10.

Unless otherwise stated, the Customer acknowledges and agrees that delivery times are an estimate only and that time is not of the essence in the provision of the Services.

4.11.

POD at the delivery address nominated by the Customer and/or contained on the consignment note or other instructing document will constitute successful delivery.

4.12.

Where Carrier is unable to deliver or delivery of the Goods fails or is not accepted, the delivery address provided is insufficient, the Customer has failed to provide proper instructions, Carrier will be entitled (at its option) to:

4.12.1.

leave the Goods at the specified address; or

4.12.2.

retain the Goods and place them into storage (at the sole risk and expenses of the Customer) and attempt re-delivery at a later time and/or date; or

4.12.3.

return the Goods to the Customer.

4.13.

Where Goods are not released for failure to pay any monies owing (including in circumstances where the approved credit limit has been exceeded), Carrier may immediately (in the case of Perishable Goods) or on providing one months’ calendar notice, sell or otherwise dispose of the Goods on any terms it considers appropriate and may apply any monies received from such sale or disposal to any outstanding monies owed to Carrier.

4.14.

Carrier will have no liability in tort, contract or otherwise to the Customer for any loss or damage for any reason whatsoever under clauses 4.12 and 4.13 and the Customer will be liable to pay all additional charges and expenses of Carrier for any storage and re-delivery costs.

5.1.

This Agreement also constitutes an application for credit and a credit agreement and the Customer warrants that where credit is agreed to be provided it is to be used solely or predominantly for business purposes and that the National Credit Code does not apply.

5.2.

Carrier relies on the accuracy of the information provided to it in assessing whether to provide the Customer with credit and may request further information from the Customer to enable it to properly assess any application for credit. Carrier may also request any Broker to procure the completion of a credit or other application or provide further information to enable it to assess any Broker application for credit.  Carrier will not be liable for any delay in assessing any application where the Customer or Broker refuses or delays providing any requested applications or information.

5.3.

Carrier will have complete discretion in approving credit terms and also whether to require prepayment for any particular delivery. Where credit is granted payment is required within the timeframe agreed between Carrier and the Customer and where no date is specified, then payment is required within seven (7) days from the issue of a valid tax invoice.  Where any delivery is not subject to credit pre-payment is required at the time of Booking and delivery will not be made until payment is received.

5.4.

The Customer will be responsible for any additional fees and charges of Carrier in processing any payments or where any payment is dishonoured.

5.5.

All invoices issued by Carrier will also be available for the Customer to view or download from Carrier’s online portal or may be requested from the Carrier directly.

5.6.

Payments which are not made by the due date will incur interest at the ATO General Interest Charge rates which will be capitalised on the last day of each month until payment is received in addition to any applicable late payment fees and any additional costs and expenses incurred by Carrier until payment is received.

5.7.

The Customer accepts and covenants not to exceed its approved credit limit. In the event the Customer does exceed any approved credit limit it will immediately pay the amount above that approved credit limit and Carrier reserves the right to suspend the Customer’s account (including access to the Online Portal) and the provision of Services and documents and hold and store Goods until such time as the payment is received and/or the approved credit limit is restored.

5.8.

Any invoice dispute must be raised by the Customer within 14 days of the date of the invoice and where such dispute is not raised within this time the Customer waives the right to raise a dispute and the full amount of the invoice is payable.

5.9.

Carrier reserves the right to withdraw credit at any time whether the Customer is in default or not and upon credit being withdrawn the balance of the Customer’s account will become due and payable immediately.

5.10.

Where Carrier has approved payment terms outside of clause 5.3 at any time (“Varied Payment Terms”), if the Customer is in breach of those Varied Payment Terms Carrier reserves the right to revert back to the standard payment terms contained in clause 5.3 on providing notice to the Customer.

5.11.

Where any payments are outstanding or the credit limit has been exceeded in circumstances where the Customer is a Broker, Carrier reserves the right to communicate directly with that Broker’s client (the Consignee) to notify of any matters including any potential or actual suspension or termination of the provision of Services.

5.12.

The Customer is liable to pay all costs (including legal fees) associated with recovery for any breach of these Terms on an indemnity basis.

6.1.

All quotations are subject to change where they are not accepted within 7 days of issue or any other period as agreed by Carrier but not exceeding 30 days.

6.2.

Carrier reserves the right to amend any quotation after it has been accepted where:

6.2.1.

A variation is requested by the customer;

6.2.2.

A variation is required in circumstances where incorrect information has been supplied by the Customer or there are changes to the nature, quantity or weight of the Goods, changes to the address (either collection or delivery), loading or unloading, weather or other conditions outside of the control of Carrier;

6.2.3.

There is any delay in loading or unloading and Carrier loads or unloads the Goods in accordance with clause ;

6.2.4.

Unexpected storage of the Goods is required;

6.2.5.

Any other circumstances outside of the control of Carrier gives rise to additional charges.

6.3.

The Customer is required to pay Carrier for all fees and charges associated with the provision of the Services (including any deposit payable where required) as and when they fall due and without setoff for deduction including any fees and charges which are payable by a third party on its behalf where that third party fails to pay Carrier.

6.4.

Where a Consignor has used a Broker to arrange the provision of Services that Consignor will remain liable to pay all fees and charges associated with the provision of the Services as and when they fall due and without setoff for deduction including any fees and charges which are payable by a Broker on its behalf where that Broker fails to pay Carrier.

6.5.

Any additional Services required (including but not limited to transport, loading/unloading, additional labour and waiting times) will be calculated having regard to the Service Guide and must be paid by the Customer on provision of a valid tax invoice.

6.6.

Goods and Services Tax (and any other tax or duty) which may apply to the provision of the Services will be added to the amounts payable by the Customer unless they are already expressly included contain an amount for Goods and Services Tax (or any other tax or duty).

7.1.

Carrier will be entitled to suspend or terminate the provision of Services at any time the client is in breach of any of its obligations in accordance with these Terms (including relating to payment) and without prejudice to any other rights or remedies Carrier may have by giving written notice to the Customer. Further, Carrier will not be liable to the Customer for any loss or damage suffered by the Customer in the exercise of its rights under this clause 7.

7.2.

Either party may terminate this agreement by giving the other party 30 days’ written notice of its intention to terminate.

7.3.

Termination of this Agreement does not affect the accrued rights or remedies or obligations a party may have up to the date of termination.

7.4.

The Customer will be entitled to suspend or terminate the Services at any time prior to Carrier receiving the Goods. If the Customer suspends or terminates the Services it will be liable to Carrier for any costs or expenses incurred up to the time of suspension or cancellation.

8.1.

The Customer warrants:

8.1.1.

It owns the Goods and/or has the authority to deal with the Goods in the manner instructed and has the authority to accept these Terms.

8.1.2.

It has provided no incorrect, false or misleading statements or information (whether written or verbal) in respect of the Goods (including with respect to the nature and value of the Goods) which may affect Carrier’s ability to perform its obligations safely and lawfully with respect to the Services.

8.1.3.

It has not breached any laws, or committed any criminal acts, it is not trading insolvent, no director is an undischarged bankrupt, there are no orders, injunctions or decrees of any court, commission or administrative body been made or pending against it or the directors.

8.1.4.

It has complied with all laws, regulations, standards and codes and any other requirement by any authority in relation to the nature, packing and condition of the Goods.

8.1.5.

It has prepared and packed the Goods safely and sufficiently to protect against the ordinary risks associated with transportation and any ancillary matters or services to be provided in conjunction with the Services.

8.1.6.

It has not and will not instruct Carrier in any way that will require or cause the breach of any laws, regulations, standards, codes or any requirement by any authority.

8.1.7.

It has or will adequately insure the Goods (unless agreed otherwise with Carrier) for the full protection and indemnification of Carrier or its Contractors for all loss, damage or injury to property or person, penalties, expenses, claims, actions or suits whatsoever or howsoever arising in connection with the provision of Services and the Goods.

8.2.

The Customer undertakes:

8.2.1.

To promptly pay all amounts due and owing to Carrier upon provision of a valid tax invoice.

8.2.2.

To promptly disclose of anything it becomes aware of which may impact on the accuracy of the information disclosed to Carrier, or which constitutes a breach or potential breach of any representation, warranty or undertaking or provision of this agreement.

8.2.3.

To execute and enter in to all documents and do all things whatsoever as may be necessary and desirable by Carrier to enable it (including entering in to agreements with third parties, including but not limited to entering in to agreements with Contractors pursuant to clause 12) to comply with its obligations and provide the Services.

8.2.4.

To provide at least 14 days written notice of any proposed change of ownership of the Customer and any other change in the details of the Customer (including name, address, phone numbers).

9.1.

All Intellectual Property contained in the Carrier’s Online Portal arising from a Booking or in respect of the provision of Services by Carrier are owned by Carrier or any relevant third party owners.

9.2.

The Customer must not infringe the Intellectual Property rights of Carrier or any relevant third party owners in connection with the Online Portal or the provision of Services.

10.1.

The Customer will not cause Carrier to handle or otherwise deal with Dangerous Goods in any way except as agreed in writing by Carrier.

10.2.

Any Goods which are considered to be Dangerous Goods (in the reasonable opinion of Carrier) and which have not been declared as such may be abandoned, destroyed or disposed of by Carrier immediately upon determining those Goods to be Dangerous Goods at the cost of the Customer and without prejudice to any right to payment Carrier may have and Carrier will in no way be liable to the Customer for those Goods.

10.3.

Where any Dangerous Goods are accepted by Carrier which then become or have the potential to become (in the sole opinion of Carrier) a risk to other Goods or persons then Carrier may take reasonable action to eliminate the risk and the Goods may be abandoned, destroyed or disposed of immediately at the cost of the Customer and without prejudice to any right to payment Carrier may have and Carrier will in no way be liable to the Customer for those Goods.

10.4.

The Customer indemnifies Carrier against any loss, damage or injury to property or person, penalties, expenses, claims, actions or suits whatsoever arising in connection with any breach of clauses 10.1 and 10.2.

11.1.

Except as otherwise agreed in writing with Carrier, the Customer is responsible to maintain all adequate insurances for the Goods including any insurances required to indemnify Carrier and keep it indemnified against any loss, damage or injury to property or person, penalties, expenses, claims, actions or suits whatsoever or howsoever arising in connection with the Goods.

11.2.

Carrier is not under any obligation to arrange any insurances of any nature but is entitled to declare the Goods on any general policy held by it.

12.1.

The Customer acknowledges and agrees that Carrier will be entitled to engage Contractor as it deems necessary to assist in the provision of the Services (or any matter ancillary to the Services), whether in whole or part, and on any terms whatsoever.

12.2.

For the purposes of clause 12.1 the Customer irrevocably authorises Carrier to enter into an agreement with a Contractor either in its own name or in the name of the Customer and Carrier will provide the Contractor terms to the Customer on request.

12.3.

The Customer shall not directly approach or engage any Contractor that Carrier may engage pursuant to clause 12.1 for a period of 6 months. The Customer shall indemnify Carrier for any breach of this clause, and shall be liable to Carrier for any loss, margin, loss of margin, fees, penalty or any other payment that Carrier may incur as a result of a breach of this clause 12.3.

13.1.

Words used in this clause that are defined under the PPSA will have the same meaning as contained in the PPSA except where the context appears otherwise.

13.2.

Carrier will be entitled to a particular or general lien over any Goods of the Customer in the custody and control of Carrier (or any Contractor), whether in connection with the provision of the Services or not, for any outstanding monies due and owing to Carrier or any Contractor or for any other breach of any other obligations in these Terms. Further, any Goods which Carrier is entitled to exercise a lien over will be stored at the Customer’s risk and expense and, without prejudice to any other rights of Carrier, Carrier may immediately (in the case of Perishable Goods) or on providing one months’ calendar notice, sell or otherwise dispose of the Goods on any terms it considers appropriate and may apply any monies received from such sale or disposal to any outstanding monies owed to Carrier.

13.3.

To the extent that Carrier is entitled to a lien over any Goods under this clause or any right to sell Goods in accordance with clause 13.1, the Customer also agrees that these Terms constitute a security agreement for the purposes of the PPSA and also create a security interest in the goods being transported by Carrier over which Carrier exercised a lien.

13.4.

The Customer herein undertakes:

13.4.1.

To promptly sign any documents and/or provide any information which Carrier reasonably requires to register a financing statement or financing change statement in relation to a security interest on the Personal Properties Security Register (PPSR), register any document required under the PPSA or correct a defect.

13.4.2.

To indemnify Carrier for all expenses incurred in registering a financing statement or financing change statement or releasing any Goods charged and to also reimburse Carrier for all such expenses on demand.

13.4.3.

It will not register any financing change statement relating to any security interest nor register or permit to be registered a financing statement or financing change statement in relation to the Goods in favour of any third party without Carrier providing its prior written consent.

13.5.

Sections 96, 115 and 125 of the PPSA do not apply to any security agreement created by these Terms.

13.6.

The Customer herein waives its rights as a grantor and/or debtor pursuant to sections 142 and 143 of the PPSA and also waives it rights pursuant to sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

13.7.

Further, the client waives the right to receive a verification statement pursuant to clause 157 of the PPSA except as otherwise agreed in writing.

13.8.

The Customer irrevocably appoints Carrier as its attorney to perform any acts necessary under this clause 13 and will further ratify any acts performed by Carrier as required.

14.1.

The Customer acknowledges and agrees that the risk for the Goods will at no time pass to Carrier and that such risk will remain with the Customer even while in the custody and control of Carrier and the Customer indemnifies and keeps indemnified Carrier for all loss, damage or injury to property or person, penalties, expenses, claims, actions or suits or any other liability incurred by Carrier whatsoever or howsoever arising (whether in contract, tort or otherwise) in connection with the provision of the Services and/or the Goods and any breach of these Terms by the Customer whether such is alleged to have been as a result of the negligence, willful misconduct or omission, breach or default or otherwise due to or arising from any loss, destruction of or to, error or delay in delivery or non-delivery, deterioration, contamination or evaporation of Goods.

14.2.

Despite clause 14.1, Carrier’s liability is limited to:

14.2.1.

refund; or

14.2.2.

supplying the services again; or

14.2.3.

providing for the reasonable cost of having the services supplied again.

14.3.

To the extent permitted by law, Carrier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Customer and whether or not due to negligence, willful misconduct or omission, breach or default or otherwise pursuant to these Terms.

14.4.

To the extent permitted by law and subject to these Terms all warranties, guarantees, undertakings, statements, terms or conditions, express or implied, statutory or otherwise are excluded.

14.5.

The Carrier and Customer acknowledge and agree that nothing in the Terms shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the provision of Services pursuant to these Terms of all or any of the provisions the pursuant to the Australian Consumer Law or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.

14.6.

This indemnity includes any legal fees and expenses the Carrier incurs in order to enforce its rights, on an indemnity basis.

14.7.

Where Carrier has agreed to arrange insurances the liability of Carrier is limited to physical loss or damage to the goods up to the limit of the relevant insurance as obtained by Carrier based on the information provided to it by the Customer. In the case of Perishable Goods including deterioration caused by a delay in transit exceeding the intended transit time by 8 hours, it is subject to all of this clause, terms, conditions and exclusions herein, provided Carrier had in writing accepted the Goods as Perishable Goods and agreed to special delivery instructions and delivery time frame.

14.8.

Any claim for loss to be made by the Customer relating to the Services of Carrier must be made within 48 hours of delivery of the Goods or, where it relates to mis-delivery or non-delivery within 14 days (which shall run from the date of intended delivery) otherwise the Services will be deemed to have been performed satisfactorily.

14.9.

If the Customer becomes insolvent it remains liable for payment of all amounts to Carrier even where Carrier receives a dividend payment as the result of the Customer’s insolvency.

15.1.

Where the Customer is a corporation, in consideration of Carrier extending or agreeing to extend credit or further credit to the Customer for the provision of Services from time to time, the directors of the Customer (the “Guarantors”) have executed this Agreement and provide the guarantee and indemnities set out in this clause 15.

15.2.

The Guarantors personally guarantee to Carrier due and punctual payment of all money which at any time becomes due and payable by the Customer now or in the future. The Guarantor acknowledges that this is a personal guarantee and the personal belongings of the Guarantor may be appropriated to satisfy the Guarantor’s liability.

15.3.

This Guarantee is a continuing guarantee and the Guarantors will only be released on written notice from Carrier. No variation in any agreements between the Customer and Carrier will affect, avoid, discharge or release the guarantor’s liability.  Neither the insolvency nor death of either the Guarantor or the Customer nor the granting of an extension of time to the Customer to pay any outstanding monies or perform any other obligation will affect or discharge this Guarantee.

15.4.

Any failure by Carrier to invoke its rights under this clause against the Customer or the Guarantors does not discharge or affect the Guarantee.

15.5.

The Guarantors also indemnify Carrier against all loss, damages or expenses that Carrier may suffer as a result, either directly or indirectly, of any failure by the Customer to make due payment of any money owing to Carrier in connection with the provision of Services or failure to observe the Terms, including costs on an indemnity basis of any attempt or attempts to recover from the Customer or any Guarantor and whether successful or not or whether frustrated by the Customer or Guarantor or by operation of law and including costs ordered by a court to be paid by Carrier to the Customer or to any Guarantor including the costs of lodging and withdrawing caveats and/or obtaining injunctions and enforcing any security over real and personal property given to the Carrier.

15.6.

As security for due and punctual payment of amounts owed by the Customer to Carrier, the Guarantors charge in favour of Carrier all of their estate and interest in any real property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged.

15.7.

As security for due and punctual payment of amounts owed by the Customer to Carrier, the Guarantors charge in favour of Carrier all of their estate and interest in any personal property that the Guarantors own at present and in the future with the amount of their indebtedness hereunder until discharged.

16.1.

The Customer is not entitled to assign its rights or interest in this agreement subject to these Terms without first obtaining written consent of Carrier.

16.2.

Carrier may assign its rights or interest in this Agreement without notice to the Customer.

17.1.

Any dispute arising between the parties must be dealt with in the following manner (except in urgent matters or where injunctive relief is required):

17.1.1.

The party raising the dispute must provide written notice to the other party and provide sufficient details of the dispute (Dispute Notice);

17.1.2.

Within 7 days of receiving the Dispute Notice the parties must commence negotiations to resolve the dispute;

17.1.3.

Where the dispute is not resolved by the parties within 28 days from commencing negotiations, the disputing party is at liberty to commence proceedings in a court of competent jurisdiction.

18.1.

Carrier will notify the Customer of any inability or failure to perform any of its obligations due to strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Carrier’s control, including transport difficulties as soon as reasonably practicable. Carrier will use its best endeavours to overcome the inability or failure to perform the Services but will provide the Customer with access to the Goods (where reasonably practical or safe to do so) in the event the Customer wishes to (at their cost) engage a third party to perform the Services.  Carrier will not be liable to the Customer and no payment will be payable for that part of the Services which Carrier is unable to provide.

19.1.

Carrier accepts no responsibility for the return of any pallets or other packing material or containers on hire to the Customer unless otherwise agreed in writing.

19.2.

Carrier complies with all relevant laws including the Heavy Vehicle National Laws (HVNL) and Chain of Responsibility laws (COR). The Customer acknowledges and agrees that in agreeing to these Terms it also has a duty to comply with the COR and HVNL and that nothing in these Terms amounts to any contracting out of the COR or HVNL.

19.3.

The Customer authorises Carrier to open any packaging in which Goods are contained for the purpose of:

19.3.1.

Determining the intended destination of the Goods where the delivery instructions or consignment note is destroyed, lost or missing;

19.3.2.

To comply with a reasonable lawful direction of any government or other authority;

19.3.3.

Where there is reason to believe the Goods are Dangerous Goods;

19.3.4.

Determine the nature of the Goods.

19.4.

All notices required to be given pursuant to these Terms must be in writing and delivered (either by hand or pre-paid post) to the address notified by each party or by email or facsimile to the email address or facsimile number notified by each party in this Agreement.

19.5.

The Customer is required to keep these Terms and any prices quoted or provided to it by Carrier confidential.

19.6.

Where the Customer is acting as the trustee of a trust (whether disclosed to the Carrier or not), the Customer warrants to the Carrier that:

19.6.1.

the Customer enters into this agreement in both its capacity as trustee and in its personal capacity;

19.6.2.

the Customer has the right to be indemnified out of trust assets;

19.6.3.

the Customer has the power under the trust deed to sign this agreement; and

19.6.4.

the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Carrier.

19.6.5.

The Customer will give the Carrier a copy of the trust deed upon request.

19.7.

Any provision of these Terms which is invalid or unenforceable is deleted and the remainder of the agreement remains effective.

19.8.

A failure or delay by Carrier to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right by Carrier does not preclude its future exercise or the exercise of any other power or right at any point in time and Carrier is under no obligation to exercise any right or power within any period.  A power or right can only be waived in writing and signed by the parties bound by such waiver.

The Customer authorises Carrier (who shall have no obligation) to comply with any direction or requirement imposed by a government or other authority including but not limited to payment of any duties, taxes, costs or charges relating to the Goods or release of information relating to the Customer, the Goods or the Services.  The Customer shall indemnify Carrier for any costs or expenses incurred in compliance with this clause.