In this document the following words and expressions have the meaning shown unless the context requires otherwise:
|Australian Consumer Law||means Schedule 2 of the Competition and Consumer Act 2010 (Cth).|
|Customer||means every natural or legal person who engages or otherwise provides instructions to WICR with respect to the provision of Services.|
|Conditions||means these Standard Terms and Conditions.|
|Force Majeure||means all circumstances that WICR has reasonably been unable to avoid.|
|Goods||means the goods made available or to be made available to WICR, its agents or Third Parties by or on behalf of the Customer, for the purpose of the provision of the Services.|
|GST||has the meaning given to that expression in the GST Act.|
|GST Act||means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).|
|Heavy Vehicle National Law||means the Heavy Vehicle National Law and Heavy Vehicle National Regulations as enacted and in force in various States and Territories of Australia and as administered by the National Heavy Vehicle Regulator and including but not limited to the Chain of Responsibility laws and regulations.|
|Parties||means WICR and the Customer.|
|Services||means all activities and work, in any form and by whatever name, and include the provision of services and the arrangement of provision of services by WICR to the Customer or on behalf of the Customer, whether expressed to be subject to these Conditions or otherwise.|
|Third Party/Third Parties||means all of those persons, who are not employees, with whom WICR has a contract, arrangement or understanding on behalf of the Customer, irrespective of whether WICR enters into that contract, arrangement or understanding in its own name or in the name of the Customer.|
|WICR||means Waratah Interstate Container Removals Pty Ltd ACN 617 505 129 trading as Waratah Interstate Container Removals ABN 76 258 890 449|
- These Conditions govern all offers, agreements, and acts relating to Services provided by WICR.
- These Conditions survive the conclusion of the provision of the Services.
- These Conditions shall continue to apply and to be of full force and effect in all circumstances notwithstanding any breach or alleged breach by WICR of these Conditions or any negligence or breach of contract by WICR.
- WICR is not a common carrier and accepts no liability as such.
- WICR reserves its right to refuse the provision of Services to any person or corporation or in respect of any class of goods at its absolute discretion.
- Insofar as any provision in these Conditions is void, invalid or otherwise unenforceable, that provision must be read down to the minimum extent necessary to achieve its validity and, in any other case, be severed from these Conditions, without invalidating or affecting the remaining provisions of these Conditions.
- These Conditions may only be amended, supplemented, replaced or novated as agreed in writing between the Parties.
The Customer warrants that it is the owner of the Goods or is otherwise authorised by the owner of the Goods to deal with the Goods in the matter contemplated by these Conditions. By engaging WICR the Customer accepts these Conditions on their own behalf and on behalf of all other parties on whose behalf they are acting.
4. Third party contracts, Consignment Notes, and House Bills
- Unless otherwise agreed in writing, the Customer authorises WICR to engage any Third Party in relation to the performance of all or any part of the Services, and to accept the general terms and conditions of such Third Parties (whether in the form of consignment notes, bills of lading, house bills of lading or airway bills or otherwise) (Third Party Contracts) at the Customer's expense and risk, unless agreed otherwise with the Customer. At the Customer's request, the WICR is obliged to provide a copy of any such Third Party Contract entered into on behalf of the Customer.
- The Customer authorises WICR to issue to, or at the direction of, the Customer, consignment notes, house bills of lading or airway bills, whether naming WICR as principal, agent or otherwise, in relation to the performance of all or any part of the Services (WICR Contract), and the Customer accepts all terms and conditions associated with such documents.
- The Customer indemnifies and holds harmless WICR and each of its employees, agents and contractors (excluding the Customer) against any and all claims, demands, damages, losses, liabilities, liquidated sums, charges, costs and expenses of any kind whatsoever and howsoever arising out of any house bill, WICR Contract, or any Third Party Contract or the engagement of any Third Party for the provision of the Services.
- In the event of any inconsistency between these Conditions, and any consignment note, House Bill, WICR Contract or any Third Party Contract (each a Supplementary Contract), the terms and conditions which apply in relation to the relevant Supplementary Contract for that aspect of the Services will prevail, but only to the extent of the inconsistency and no further.
5. Fees and other costs
- 5.1 Fees
- All prices quoted shall be based on the prices that apply at the time of WICR's offer to provide the Services to the Customer. If between the time of the offer and the time of the provision of the Services, one or more of the cost factors increase, WICR is entitled to pass on this increase to the Customer.
- 5.2 Duties and taxes
- Notwithstanding the amount quoted, the Customer will be jointly and severally liable for any duty, tax, impost, excise, levy, penalty deposit or outlay of whatsoever nature levied by any government or authority in connection with the Goods and for any payments, fines, expenses, loss or damage incurred or sustained by WICR in connection with supplying the Services and shall indemnify WICR, its servants and agents from all claims by third parties howsoever arising in connection with the Goods.
- In these Conditions, the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act and Supplier means any party treated by the GST Act as making a Supply under these Conditions.
- Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with these Conditions are exclusive of GST.
- If GST is imposed on any Supply made under or in accordance with these Conditions, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
WICR does not, and will not on request, arrange or procure insurance of any kind, in relation to the Goods, for or on behalf of the Customer
7. Performance of the Services
Delivery date, method of delivery and route
- Unless otherwise agreed in writing, WICR does not guarantee the Goods will be delivered at any particular time.
- Unless otherwise agreed in writing, the method of delivery and route shall be at WICR's discretion and WICR may at all times accept the documents customarily used by the third parties it contracts for the purpose of carrying out its orders.
Commencement of the Services
- The Customer must inform WICR in a reasonable time of any details or documents that the Customers knows, or reasonably ought to know, are of importance to WICR in respect of the Goods.
- The Customer guarantees that the information and documents that it provides are correct and complete and that all instructions and Goods that are made available comply with relevant legislation. WICR shall be entitled to investigate whether the information provided is correct and complete.
- All operations such as inspecting, sampling, taring, tallying, weighing, measuring, etc. and receiving goods shall take place only on the Customer's specific instructions and upon remuneration of the costs thereof.
- WICR shall in no way be liable for any damage that arises from or that is related to any notification to WICR with regard to the state, nature or quality of the Goods; nor shall WICR be under any obligation to ensure that the shipped Goods correspond with the samples.
8. Dangerous Goods
- The Customer must advise WICR in writing whether any Goods involved in the supply of Services are dangerous, likely to be dangerous, or likely to cause damage before the Goods are delivered to WICR.
- Except as agreed in writing, WICR will not accept or deal with any noxious, dangerous, hazardous or inflammable or explosive goods or goods likely to cause damage.
- Any person delivering such goods to WICR or causing WICR to handle or deal with any goods (except as agreed in writing) will be liable for all loss or damage caused as a result of these goods and will indemnify WICR against all penalties, claims, damages, costs and expenses arising in connection therewith and the goods may be destroyed or otherwise dealt with at the sole discretion of WICR or any other person in whose custody the goods may be in at the relevant time.
- If such goods are accepted under arrangements previously made in writing they may nevertheless be so destroyed or otherwise dealt with if they become dangerous to other goods or property.
- The Customer agrees that WICR may contact the necessary authorities if WICR has reasonable grounds to believe that the Goods contain contraband and that the Customer will be liable for any and all costs associated with this process.
- In this clause, the expression “goods likely to cause damage” includes goods likely to harbour or encourage vermin or other pests and all such goods as fall within the definition of hazardous and dangerous goods in the legislation governing carriage by road or rail in the States and Territories of Australia.
9. Heavy Vehicle National Law
- The Customer warrants that it is aware of the principle of shared responsibility and its obligations as a party in the chain of responsibility under the Heavy Vehicle National Law.
- The Customer warrants that it will at all times comply with its obligations under the Heavy Vehicle National Law and will not require WICR to do anything that may be in contravention of its obligations under this law.
- WICR is committed to ensuring as far as reasonably practicable that any carriage of goods by road as part of the Services is performed safely and in accordance with the National Heavy Vehicle National Law. WICR will not comply with any directive or instruction by the Customer that might amount to or have the effect of contributing to a breach of the Heavy Vehicle National Law or preventing WICR from taking all steps it considers necessary to prevent a breach of the Heavy Vehicle National Law or otherwise comply with its duties under that law.
- Subject to clause 10.2, WICR will not be liable for:
- loss or damage to the Goods;
- any delay in delivery, forwarding or transit or failure to deliver Goods;
- any deterioration, contamination, evaporation or any consequential loss or loss of market;
- failure to follow instructions given to it by or on behalf of the Customer whether or not such failure is negligent or wilful;
- for any damage or expense arising from or in any way connected with marks, numbers, brands, contents, quality or description of any Goods;
- for any other loss or damage (including indirect, economic or consequential loss, death or personal injury) sustained in the provision of the Services,
- whether caused by the negligence, wrongful act or default of WICR, its employees, agents or sub-contractors or by any other cause whatsoever.
- Subject to clause 10.2, all Services shall be provided by WICR at the Customer's expense and risk and, to the maximum extent permitted by law, all warranties or guarantees, express or implied, are excluded.
- Subject to clause 10.2, WICR will not be liable for:
Limitations for liability of consumer and small business contracts
- Nothing in these Conditions excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement.
To the fullest extent permitted by law, the liability of WICR for a breach of a nonexcludable consumer guarantee referred to in clause 10.2 is limited, at WICR's option, to:
- the supplying of the Services again; or
- the payment of the cost of having the Services supplied again,
- regardless of whether such loss, injury or damage occurred during carriage or storage and howsoever it was caused including whether by any negligence or breach of contract or wrongful act or default by WICR.
- The Customer indemnifies and must keep WICR indemnified against all claims and liabilities out of the provision of the Services.
In the event of Force Majeure:
- the obligations of WICR under these Conditions will be suspended for the durations of the Force Majeure;
- the Conditions will otherwise remain in force.
- All additional costs caused by Force Majeure, including but not limited to transport and storage charges, warehouse and yard rental, demurrage and standing fees, insurance fees and removal fees, shall be borne by the Customer and shall be paid to WICR upon its request.
- In the event of Force Majeure:
- Unless otherwise agreed in writing, the Customer shall pay to WICR all fees and other costs upon commencement of the Services.
- The fees and costs payable shall remain due and payable even where damage has occurred during the supply of the Services.
- WICR may at any time request from the Customer security for the performance of the Customer's obligations under these Conditions. This security may include obtaining payment upfront, a guarantee, cash deposit, bank guarantee, letter of credit or other such security reasonably requested by the company.
- WICR shall not be obliged, from its own means, to provide security for the payment of freight, duties, levies, taxes and/or other costs should the same be demanded. All the consequences of non-compliance or of failure to comply forthwith with a demand from WICR to provide security shall be borne by the Customer.
- If WICR has provided security from of its own means, it may demand that the Customer immediately pays the amount for which security has been provided.
Right of retention and liens
- WICR has the right to refuse to provide the Services for whatever reason and in respect of any Goods and any destination.
- WICR has a right of retention in respect of all Goods, documents and monies that WICR or its agent or subcontractor holds or will hold for whatever reason and in respect of any destination, for all claims WICR has or might have in future on the Customer and/or the owner of the Goods, including in respect of all claims which do not relate to those Goods.
- WICR has a right of lien in respect of all Goods, documents and monies that WICR or its agent or subcontractor holds or will hold for whatever reason and in respect of any destination, for all claims WICR has or might have in future on the Customer and/or the owner of the Goods.
- WICR can also exercise the rights outlined in this condition (right of lien, right of retention and right to refuse delivery) for any amount outstanding in relation to the Customer's previous orders, and for any amounts payable as cash on delivery in respect of the Goods.
- These Conditions do not affect any rights available to WICR under the Personal Property Securities Act 2009 (Cth).
12. Ceasing to provide Services
- Subject to sections 415D to 415G, 434J to 434M and 451E to 451H of the Corporations Act 2001 (Cth), WICR may cease to provide Services to the Customer with immediate effect in the event the Customer:
- discontinues its profession or business largely or in full;
- loses the power to dispose of its assets or a substantial part thereof;
- loses its legal personality, is dissolved or effectively liquidated;
- is declared bankrupt;
- offers an agreement excluded from the bankruptcy proceedings;
- applies for moratorium on payment; or
- loses the power to dispose of its goods or a substantial part thereof as a result of seizure.
- If the Customer consistently fails to fulfil one or more of its obligations under these Conditions, without prejudice to its right to compensation for any damage that may have been suffered, WICR may cease to provide Services to the Customer with immediate effect in full or in part after, by registered letter, it has stipulated a deadline to the Customer of at least fourteen days for fulfilment of the obligations and upon expiry of that deadline, the Customer has not yet fulfilled its obligations. If, by stipulating such a period, WICR's interests in the undisturbed conduct of its business would be impaired disproportionately, WICR may cease to provide Services to the Customer without observing a time limit.
- Subject to clause 10, WICR will be discharged of all liability unless suit is brought in the proper forum and written notice of suit received by WICR within six months after the due date for delivery of the Goods or performance of the Services.
- Where the limitation period referred to in clause 13(a) is inconsistent with an applicable Convention or law, the period described by such convention or law will apply but in that circumstance only.
14. Governing law
- These Conditions are governed by and are to be construed in accordance with the laws in force in Victoria, Australia.
- The parties submit to the exclusive jurisdiction of the courts in Victoria, Australia.