- “Carrier” shall mean D Colbeck & R Matthews and its successors and assigns or any person acting on behalf of and with the authority of D Colbeck & R Matthews.
- “Client” shall mean the Client or any person or persons acting on behalf of and with the authority of the Client. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
- “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
- “Stock” shall mean any horses (together with any equipment) to be transported by way of the Carrier’s Services, or for storage by the Carrier.
- “Services” shall mean all services (including, but not limited to the carriage, storage, loading, and unloading of stock) supplied by the Carrier to the Client and are as described on the quotations, invoices, consignment note, manifest, or any other forms as provided by the Carrier to the Client and includes any advice or recommendations.
- “Price” shall mean the cost of the Services as agreed between the Carrier and the Client subject to clause 4 of this contract.
- Any instructions received by the Carrier from the Client for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
- Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Carrier.
- The Client shall give the Carrier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Carrier as a result of the Client’s failure to comply with this clause.
- Services are supplied by the Carrier only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
4. Price And Payment
- At the Carrier’s sole discretion the Price shall be either:
- as indicated on invoices provided by the Carrier to the Client in respect of Services supplied; or
- the Carrier’s quoted Price (subject to clause 4.2 and 4.3) which shall be binding upon the Carrier provided that the Client shall accept in writing the Carrier’s quotation within thirty (30) days.
- The Carrier reserves the right to change the Price in the event of a variation to the Carrier’s quotation.
- The Carrier may by giving notice to the Client 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, increases in taxes and insurance premiums).
- At the Carrier’s sole discretion a deposit may be required.
- Time for payment for the Services shall be of the essence and will be stated on the on the invoice, consignment note, manifest, or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
- 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 Client and the Carrier.
- 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.
5. Carrier Not Common Carrier
- 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.
6. Stock Health
- The Client warrants that all Stock are free from disease (including, without limitation, equine influenza) and have had all required vaccinations. Prior to transportation of the Stock, the Client shall advise the Carrier of any underlying health conditions, prior illness, and/or history of illness of the Stock, and of any medication the Stock are currently on, and shall provide (if requested by the Carrier) current vaccination certificates for the Stock. The Client shall indemnify the Carrier from any liability whatsoever due to the Client’s failure to comply with this clause.
- If the Carrier deems the Stock to need veterinary assistance at any time while the Stock is in the custody of the Carrier, the Carrier will first attempt to contact the Client, but the Client acknowledges that if they cannot be contacted then the Carrier reserves the right to call a veterinarian. If the Client cannot be contacted, then the Client acknowledges that the veterinarian shall have the final decision regarding any treatment of the Stock. The Client shall indemnify the Carrier from any liability in relation to any decision made or action taken by the veterinarian. All veterinarian fees incurred in relation to the Stock will be the sole responsibility of the Client and will be invoiced accordingly.
- The Client shall indemnify and keep indemnified the Carrier at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Carrier or incurred or become payable by the Carrier resulting or arising from any diseases (including, without limitation, equine influenza) that the Stock are carrying or spread.
7. Transportation and Delivery
- The Client warrants that any Stock to be transported by the Carrier shall be fit and healthy to travel. The Carrier reserves the right to refuse to transport any Stock that the Carrier deems to be unfit for travel. At the Carrier’s sole discretion, lame or sick horses will only be transported for the purposes of veterinary treatment. The Carrier shall not be liable for any consequential loss, indirect loss, loss of market, or consequences of delay that are caused by the Carrier’s refusal to transport the Stock.
- The Client authorises the Carrier to deliver the Stock to the Client’s nominated address and it is the Client’s sole responsibility to provide written delivery instructions to the Carrier to enable effective delivery. It is expressly agreed that the Carrier shall be taken to have delivered the Stock in accordance with this contract if at that address the Carrier obtains from any person a receipt or a signed delivery docket for the Stock.
- The Client shall make all arrangements necessary to take delivery of the Stock whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Stock as arranged then the Carrier shall be entitled to charge a reasonable fee for redelivery.
- The Client acknowledges that stock depots may be used during the Stock transportation process, and the Client hereby authorises the Carrier to use (including for the storage of the Stock) any stock depot as determined by the Carrier. All risk for the Stock passes from the Carrier upon delivery by the Carrier of the Stock to the depot. The Carrier shall not be under any liability for any loss of, death of, or illness or injury to the Stock while the Stock is being housed at any depot, and/or being handled by any depot staff.
- Delivery of the Stock to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
- The failure of the Carrier to deliver shall not entitle either party to treat this contract as repudiated.
- The Carrier shall not be liable for any consequential or indirect loss, or loss of market, or consequences of delay whatsoever due to failure by the Carrier to deliver the Stock promptly or at all, where due to circumstances beyond the control of the Carrier, or where due to the Client being in breach of any of these terms and conditions.
- The Client will be and shall remain responsible to the Carrier for all its proper charges incurred for any reason. A charge may be made by the Carrier in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Carrier. Such permissible delay period shall commence upon the Carrier reporting for loading or unloading.
9. Nomination of Sub-Contractor
- The Client hereby authorises the Carrier (if it should think fit to do so) to arrange with a sub-contractor for the carriage of any Stock that are the subject of the contract. The sub-contractor shall 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.
10. Carrier’s Servants or agents
- The Client 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 Stock 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.
11. Client’s Responsibility
- The Client expressly warrants to the Carrier that the Client is either the owner or the authorised agent of the owner of any Stock or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Client accepts these conditions of contract for the for all persons on whose behalf the Client is acting
12. Route Deviation
- The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Stock that may in the absolute discretion of the Carrier be deemed reasonable or necessary in the circumstances.
13. Conditions of Storage
- The Client is entitled upon giving the Carrier reasonable notice to inspect the Stock in store but a reasonable charge may be made by the Carrier for this service.
- The Client agrees to remove the Stock from storage within twenty-eight (28) days of a written notice of requirement from the Carrier to do so. In default, the Carrier may after fourteen (14) days notice to the Client SELL ALL OR ANY OF THE STOCK by public auction or, if that is not reasonably practicable by private treaty and apply the net proceeds in satisfaction of any amount owing by the Client to the Carrier.
- The Client acknowledges that:
- the Stock are carried and stored at the Client’s sole risk and not at the risk of the Carrier; and
- the Carrier is under no obligation to arrange insurance of the Stock and it remains the Client’s responsibility to ensure that the Stock are insured adequately or at all; and
- under no circumstances will the Carrier be under any liability with respect to the arranging of any such insurance and no claim will be made against the Carrier for failure to arrange or ensure that the Stock are insured adequately or at all.
15. Limitation of Liability
- Subject to any statutory provisions imposing liability, the Carrier shall not be under any liability for any loss of, death of, or illness or injury to the Stock unless such loss, death, or injury occurs whilst the Stock are in the actual custody of the Carrier and under its actual control and unless such loss, illness, injury, or death is due to the wilful neglect or default of the Carrier.
- The Client shall indemnify and keep indemnified the Carrier at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Carrier or incurred or become payable by the Carrier resulting or arising from any injury or death to persons or damage to property arising out of the handling of the Stock however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.
- Liability of the Carrier arising out of any one incident for breach of these terms and conditions, howsoever arising, is limited to any of the following as determined by the Carrier:
- the supplying of the Services again; or
- the payment of the cost of having the Services supplied again; or
- where the Client is a consumer as defined in the Trade Practices Act 1974 then the Client shall also be entitled to a refund.
16. Default & Consequences of Default
- Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
- If the Client defaults in payment of any invoice when due, the Client shall indemnify the Carrier from and against all costs and disbursements incurred by the Carrier in pursuing the debt including legal costs on a solicitor and own client basis and the Carrier’s collection agency costs.
- Without prejudice to any other remedies the Carrier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Carrier may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Carrier will not be liable to the Client for any loss or damage the Client suffers because the Carrier exercised its rights under this clause.
- If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
- Without prejudice to the Carrier’s other remedies at law the Carrier shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Carrier shall, whether or not due for payment, become immediately payable in the event that:
- any money payable to the Carrier becomes overdue, or in the Carrier’s opinion the Client will be unable to meet its payments as they fall due; or
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17. Unpaid Carrier’s Rights to Dispose of Stock
- The Carrier shall have a lien on any Stock (and any documents relating to those Stock) in the possession or control of the Carrier for all sums payable by the Client to the Carrier, and the Carrier shall have the right to sell such Stock by public auction or private treaty after giving notice to the Client. The Carrier shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Stock, from the proceeds of sale and shall render any surplus to the entitled person.
18. Security And Charge
- Despite anything to the contrary contained herein or any other rights which the Carrier may have howsoever:
- where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Carrier or the Carrier’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Carrier (or the Carrier’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
- should the Carrier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Carrier from and against all the Carrier’s costs and disbursements including legal costs on a solicitor and own client basis.
- the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Carrier or the Carrier’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 18.1.
19. Privacy Act 1988
- The Client and/or the Guarantor/s agree for the Carrier to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Carrier.
- The Client and/or the Guarantor/s agree that the Carrier may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- to assess an application by Client; and/or
- to notify other credit providers of a default by the Client; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
- to assess the credit worthiness of Client and/or Guarantor/s.
- The Client consents to the Carrier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- The Client agrees that personal credit information provided may be used and retained by the Carrier for the following purposes and for other purposes as shall be agreed between the Client and Carrier or required by law from time to time:
- provision of Services; and/or
- marketing of Services by the Carrier, its agents or distributors in relation to the Services; and/or
- analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
- enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
- The Carrier may give information about the Client to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Client; and/or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
- The Carrier may cancel any contract to which these terms and conditions apply, or cancel provision of the Services at any time before the Services are provided by giving written notice to the Client. On giving such notice the Carrier shall repay to the Client any sums paid in respect of the Price. The Carrier shall not be liable for any loss or damage whatever arising from such cancellation.
- In the event that the Client cancels the provision of any Services, the Client shall be liable for any loss incurred by the Carrier (including, but not limited to, any loss of profits) up to the time of cancellation.
- If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
- The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Carrier.
- The Carrier reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Carrier notifies the Client of such change.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
- The failure by the Carrier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Carrier’s right to subsequently enforce that provision.