| 1. |
In these conditions:- |
| 1.1 |
"Carrier" shall mean Followmont Transport Pty Ltd., its servants and agents. |
| 1.2 |
"Sub-contractor" shall mean and include any other person, firm or company with whom the carrier may arrange for the carriage of any goods the subject of this contract, and any person who is now or hereafter a servant, agent, employee or sub-contractor of any of such persons. |
| 1.3 |
"Chargor" means the Consignor, Consignee or owner of the goods. |
| 1.4 |
"Secured Money" means all moneys or charges owed to the Carrier from the Chargor - |
| 1.4.1 |
for the carriage and/or storage of any other proper charges or expenses upon or in connection with the goods; and |
| 1.4.2 |
of the goods for any service rendered or accommodation provided by the Carrier to the Chargor; and |
| 1.4.3 |
all monies owing by the Chargor to the Carrier for any services provided, obligation incurred or damage suffered. |
| 1.5 |
‘Secured Property’ means any legal or equitable estate or interest of the Chargor in any present and future undertaking and property, including,
without limitation, all real and personal property, choses in action goodwill and unpaid called or uncalled capital; |
| 2. |
The Carrier is not a common carrier and accepts no liability as such. All articles are carried or transported, and all storage and other services are
provided by the Carrier, subject only to these conditions. The Carrier reserves the right to refuse the carriage or transport of articles for any person,
corporation or company, or the carriage or transport of any class of article of its discretion. |
| 3. |
The Consignor hereby authorises the Carrier (at the discretion of the Carrier) to arrange with a sub-contractor for the carriage of any goods the subject
of this Contract. Any such arrangement shall be deemed to be ratified by the Consignor upon delivery of the said goods to such sub-contractor, who
shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Carrier. Insofar as it may be necessary to ensure
that each such sub-contractor shall be so entitled, the Carrier shall be deemed to enter into this Contract as agent for the sub-contractor and the
Consignor shall be deemed to have entered into a contract of carriage with the sub-contractor. |
| 4. |
Any person, firm or company who consigns goods to the Carrier shall be deemed to be the Owner of the goods or an agent for the Owner, and will bind the Owner in accordance with the terms of this Contract. |
| 5. |
The Carrier may carry all goods or have them carried or on forwarded by any method which the Carrier in its absolute discretion deems fit and
notwithstanding any instructions verbal or otherwise that the goods are to be carried by a certain mode, although the Carrier will give priority to the
method so designated. |
| 6. |
Unless otherwise agreed in writing, the Carrier shall be under no liability whatsoever, whether in tort, Contract or otherwise, for any loss of (including
consequential loss) or damage to or deterioration of goods, or misdelivery or failure to deliver, or delay in delivery of goods either in transit or in storage
for any reason whatsoever. The Carrier is authorised to deliver the goods at the address given to the Carrier by the Consignor for that purpose, or at
any address at which either the Consignor or Consignee conducts a business or carries out work. The Carrier is not obliged to obtain a signature upon
delivery. |
| 7. |
The Consignor shall hold harmless and keep the Carrier indemnified against all claims and demands whatsoever by whomsoever made in respect of
any loss, damage or injury however caused, whether or not by the negligence or wilful act or omission of the Carrier, his servants, agents or subcontractors,
under this contract. |
| 8. |
The Carrier will not effect any insurance of the goods for the benefit of the Consignor or otherwise. |
| 9. |
In the event of a Consignor making a claim against the Carrier the Carrier may at its sole discretion without admission choose to pay the Consignor an
amount, not exceeding $AUD 400.00. Any payment made to the Cosignor under this provision is made in full and final satisfaction and discharge of any
liability the Carrier may have to the Consignor. |
| 10. |
The Carrier’s charges pursuant to this Contract shall be deemed fully earned as soon as the goods are loaded and dispatched from the Consignor’s
premises, and shall be payable and non-refundable in any event. |
| 11. |
The Consignor will be and remain responsible to the Carrier for all its proper charges incurred for any reason. A fee may be charged at the absolute
discretion of the Carrier in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Carrier, where the Carrier collects goods from the Consignor or delivers goods to the Consignee respectively. Such permissible delay period shall commence upon the Carrier reporting for loading or unloading. Labour to load or unload the Carrier’s vehicle shall be the responsibility and expense of the Consignor or Consignee. |
| 12. |
Goods are received and held by the Carrier subject to:- |
| 12.1 |
A lien for moneys due to the Carrier for the carriage and/or storage of any other proper charges or expenses upon or in connection with the goods;
and, |
| 12.2 |
A general lien for all moneys or charges due to the Carrier from the Consignor, Consignee or the Owner of such goods for any services rendered
or accommodation provided by the Carrier to the Consignor, Consignee or Owner. |
| 13. |
Where any lien remains unsatisfied within seven (7) days from the date on which the Carrier gave notice of the exercise of his lien pursuant to Clause
12, the goods may at the Carrier’s discretion be sold by public auction or private treaty and the proceeds of sale applied in or towards the satisfaction
of every such lien and all proper charges and expenses in relation thereto (including the expenses of the sale) and the Carrier shall account to the
Consignor, Consignee or the Owner of the goods for any surplus. |
| 14. |
Charge |
| 14.1 |
The Chargor charges the Secured Property to the Carrier to secure the payment of the Secured Money. |
| 15 |
Discharge |
| 15.1 |
The Carrier shall at the request of the Chargor discharge any charge created by this document if the Chargor’s obligations to pay the Secured
Money is satisfied and in the Carrier’s opinion no payment towards the satisfaction of the Chargor’s obligation to pay the Secured Money is likely to be void or voidable under any law relating to bankruptcy. |
| 16 |
Nature of Charge |
| 16.1 |
The charge created by this document is a fixed charge in relation to the whole of the Secured Property. |
| 17 |
Default |
| 17.1 |
Each of the following is an event of default - |
| 17.1.1 |
The Chargor does not pay the Secured Money in accordance with this document; and |
| 18 |
Default Powers |
| 18.1. |
The Carrier may at any time after an event of default has occurred, exercise any or all of its rights as secured Carrier set out in this clause in any manner and at any time. |
| 18.2 |
The Carrier may - |
| 18.2.1 |
take possession or control of the Secured Property; |
| 18.2.2 |
submit a caveat over any real property; |
| 18.2.3 |
apply to the court for an order permitting the sale of any real property encompassed within the Secure Property; |
| 18.2.4 |
sell the Secured Property and, without limitation, any sale may be - |
| 18.2.5 |
by private treaty, publication, tender or as otherwise specifically directed by the court; |
| 18.2.6 |
together with the sale of any other property by any other person; and |
| 18.2.7 |
upon terms and conditions that the Carrier thinks fit. |
| 18.2.6 |
Together with the sale of any other property by any other person; and |
| 18.2.7 |
Upon terms and conditions that the Carrier thinks fit |
| 19. |
Proceeds of Sale |
| 19.1 |
The proceeds of any sale must be applied - |
| 19.1.1 |
First, towards any moneys owing by the Chargor to any person who is the holder of a security interest ranking in priority to the security interest created by this document. |
| 19.1.2 |
Second, towards all costs and expenses of the Carrier incurred in exercising any of the rights given to it by this agreement; |
| 19.1.3 |
Finally towards the Secured Money which is owed by the Chargor to the carrier under this or any other agreement. |
| 19.2 |
Any surplus from the proceeds of any sale must be accounted for by the Carrier to the Chargor. |
| 20. |
If the Carrier accepts dangerous goods for carriage such goods must be accompanied by a full declaration of their nature and contents and be properly and safely packed in accordance with statutory regulations applicable to the carriage of those goods. Surcharge applies for the carriage of dangerous goods. |
| 21. |
The Consignor shall indemnify the Carrier against all loss (including consequential loss), damage or injury however caused arising out of the carriage
of any dangerous goods, whether declared as such or not and whether or not the Consignor was aware of the nature of the goods. |
| 22. |
The Consignor undertakes that the goods are packed in a manner adequate to withstand the ordinary risks or carriage having regard to their nature and
in compliance with all laws and regulations which may be applicable during carriage. |
| 23. |
Any storage of goods shall be as agent of the Consignor and solely at the Consignor’s risk and expense, but the provisions of clause 6 hereof shall
nevertheless apply. |
| 24. |
At the Carrier’s discretion the goods may be stored at any place and at any time and be removed from any place at which they may be stored or otherwise held to any other place to be stored. |
| 25. |
Dangerous goods held by the Carrier for storage will be subject to the indemnity given by the Consignor in respect of dangerous goods in clause 15
hereof. |
| 26. |
It is agreed that the person delivering any goods to the Carrier for carriage or forwarding is authorised to sign this document on behalf of the Consignor. |
| 27. |
The Consignor expressly warrants that the Consignor is either the owner or the authorised agent of the owner of any goods or property the subject
matter of the Contract. By entering into this Contract, the Consignor accepts these conditions of contract for the Consignee as well as for all other persons
on whose behalf the Consignor is acting. |
| 28. |
Without derogating from Clause 5 above, the Carrier shall not be liable for any loss or market, loss of use, consequential loss, concealed damage or
damages caused by inherent vice or nature of the goods or merchandise carried, either in transit or in storage and whether caused by the negligence,
wrongful act or default of the Carrier, or by any other case whatsoever. |
| 29. |
It is expressly agreed that all the rights, immunities and limitation of liability granted to the Carrier by the provisions set out in these terms and conditions
of contract, shall continue to have their full force and effect in the circumstances, and notwithstanding any breach of the Contract or any of the terms and conditions hereof by the Carrier. |
| 30. |
The Consignor shall be deemed to authorise any deviation from the usual route or manner of carriage of goods which may in the absolute discretion of
the Carrier be deemed reasonable or necessary in the circumstances. |
| 31. |
Where by express agreement or operation of law the Carrier becomes responsible for any damage to goods, no claim for such damage will be allowed unless lodged in writing at an office of the Carrier in the state in which delivery of the goods was effected, within 72 hours after such delivery. It is expressly agreed that the lodgement of such claim in writing within 72 hours after delivery of the goods, shall be a condition precedent to any right of the Consignor, Consignee or other person beneficially entitled to the goods, to claim against the Carrier in respect of any liability to which the Carrier might be subject for the alleged damage. |
| 32. |
This agreement contains the entire understanding of the parties as to its subject matter. There is no other understanding, agreement, warranty or
representation whether express or implied in any way defined or extending or otherwise relating to these provisions or binding on the parties with respect
to the storage and carriage or the matters to which this agreement relates. |
| 33. |
Notwithstanding anything herein contained, the Carrier shall continue to be subject to any condition or warranty implied by the Trade Practices Act 1974 (Cth) if and to the extent that the said Act is applicable to this agreement and prevents the exclusion, restriction or modification of any such condition or warranty. |
| 34. |
Rates will be calculated on weight or measurement, whichever is the greater. For cubic reference, refer overleaf. |
| 35. |
Weight of pallets will be included in calculating chargeable weights. One pallet equals 50 kilograms. |
| 36. |
Uncrated machinery will be measured to a minimum height of 2.4 metres. |
| 37. |
Vehicle load capacity is 22.5 tonne and full loads will be deemed to have this weight. |
| 38. |
Pallets remain the responsibility of the Consignor and will not be exchanged unless prior arrangements have been made with us. Hired pallets will not
be accepted to our account. |
