Terms and Conditions
1.1 In these conditions:
“Carrier” means SYLVIA ENTERPRISES PTY LTD, trading as MOTORBIKE MOVERS (ABN 46 607115659) carrying on business in its own name and under any business name and its officers, servants and agents.
“Carriage” means the whole of the operations and services undertaken by the Carrier or any person on behalf of the Carrier in respect of the Goods (whether gratuitously or not), including but without limiting the generality hereof loading, unloading and storage of the Goods.
“Dangerous Goods” means Goods which are or may become noxious, dangerous, inflammable or damaging, or which are or may become liable to damage any property whatsoever.
“Goods” means the property from time to time accepted by the Carrier from the Consignor for Carriage and includes any container or packaging supplied by or on behalf of the Consignor.
“Person” includes a corporation, company, partnership or any other entity.
“Subcontractor” includes any person who pursuant to a Contract or arrangement with any other person (whether or not the Carrier) performs or agrees to perform the Carriage or any part thereof.
2.NEGATION OF LIABILITY OF AS A
The Carrier is not a common Carrier and will accept no liability as such. All Goods are carried and all storage and other services are performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse the carriage of goods for any person, corporation, company or other entity and the carriage of any class of goods at its discretion.
3. GOVERNING LAW
3.1 This Agreement is governed by and is to be construed in accordance with the laws of the
State of Queensland .
3.2 Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the Courts of Queensland and Courts entitled to hear appeals from those Courts.
4. CONSIGNOR’ S WARRANTIES
4.1 The Consignor warrants that –
a) The Goods are fit for Carriage and have been suitably packaged for those purposes;
b) The Consignor has the authority of all persons owning or having any interest in the Goods to enter into this Contract on their behalf;
c) The Person delivering any Goods to the Carrier for Carriage is authorised to sign this document for the Consignor and by such signature or by the signature of any other person acting for or on behalf of the Consignor the Consignor accepts these terms and conditions.
d) The value of the Goods does not exceed the price for Carriage under this Contract, and the Consignor indemnifies the Carrier in respect of any liability of the Carrier by reason of any breach of this warranty.
e) It will, at its risk and expense, provide labour and mechanical equipment to load and unload the Goods.
4.2 Without prejudice to the generality of the foregoing, the Consignor undertakes to indemnify the Carrier in respect of any liability whatsoever in respect of the Goods to any person (other than the Consignor) who claims to have, who has, or who may hereafter have any interest in the Goods or part thereof.
5. RIGHT TO SUBCONTRACT
5.1 The Carrier at its discretion may subcontract on any terms the whole or any part of the Carriage.
5.2 Where the Carrier engages a Subcontractor to carry out any of the Carriage, it is agreed that in so doing the Carrier is acting as an agent for the Consignor to arrange such Carriage and undertakes only to use reasonable care in the selection of such Subcontractor and the Carrier shall not be liable for any act or default of subcontractor.
6. EXTENSION OF EXEM PTIONS TO SUBCONTRACTORS
6.1 The Consignor agrees that no claim or allegation shall be made against any servant, agent, or Subcontractor of the Carrier which imposes or attempts to impose upon such person any liability whatsoever arising out of or in any way connected with the Goods and/or the Carriage thereof whether or not arising out of negligence or a wilful act or omission on the part of any of them and if such claim or allegation should nevertheless be made to indemnify the Carrier against all consequences thereof.
6.2 Every exemption, limitation, condition and liberty hereincontained 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 Subcontractors;
b) Every servant or agent of the Carrier or of a Subcontractor;
c) Every other person (other than the Carrier) by whom the Carriage or any part thereof is undertaken;
d) All persons who are or might be vicariously liable for the acts or omissions of any person falling within (a), (b) or (c) hereof;
and for the purposes 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 parties to this Contract.
7. ROUTE AND DEVIATION
7.1 The Consignor authorises any deviation from the usual route or manner of carriage of Goods which may in the absolute discretion of the Carrier be considered desirable or necessary in the circumstances.
7.2 If the Consignor expressly or impliedly instructs the Carrier to use, or it is expressly or impliedly agreed that the Carrier will use a particular method of handling or storing the Goods or a particular method of Carriage, the Carrier will give priority to that method but if it cannot conveniently be adopted by the Carrier the Consignor hereby authorises the Carrier to handle or store or to carry or to have the Goods carried by another method or methods.
8.1 The Carrier is authorised to deliver the Goods at the address nominated to the Carrier by the Consignor for that purpose. The Carrier shall be conclusively presumed to have delivered the Goods in accordance with this Contract if at that address he obtains from any person a receipt or signed delivery docket for the Goods.
8.2 If the nominated place of delivery should be unattended or if delivery cannot otherwise be effected by the Carrier or the Consignee otherwise fails to take delivery of the goods 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 costs and expenses incurred in or about such storage.
9. LIABILITY OF CARRIER
9.2 The Consignor acknowledges and agrees that neither the Carrier nor any servant or agent or Subcontractor of the Carrier nor any other person who carries the Goods at any time pursuant to this Contract shall in any circumstances (except where any statute otherwise requires) be under any liability whatever (whether in contract, tort or otherwise) for any personal injury or loss of or damage to, deterioration, evaporation or contamination of the Goods, or misdelivery, delay in delivery or non delivery of the Goods or any of them whether in the course of Carriage or otherwise or for any consequential loss or injury of any kind whatever whether such personal injury, loss, damage, misdelivery, delay in delivery, non delivery or consequential damage or injury is caused or alleged to have been caused by the negligence or wilful act or default of the Carrier or its servants or agents, its Subcontractors, or by any cause whatever.
9.3 The Carrier shall be entitled to the benefit of the exclusion of liability provided for herein even if it is proved that the loss or damage resulted from an act or omission done with intent to cause damage, or recklessly and with knowledge that damage would probably result.
9.4 Nothing whatsoever done or omitted to be done or other conduct by the Carrier in breach of the Contract or otherwise shall under any circumstances constitute a fundamental breach of the Contract, or a repudiation of the Contract such as to have the effect of disentitling the Carrier from obtaining the benefit of and enforcing all rights, defences, exemptions, immunities and limitations of liability of the Carrier contained in these conditions, and all such rights, defences, exemptions, immunities, limitations of liability and like protection shall continue to have full force and effect in any event whatsoever.
10. GENERAL LIEN
10.1 The Goods are accepted subject to a general lien for all charges now due or which may hereafter become due to the Carrier by the Consignor on any account whatsoever, whether in respect of the Goods comprised herein, or in respect of any other goods for which the Carrier provides or has provided services of Carriage.
11. CARRIER’ S CHARGES
11.1 The Carrier’s charges shall be deemed fully earned on receipt of the Goods by the Carrier and are non refundable in any event. The Carrier shall be entitled to charge interest at 2% per annum above the base rate charged by the National Australia Bank, compounded monthly, on all amounts due to the Carrier which remain outstanding beyond any agreed credit period.
11.2 Any special instruction given by the Consignor to the effect that charges shall be paid by the Consignee shall be deemed to include a stipulation that if the Consignee does not pay the charges within seven days of the date of delivery or attempted delivery of the Goods the Consignor shall pay such charges.
11.3 All cancellations will incur an $88 fee.
11.4 Any goods that are not ready for collection on the date booked and the customer has not informed the carrier will incur a “Futile Fee” subject to distance traveled.
12.1 Where Goods are stored by the Carrier at the request of the Consignor, the Consignor shall furnish an address to which notices shall be sent and shall provide a sample of his signature.
12.2 The Carrier is not obliged to carry out any maintenance work on any item stored, including but not limited to cleaning, starting engines or inflating tyres.
12.3 The Carrier shall be entitled to remove the Goods from a place of storage to another place of storage at its discretion.
12.4 Storage charges are due and payable thirty days in advance and do not include removing, unpacking, stowing, restoring or delivering.
12.5 The Carrier shall be entitled to increase the storage charges made by it at its discretion
upon giving one month’s written notice to the Consignor.
12.6 The Consignor shall give seven days notice to the Carrier of his intention to remove Goods from storage.
12.7 The Carrier shall not be obliged to deliver any Goods except to the Consignor or a person authorized in writing by the Consignor to receive the Goods without:-
(a) a direction in writing from the Consignor;
(b) payment of all amounts due by the Consignor to the Carrier on any account whatsoever.
12.8 The Consignor shall remove his Goods from storage within one month of receipt of written notice from the Carrier.
13. DANGEROUS GOODS
13.1 If the Carrier accepts Dangerous Goods for Carriage, such Goods must be accompanied by a full written declaration disclosing the nature of such goods.
13.2 The Consignor shall indemnify the Carrier against all loss (including consequential loss) damage or injury howsoever 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.
13.3 If in the opinion of the Carrier, the Goods are or are liable to become of a dangerous and/or flammable and/or damaging nature, the Goods may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Consignor and without prejudice to the Carrier’s right to charge for the carriage of the Goods.
13.4 The Consignor warrants that it has complied with all laws and regulations relating to the nature, packaging, labelling or cartage of any Dangerous Goods that the said Goods are packed in a manner adequate to withstand the ordinary risks of carriage having regard to their nature and agrees to indemnify 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.
14. NOTIFICATION OF CLAIM
14.1 Notwithstanding any other provision hereof (other than Clause 16), the Carrier shall in any event be discharged from all liability whatsoever in respect of the Goods unless written notice of a claim or an intended claim (together with particulars of the circumstances on which the claim is based) is given to the Carrier within fourteen (14) days from the delivery of the Goods or from the date on which in the ordinary course of business, delivery would have been effected.
14.2 The Carrier shall in any event be discharged from all liability whatsoever in respect of the Goods unless suit is brought within one year of their delivery or of the date when they should have been delivered.
15. PROVISIONS SEVERABLE
15.1 The parties acknowledge and agree that if any provision or part of any provision of this Contract is unenforceable, such unenforcability shall not affect any other part of such provision or any other provision hereof.
16. TRADE PRACTICES ACT
16.1 Notwithstanding anything herein contained the Carrier shall continue to be subject to any implied warranty provided by the Trade Practices Act 1974 (as amended) if and to the extent that the said Act is applicable to this Contract and prevents the exclusion, restriction or modification of any such warranty.
17. ENTIRE AGREEMENT
17.1 This Agreement set out the entire agreement of the parties with respect to its subject matter. No other Agreement, warranty or representation, express or implied has been given or made by the parties with respect to the Carriage of Goods.
17.2 The Carrier shall not be bound by any agreement purporting to vary these terms and conditions unless such agreement is in writing and signed on behalf of the Carrier by an authorised officer of the Carrier.
18.1 Headings are inserted for ease of reference only and shall be disregarded in the interpretation of this Contract.
18.2 Words importing the singular include the plural and vice versa and words importing a gender include other genders.
18.3 Where the Consignor or Consignee comprise two or more persons an agreement or obligation to be performed or observed by the Consignor or Consignee binds those persons jointly and severally.
19.1 Notices under this Contract may be sent by either party to the other at the address specified for each party on the reverse of these Conditions of Carriage.
20.1 Any instructions received by the Carrier from the Customer for the supply of Services
shall constitute acceptance of the terms and conditions contained herein.
20.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent the manager of the Carrier.
20.3 These terms and conditions are to be read in conjunction with the Carrier’s quotation, consignment note, agreement airway bills, manifests, or any other forms as provided by the Carrier to the Customer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
20.4 Sylvia Enterprises with any bookings reserve the right to use any written terms, pictures, feedback for use for advertising within the website or 3 party advertising providers.
21. PRICE AND PAYMENT
21.1 At the Carrier’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Carrier to the Customer in respect of Services
(b) Carrier’s quoted Price (subject to clause 3.2 & 3. which shall be binding upon the Carrier provided that the Customer shall accept in writing the Carrier’s quotation within thirty
21.2 The Carrier may by giving notice to the Customer increase the Price of the Services to reflect any increase in the cost to the Carrier beyond the reasonable control of the Carrier (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).
21.3 The Carrier may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re- measured and charge proportional additional freight accordingly.
21.4 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment note, airway bills, manifests or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
21.5 At the Carrier’s sole discretion payment for approved Customer’s shall be due thirty (30)
days following the date of the invoice.
21.6 At the Carrier’s sole discretion payment shall be due before delivery of the Goods.
21.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Carrier.
21.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
22. CARRIER NOT COMM ON CARRIER
22.1 The Carrier is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
23. CUSTOMER-PACKED CONTAINERS
23.1 If a container has not been stowed by or on behalf of the Carrier the Carrier shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.
24. NOMINATION OF SUB- CONTRACTOR
24.1 The Customer hereby authorises the Carrier (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Customer 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. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Carrier shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
25. CARRIER’ S SERVANTS OR AGENTS
25.1 The Customer undertakes that no claim or allegation shall be made against any servant
or agent of the Carrier which attempts to impose upon any of them any liability whatsoever in
connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify the Carrier and any such servant or agent against all consequences thereof.
26. METHOD OF TRANSPORT
26.1 If the Customer instructs the Carrier to use a particular method of carriage whether by road, rail, sea or air the Carrier will give priority to the method designated but if that method cannot conveniently be adopted by the Carrier the Customer shall be deemed to authorise the Carrier to carry or have the Goods carried by another method or methods