My3PL

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Terms and Conditions

CONDITIONS OF CARRIAGE

Please read all of the following conditions carefully. You will be bound by these conditions if we carry or store goods for you. Please note that:

You should take out your own insurance cover over the goods;
If both you and the consignee are each operating a business:

· the Goods will be at your sole risk and our services are priced on this basis; and

· we will not be liable for any loss of or damage to the Goods, or other losses you suffer, regardless of the cause of that loss or damage.

1. DEFINITIONS AND INTERPRETATION

1.1 In these conditions:

Additional Charges include fuel surcharges, account keeping fees, minimum pickup fees, provision of proofs of delivery, futile delivery charges, manual handling charges, redelivery and remote delivery fees, overlength, tailgate and Dangerous Goods surcharges, pickups outside ordinary business hours, residential deliveries, manual consignment note charges and handload charges as published on the Carrier’s website from time to time, or otherwise notified in writing to the Consignor.

Associated Entity means MY3PL Pty Ltd (ACN 650 942 706) atf The Trustee for S&M Gunasekera Family Trust (ABN 79 827 125 178), and any associated entity of the Carrier in accordance with the meaning given to that term in the Corporations Act 2001 (Cth).

Authority includes any legal or administrative authority exercising any jurisdiction within an Australian state or territory.

Carriage includes any operations or services undertaken by or on behalf of the Carrier (whether gratuitously or not), in any way connected with Goods including loading, unloading, packing, unpacking, handling, transporting and storage of Goods, completing documents and the provision of any advice.

Carrier means MY3PL Pty Ltd (ABN 79 827 125 178) trading under its own or under any other business name and its officers, employees and agents.

Chain of Responsibility Law means the Heavy Vehicle National Law as enacted in any Australian state, the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and any other Commonwealth, state or territory Law dealing with the obligations of parties involved in the transport of goods by road.

Consequential Loss means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; punitive or exemplary damages; in each case arising from or in connection with the performance of Carriage and whether or not foreseeable at the time of entering into any agreement incorporating these conditions.

Consignor means the person engaging the Carrier to provide services of Carriage.

Container includes any container, trailer, wagon, transportable tank, pallet, flat rack or any other unit or device used to consolidate Goods.

Crane includes any machine used for lifting Goods, including a sideloader.

Damage means physical damage and includes deterioration, evaporation and contamination.

Dangerous Goods means Goods that are or may become noxious, dangerous, flammable or damaging or that may harbour or encourage vermin or other pests, or that are or may become liable to harm any property whatsoever.

Enforcement Costs means any fees, costs and expenses, including legal expenses on an indemnity basis, incurred by the Carrier in connection with any default under or enforcement or attempted enforcement of these conditions.

Force Majeure means acts of God, lightning, earthquakes, cyclones, floods, landslides, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, malicious damage, vandalism, sabotage, explosions, nuclear accidents, strikes, labour disputes and other industrial disturbances, any border closure or road closure or congestion of roads, pandemics, epidemics, any quarantine or customs restriction, any interruption of power supply or scarcity of fuel or any accident, collision or breakdown of a vehicle, Crane, machinery or equipment.

Goods means the property accepted by the Carrier from, or at the request of, the Consignor for the provision of Carriage and includes any Container or packaging supplied by or on behalf of the Consignor.

Interest means an amount calculated on any Outstanding Amount at the rate of 1.5% per calendar month, compounded annually.

Law includes:

(a) principles of law or equity established by binding court decisions, and

(b) applicable statutes, regulations, proclamations, orders, bylaws, requirements and approvals.

Outstanding Amount means any amount which remains unpaid upon the expiry of the credit terms extended by the Carrier or for which the Consignor is otherwise liable, pursuant to these conditions, to the Carrier.

PPSA means Personal Property Securities Act 2009 (Cth).

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 of the Carriage.

1.2 In these conditions:

(a) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;

(b) headings are included for convenience only and do not affect the interpretation of these conditions;

(d) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(e) wherever ‘include’ or any form of that word is used, it will be construed as if it were followed by ‘(without being limited to)’;

(f) terms used have the same meaning as under the PPSA; and

(g) all indemnities survive the termination or expiration of any agreement incorporating these conditions.

2. NEGATION OF LIABILITY AS A COMMON CARRIER

The Carrier is not a common carrier and will accept no liability as such. All Goods are carried and all Carriage is performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse, in its discretion, to provide Carriage in respect of any goods.

3. CARRIER’S OBLIGATIONS

The Carrier will:

(a) take reasonable care to protect and safeguard the Goods;

(b) provide the Carriage exercising the degree of skill, care and efficiency that would be expected from a competent provider of Carriage;

(d) use reasonable endeavours to deliver the Goods to the address nominated by the Consignor and to effect delivery at the date and time requested by the Consignor (subject to compliance with all Law, including Chain of Responsibility Law); and

(e) use reasonable endeavours to comply with the Consignor’s reasonable and lawful directions.

4. ASSOCIATED ENTITIES

4.1 The Consignor acknowledges and agrees that the Carrier enters into any agreement incorporating these conditions for the benefit of itself and for any Associated Entity and that each Associated Entity is entitled to all rights and privileges under these conditions as if each reference to the Carrier were to the relevant Associated Entity.

4.2 The Consignor acknowledges and agrees that:

(a) the Carrier holds the benefit of the rights and privileges under these conditions on trust for its own benefit and for the benefit of each Associated Entity, and the Carrier may enforce these conditions on behalf of any Associated Entity; and

(b) any breach of these conditions, or any negligence or other actionable acts or omissions by the Consignor may result in Associated Entities suffering loss or damage.

4.3 The Carrier is entitled to recover from the Consignor any loss or damage suffered or incurred by an Associated Entity in connection with the provision of Carriage by the Carrier or any Associated Entity to the same extent that the Associated Entity would have been entitled to, if the Associated Entity had been a party to any agreement incorporating these conditions and all indemnities in these conditions will apply for the benefit of each Associated Entity.

5. WARRANTIES AND INDEMNITIES

5.1 The Consignor will:

(a) where the Goods require temperature control, provide written notice to the Carrier of the temperature range to be maintained;

(b) ensure that the loading of the Goods onto the Carrier’s vehicle will not cause the vehicle to exceed any dimension or mass limits under Chain of Responsibility Law;

(d) where required by Law, provide an accurate container weight declaration; and

(e) provide all documents, information and assistance necessary to allow the Carrier to comply with the requirements of any Authority.

5.2 The Consignor warrants that:

(a) the Goods are in fit state to allow the Carriage to be performed and are packed in a manner adequate to withstand the ordinary risks associated with the Carriage;

(b) the Goods within any Container are adequately restrained in accordance with the Load Restraint Guide published by the National Transport Commission;

(c) it is authorised by all persons owning or having any interest in the Goods (including the consignee) to accept these conditions on their behalf;

(d) all details supplied with respect to the Goods, including the details of description, items, pallet space, quantity, weight, volume, quality, value and measurements, are correct;

(e) there is a suitable and safe road and approach for the Carrier’s vehicles to the place from which the Goods are to be collected and the place to which the Goods are to be delivered;

(f) safe and adequate loading facilities and equipment will be available at any place from which any Goods are to be collected and to which any Goods are to be delivered; and

(g) Carriage is supplied for the purpose of a business, trade, profession or occupation carried on or engaged in by the Consignor.

5.3 The Carrier relies on the details of description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Consignor but does not admit their accuracy.

5.4 The Consignor will indemnify the Carrier:

(a) 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 in the future may have any interest in the Goods or any part of the Goods; and

(b) against all losses, damages, claims, fines, expenses, duty, tax, demands, actions and proceedings or any other liability suffered or incurred by, or made or instituted against, the Carrier as a result, directly or indirectly, of:

(i) a breach of the Consignor’s obligations under these conditions;

(ii) the nature or condition of the Goods; or

(iii) the negligence, wilful misconduct or recklessness of the Consignor or the consignee.

6. SUBCONTRACTING

6.1 The Carrier, at its discretion, may subcontract on any terms the whole or any part of the Carriage.

6.2 The Consignor agrees that no claim or allegation may be made against any employee, agent, or Subcontractor that imposes or attempts to impose upon such person any liability whatsoever arising out of or in any way connected with the Goods or the Carriage, 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 of any such claim or allegation.

6.3 Every exemption, limitation, condition and liberty contained in these conditions and every right, exemption from liability, limitation, defence and immunity applicable to the Carrier or to which the Carrier is entitled under these conditions will also be available to and will extend to protect:

(a) all Subcontractors;

(b) every employee or agent of the Carrier or of a Subcontractor;

(d) all persons who are or are found to be vicariously liable for the acts or omissions of any person falling within clauses 6.3(a), 6.3(b) or 6.3(c).

6.4 For the purposes of clause 6.3, the Carrier is or will 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 will to this extent be, or be deemed to be, parties to any agreement incorporating these conditions.

7. LIABILITY OF CARRIER

7.1 The Goods are at the risk of the Consignor. Subject to clause 19.1, neither the Carrier nor any Subcontractor nor any other person who undertakes the Carriage of the Goods will, under any circumstances, be responsible for or liable (whether in contract, tort, bailment or otherwise) for any:

(a) loss of the Goods;

(b) damage to the Goods; or

whether in the course of Carriage or otherwise, including where the loss or Damage is caused, or alleged to have been caused by the negligence of the Carrier.

7.2 Notwithstanding any other provision of these conditions, the Carrier will not be liable for any loss of or Damage to Goods:

(a) caused by:

(i) Force Majeure;

(ii) the Carrier following the Consignor’s instructions;

(iii) the Goods becoming infected or contaminated with any virus, bacteria, fungi, pathogen, disease, mould, vermin or like condition;

(iv) vibration, road conditions, weather or weather events of any kind whatsoever;

(v) the Goods being inherently defective or in such a condition that they cannot be loaded, unloaded or transported by road without Damage;

(vi) inherent vice or the nature of the Goods;

(vii) a decline in value, or loss of value as a result of the Goods becoming past their ‘use by’ or expiry date;

(viii) insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary risks associated with the Carriage;

(b) comprising electrical or mechanical derangement, shrinkage or ordinary wear and tear; or

7.3 Notwithstanding any other provision of these conditions, the Carrier will not be liable, under any circumstances, for Consequential Loss.

7.4 If the Carrier cannot exclude all of its liability by relying on clause 7.1, 7.2 or 7.3, the Carrier’s liability arising from any loss of Goods, Damage to Goods or misdelivery, delay in delivery or non-delivery of Goods (including any liability arising from breach of a warranty, guarantee or term implied by Law) is limited, at the option of the Carrier, to:

(a) supplying the services of Carriage that were supplied with respect to the lost, Damaged or mis/non-delivered Goods, again; or

(b) payment of the cost of having the services of Carriage that were supplied with respect to the lost, Damaged or mis/non-delivered Goods, supplied again.

8. CONTAINERS AND PALLETS

Notwithstanding any other provision of these conditions, the Consignor:

(a) acknowledges that the Carrier has no liability or responsibility in relation to any hire charge or demurrage charge associated with any Container or pallet; and

(b) must ensure that any pallets are transferred to and from any relevant hire accounts and that any necessary documentation is provided to relevant pallet hire businesses.

9. ROUTE AND DEVIATION

9.1 The Consignor authorises any deviation from the usual route for transportation or manner of provision of Carriage that may, in the absolute discretion of the Carrier, be considered desirable or necessary in the circumstances.

9.2 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 providing or performing the Carriage, the Carrier will give priority to that method but if it cannot conveniently be adopted by the Carrier, the Consignor authorises the Carrier to provide the Carriage using another method.

10. INSPECTION

10.1 The Carrier may (but is not obliged to) inspect the Goods (including opening any Container) to determine the nature or condition of the Goods or for any other purpose which the Carrier considers reasonably necessary.

10.2 If, under Law, a Container must be opened, the Carrier will not be liable for any loss, Damage or delay incurred as a result of any opening, unpacking, inspection or repacking and the Consignor agrees to pay the Carrier’s charge for the cost of any such opening, unpacking, inspection or repacking.

11. DELIVERY

11.1 The Carrier is authorised to deliver the Goods at the address nominated to the Carrier for that purpose. The Carrier will be deemed to have delivered the Goods if, at that address, it obtains from any person a receipt or signed delivery docket for the Goods.

11.2 If the nominated place of delivery is unattended or if delivery cannot otherwise be effected by the Carrier, the Carrier may, at its option, deposit the Goods at that place (which will be conclusively presumed to be due delivery under these conditions), store the Goods or redeliver the Goods to the Consignor at the Consignor’s expense.

11.3 If the Goods are stored by the Carrier pursuant to clause 11.2:

(a) the Consignor will pay or indemnify the Carrier for all costs and expenses incurred with respect to such storage; and

(b) the Carrier may, at any time, redeliver the Goods to the Consignor at the Consignor’s expense.

12. CRANE SERVICES

12.1 Where the Carrier provides Crane services, the Consignor warrants that:

(a) the road surfaces, access and egress to the site and the site itself are stable, adequate to support the Crane, clear of obstacles and of a gradient to allow the Crane to be operated safely;

(b) sufficient clearance will be afforded in respect of all overhead wires; and

12.2 The Carrier will supply a standard selection of slings, lugs and chains but accepts no responsibility for loss or delay if any slings, lugs or chains are found to be unsuitable for the Consignor’s purpose.

12.3 The Consignor warrants that the weight of the Goods to be lifted in any one lift and the radius of the proposed lift, measured from the radial point of the Crane, will not exceed the limits of the Crane.

13. STORAGE

13.1 Where Goods are stored by the Carrier at the request of the Consignor, the Consignor will provide:

(a) an address to which notices will be sent; and

(b) an inventory of the Goods to be stored.

13.2 The Carrier may remove the Goods from a place of storage to another place of storage at its discretion.

13.3 Storage charges do not include removing, packing, unpacking, inspecting, stowing, re-storing or delivering.

13.4 The Consignor must give 48 hours’ notice to the Carrier of its intention to remove Goods from storage.

13.5 The Carrier will not be obliged to allow an inspection of the Goods or to deliver up any Goods in storage:

(a) to any person other than the Consignor or a person authorised in writing by the Consignor; or

(b) in circumstances where any amount is due by the Consignor to the Carrier on any account whatsoever.

13.6 The Consignor will remove its Goods from storage within seven days of receipt of written notice from the Carrier.

14. LIEN

14.1 The Goods are accepted subject to a general lien for all charges due or that may become due to the Carrier by the Consignor on any account whatsoever, whether in respect of the Goods or in respect of any other goods in respect of which the Carrier provides or has provided Carriage.

14.2 Without prejudice to any other rights the Carrier may have under Law, if charges are not paid when due, or the Goods are not collected when required or designated, the Carrier may:

(a) remove all or any of the Goods and store them as the Carrier thinks fit, at the Consignor’s risk and expense; or

(b) without notice and immediately in the case of perishable Goods, or otherwise on the provision of 14 days’ notice, open and sell all or any of the Goods as the Carrier thinks fit (whether by private treaty or public auction, including auction on an internet based platform) and apply the proceeds to discharge the lien and costs of sale without being liable to any person for any loss caused.

14.3 The parties agree that the lien arising under these conditions:

(a) attaches to the Goods when the Goods are accepted by the Carrier; and

(b) is a security interest.

14.4 On request by the Carrier, the Consignor must promptly do anything for the purposes of ensuring that any security interest created under, or provided for by, these conditions is enforceable, perfected (including perfection by registration), maintained and is otherwise effective. Anything that is required to be done under this clause will be done at the Consignor’s expense. The Consignor agrees to reimburse the Carrier’s costs in connection with any action taken by the Carrier under or in connection with this clause.

14.5 The parties agree that, to the extent permitted by the PPSA:

(a) sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply (unless the Consignor is otherwise notified in writing by the Carrier); and

(b) any right to receive a notice, statement or verification statement under sections 129, 130, 132, 134,135 or 157 of the PPSA is waived.

15. CARRIER’S CHARGES

15.1 The Carrier’s charges will be deemed fully earned on receipt of the Goods by the Carrier and are non-refundable in any event. The Consignor agrees to pay all sums due to the Carrier without any deduction, counterclaim or set-off.

15.2 In addition to any other charges contemplated under these conditions, the Consignor is liable to pay:

(a) any Additional Charges;

(b) Enforcement Costs;

(d) all storage, handling, stocktaking and reporting charges and any costs associated with loading or unloading Goods;

(e) any fuel levy imposed, which may be adjusted by the Carrier at any time on reasonable grounds to reflect fuel price movements;

(f) any additional costs arising from heavy or over-dimensional transport including costs associated with permits, escorts, pilots, equipment, bridge/road works and detours; and

(g) all charges imposed by Law including customs charges and excises and associated fines and penalties.

15.3 The Carrier may charge the Consignor, in accordance with its schedule of rates, in respect of any delay in loading or unloading occurring other than from the default of the Carrier. Such permissible delay period will commence upon the Carrier reporting for loading or unloading. Labour to load or unload is the responsibility and expense of the Consignor or consignee.

15.4 If the Consignor instructs the Carrier that the Carrier’s charges will be paid by the consignee or any other third party and the consignee or third party does not pay the Carrier’s charges within seven days of the date of delivery or attempted delivery of the Goods, the Consignor must pay such charges.

15.5 Where the Carrier stores Goods for the Consignor, the Consignor must:

(a) pay the Carrier’s expenses and charges to comply with any Law including any customs, excise or warehouse charges;

(b) supply or pay for labour or machinery, or both, to load or unload the Goods;

(d) if the Goods are at any time re-quantified, re-weighed or re-measured, pay any proportional additional charges.

16. DANGEROUS GOODS

16.1 If the Carrier agrees to provide Carriage with respect to Dangerous Goods:

(a) such Goods must be accompanied by a written declaration disclosing the nature of such Goods; and

(b) the Consignor must comply with all Law with respect to Dangerous Goods, including the Australian Code for the Transport of Dangerous Goods by Road & Rail.

16.2 The Consignor will indemnify the Carrier against all loss, harm or injury howsoever caused arising out of the provision of Carriage with respect to any Dangerous Goods whether declared as such or not and whether or not the Consignor was aware of the nature of the Goods.

16.3 The indemnity in clause 16.2 extends to Consequential Loss.

16.4 If, in the opinion of the Carrier, acting reasonably, the Goods are or are liable to become of a dangerous or flammable or damaging nature and pose a threat of property damage or personal injury, 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 any Carriage.

17. FORCE MAJEURE

The Carrier will not be liable for any failure or delay in performance of the Carriage if such failure or delay is due, in whole or in part, to any cause whatsoever beyond its control including due to Force Majeure.

18. NOTIFICATION OF CLAIM

18.1 Notwithstanding any other provision of these conditions (other than clause 19), the Carrier will, 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:

(a) in the case of Goods allegedly lost or Damaged in the course of loading, unloading or transit 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; or

(b) in the case of Goods allegedly lost or Damaged during storage, within fourteen (14) days of the date of removal or attempted removal of the Goods from storage.

18.2 The Carrier will, in any event, be discharged from all liability whatsoever in respect of the Goods unless legal proceedings are commenced:

(a) in the case of Goods allegedly lost or Damaged in the course of loading, unloading or transit within twelve months of their delivery or of the date on which, in the ordinary course of business, they should have been delivered; or

(b) in the case of Goods allegedly lost or Damaged during storage, within twelve months of the date of removal or attempted removal of the Goods from storage.

19. APPLICABLE LEGISLATION

19.1 Notwithstanding anything contained in these conditions, the Carrier will continue to be subject to any implied terms, conditions, guarantees or warranties imposed by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or state legislation but only in so far as such legislation applies and prevents the exclusion or modification of any such term, condition, guarantee or warranty.

19.2 The Carrier, Consignor and consignee must comply with all Law, including Chain of Responsibility Law.

19.3 The Consignor must not impose any requirement on the Carrier that would directly or indirectly encourage or require the Carrier or any person on behalf of the Carrier to speed, drive while fatigued or otherwise perform the Carriage in an unsafe manner or in breach of Law.

20. ENTIRE AGREEMENT

20.1 The entire agreement between the parties is contained in these conditions and there are no other understandings, representations or agreements between the parties that are not set out in these conditions.

20.2 The Carrier will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of the Carrier by a director of the Carrier.

21. GENERAL

21.1 This agreement will be construed in accordance with the Law in force in Victoria and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from those courts.

21.2 The failure of a party to take action to enforce its rights under any agreement incorporating these conditions or the granting of any time or indulgence will not be construed as a waiver of the provision nor as a waiver of the right of the party at a later time to enforce its rights under any agreement incorporating these conditions.

21.3 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.

21.4 If any provision of these conditions is invalid, illegal or unenforceable, that provision will, to the extent that it is invalid, illegal or unenforceable, be treated as severed from this agreement, without affecting the validity and enforceability of the remaining provisions.

Terms and Conditions

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