TGI CARGO PTY LIMITED
STANDARD TERMS AND CONDITIONS OF CONTRACT
Definitions and interpretation
In these Terms and Conditions,
‘Business Day’ means a day (not being a Saturday or Sunday) on which Australian banks (as defined in Section 9 of the Corporations Act) are open for general banking business in Brisbane, Australia.
‘Chain of Responsibility’ has the meaning given to it in the Heavy Vehicle National Law.
‘Charges’ means the charges payable to the Company for the Services as agreed by the Company and the Customer in writing and (as the context requires) all other costs and charges incurred by the Company under or in respect of the Contract.
‘Company’ means TGI Cargo Pty Ltd ACN 124 961 413 and its servants and agents.
’Consumer’ means an individual who acquires the Services wholly or predominately for personal, domestic or household use or consumption.
‘Contract’ means these Terms and Conditions and the other documents and provisions (if any) constituting the agreement to provide the Services, as entered into and executed by the Company and a Customer.
‘Corporations Act’ means the Corporations Act 2001 (Cth).
‘Customer’ means the party entering into the contract of Services with the Company, being the shipper, consignor, receiver, consignee, the owner of the goods, or their authorised agent.
‘Goods’ means the cargo accepted by the Company together with any container, packaging, or pallets supplied by or on behalf of the Customer.
‘Government Authority’ means a government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any jurisdiction and whether local, municipal, foreign, state, provincial, federal or territorial.
‘GST’ means the goods and services tax imposed by or under the GST Act.
’GST Act’ means the New Tax System (Goods and Services Tax) Act 1999 (Cth).
‘Heavy Vehicle National Law’ means the Heavy Vehicle National Law Act 2012 (Qld) as enacted in the Queensland Parliament and adopted by the States and Territories, including any regulations made under that Act and any other legislation enacted by the Commonwealth, a State or a Territory for the purpose of giving effect to the Heavy Vehicle National Law or the Council of Australian Governments' Intergovernmental Agreement on Heavy Vehicle Regulatory Reform dated 25 February 2010.
‘Insolvency Event’ means a party goes into liquidation or a receiver and manager or mortgagee’s or chargee’s agent is appointed or the party becomes subject to any form of insolvency administration or arrangement, or in the case of an individual, the party becomes bankrupt or enters into a scheme or arrangement with creditors.
‘Marine Order 42’ means Marine Order 42 (Carriage, stowage and securing of cargoes and containers) 2016 (Cth).
‘Modern Slavery Laws’ means the Modern Slavery Act 2018 (Cth) and any Commonwealth, State or Territory legislation or regulations based on or adopted from the provisions of the Modern Slavery Bill 2018 as approved by the Commonwealth or each State.
‘OHS Laws’ means any occupational health and safety legislation, regulations or guidelines, codes of conduct or policies of the Commonwealth of Australia or any of the States, Territories or Municipalities of Australia.
‘Personal Property Securities Act’ or ‘PPSA’ means the Personal Property Securities Act 2009 (Cth).
‘Privacy Act’ means the Privacy Act 1988 (Cth).
‘RSA’ means those State and Commonwealth Government Authorities in Australia responsible for road safety regulation of heavy vehicles, Chain of Responsibility legislation, the Heavy Vehicle National Law and the laws governing the carriage of goods by road.
‘Services’ means the whole of the operations undertaken by the Company, including but not limited to packing, unpacking, road, rail, sea or air carriage, storage, freight forwarding, customs clearance, de-stuffing and de-consolidation, logistics, warehousing, distribution and break bulk handling of goods and containers and any other services provided by the Company for or on behalf of the Customer.
‘Small Business Contract’ means a standard form small business contract as defined in section 23(3) of Schedule 2 of the Competition and Consumer Act 2010 (Cth).
‘Terms and Conditions’ means these Standard Terms and Conditions of Contract.
‘VGM’ means verified gross mass as set out in Chapter VI, Part A, Regulation 2 of the International Convention for the Safety of Life at Sea 1974 (SOLAS) and given effect in Australian law by Marine Order 42.
Rules for interpretation
In these Terms and Conditions, headings and bolded text are for convenience only and do not affect the interpretation of these Terms and Conditions and, unless the context otherwise requires:
a. words importing the singular include the plural and vice versa;
b. words importing a gender include any gender;
c. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of a word or phrase defined in these Terms and Conditions have a corresponding meaning;
d. an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
e. no provision of these Terms and Conditions will be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms and Conditions or that provision;
f. a reference to:
i. a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, these Terms and Conditions and a reference to these Terms and Conditions includes any annexure, exhibit and schedule;
ii. a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
iii. a document (including these Terms and Conditions) includes all amendments or supplements to, or replacements or novations of, that document;
iv. a party to a document includes that party’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
v. “including”, “for example” or “such as” when introducing an example, does not limit the meaning of the words to which the example relates to that example or examples of a similar kind; and
vi. “law” includes legislation, the rules of the general law, including common law and equity, and any judgment order or decree, declaration or ruling of a court of competent jurisdiction or government agency binding on a person or the assets of that person.
Not a common carrier
- The Company is not a common carrier and accepts no liability as such.
- The Company may refuse the carriage or transport of any goods for any person or corporation and the carriage or transport of any class of Goods is at the Company’s absolute discretion.
Paramountcy of Terms and Conditions
- These Terms and Conditions cover the whole of, or any part of, the Services and any Goods supplied from time to time by the Company to the Customer and shall prevail at all times over any terms and conditions of the Customer.
- The Customer’s own terms and conditions in no way derogates from these Terms and Conditions and any provision in the Customer’s own terms and conditions which is contrary to any provision of these Terms and Conditions is, to the extent of such inconsistency, inapplicable.
- In the event of, and to the extent of, any inconsistency between these Terms and Conditions and the conditions which are incorporated into a bill of lading, waybill, consignment note or other transport document issued by the Company, these Terms and Conditions will prevail, unless agreed otherwise expressly in writing and signed by the Company.
Method of Services
- The method or methods of undertaking the Services is at the sole discretion of the Company and the Customer authorises the Company to adopt any method or methods that are different to any method which may have been instructed or agreed.
- The Customer authorises any deviation from the usual route of carriage.
- The Company is not bound to deliver the Goods except to the receiver shown on the consignment note or to those other persons as may be authorised in writing by the Customer to receive the Goods.
- If the Company is unable to deliver the Goods for any reason (including failure on the part of the receiver to take delivery within a reasonable time) the Company is entitled to handle and store the Goods in such manner as it may in its discretion determine and is entitled to make a reasonable Charge in respect of that handling and/or storage and subsequent delivery of the Goods. The Company will also charge for any delay in excess of 60 minutes commencing upon the Company’s driver reporting as being ready to load or unload the Goods.
- Subject to any prior express written instructions from the Customer to the Company, the Customer is responsible for the timely return of containers to the person or carrier who owns them or has a right to possession of the containers, in a clean and undamaged condition.
- The Customer or their authorised agent must not tender for carriage any explosive, inflammable or otherwise dangerous or damaging goods without presenting a full description of those goods and in default of so doing is liable for all loss and damage, injury and death caused, and indemnifies and holds harmless the Company for that liability.
- If, in the opinion of the Company, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damaging nature, they may at any time be destroyed, disposed of, abandoned or rendered harmless by the Company without compensation to and at the cost of the Customer and without prejudice to the Company’s rights to any Charges including the cost of that action.
- Except under prior arrangements made in writing, the Company will not accept bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants as Goods and the Company will not accept any liability whatever for any such Goods except under the arrangements made in writing.
Right to inspect freight
The Company may open any container, package, unit or other freight at any time relating to the Goods to re-weigh, re-measure or re-value the contents or for any other reasonable purpose.
The Company may warehouse, store or otherwise hold the Goods pending delivery at any time and at those places the Company may determine at its sole discretion and at the Customer’s risk and expense.
The Goods will be deemed to have been delivered unless written notice of loss of, or damage to, the Goods is given to the Company:
- at the place of delivery before or at the time of removal of the Goods by the person entitled to delivery of them; or
- if loss or damage is not of the kind that would be apparent at the time referred to in clause 8(a), then within three days after the date of the delivery of the Goods.
Customer’s Warranties and Indemnities
The Customer warrants that:
- the Customer has complied with all applicable laws and regulations relating to the nature, condition, packaging or carriage of the Goods and that the Goods are packed in a manner, having regard to their nature, adequate to withstand the ordinary risks of handling, storage or carriage, the Goods are accurately described in writing, and the container packaging is fit and proper condition for the Services;
- the Customer is either the owner of the Goods and/or the authorised agent of the person or persons owning or having any interest in the Goods or any part of them and enters into these Terms and Conditions on its own behalf and/or as authorised agent of that person or persons;
- the information it provides to the Company in relation to the Goods including the nature, number of packages and weight of the contents of the container is accurate;
- any VGM provided to the Company is accurate, complies with Marine Order 42, has been calculated in accordance with an approved method and is supplied in time to be used in vessel planning;
- the value of the Goods does not exceed any estimate of the maximum value of those Goods which may have been provided by the Customer to the Company;
- any person delivering the Goods to the Company is authorised to enter into the Contract on behalf of the Customer and to sign any consignment note or other document;
- it has complied with all laws and regulations of any Government Authorities relating to the nature, condition, packaging, handling, storage, weight and carriage of the Goods including all laws prescribed by any RSA and the Heavy Vehicle National Law;
- the Goods and their carriage do not contravene any laws, including the Modern Slavery Laws;
- it will comply at all times with the Privacy Laws; and
- it will comply at all times with all OHS Laws and will notify the Company of any issues or requirements which the Company should be aware of under all OHS Laws, or which may affect the Company's ability to comply with all OHS Laws.
The Customer indemnifies and holds harmless the Company for any liability, costs, expenses, charges, damages or losses including legal costs of the Company, including claims by third parties:
- sustained or incurred as a result of the Customer’s breach of the warranties in clause 9.1 or any of those warranties being untrue or inaccurate;
- including detention or demurrage charges, which arise as a result of:
- a failure to return a container;
- a delay in the return of a container beyond the free time provided by the relevant carrier;
- any damage to a container; or
- a container being returned in a dirty or contaminated condition;
- arising as a result of delay in loading or unloading of the Customer’s Goods, or any waiting time, detention or demurrage for any truck, plane or any other conveyance whatsoever;
- arising from the implementation of the Customer’s instructions in respect of the Goods;
- arising from the Goods; and
- in respect of the customs, duties and other charges described in clause 14.
- Notwithstanding that the Customer may enter into the Contract as agent for a principal, whether disclosed or not, the Customer will remain personally liable under the Contract, which includes but is not limited to liability for payment of the Charges.
- Any debt recovery or legal costs are to be borne by the Customer.
Limitation of liability
- The Goods shall at all times be at the risk of the Customer and the Company is not liable in tort (including negligence), contract, bailment, contravention of any statute, breach of statutory duty or otherwise for any loss of, damage to, failure to deliver, delay in delivery or misdelivery of the Goods or documentation whatsoever and howsoever caused.
- The Company is not liable in negligence, contract or otherwise for any loss, damage, costs, fines or penalties incurred by the Customer or any other person resulting from, arising out of or in connection with any quotation, advice, statement, representation or information given, made by or on behalf of the Company to the Customer or others as to the classification of, or any matter material to the valuation of, the liability for, the amount, scale or rate of customs duty, excise duty or other impost, tax or rate charged in respect of, the Goods.
- In giving or making any quotation, advice, statement, representation or information under clause 10.2, the Company relies solely on the particulars provided by the Customer and the Customer warrants that those particulars accurately and completely describe all aspects of the Goods and the transactions relating to the Goods.
- The Company is not liable for any loss suffered by the Customer in connection with the Goods or the Services that is a consequential or indirect loss, including:
- losses that are purely financial or economic losses;
- loss of opportunity;
- losses in connection with contracts, agreements or understandings the Customer has with third parties;
- loss of market; and
- any other losses whatsoever that do not arise directly from physical damage to or loss of the Goods and are consequential in nature.
- The exclusion of liability in this clause 10 extends to include not only loss of or damage to the Goods themselves, but loss, damage or injury to any person, property or thing arising from the Company providing the Services under these Terms and Conditions and any indirect or consequential loss arising from that loss, damage or injury or from failure to deliver, delay in delivery or misdelivery of Goods or documentation.
- The exclusion of liability in this clause 10 applies to all loss or damage whether or not that loss or damage occurs:
- in the course of the performance of the Contract by the Company;
- due to or in respect of events which are foreseeable by, or in contemplation of, the Company or the Customer; or
- in respect of events which would constitute a fundamental breach of, or a breach of a fundamental term of, the Contract.
- The Company does not exclude or limit the application of any laws, including Schedule 2 of the Competition and Consumer Act 2010 (Cth), where to do so would contravene those laws or cause any part of these conditions to be void.
- The Company excludes from these Terms and Conditions, all conditions, warranties, terms and consumer guarantees implied by laws, general law or custom except any the exclusion of which would contravene any laws or cause this condition to be void (‘Non-Excludable Condition’).
- Notwithstanding any other provision in these Terms and Conditions, but subject always to clauses 10.1, 10.2, 10.5, 10.5, 10.6 and 10.7, if any liability whatsoever, howsoever arising, is found to attach to the Company or any sub-contractor, for breach of a Non-Excludable Condition, the Company's liability is limited to the lesser of:
- in the case of Services supplied under these Terms and Conditions:
- the supplying of the Services again;
- the payment of the cost of supplying the Services again; or
- the amount of AUD$100.00.
- in the case of supply of Goods under these Terms and Conditions:
- in the case of Services supplied under these Terms and Conditions:
the replacement of the Goods or the supply of equivalent goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent goods;
- the payment of the cost of having the Goods repaired; or
- the amount of AUD$100.00.
- All the rights, immunities and limitations of liability in these Terms and Conditions continue to have full force and effect notwithstanding any breach of these Terms and Conditions by the Company or any other person entitled to the benefit of those provisions which are severable to the extent that they are invalid or unenforceable.
- All quotations for Services are subject to the Company’s right of withdrawal prior to acceptance.
- If any changes occur in the rates of customs, duty, freight, warehouse, insurance premiums or other charges applicable to the Goods, all quotations and Charges may be reviewed and adjusted by the Company to account for those changes, at the Company’s discretion.
Charges for Services
- Freight is earned as soon as the Goods are delivered to the Company. The Customer must pay to the Company, in cash or as agreed, the Charges immediately when due, without deduction or deferment on account of any claim, counterclaim or set-off.
- Unless otherwise specified in the Contract, the Customer must pay the Charges to the Company within seven days of the date of the Company’s invoice.
- On all accounts overdue to the Company, the Company is entitled to interest calculated at 4% above base rate of the Company's bank applicable during the periods that the amounts are overdue.
- The Company may charge by weight, measurement or value and may at any time re-weigh, re-measure, re-value or require the Goods to be re-weighed, re-measured or re-valued and charge proportional additional Charges accordingly.
- The Customer is and remains responsible to the Company for payment of the Charges whether or not the Goods are delivered or the Services are provided as instructed and whether or not they are damaged.
- Every special instruction to the effect that Charges will be paid by a person other than the Customer will be deemed to include a stipulation that if that nominated person does not pay those Charges within seven days of delivery or attempted delivery of the Goods, then the Customer must pay those Charges to the Company within seven days of being notified of that person's failure to pay.
- All delays, interruptions or stoppage of work due to the Customer or their representative/agent will be charged at:
- AU$500.00 per hour per man, in the case of the Company; or
- at cost plus 35% on all sub-contractor invoices, in the case of sub-contractors.
- If the delays are greater than one work day then all costs for accommodation, meals, car hire and other incidentals will be charged at cost plus 35%.
- Words and expressions used in this clause 13 which have a defined meaning in the GST Act have the same meaning as in the GST Act.
- Unless expressly stated otherwise, all consideration to be provided under these Terms and Conditions is expressed as exclusive of GST.
- If GST is payable by a supplier on any supply made under these Terms and Conditions, the recipient will, upon receiving a tax invoice from the supplier, pay to the supplier an amount equal to the GST payable on the supply without deduction or set off.
- Where an amount of on account of GST recovered from the recipient differs from the amount of GST payable at law by the supplier, the amount of the difference must be paid by, or refunded to, the recipient as the case may be. If payment is required, it will be made upon issue of an adjustment note.
- To the extent that a party is required to reimburse or indemnify another party for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.
- To the extent that any consideration payable to a party under these Terms and Conditions is determined by reference to a cost incurred by a party, or to a price, value, sales, revenue or similar amount, the GST exclusive amount of that cost, price, value, sales, revenue or similar amount must be used.
- The provisions of this clause 13 and the obligations imposed by it will continue to bind the parties after the date of termination or expiry of the Contract.
Customs, duties and other charges
- When the Company is instructed to collect freight, duties, charges or other expenses from any person other than the Customer, the Customer remains responsible for the amounts and must pay these amounts to the Company on demand where these amounts have become due and have not been paid by the other person.
- The Customer must pay all customs and/or excise duties, costs, fines or penalties, which the Company becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations.
- If on demand any person fails to pay Charges due to the Company, the Company has a particular and general lien over the Goods, any other cargo, documents and/or items the property of the Customer, and may sell all or any part of the Goods, other cargo or items the property of the Customer by public auction or private treaty without notice to the Customer.
- The Company may retain the monies arising from the sale to satisfy costs and expenses of the detention and sale and exercising the lien, including but not limited to reasonable legal costs.
- The Company may retain the surplus following application of the sale monies. The Company may retain the Goods which remain unsold.
- If the Company stores any Goods at the request of the Customer, the Company may, at any time on giving the Customer 30 days’ written notice, require the Customer to remove the Goods from storage. If the Customer fails to remove the Goods, the Company has and may exercise any of the rights described in clauses 15.1, 15.2 and 15.3 in respect of the Goods.
- Without limitation to other rights of the Company, from the time the Goods are in possession of the Company or a subcontractor, the Goods are subject to a continuing security interest in favour of the Company for payment of all amounts due and owing by the Customer under these Terms and Conditions.
- To the extent permitted by law, the Customer and the Company agree pursuant to section 115 of the PPSA to contract out of sections 96 and 120 of the PPSA and the Customer irrevocably waives any right it has to receive notices under sections 95, 118, 121(4), 124(4), 125, 130, 132(3)(d), 132(4), and 135 of the PPSA, redeem the Goods under section 142 of the PPSA, reinstate these Terms and Conditions under section 153 of the PPSA and receive a verification statement under section 157 of the PPSA.
- The Customer will not grant a security interest to another person, or allow any encumbrance to arise, in respect of the Goods.
- The Company is authorised (if it should think fit to do so) to subcontract the whole or any part of the Services on any terms and that authorisation extends to any subcontractor and any further sub-subcontractors.
- Whilst not in any way lessening the effect of any other provision in these Terms and Conditions, the Company is not liable for any loss or damage to the Goods whilst not in the Company’s possession.
- Any clause in these Terms and Conditions excluding or limiting the liability of the Company or providing any right or exemption from liability to the Company is also available and extends to protect all subcontractors, sub-subcontractors, and every servant or agent of the Company, subcontractors or sub-subcontractors.
- The Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of those persons listed in clause 17.3 and each of them is deemed to be a party to these Terms and Conditions.
- The Customer undertakes that no claim will be made against any servant, sub-contractor, sub-subcontractor, or agent of the Company which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods or the Services supplied under these Terms and Conditions. If any such claim should nevertheless be made, the Customer indemnifies and holds harmless the Company against those consequences.
The Customer is responsible for insuring the Goods.
- Any claim for loss of or damage to the Goods or relating to the provision of the Services under these Terms and Conditions must be notified in writing to the Company within seven days of delivery of the Goods or the date by which the Goods should have been delivered or completion of the Services or when the Services should have been completed, failing receipt of which notice the Company is forever discharged from any and all liability to any person (including the Customer) in respect of the Goods and/or the Services under these Terms and Conditions.
- In any event whatsoever, the Company is discharged from any and all liability whatsoever unless suit is brought within nine months of delivery of the Goods or the date by which the Goods should have been delivered or completion of the Services or when the Services should have been completed, whichever is the earlier.
- The Company is not liable for failure to fulfil its obligations under these Terms and Conditions where such a failure is due to force majeure which for the purposes of these Terms and Conditions includes, but is not limited to, government or legislative actions, epidemics, embargoes, strikes, industrial disputes or actions, riots, civil commotion, insurrections, blockades, war, acts of God, fire, flood, lockouts or any other cause beyond the reasonable control of the Company.
Amendments in writing
The Company is not bound by any agreement purporting to waive or vary these Terms and Conditions unless that agreement to so waive or vary is in writing and signed by a representative of the Company.
- If there is any dispute between the parties arising out of, or in connection with the Contract, no party may commence court proceedings relating to the dispute until they have complied with the following procedure:
- the party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute;
- the parties will endeavour, in good faith, to resolve the dispute referred to in the notice by using informal dispute resolution techniques including appropriate escalation within the respective parties’ organisations; and
- no party may initiate legal proceedings before the date that is 14 days after the date the notice of dispute was given.
- Nothing in this clause 21 will prevent any party from seeking urgent interlocutory relief.
- The Contract remains in full effect without prejudicing the parties’ respective rights and remedies pending resolution of the dispute.
- Pending final resolution of any dispute under the Contract, neither of the parties may make any press release, public announcement or statement concerning the subject matter of the dispute to any person without the prior written consent of the other party.
- Either party may terminate the Contract immediately upon written notice if it reasonably considers that the other party has failed to fulfil its obligations under the Contract and has failed to rectify the breach within 14 days of receipt of a notice specifying the breach and requiring the breach to be remedied.
- Either party may terminate the Contract immediately upon written notice if an Insolvency Event occurs in respect of the other party.
- Either party may terminate the Contract at any time by providing 30 days’ written notice to the other party.
- Any termination of the Contract is without prejudice to any rights which may have accrued to either party at the time of such termination.
- Form of communication
- Unless expressly stated otherwise in these Terms and Conditions, any notice, certificate, consent, request, demand, approval, waiver or other communication (Notice) must be:
- in legible writing and in English;
- signed by the sender (if an individual) or where the sender is a company, signed by an officer or in accordance with section 127 of the Corporations Act; and
- marked for the attention of and addressed to the addressee.
- A Notice can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender.
- Unless expressly stated otherwise in these Terms and Conditions, any notice, certificate, consent, request, demand, approval, waiver or other communication (Notice) must be:
- Delivery of Notices
- Notices must be hand delivered or sent by prepaid express post (next day delivery) or email to the addressee’s address for notices specified in the notice details in the parties section of the Contract or to any other address or email a party notifies to the other parties under this clause 23.
- Reference in this clause 23 to an addressee includes a reference to an addressee’s officers, agents or employees or any person reasonably believed by the sender to be an officer, agent or employee of the addressee.
- When Notice is effective
Notices take effect from the time they are received or taken to be received under subclause 23.4 (whichever happens first) unless a later time is specified.
4. When Notice taken to be received
Notice is taken to be received by the addressee if by:
- delivery in person, when delivered to the addressee;
- prepaid express post, on the second Business Day after the date of posting;
- standard post, three Business Days from and including the date of postage; and
- subject to clause 23.5, electronic mail (e-mail), the earliest of:
- four hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the recipient’s email server or internet service provider that the message has not been delivered to the recipient;
- when the sender receives an automated message confirming delivery; or
- when the sender receives a reply message from the recipient confirming receipt.
5. Legible Notices and receipt outside business hours
- An e-mail is regarded as legibly received unless the addressee telephones the sender within four hours after the e-mail is received or regarded as received under clause 23.4 and informs the sender that it is not legible.
- If a Notice is received or taken to be received under after 5:30pm in the place of receipt or on a non-Business Day, it is taken to be received at 9:00am (recipient’s time) on the following Business Day and take effect from that time unless a later time is specified in the Notice.
Small Business Contract
- If the Customer is a Consumer, or these Terms and Conditions qualify as a Small Business Contract:
- Clause 9 is modified so that the Customer is not required to indemnify the Company to the extent that the loss or damage was directly caused by, or in connection with, a grossly negligent, unlawful, or wilful act or omission by the Company or its employees, agents and subcontractors.
- Clause 10 is modified so that the Company's liability is not excluded to the extent that the loss or damage was directly caused by or in connection with a grossly negligent, unlawful, or wilful act or omission by the Company or its employees, agents and subcontractors.
- Clause 10.4 is modified to the extent that the Company will not be liable for any consequential or indirect loss or damage, unless the Company had actual knowledge that such loss might be incurred.
- Clause 10.9 is modified so that the Company's liability is limited to the lesser of the actual loss suffered by the Customer or the value of the Goods at the time the Goods were received by the Company.
- Clause 15 is modified so that the Company may only exercise its right of sale under a lien over Goods after the Company has given 21 days' notice in writing to the Customer of its intention to do so.
- Clause 17.2 is modified so that the Company's liability is not excluded to the extent that the loss or damage to Goods was directly caused by or in connection with a grossly negligent, unlawful, or wilful act or omission by the Company or its employees, agents and subcontractors.
- Clause 17.5 is modified, so that the Customer:
- may make a claim against or impose liability upon any subcontractor; and
- is not required to indemnify the Company from and against any loss, to the extent that the claim, liability or loss was directly caused by, or in connection with, a grossly negligent, unlawful, or wilful act or omission by the subcontractor.
- Clause 19.1 does not apply, and without limitation to any other clause in these Terms and Conditions, the Company will be discharged from liability in relation to any claim:
- where the loss to the Customer results from the act of a subcontractor and
- the Company's right to make a claim against that subcontractor is subject to time limitations; and
- the Customer does not make its claim against the Company within a period reasonably sufficient to allow the Company to make a corresponding claim against the subcontractor within any applicable time limitation period; and
- in all other cases, where the Customer does not make its claim within one year from the earlier of the delivery of the Goods, if the Goods are not delivered, the date the Goods should have been delivered or where the claim does not relate to loss or damage to Goods, the time of the event giving rise to the claim.
- where the loss to the Customer results from the act of a subcontractor and
Governing law and jurisdiction
Unless specified in writing elsewhere in the Contract, these Terms and Conditions are governed and construed in accordance with the laws of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.
The Contract does not constitute a relationship of employment, agency or partnership between the parties. The rights and obligations of each party under these Terms and Conditions are several.
Unless otherwise provided under clause 17, the rights and obligations of each party under these Terms and Conditions are personal. No party may assign, encumber or otherwise deal with those rights and obligations without the prior written consent of the other party.
Each party to these Terms and Conditions must do, sign and execute all deeds, schedules, acts, documents and things as may be required to carry out and give effect to the terms and intentions of these Terms and Conditions effectively and to perfect, protect and preserve the rights of the other parties, whether before or after the date of these Terms and Conditions.
Invalid or unenforceable provisions
If a provision of these Terms and Conditions is invalid or unenforceable in a jurisdiction:
- it is to be read down and severed in that jurisdiction to the extent of the invalidity or unenforceability; and
- it does not affect the validity or enforceability of:
- that provision in another jurisdiction; or
- the remaining provisions.
The liability of two or more parties under in these Terms and Conditions and any one or other of them is a joint liability of all of them and a separate liability of each of them.
- All the rights, immunities and limitations of liability in these Terms and Conditions will continue to have their full force and effect in all circumstances and notwithstanding any breach of the Contract by the Company or any other person entitled to the benefit of those provisions.
- The warranties, other representations and agreements made by the parties in these Terms and Conditions are continuing and will not merge or be extinguished by payment of any monies payable under the Contract.
No failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party in terms of these Terms and Conditions operates as a waiver of that power or right, nor does any single or partial exercise of any such power or right nor any single failure to do so, preclude any other or future exercise, or the exercise of any other power or right under these Terms and Conditions.
The Contract embodies the entire agreement and understanding between the parties concerning its subject matter and succeeds and cancels all other agreements and understandings concerning the subject matter of the Contract and any warranty, representation, guarantee or other term and condition of any nature not contained in the Contract is of no force or effect.