Wednesday, January 25 2017
Small enough to care, big enough to deliver
Conditions of Transport and/or Storage

1.              Definitions

Business Day means a day that is not a Saturday, Sunday or public holiday in each State or Territory the Service is provided.

Business Hours means the hours of 9.00am to 5.00pm on any Business Day.

Company means Janala Pty. Limited ACN 003 672 839 and its employees, sub-contractors and agents and includes “Cope”, “Cope Transport” and “Cope Sensitive Freight”.

Delivery means a delivery of freight to you or other premises/persons in accordance with the provisions of this agreement.

Force Majeure Event means any event or circumstance beyond the reasonable control of the party affected by it, including but without limitation:

(a)             any act of God, including but without limitation storms or cyclones, action of the elements, epidemics, landslides, earthquakes, floods, road closures due to washouts or impassability and natural disasters;

(b)             war, whether declared or undeclared, terrorist acts, blockades and insurrections;

(c)             industrial action, riots, malicious damage, sabotage and civil disturbances;

(d)             accidents (including accidental emissions of pollutants or hazardous substances), fire, explosion, radioactive contamination and toxic or dangerous chemical contamination; or

the catastrophic failure of, or the breakdown of or accident to, equipment, plant or machinery which the Affected Party is not reasonably able to prevent or overcome, or the effects of which the Affected Party is not reasonably able to predict and take measures to avoid.

Freight means goods including packaging material, pallets, skids, stillages and any other material on or in which the freight is to be restrained during carriage, or stored.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other law which imposes or otherwise deals with the imposition or administration of a goods and services tax in Australia.

GST, GST group, input tax credit, representative member and taxable supply have the same meanings as under the GST Law.

OH&S means occupational health and safety.

Standard Pallet is defined as up to 117cm wide ×117 cm depth × 120 cm height and weighing less than 1000 kg.

You means the person, whether natural or corporate, who accepts the Company’s quote for Site to Site, Tailgate or Normal transport services and/or warehousing services.

Interpretation:

In this agreement unless the contrary intention appears:

(a)             a reference to this agreement or document means this agreement and includes any variation or replacement of it;

(b)             a reference to a statute or other law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of it;

(c)             the singular includes the plural number and vice versa and a reference to a gender includes a reference to each gender;

(d)             the word "person" includes a firm, corporation, body corporate, unincorporated association or a governmental authority and the person's legal personal representatives, successors, liquidators, trustees in bankruptcy and the like, and permitted assigns;

(e)             an agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them or any one or more of them together and separately;

(f)             a reference to a party means a person who is named as a party to, and is bound to observe the provisions of, this agreement;

(g)            a reference "includes" means includes but without limitation and where a word or phrase is given a defined meaning in this agreement, any other part of speech or grammatical form in respect of such word or phrase has a corresponding meaning;

(h)             a reference to "$" or "dollars" is a reference to the lawful currency of Australia

(i)             a reference to an act includes an omission and a reference to doing an act includes executing a document.

2.              Upon your acceptance of:

(a)             the Quotation for Site to Site, Tailgate and/or Normal transport services; and/or

(b)             your instructions to the Company to carry out such services after receipt of such Quotation

you hereby appoint the Company, and the Company accepts the appointment, to provide services in accordance with this agreement.

3.              The Company will perform the services in such manner as to achieve acceptable performance standards and overall cost to you, consistent with the levels of safety, reliability and customer service that are generally accepted in the transport and logistics industry or required under Australian Standards.

4.              The Company may, as it deems necessary, appoint sub-contractors to perform some but not all of the services under this agreement. Sub-contractors and the actions and performance of sub-contractors remain the responsibility of the company.

5.              (a) The Company will provide services from time to time in conformity with instructions from you in respect of the transport and/or storage of freight but in all cases will do on the terms in this agreement, which will prevail to the extent of inconsistency between instructions and this agreement.

(b)         Your instructions may be given by telephone, email or electronic data transmission to the Company.

(c)         The Company may, where it deems reasonably necessary, break pallet loads and re-sort freight at the Company's facilities for distribution to specified premises and persons.

(d)         Unless the Company agrees otherwise, delivery by the Company to a person or premises must take place during Business Hours.

6.              The Company may set off any amount that it may owe you by way of credit against any amount that you are to pay the Company.

7.              The Company will invoice you for services upon receipt by the Company of electronic data from you concerning the consignment (or in the absence of electronic data, upon pick up or receipt of the freight) and the freight charges are deemed to be earned at that time. If you have a bona fide basis for objecting to any amount that the Company has invoiced to you in relation to transport services, you must give written notice to the Company of the objection and reasons within 30 days after the date of the consignment note relating to the services. If you do not issue an objection within the time prescribed in this clause you are taken not to object to the Company’s invoice and must pay it and any other invoices to you when due. Even if you have a bona fide objection, you must pay the balance of such invoices and all other amounts then due in all transactions between you the Company.

8.              You will not disclose any billing and costing calculations to any third party without the advance written consent of you and the Company. Consent for both of the above can only apply to future consignments after consent is given.

9.              You must maintain product information (dimensions and weights) in the Company’s on-line system. The Company will not in any way be liable for refunds or credits for incorrect data you provide in relation to dimensions and weights.

10.             The Company will not be liable to you in tort, contract, as a bailee or for breach of statute for any loss, damage, delay, duty, tax or fine, indirect or consequential loss, non-performance of any obligation, misdirection, costs, expense, death or injury of whatsoever nature and howsoever caused.

11.             (a) The Company will have no liability as a bailee in respect of the handling, transport, storage or warehousing of your freight and is not a common carrier and will have no liability as such. The Company is not liable in respect of any loss or damage to or deterioration, misdelivery or non-delivery of freight whilst in its custody or control, or death or bodily injury to any person, whether or not arising from negligence, wilful misconduct or reckless disregard by the Company, its employees, subcontractors or agents or any breach or non-observance of the terms of this agreement by those persons.

(b)         The Company is not liable to you for any indirect, special or consequential loss, including without limitation loss of profit, loss of market share or loss of goodwill whether arising from negligence, wilful misconduct or reckless disregard by the Company, its employees, subcontractors or agents or any breach or non-observance of the terms of this agreement by those persons.

(c)         The Company is not liable to you in respect of the accuracy of any of the information supplied in any documentation or electronic information about the goods or services including the accuracy of any weight, delivery instruction, measurement, quality, gauge, strength or value declared.

12.             You are solely responsible for arranging and maintaining at your cost any transit warranty insurance in respect of the freight which the Company is to carry on your behalf. The Company will provide such cover at your request, which must be in writing where indicated on a consignment note or by other method which the Company approves. Where the Company provides such cover, an excess of $2,000 applies to each claim paid, and the maximum cover available for any one consignment is $10,000 unless agreed otherwise in writing by the Company’s authorised representative.

13.             At all times after the date of this agreement, you indemnify the Company and keep it indemnified against all losses, damages, expenses, claims, demands, actions and proceedings suffered or incurred by, or made or instituted against, the Company as a result, directly or indirectly, of:

(a)         a breach of your obligations under this agreement (including a breach in respect of which the Company exercises its rights to terminate this agreement);

(b)         any act or omission of yours in relation to the subject matter of this agreement;

(c)         any negligence, wilful misconduct or recklessness of yours;

(d)         the death or bodily injury to any person that occurs wholly or partially as a result of your failure to perform your obligations in this agreement in respect of dangerous goods, illegal items or goods requiring temperature control; and

(e)         a claim, demand, action or proceeding of any other party (including the owner) in respect of the freight.

14.             The Company will not be liable for any failure to perform its obligations under this agreement, or for any delay in such performance, that results from any Force Majeure Event, provided that the Company has taken all adequate and proper precautions capable of being taken.

15.             You acknowledge that you will input data into the Company’s electronic despatch system through the Company’s web portal which will be captured in the consignment note or consignment notes relating to your freight. You further acknowledge that for services where the Company’s electronic despatch system is not used, you will input data to consignment notes in paper form. You represent and warrant to the Company that the data that you input, either into the Company’s electronic despatch system or into consignment notes in paper format will be accurate in all respects and acknowledge that the Company is relying upon such data in costing and allocating resources for the purpose of performing the services on the basis of such data being accurate.

16.             You acknowledge that you are responsible for presenting freight for collection at the pick up address in an area in close proximity to the Company vehicle and with clear access to the freight. Where alternative arrangements are made additional charges may apply and you agree to pay those.

17.             Where you instruct the Company to pack the freight or provide any other additional services (including but not limited to loading freight and supplying and operating equipment for loading freight) you agree to pay the Company for the services, equipment and labour.

18.             You acknowledge that the Company will not have any responsibility or liability in relation to any pallet on which your freight is transported, stored or placed in the Company’s warehouse. You must ensure that pallets are transferred off your hire account and onto the hire account of the receiver of the freight or, as the case may be, or any other third parties and you will not involve the Company in any aspect of any pallet or equipment hire arrangement you have entered into. You hereby release and indemnify the Company from and against any liability in relation to the loss of pallets or failure of any party to transfer pallets off your hire accounts. You must ensure that all pallet movement dockets and any other tasks required in relation to the transfer of pallets are completed and provided to the receiver of your goods and that where necessary such dockets are signed and transmitted or delivered to the applicable pallet hire company in a timely manner.

19.             Except where delay occurs as a result of the fault of the Company, you must pay a delay charge to the Company (demurrage) if the Company’s vehicle is not loaded or unloaded within the applicable time after arriving at the address having regard to the service definitions in the quotation.

20.             The Company will have a general lien on freight that the Company has in its possession at your request The general lien will be for all monies due or becoming due under this agreement, including interest, handling charges and costs, packaging charges and costs, if any, and all other expenses relating to the handling, transport, storage or warehousing of the freight. The Company’s general lien is also for the amount of any costs of complying with the law, in relation to the advertisement for sale, sale by auction, or otherwise, customs, excise, taxes, duties and other statutory charges which may apply in relation to the sale of the freight to satisfy or partially satisfy your obligations to the Company under this agreement.

21.             You hereby expressly agree that upon default of any obligation to pay monies due or becoming due to the Company under this agreement:

(a) the Company is entitled to exercise a power of sale in respect of the freight you have consigned or stored with the Company;

(b) such power of sale is in addition to all other rights and remedies at law which may be available to the Company in relation to the enforcement of liens. The Company will give written notice to the following persons of its intention to sell freight:

(i) you in relation to the monies due or becoming due for which the general lien exists;

(ii) the owner of the freight; and

(iii) any other person to whom notice in the Company’s opinion notice should be given.

(c) the Company may require you on 1 month’s written notice to remove all freight that the Company has in its possession, at your own cost and risk.

22.             The Company’s written notice will set out a description of the freight, the location at which the freight is stored, your name, the amount due under this agreement, and a statement to the effect that unless the amount due plus any further amounts which may become due in the next calendar month under this agreement are paid, then the company may sell the freight within one calendar month after the date of the notice. If so the notice will also refer to the Company’s intention to advertise the freight for sale and to sell it in such manner and at such place and time as is specified in the notice.

23.             You agree that if any term of this agreement gives rise to a registrable security interest in the freight under the Personal Property Securities Act 2009 (Cth), the Company may register its interest, invoice you for the cost of doing so and need not comply with any provisions in the said Act as to the giving of notice of enforcement of the interest.

24.             The Company will not accept for carriage any freight which consists of cash, bullion or precious metal. You warrant that unless previously agreed to in writing, you do not require the transport of dangerous goods, illegal items or goods requiring temperature control or any goods governed by State quarantine laws and that where you require such services you will complete and supply to the Company:

(a)         any environmental declarations that may be required by law;

(b)         a consignor’s certificate which identifies the nature of the goods and provides all other information required by laws relating to dangerous goods.

25.             (a) Amounts payable under this agreement do not include GST unless otherwise stated. If any payment made or other consideration given by a party in connection with this agreement does not include GST and is the consideration for a taxable supply for which the party who makes the supply (the Company) is liable for GST, you must, at the same time as the consideration is given, pay to the Company an additional amount equal to the amount of the consideration multiplied by the rate of GST under the GST Law.

(b)         Any reference in this agreement to a cost or expense to be reimbursed by one party to another includes any GST payable in connection with a taxable supply to which that cost or expense relates, less the amount of any input tax credit that the party or, if the party is a member of a GST group, the representative member of the GST group is entitled to claim.

26. You must:

(a)         Provide instructions relating to the services in a diligent, unambiguous and timely manner,

(b)         co-operate with the Company’s employees, agents and contractors in relation to the provision of the services;

(c)         observe, and ensure your employees, agents and contractors observe, the Company’s reasonable direction and requirements relating to the provision of the services;

(d)         (except where the Company is to pack freight) pack, identify and label any freight in a manner which complies with all relevant industry standards and laws and in a manner adequate to withstand handling, storage, warehousing and distribution;

(e)         maintain and comply with all relevant permits, licences and approvals required in respect of the freight;

(f)          comply with OH&S and all other legal or statutory requirements in respect of premises and systems.

27.             The Company may appoint a sub-contractor, agent or licensee in relation to any of its rights or obligations under this agreement.

28.             The Company may terminate this agreement immediately (or at any later date set out in the notice) by notice to you if:

(a)         You are in breach of this agreement and either there is a failure to remedy the breach within 30 days after written notice being given to do so, or the Company deems that the breach is incapable of remedy;

(b)         You are insolvent or in external administration of any kind or your assets are subject to sequestration order;

(c)         in the Company’s reasonable opinion it cannot perform the services profitably at the rates in the quotation;

(d)         if you are a company, without the prior written consent of the Company, there is a change in control, ownership or management of you, where control includes the ability to determine the outcome of financial or operative policies or you sell or otherwise dispose of the whole or any part of your assets, operations or business other than in the ordinary course of business.

29.             Except as expressly provided, nothing in this agreement constitutes a partnership between the parties or makes a party an agent of the other party for any purpose.

30.             (a) Any notice given or made under this agreement must be in writing prepared by a person duly authorised by the sender. It must be addressed and delivered to the recipient at the address of the receiving party (or in the case of a notice by email, to the email address of the party’s representative) last known to the sending party.

(b)         A party may change its address for the purpose of service of notices by giving written notice of that change to the other party.

31.             Neither party may assign, transfer, charge or deal with any of its rights and obligations under this agreement or attempt or purport to do so, without the prior written consent of the other party.

32.             No failure to exercise and no delay in exercising any right, or single or partial exercise of any power or remedy under this agreement on the part of the Company will operate as a waiver of its rights.

33.             This agreement contains the entire agreement of the parties with respect to its subject matter. It sets out the only conduct relied on by the parties and supersedes all earlier agreements, arrangements and understandings by the parties with respect to its subject matter.

34.             No provision of this agreement or a right conferred by it can be varied except in writing signed by an executive officer of the Company. If any part of this agreement is for any reason unenforceable, that part must be read down to the extent necessary to preserve its operation. If it cannot be read down, it must be severed and in either case the enforceability of the remainder of this agreement will be otherwise unaffected.

CONTRACT TERMS OF STORAGE AND WAREHOUSING

35.             In these conditions "the Company" means Janala Pty. Limited ACN 003 672 839 and its employees, sub-contractors and agents and includes “Cope”, “Cope Transport” and “Cope Sensitive Freight”.

36.             You warrant that the freight complies with the requirements of any applicable law relating to the nature, condition and packaging of the freight. You will pay the expenses and charges of the Company in complying with the provisions of any such law or with any order or requirement.

37.             If any freight is subject to the control of Customs then you hereby agree to hold the Company harmless and indemnified in respect of all Customs Duty, Excise Duty and costs which the Company may become liable to pay.

38.             The freight is stored entirely at your risk and the Company will not be liable to you or any person claiming through or under you for any loss of or damage to the freight or part thereof or for any death or injury caused to any person arising out of the storage of the freight and whether caused wholly or partly, directly or indirectly, by such storage and whether such loss, damage, death or injury arises from the negligence of the Company or otherwise and including any consequential loss arising therefrom. Nothing herein will render the Company an insurer of freight.

39.             It is your responsibility to arrange adequate insurance for the freight in view of the application of all those Conditions upon which the Company accepts goods for storage and stores such goods.

40.             You hereby indemnify and keep indemnified the Company from all claims and liabilities of whatsoever nature made by or incurred in favour of any person in connection with any loss, damage, death or injury.

41.             The freight provided to the Company for storage is subject to general lien in accordance and the company has rights in relation to it under with clauses 20 to 23 including a right to require you to remove freight on one month’s written notice. Those rights are additional to any right or rights conferred upon the Company by any statute.

42.             You hereby warrant that you have full power and authority to deal with the freight. You give the Company all of the indemnities in clause 13 in respect of freight provided to the Company for storage.