In these terms and conditions:-
“CLIENT” means and includes the person who engages
the Carrier to carry the Goods,
“CARRIAGE” means and includes any carrying or other
work performed by the Carrier or agreed to be performed by the Carrier in
relation to the Goods;
“CARRIER” means Tutt Bryant Group Limited (ABN 89 009 242 675) or its controlled entities, or otherwise its servants, agents, contractors and assigns;
“GST” means the definition given in section 195-1
of A New Tax System (Goods and Services
Tax) Act 1999 (Cth);
“GOODS” means goods of any type or description
whatsoever whether originally contracted for, substituted for or added to the
original contract be they declared or not.
In this document, unless the context otherwise requires;
the singular include the plural and visa versa;
any gender includes the other gender;
An obligation of two (2) or more parties shall bind them jointly and
If a word or phrase is defined, cognate words and phrases have
a reference to;
a person includes any natural person, firm, corporation, government, statutory
body, trust or partnership (whether or not having separate legal personality);
a person includes the legal representatives, successors and assigns of
a statute, ordinance, code or other law includes regulations and other statutory
instruments under it and consolidations, amendments, re-enactments or
replacements of any of them made by any legislative authority.
NEGATION OF LIABILTY AS A COMMON CARRIER
The Carrier is not a common
carrier and does not undertake the obligations or liability of a common
carrier. The Carrier reserves the right to refuse the Carriage or transport for
any class of Goods at its discretion.
AGREEMENT OF PARTIES
It is agreed that the person dispatching the Goods to the Carrier for
the Carriage is authorised by the Client to sign a consignment note for and on
behalf of the Client.
4.2 The Client warrants that in agreeing to the terms hereof, it is or has
the authority of the person or persons owning or having an interest in the
Goods or any part thereof.
Without prejudice to the
generality of the foregoing, the Client undertakes to indemnify the Carrier in
respect of any liability whatsoever in respect of the Goods to any person other
than the Client who claims to have or has or may hereinafter have any interest
in the Goods or any part thereof.
RIGHT TO SUBCONTRACT
The Carrier and any of its subcontractor shall be entitled to
subcontract on any terms the whole or any part of the Carriage.
The Client undertakes that no claim or allegation shall be made, whether
by the Client 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
subcontractor, principal, employer, servant, agent or otherwise) the Carriage
of any part thereof is performed or undertaken which imposes or attempts to
impose upon such person any liability whatsoever in connection with the Goods
whether or not arising on part of such person, and if such claim or allegation
should nevertheless be made, 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 parties to this contract.
EXTENSION OF EXEMPTIONS TO SUBCONTRACTORS
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 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 performed or undertaken;
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.
The Goods shall be carried and the Carriage shall be
performed subject only to these terms and conditions and any terms, conditions
or warranties implied by statute which cannot be excluded.
LIABILITY OF CARRIER
To the fullest extent permitted by law, the Carrier shall only be liable
for its wilful neglect or default in respect of the Carriage of the Goods for
physical loss of or damage to the Goods up to a limit of $200.00 whether or not
there has been a declaration of the value of the Goods or any of them by the
Client for the purposes of the Carriage or otherwise.
8.2 Subject only to clause 8.1, the Goods are at the risk of the Client and
not the Carrier, and the Carrier shall not be responsible in tort, contract or
otherwise for any loss of, damage to or deterioration of the Goods,
mis-delivery, failure, or delay in the delivery of the Goods 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. This clause
shall apply to all such loss of, damage to or deterioration of the Goods as
foresaid whether or not the same occurs in the performance by or on behalf of
the Carrier of the contract and/or the Client or in events which could
constitute a fundamental breach of the contract or a breach of a fundamental
To the fullest extent permitted by law, the Carrier is not liable to the
Client for any indirect or consequent losses, loss of profits or use, any
rectification costs or any third party claims in connection with the Carriage.
INDEMNITY BY CLIENT
The Client indemnifies the Carrier and shall keep it
indemnified in respect of any liability to any person for any loss of or damage
whatsoever to property, any personal injury or death, or any delay or loss of
any nature arising out of or incidental to the Carriage or any services thereto
caused by any act, error or omission by the Client.
HANDING OF GOODS
If the Client expressly or implicitly
instructs the Carrier to use or it is expressly or implicitly agreed that the
Carrier will 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
will give priority to that method but if it cannot conveniently be adopted, the
Carrier shall handle or store or carry or have the Goods carried by another
method or methods.
11. AUTHORISATION OF DEVIATION FROM USUAL ROUTE
the Carrier considers the mode of Carriage or route quoted (if any) is not, at
the time the Goods are to carried, the most practical or feasible route or mode
of Carriage to be used, it reserves the right to vary the same and charge the
Client any extra cost thereby incurred.
The Carrier is authorised to deliver the Goods to
the address nominated to the Carrier by the Client for that purpose and without
prejudice to the foregoing it is expressly agreed that the Carrier shall be
conclusively taken to have delivered the Goods in accordance with this contract
if at that address it obtains from any person a receipt or signed delivery
docket for the Goods.
12.2 If the nominated place of delivery should be
unattended or if delivery cannot otherwise be effected by the Carrier, it may
at its option deposit the Goods at that place (which shall be conclusively taken
to be due delivered) or store the Goods. If the Goods are stored by the Carrier,
the Client shall pay or indemnify the Carrier for all costs and expenses
incurred in or about such storage. The Carrier shall be at liberty to redeliver
the Goods to the Client from the place of storage, which shall be done at the
All charges, rates and prices quoted are based upon
rates of wages and salaries, prices of fuel and oil, and rates, road taxes and
other charges prevailing at the date of the quote. In the event of any
increases between that date and the date when the Carriage is commenced, then
the Carrier reserves the right to increase those charges, rates or prices
payable by the Client that are rightly incurred in the course of the Carriage. All
charges, rates and prices payable by the Client to the Carrier under this contract
are expressed on a GST exclusive basis.
13.2 Where the Carriage involves the performance of two
or more separate items of work then for the purposes of the preceding clause,
the date when the Carriage commenced shall be deemed to be the respective dates
on which the said separate items of work are commenced.
13.3 The Carrier’s charges shall be considered earned as
soon as the Goods are loaded and dispatched, and the Client will be and remain
responsible to the Carrier for all its proper charges incurred for any reason.
Labour and the use of mechanical equipment to load and unload the Goods shall
be the responsibility and at the expense of the Client.
13.4 The Carrier shall, in addition to the amounts
payable under this contract and any other instruments contemplated by this
contract, recover from the Client at the same time that amounts are payable
under this contract and any other instruments contemplated by this contract, an
additional amount on account of GST, calculated in accordance with the GST law or
similar tax, charge, assessments, duty or fees.
13.5 Should the Client’s account fail to be finalised
within the Carrier’s trading terms, the Carrier reserves the right to rescind
all discounted rates and prices previously quoted and recalculate outstanding
charges, rates and prices at then prevailing levels.
13.6 The Client must make payment to the Carrier within
30 days upon supply of a valid tax invoice by the Carrier to the Client requesting
13.7 The Carrier reserves the right to impose a service
fee on all amounts not paid pursuant to these terms and conditions
(“Outstanding Charges”) at the rate of 1.5% per month of the Outstanding Charge
CARRIER’S LIEN AND
WITHDRAWAL OF CARRIAGE
14.1 The Carrier shall have a lien on the Goods and any
documents relating thereto, and on any other Goods of the Client in the
possession of the Carrier or any documents relating thereto for all sums
payable by the Client to the Carrier and any documents relating thereto for all
sums payable by the Client to the Carrier, and for that purpose shall have the
right to sell any such Goods by public auction or private treaty without notice
to the Client.
14.2 The Carrier reserves the right to suspend the Carriage
or decline the Carriage should the Client be in breach of these terms and conditions.
15.1 The Client shall not tender for Carriage any
volatile or explosive materials which are or may become dangerous, inflammable
or offensive (including radioactive material) or which are or may 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 of a dangerous, inflammable, explosive, volatile,
offensive or damaging nature the same may at any time be destroyed, disposed
of, abandoned or rendered harmless by the Carrier without compensation to the
Client and without prejudice to the Carrier’s right to any charges hereunder.
15.2 The Client warrants that it has complied with all
laws and regulations relating to the nature, packaging, labelling or cartage of
the Goods and that the Goods are placed in a manner adequate to withstand the
ordinary risks of Carriage having regard to their nature and hereby indemnifies
the Carrier and keep the Carrier indemnified for any liability whatsoever as a
result of or arising out of the Client’s failure to comply with each of these
VARIATION OF TERMS AND
It is agreed that no servant or agent of the Client or any other
person has any power to waive or vary any of the terms and conditions hereof
unless such waiver or variation is agreed in writing by an executive officer of
17. SUIT TO BE BROUGHT WITHIN SIX MONTHS
To the fullest
extent permitted by law, any proceeding or suit commenced by the Client against
the Carrier or its agents, servants or subcontractors must be commenced within
six (6) months from the delivery of the Goods under the Carriage.
18. CONDITIONS TO HAVE FULL
FORCE IN ALL CIRCUMSTANCES
rights, immunities and limitations of liability in these terms and conditions
shall continue to have their full force and effect in all circumstances and
notwithstanding any breach of the contract or any of the conditions hereof by
the Carrier or any other person entitled to the benefit of such provisions.
19. PROVISIONS SEVERABLE
It is hereby agreed that if
any provision or part of any provision of this contract is invalid or unenforceable,
such invalidity or unenforceability shall not affect any other part of such
provision or any other provision hereof.
20. DECLARATION OF WEIGHT AND/OR
Where the Client has declared the weight and/or dimensions of the
Goods and the Carrier has relied upon such declared weight and/or dimensions in
making its arrangements for transportation and the actual weight and/or
dimensions of the Goods differs from the declared weight and/or dimensions then
in every such case the Client shall be responsible for all extra cost and risk
incurred by the Carrier resulting from its reliance as aforesaid upon the
declared weight and/or dimensions.
21. OTHER DOCUMENTS
All Goods are carried subject and
liable in every respect to the Bills of Lading issued by and/or conditions
imposed by any shipping company, railway, port or harbour authority or other
Carriers of the Goods and to the issue of permits or authorisations where required
from government authorities and the conditions and limitations stated in any
such permits or authorisations.
22. LAW OF CONTRACT AND
These terms and conditions shall be governed and construed by the
laws of Western Australia,
and any proceeding in respect of any matter or thing with respect to the Client
shall be instituted or carried on in the state of Western Australia only.
23.1 The Client agrees to the Carrier collecting, using and
disclosing personal information about the Client for various purposes,
(a) assess creditworthiness of the Client;
(b) supply services to the Client and the management of the Client’s
(c) communicate to the Client about the services which the Carrier or its subcontractors
or affiliates may provide to the Client;
(d) implement these terms and conditions; and
(e) comply with relevant laws.
23.2 The Carrier’s Privacy Officer may be contacted:
(b) to access any personal information relating to the Client held by the
(c) to correct or amend any personal information relating to the Client held
by the Carrier; or
(d) if the Client does not wish the Carrier to make contact about
information on any other products or services.
23.3 The Carrier will handle the Client’s personal
information in accordance with relevant laws.
DECLARATION, ACKNOWLEDGMENT, ACCEPTANCE OF TERMS AND CONDITIONS
Please read carefully and complete the declaration
I/We declare that I/We have read and understood the
Terms and Conditions of Cartage, as detailed in this form and hereby
acknowledge and accept those Terms and Conditions. I/We agree to conduct all
trading in accordance with those Terms and Conditions.