A.C.N.
005 283 821 A.B.N. 13 005 283 821
Trading as Coynes
Transport Industries, Coynes Storage Solutions, Coynes MetroAir, Fine
Line Transport
Terms & Conditions
All and any business undertaken by the Company shall be subject to the terms and conditions of this contract which are as follows:
Interpretation
1
In this Agreement, the following terms have the corresponding meaning unless the context otherwise requires.
“Act of God” includes acts of enemies of the State, civil commotion, riot burglary, warehouse breaking, theft, pillage, strike, lockout, industrial action, fire, explosion, water, lightning, rain, tempest, earthquake, flooding (whether internal or external), damp, heat, sweat, mould, mildew, decay or animal or insect infestation, deterioration, vermin, mice, insects, leakage.
“Customer” includes the senders, consignors, owners, bailor and consignees of the goods as well as their agents and is not limited to the person identified in the schedule entering into this agreement both in its own personal capacity and for and on behalf of any Principal(s) or trust(s) whether or not disclosed to the Company.
“Company” means Coynes Freight Management Group Pty. Ltd. Trading as Coynes Transport Industries, Coynes Storage Solutions, Coynes MetroAir, Fine Line Transport and includes its servants, agents, employees, officers, independent contractors and sub-contractors, related corporations, all of whom have relied or may rely upon the terms of the Agreement including but not limited to the benefit of the limitation of liability clause 4 in providing certain work services and/or materials.
“Goods” means all and any part of the Goods provided and described by the Customer as defined in this agreement.
“This Agreement” means and includes the terms of this Agreement, and the Schedule.
“The Charges” includes the cost of or expense involved in the Company providing the Service as referred to and calculated by reference to the items appearing under “Description of Charges” in the Schedule, including any cost, or liabilities the Company may from time to time incur or be liable for in respect of action taken in enforcing its rights under this Agreement.
“Person” means a natural person or body corporate, or association of persons.
“Description of Goods” includes reference to weight, measure, standard, strength, quantity, quality, figures, dimensions, and values including the references contained in the Schedule.
“Services” includes the services of receipt, storage, carriage, delivery or disposal of the Goods and all things necessary or incidental thereto.
“Schedule” means the items, references and contents appearing in all the attached documents.
References to any one grammatical gender includes all other genders. The singular number includes the plural number and vice versa.
Where the Customer comprises two or more Persons, the obligations imposed and rights conferred upon the Customer by this Agreement shall be imposed and conferred upon each person forming the Customer severally and all of them jointly, including all charges for services performed by the Company.
No variation of this Agreement shall be valid or effective unless and until reduced to writing and signed by the Company.
Notices may be sent under this Agreement by hand delivery, pre-paid post, email and facsimile transmission to the address or location corresponding to the party named on the Agreement or of which either party becomes aware from time to time. The receipt of any such notice shall be deemed to have occurred, by hand upon receipt, by pre-paid post upon expiration of two business days from the day of posting; by email upon the sender’s email account generating a record that the email has been sent, by facsimile transmission upon the sender’s facsimile machine generating an activity report confirming details of transmission during a business day.
No waiver by the Company of its rights or powers under this Agreement shall constitute a continuing waiver or variation of this Agreement or shall prevent it from thereafter insisting on strict enforcement of its rights.
This Agreement shall be read subject to and in accordance with the laws of the State of Victoria.
Except as expressly provided for in this Agreement, the Company has not made and the Customer has not relied on any representations or assurances concerning this Agreement and confirm that this Agreement contains the entire and complete terms and understanding of the parties’ contractual relationship.
Where from time to time a clause of this Agreement or part thereof is found to be illegal, void or unenforceable by Statute, rule of law or equity, then the offending portion of the clause or sub-clause shall be hereby severed from this Agreement.
Any and all representations made or to be made by the Customer are continuing representations on which the Company has placed ongoing reliance in entering into this Agreement and performing the Service.
In the absence of manifest error, a written notice by the Company of the charges due and payable shall be conclusive evidence of the same.
The Company is not a common carrier and reserves the right to refuse to provide the Services without providing any reason thereof.
At its discretion, the Company may decide the mode and route whereby the Services are to be provided.
Warranties by the Customer
The Customer warrants, represents, confirms and acknowledges that: -
The Company has relied upon the Customer in its description of the Goods. Accordingly, the Company accepts no liability for any discrepancy that may arise with the description.
Having undertaken due and careful inquiry the Goods are not dangerous, illegal, hazardous, and do not contain any substance resulting in risks not readily apparent from the Description of the Goods.
The Company has relied upon the Customer’s skill in properly packing, securing and preparing the Goods.
The Customer is authorised and empowered to enter into this Agreement in its own right and personal capacity and for and on behalf of any other Person for whom it acts or may from time to time act as an agent, representative or any person who claims or may claim from time to time an interest in the Goods.
The Customer is bound by the terms of this Agreement regardless of whether or not the said Customer has personally read these terms and regardless of whether the customer is the owner, sender, consignor, bailor, consigner and/or agent. The terms of this Agreement will be deemed to be accepted by the Customer if the terms of this Agreement have been provided to its agent’s and/or employees.
In addition to its rights under the Warehouseman’s Liens Acts 1958 the Company shall have and retain a generally lien over the Goods for pecuniary obligations owing from time to time by the Customer on any account whatsoever to the Company (including but not limited to payment of the Charges).
The Company from time to time may enter into contracts and arrangements with Persons to perform or carry out the Services. In so engaging such Persons, the Company has or will represent to such Persons that the terms of this Agreement including the benefit of any terms conferred upon the Company shall extend to such Person in providing their services or material.
The Customer shall comply with all applicable laws and Government regulations including those relating to the packing, carriage, storage, customs clearance, delivery of other Services in respect of the Goods, and shall furnish such information and provide such documents as may be necessary to comply with such laws and regulations. The Company shall not be liable to the Customer for loss or expense due to the Customer’s failure to comply with this provision.
Delivery of goods
The Company shall be deemed to duly deliver the Goods and discharge its obligations hereunder by delivering the Goods to a person authorised or directed by the Customer in writing at the location expressed in the Schedule or at any other location directed by the customer either orally or in writing.
Responsibility for Fees/Charges
The Customer shall pay the Company for all fees rendered and any charges it incurs for any reason in respect of the Services performed. This includes the payment of any fees, duties, taxes, imposts, outlays or charges at any port or place where the goods are picked up or delivered upon customer’s direction or otherwise delivered by the customer to the company’s warehouse and/or transport yard for storage and dispatch pending customer’s direction. Such fees and charges shall be immediately payable and non-refundable. The Customer agrees to pay interest on any accrued fees and charges from the date of the date upon which the fees and charges become due at the rate of 15% per annum.
The customer agrees that it shall not defer or withhold payment or deduct any amount from the account of the Company by reason of any claim it alleges against the Company.
Insurance
At all times all risks in the Goods shall remain with the Customer. The Company is under no obligation whatsoever to effect insurance on any Goods nor to arrange for any subcontractor or agent engaged in the course of providing the services to effect such insurance, and the Client acknowledges that such insurance will not be effected. The Customer must at its expense arrange insurance of the goods and ensure that such insurance remains current during such period as the goods are in the custody, possession or control of the Company.
Exclusion and limitation of liability
Subject to sub clause 6.2 the Company accepts no liability to any person for loss or damage due to any cause whether to person, property or the Goods or any part including consequential economic loss arising from acts of omissions of the Company in performance or purported performance or the Services howsoever arising (including contract negligence or otherwise). The implication of any term imposing liability on the Company by Law Equity or Statute is here by expressly excluded and negatived.
Where implication of a term in this Agreement is rendered non-excludable by legislation (whether State or Commonwealth) then to the extent that such non-excludable term applies, it shall prevail.
Where the legislation referred to in sub-clause 6.2 allows for the limitation of the Company’s liability, then the liability is limited to whichever of the following is appropriate as determined by the Company.
The payment of the cost of replacement of the Goods or acquiring equivalent Goods not exceeding an amount of $20.00.
The re-supply of the Services
6.4. Any claim for loss must be made in writing to the Company by no later than fourteen (14) days from the date upon which the Goods are delivered and leave the custody, possession or control of the Company.
6.5 All Services are provided at the sole risk of the Customer. The Company shall not be responsible either directly or vicariously for any loss whatsoever, howsoever and by whomsoever caused including without limiting the foregoing the negligence or breach of contract or bailment or wilful act or default of the Company or others. This clause shall apply to all the consequences of any loss of or damage to or deterioration of Goods or misdelivery or failure to deliver or delay in delivery of Goods whether or not the same occurs in the course of performance by or on behalf of the Company of the Services or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them and events which could constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
Notice to Customer
The Company may at any time by written notice to the Customer demand payment of the charges and/or that the Customer collect the Goods.
Where the Customer fails to comply with the notice within one month from receipt, the Company may at the Customer’s expense (which forms part of the Charges) remove and relocate the Goods.
Rights of the Company in relation to the goods
Where the Customer is in arrears in payment of the Charges (which continues for three months) and fails to comply within seven (7) days from receipt of a written notice by the Company requiring payment then the Company is hereby irrevocably authorised to seize, open and dispose of the Goods upon such terms as it considers expedient and apply the resulting proceeds in satisfaction of the Charges.
Customer’s Indemnity
The Customer hereby agrees to indemnify the Company for any expenses or liability it incurs to any Person arising from this Agreement and further agrees to reimburse the Company for any legal expenses incurred by the Company to remedy the breach of this agreement by the Customer.
The Company shall have no liability implied or otherwise in respect of COD payments which may be collected by any of its servants or agents on behalf of the Customer or any of its clients when making deliveries and if, notwithstanding this Clause any such liability does attach to the Company then the Customer will indemnify the Company in respect of any such liability.
Payment of Fees/Charges
Monies due to be paid by the Customer shall not be deemed to have been paid until funds are actually received by the Company (as contrasted with any person who is or may be regarded as an agent of the Company) and in the case of payment by cheque other than unendorsed bank cheque until clearance of such cheque or cheques.
Carriage of goods by sea
Where the goods are carried on any sea going vessel, the carriage is subject to terms and conditions of the shipowners’ Bill of Lading in use at the time of shipment and, in no circumstances shall the Company be held liable for any loss or damage howsoever occasioned whilst the goods are in the care, custody or control of such shipowner.
Force Majeure
12 Where the Company is unable to carry out any obligation under the contract due to any circumstance, matter or thing beyond its reasonable control (“force majeure”), the Company shall be excused from such obligations to the extent of such prevention, restriction or interference so caused.