Interpretation

In these terms and conditions:

(a) "Carrier" means Sunraysia Freight ABN 89 460 366 284 and shall be deemed to include any employee, agent, servant or sub-contractor of the Carrier;

(b) "Carriage" means the whole of the operations and services undertaken by the Carrier in respect of the Goods, including but not limited to the transportation and storage of Goods;

(c) "Customer" means any person, organisation, business or company who requests Carriage services from the Carrier or otherwise has an account with the Carrier and if more than one in relation to any Carriage, whoever the Carrier designates is responsible for the request of Carriage services;

(d) "Dangerous Goods" means any goods deemed dangerous in terms of International Air Travel Association Regulations ("IATA Regulations") including but not limited to goods which are or may become dangerous, inflammable, explosive, volatile or offensive (including radioactive materials) or goods which are or may become liable to damage or injure any property or

person;

(e) "Dangerous Goods Declaration" means a written form of declaration which complies with the IATA Regulations;

(f) "Delivery Address" means the address on the consignment note to which the Goods must be delivered by the Carrier to the Receiver;

(g) "Excluded Goods" means Dangerous Goods and each of the following items: currency; negotiable instruments; jewellery; gemstones; wrought or unwrought metals; antiques; works of art; securities; drugs; weapons; living animals or plants; refrigerated/perishable goods; household and personal effects; second hand goods, cigarettes, tobacco and tobacco products; and any valuable Documents;

(h) "Freight Charges" means the fee payable to the Carrier for the Carriage which includes the provision of Risk Warranty unless the Customer elects otherwise;

(i) "Goods" means freight together with any Packaging picked-up by the Carrier from the Sender for Carriage;

(j) "Packaging" means any container, packaging or pallet used for the purpose of Containing and protecting the Goods for Carriage;

(k) "Receiver (Consignee)" means the person, organisation, business or company who receives the Goods upon delivery by the Carrier;

(l) "Risk Warranty" means the warranty in clause 28;

(m) "Sender (Consignor)" means the person, organisation, business or company who consigns Goods to the Carrier for the Carriage of those Goods to the Delivery Address;

(n) "Sub-Contractor" means and includes any person who pursuant to a contract or arrangement with any other person (whether or not the Carrier) performs or agrees to perform the Carriage or any part thereof.

(o) Amounts owed mean all amounts owed by the Customer to the Carrier pursuant to invoices issued by the Carrier to the Customer from time to time.

 

Carriage of Goods

2. THE CARRIER IS NOT A COMMON CARRIER and will accept no liability as such. The Carrier reserves the right, at its sole discretion, to refuse the Carriage of Any Goods or any class of Goods. The Carriage will be performed by the Carrier

subject to these terms and conditions of contract.

3. Notwithstanding anything to the contrary contained in these terms and conditions, the Carrier shall not be liable for any indirect or consequential loss arising from any act or omission or statement by the Carrier.

4. The Carrier is authorised by the Customer to handle or to store or to carry or to have the Goods carried by any means at the absolute discretion of the Carrier.

5. The Carrier is authorised by the Customer to make any deviation from the usual route or manner of Carriage which may in the absolute discretion of the Carrier be deemed desirable or necessary in the circumstances.

 

Customer Warranties

6. (a) The Customer warrants:

(i) That all laws and regulations relating to the nature, condition, packaging, labeling or Carriage of the Goods have been complied with;

(ii) That the Goods have been packed in a manner that is adequate to withstand the ordinary risks of Carriage, having regard to the nature of the Goods;

(iii) That the person delivering the Goods to the Carrier for Carriage is authorised to sign the consignment note for and on behalf of the Customer;

(iv) That the Customer has the authority of the person owning or having an interest in the Goods or any part of the Goods to send the Goods to the Receiver.

(b) Where the Customer is not the Sender, the Customer must satisfy itself that the Sender has done everything necessary to ensure that the Customer does not breach any of the warranties set out in clause 6(a).

7. (a) The Customer hereby indemnifies and agrees to keep indemnified the Carrier for any liability whatsoever as a result of or arising out of the breach by the Customer of any of the warranties in clause 6(a).

(b) The Customer hereby agrees to indemnify and keep indemnified the Carrier in respect of any liability whatsoever in respect of the Goods which the Carrier may owe to any person (other than the Customer) who claims to have or who

has or who may have at anytime, any interest in the Goods or part of the Goods.

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Goods and Packaging

8. (a) The Customer must not tender to the Carrier for Carriage any Dangerous Goods unless the Customer has first provided to the Carrier a Dangerous Goods Declaration and has complied with all requirements under the IATA

Regulations.

(b) The Customer shall be liable for all loss, damage or injury caused by the Dangerous Goods tendered by the Customer for Carriage.

(c) The Carrier may at any time cause any Dangerous Goods or any goods which the carrier believes are liable to become Dangerous Goods to be destroyed, disposed of, abandoned or rendered harmless by the Carrier without compensation to the Customer and without prejudicing the Carrier's right to any charges payable by the Customer to the Carrier for the Carriage.

9. Unless the Carrier and the Customer otherwise agree in writing:

(a) The Carrier shall accept the Goods for Carriage at the sole risk of the Customer and not the Carrier, subject only to the Risk Warranty (if applicable, Terms and Conditions apply), and the Carrier shall not be responsible in tort or contract or otherwise for any loss or damage to, or missed delivery, delay in delivery, concealed damage, deterioration, Contamination, evaporation or non-delivery of the Goods held in the care, Custody or control of the Carrier or any consequential loss arising there from howsoever caused.

(b) The Customer shall be responsible for ensuring that all Packaging conforms with the requirements of the Receiver. If the Carrier incurs any expense or liability as a result of the Packaging not conforming with the requirements of the Receiver, the Customer must immediately upon demand by the Carrier, reimburse and indemnify the Carrier for all expense or liability incurred by the Carrier.

(c) in the event that the Carriage involves a requirement for the Carrier to undertake any form of handling, installation,  removal, assembly or erection of Goods, the Carrier shall not be liable for any loss, damage or injury of any kind to any person or property howsoever arising or occurring during any part of the Carriage. The Carrier's disclaimer pursuant to this clause 9(c) shall extend to and include:

(i) any loss of or damage to the Goods or any other equipment belonging to or provided by the Customer; and

(ii) any consequential, direct or indirect loss or damage arising from any loss, damage or injury caused to any person or property during the Carriage.

 

Freight Charges

10. Freight Charges will be determined by the Carrier.

11. The Carrier may determine the amount of Freight Charges by reference to weight, measurement or value of the Goods and may at any time reweigh, revalue or re-measure or require the Goods to be reweighed, revalued or re-measured and charge the Customer additional Freight Charges accordingly.

12. The Carrier's charges shall be considered fully earned as soon as the Goods are loaded and dispatched from the Sender's premises and the Customer must, within fourteen (14) days from the date of invoice issued by the Carrier to the Customer, pay the Freight Charges to the Carrier, irrespective of whether the Goods have been delivered to the Receiver or whether goods which have been delivered are damaged or otherwise, and in all circumstances the Freight Charges paid by the Customer to the Carrier shall be absolutely non-refundable.

13. If the Customer fails to pay the Freight Charges to the Carrier within fourteen (14) days from the date of invoice issued by the Carrier to the Customer, then the Carrier reserves the right to charge interest on the unpaid Freight Charges at the rate which is two per cent (2%) per annum above the rate fixed from time to time pursuant to the Penalty Interest Rates Act 1983(VIC)

14. If any of the Goods are subject to any duties, excises and costs charged by any governmental, non-governmental or administrative authority which the Carrier becomes liable to pay in respect of the Goods, then the Customer must reimburse the Carrier upon demand by the Carrier any such duties, excises and costs paid by the Carrier.

15. The Carrier may charge an additional charge to the Customer for the cost of any labour charges incurred by the Carrier as a result of any delay (where such delay has occurred other than from the default of the Carrier) in excess of thirty (30) minutes in loading or unloading the Goods or in the event that the Receiver is not in attendance at the Delivery Address during normal hours when delivery is attempted.

16. The Carrier shall not be bound by any instructions by the Customer to collect any Freight Charges from any other party (the "Third Party"), notwithstanding that the Carrier may accept the Goods as tendered for Carriage. In the event that the Third Party does not pay the Freight Charges to the Carrier within seven (7) days from the date of invoice issued by the Carrier to the Third Party, then the Customer must pay to the Carrier the Freight Charges as specified in the original invoice issued to the Third Party, within seven (7) days after an invoice has been issued by the Carrier to the

Customer.

17. The Carrier shall have a lien on the Goods and any documents relating thereto and on any other Goods of the Customer in the possession of the Carrier or any documents relating thereto for all amounts payable by the Customer to the Carrier, and if any amounts owing by the Customer to the Carrier remain unpaid for a period of thirty (30) days from the date of invoice issued by the Carrier to the Customer, the Carrier shall have the right to sell any such Goods by public auction or private treaty without notice to the Customer.

 

Goods and Services Tax (GST)

18. (a) In this clause: "GST" means the tax imposed or sought to be imposed by the GST Acts; "GST Acts" means A New Tax System (Goods and Services Tax) Act 1999 and the related imposition Acts of the Commonwealth; Any term used in this clause which has a defined meaning in the GST Acts shall have the same meaning in this clause as is ascribed to that term in the GST Acts.

 (b) The Customer acknowledges that the charges listed in the Carrier's published rate schedule and any special rates, ancillary charges and charges for the Risk Warranty quoted by the Carrier to the Customer do not include GST.

(c) If GST is imposed on any supply made by the Carrier pursuant to this contract, the Customer must pay to the Carrier, in addition to any other consideration for that supply, an amount not greater than an amount equal to the GST payable by the Carrier in connection with that supply (as determined by the Carrier in good faith and not in contravention of the law).

 

Sub-contracting

19. The Carrier and any Sub-Contractor of the Carrier shall be entitled to sub-contract, on any terms, the whole or any part of the Carriage.

20. The Customer authorises the Carrier, either in the name of the Customer as principal or in the name of the Carrier as agent for the Customer, at the sole cost and expense of the Customer:

(a) to sub-contract the whole or any part of the Carriage of Goods with a Sub- Contractor;

(b) to lease or use any Packaging in which the Goods may be placed or packed;

(c) to give any receipt for the Goods or any Packaging, whether subject to any terms and conditions; and any such contracts made for or on behalf of the Customer may be made subject to the terms and conditions of any bill of lading, any form or contract of carriage, whether by sea, rail, road or air, any lease arrangement and handover agreement or any receipt or other document, as the case may be.

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Delivery of Goods

21. The Carrier shall be conclusively presumed to have delivered the Goods to the Receiver if the Carrier obtains from any person present at the Delivery Address, confirmation of receipt of the Goods by way of signature on the Consignment Note or any other acknowledgment of receipt of the Goods (including electronic proof of delivery) which proof shall be binding on the Customer or any other person liable to pay Freight Charges.

22. If the Delivery Address is unattended or if delivery cannot otherwise be effected by the Carrier the Carrier may at its option deposit the Goods at the Delivery Address (which shall be conclusively presumed to be due delivery hereunder) or store the Goods whereupon the Customer shall indemnify and keep indemnified the Carrier for all costs and expenses incurred in relation to such storage. In the event that the Goods are stored by the Carrier the Carrier shall be at liberty to re-deliver them to the Sender or Receiver from the place of storage at the sole cost and expense of the Customer.

23. The Carrier will deliver Goods at intermediate points rather than at the Delivery Address only where special arrangements have been made between the Customer and the Carrier.

24. The Customer must indemnify and keep indemnified the Carrier against any liability for any claims made against the Carrier by any person who is or may at any time in the future be interested in the Goods, irrespective of whether any such liability has arisen in connection with the Goods or has arisen as a result of negligence on the part of the Carrier.

25. All the rights, immunities and limitations of liability of the Carrier contained in these terms and conditions of contract shall continue to have full force and effect in all circumstances and notwithstanding any breach by the Carrier of the terms and conditions of contract.

 

Governing Law

26. These conditions shall be governed and construed in accordance with the laws of Victoria. Any proceedings against the Carrier must be brought in the State of Victoria and not elsewhere, within six (6) months from the date of delivery of Goods to the Receiver. No proceedings can be commenced against the Carrier unless notice of the substance of the claim has previously been lodged in writing to the Carrier within fourteen (14) days after the Goods have been delivered or were due to be delivered to the Delivery Address.

27. It is hereby agreed that if any provision or part of any provision of this contract is unenforceable such unenforceability shall not affect any other part of such provision or any other provision thereof.

28. (a) The Carrier gives no warranty in relation to the Carriage.

(b) The Customer acknowledges that the Customer has not relied upon any representation or warranty made by or on behalf of the Carrier in relation to the Carriage.

(c) The Trade Practices Act 1974 and certain State and Territory legislation may imply certain conditions and warranties into this contract for the benefit of the Sender. To the extent permitted by law:

(i) such conditions and warranties are expressly excluded; and

(ii) the liability of the Carrier, if any, arising from the breach of such conditions and warranties is limited to the re-supply of the Carriage.

(d) Subject to the terms and conditions of the Risk Warranty, if applicable, the Carrier does not accept any liability for any loss or damage of any nature caused to the Goods during the Carriage or for any amount as a result, direct or indirect, of any damage or deficiency in the Goods while the Goods are in the possession and control of the Carrier.

(e) Subject to the warranties implied by statute which cannot be negatived, it is the responsibility of the Customer to ensure that the Carriage is sufficient and suitable for the Customer's purpose.

 

Paperless Dispatch

29. The following terms and conditions will also apply where the Carrier has agreed to allow the Customer to dispatch freight to the Carrier without the need to generate consignment notes at the point of dispatch ("Paperless Dispatch").

30. All Paperless Dispatch consignments must be dispatched utilising the "Star Track Dispatch System" or a modified system approved by the Carrier.

31. The Carrier will charge the Customer's account for all Paperless Dispatch consignments, in accordance with the electronic data supplied by the Customer. If, for any reason data is not received by the Carrier, the Carrier reserves the right to charge the Customer from sub-dockets raised to effect delivery.

32. The Customer understands and agrees that, where there is a discrepancy between data sent and the physical properties of the Goods dispatched, the Carrier reserves the right to check the cubic dimensions and weight of the Goods and alter the data for billing purposes.

33. Where consignments sent by paperless Dispatch contain Dangerous Goods, the customer must comply with all requirements under the IATA Regulations and provide to the carrier a Dangerous Goods Declaration.

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Amounts Owing

34. If, at any time, the Amounts Owed exceed the sum of $5,000.00 then the Customer grants to the Carrier a security  interest over all of the Customers present and after acquired property in respect of the Amounts Owed.

35. The Carrier may register the Security Interest arising from clause 34 hereof on the Personal Property Securities Register  at the Customers cost and expense and the Customer agrees to provide all information and do all things reasonably  necessary for the Carrier to register the said Security Interest.

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Amendments to Terms and Conditions of Contract

36. The Carrier reserves the right to amend these terms and conditions of contract from time to time, without prior notice to the Customer.