Terms and Conditions of Contract
Darryle Leslie Brusnahan trading as Dippy's Horse Transport
These terms and conditions must be read having regard to the provisions of the Trade Practices Act 1974(as amended) and the Fair Trading Act 1989 (as amended) to the extent that those provisions are applicable to consumers as defined under Section 4B and Section 6 of those Acts respectively. These terms and conditions do not have the effect of excluding, restricting or modifying rights under those Acts which cannot be excluded, restricted or modified by agreement.
1. In these terms and conditions:
(a) "CARRIER" shall mean Darryle Leslie Brusnahan, its servants and agents.
(b) "CONSIGNOR" shall mean the person(s) with whom this contract is made.
(c) "GOODS" shall include the livestock or animal of any nature whatsoever and any person(s) travelling or attending upon any livestock or animal.
(d) "SERVICES" shall include the whole of the operations and services undertaken by the Carrier in connection with the GOODS, including, but not limited to, the carriage, transport and/or the storage of the GOODS.
(e) "SUB-CONTRACTOR" shall include:
(i) railways operated by the commonwealth or any state; and
(ii) any person, firm or company who pursuant to a contract or arrangement with any other person (wether or not the Carrier) performs or agrees to perform the services or any part thereof.
2. The Carrier is not a common carrier and shall accept no liability as such. ALL GOODS are carried, transported, stored, agisted and/or liveried and all services are provided by the Carrier subject only to these terms and conditions and the Carrier reserves the right to refuse the carriage, transport, storage, agistment and/or livery of GOODS for any person, firm or corporation and the carriage, transport, storage, agistment and/or livery of any class of GOODS at its sole and absolute discretion.
3. (a) It is agreed that the person delivering the GOODS to the carrier is authorised to sign the documentation evidencing this Contract for the CONSIGNOR.
(b) The CONSIGNOR warrants that in agreeing to the terms hereof it is, or has the authority of, the person or persons owning or having any interest in the GOODS or any part thereof.
(c) Without prejudice to the generality of the foregoing, the CONSIGNOR undertakes to indemnify the Carrier in respect of any liability whatsoever and howsoever arising (including, without limiting the foregoing, from negligence or breach of contract or wilful act or default of the Carrier or others) in connection with GOODS to any person (other than the CONSIGNOR) who claims to have, who has, or may hereafter have, any interest in the GOODS or any part thereof.
4. (a) The Carrier and any sub-contractor shall be entitled to sub-contract on any terms the whole or any part of the services.
(b) The CONSIGNOR undertakes:
(i) that no claim or allegation shall be made, whether by the CONSIGNOR or any other person who is or may hereafter be interested in the GOODS, against any person(other than the Carrier) by whom whether as a sub-contractor, principal, servant, agent or otherwise) the services or any part thereof are provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including, without limiting the foregoing, from negligence or breach of contract or wilful act or default of the Carrier or others) in connection with the GOODS and if any such claim or allegation should nevertheless be made the CONSIGNOR undertakes to indemnify the Carrier and the person against whom such claim or allegation is made against the consequences thereof. Without prejudice to the foregoing, and for the purpose of this clause, the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be deemed to be parties to this contract;and
(ii) to indemnify the Carrier against any claim or allegation made against it by any person in connection with any loss or damage to the GOODS occurring at any time during the provision of the services.
5. Every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available and shall extend to protect:
(a) all sub-contractors;
(b) every servant or agent of the carrier or of a sub-contractor;
(c) every other person(other than the Carrier) by whom the services or any part thereof are provided; and
(d) all persons who are or may or may be vicariously liable for the acts or omissions of any person falling within (a),(b) or (c) hereof and for the purpose of this clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to the extent be or be deemed to be parties to this contract.
6. (a) If, and only if, the carrier has agreed to insure the GOODS then the liability of the Carrier is limited to physical loss of, or damage to, the GOODS up to the limit of such insurance.
(b) In any event, subject only to sub-clause 6(a) and clause 23 hereof the GOODS are at the risk of the CONSIGNOR and not the Carrier and the Carrier shall not be responsible in tort or contract or bailment or otherwise for any, and the consequence of any loss of, or damage to, or deterioration of, GOODS, or mis-delivery or failure to deliver or delay in delivery of GOODS either in transit or in storage for any reason whatsoever including, without limiting the foregoing, the negligence or breach of contract or wilful act or default of the Carrier or others and this clause shall apply to all, and the consequences of all, such loss of, or damage to, or deterioration of, GOODS, or mis-delivery or failure to deliver or delay in delivery of GOODS as aforesaid whether or not the same occurs in the course of performance by or on behalf of the Carrier of the contract or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
7. If the CONSIGNOR expressly or impliedly instructs the Carrier to use, or it is expressly or impliedly agreed that the Carrier shall use, a particular method of handling or storing the GOODS or a particular method of carriage whether by road, rail, sea or air the Carrier shall give priority to that method but in any event the method or methods of handling, storing and/or carriage adopted by the Carrier shall remain at the sole and absolute discretion of the Carrier and the CONSIGNOR hereby authorises the Carrier to adopt any method or methods other than the method instructed or agreed.
8. The CONSIGNOR hereby authorises any deviation from the usual route of carriage or place of storage of GOODS which may in the absolute discretion of the Carrier be deemed desirable or necessary in the circumstances.
9. (a) The Carrier is authorised to deliver the GOODS at the address nominated to the Carrier by the CONSIGNOR for that purpose and without prejudice to the foregoing it is expressly agreed that the Carrier shall be conclusively presumed to have delivered the GOODS in accordance with this contract if at that address he obtained from any person a receipt or signed delivery docket for the GOODS.
(b) If the nominated place of delivery should be unattended or if delivery cannot otherwise be affected by the Carrier, the Carrier may at its option deposit the GOODS at that place (which shall be conclusively presumed to be due delivery hereunder) or store the GOODS, and if the GOODS are stored by the Carrier, the CONSIGNOR shall pay or indemnify the Carrier for all costa and Expenses incurred in or about such storage. In the event that the GOODS are stored by the Carrier, the Carrier shall at liberty to redeliver them at the CONSIGNOR from the place of storage at the CONSIGNOR's expense.
10. Where the GOODS are accepted for forwarding by rail to an address in a town or to the place where the Carrier has no receiving depot the GOODS shall be deemed duly delivered according to this contract if they are delivered to the nearest railhead.
11. The CONSIGNOR shall be and remain responsible to the Carrier for all its proper charges incurred for any reason. A charge may be made by the Carrier in respect of any delay in excess of thirty(30) minutes in loading or unloading occurring other than from default of the Carrier. Such permissible delay period shall commence upon the Carrier reporting for loading or unloading. labour to load or unload GOODS shall be the responsibility and expense of the CONSIGNOR or consignee.
12. The Carrier's charges shall be deemed fully earned as soon as the GOODS are loaded and despatched from the CONSIGNOR's premises or accepted for storage and shall be payable and non-refundable in any event.
13. The Carrier shall have a lien on the GOODS and any documents relating thereto and on any other GOODS of the CONSIGNOR in the possession of the Carrier or any documents relating thereto for all sums payable by the CONSIGNOR to the Carrier and for that purpose the Carrier shall have the right to sell any GOODS by public auction or private treaty without notice to the CONSIGNOR.
14. (a) The CONSIGNOR shall not tender for carriage or storage any volatile spirits or explosive GOODS, or GOODS which are or may become dangerous, inflammable or offensive (including radioactive materials) or which may, or become liable to, damage any property whatsoever, without presenting a full description disclosing the nature of such GOODS, and in any event shall be liable for all loss and damage caused thereby and if in the opinion of the Carrier the GOODS are or are liable to become dangerous, inflammable, explosive, volatile, offensive or damaging nature the same may at any time be retained, destroyed, disposed of, abandoned or rendered harmless by the Carrier without compensation to the CONSIGNOR and without prejudice to the carriers right to any charges hereunder.
(b) The CONSIGNOR warrants that it has complied with all laws and regulations relating to the nature, packaging, labelling, storage or carriage of the GOODS and that the GOODS are packed in a manner adequate to withstand the ordinary risks of storage and/or having regard to their nature and hereby indemnifies the Carrier for any liability whatsoever as a result of or arising out of the CONSIGNOR's failure to comply with each of these warranties.
15. It is agreed that the CONSIGNOR shall be responsible for the conformity of any containers, packaging or pallets, with any requirements of the consignee and for any expenses incurred by the Carrier arising from any failure to so conform.
16. It is agreed that no servant or agent of the Carrier nor any other person has any power to waive or vary any of the terms hereof unless such waiver or variation is in writing signed by the principal of the Carrier or his duly authorised representatives.
17. If the Carrier is liable for damage to, or loss of, the GOODS or any part thereof, no claim in respect of such loss or damage may be made unless notice of the claim is lodged in writing at the Carrier's principle place of business at 813 Gore Highway, Westbrook, in the state of Queensland, within seven (7) days after delivery of the GOODS was affected or would in the ordinary course of business have been affected.
18. Notwithstanding any other provision hereof other than clause 23 hereof, the Carrier shall in any event be discharged from all liability whatsoever in connection with the GOODS unless suit is brought within six (6) months from their delivery or from the date on which in the ordinary course of business delivery would have been effected.
19. All GOODS received by the Carrier for carriage, forwarding or storage are accepted subject to the condition that the Carrier shall accept no responsibility for the collection of cash on delivery or any other payments on behalf of the CONSIGNOR or any other person. When GOODS are tendered by any person with instructions for the Carrier to collect any such payments the Carrier shall not be bound by such instructions notwithstanding that the Carrier may accept the GOODS as tendering and perform other services of carriage, forwarding or storage in relation to those GOODS.
20. All rights, immunities and limitations of liability in the above terms shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this contract or any of these terms and conditions by the Carrier or any other person entitled to the benefit of such provisions.
21. 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.
22. The CONSIGNOR acknowledges that it is aware of, and understands, any applicable legislation relating to the disposal of uncollected GOODS and confirms that its place of abode for the purpose of that legislation is that set out on the documentation evidencing this contract.
23. Notwithstanding anything herein contained the Carrier shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974 (as amended) and the Fair Trading Act 1989 (as amended) if, and to the extent that, the said Acts are applicable to this contract and prevent the exclusion, restriction, or modification of any such warranty.