Conditions of contract

Conditions of Contract

Reliable transport, personalised for your needs

1. Except where the context otherwise requires, in these conditions the expression “the Contractor’ means Lopez Bros. Pty. Ltd., its servants, agents, employees and subcontractors; the expression ‘carriage and ancillary services’ includes (without limiting that expression) the storage and handling, erection, installation, removal, assembly, packing, loading and unloading of goods and containers of any kind, the word “goods” includes (without limiting that expression) liquid and solid substances and animals, and when pallets. containers and packing materials are used to stow the goods, shall include the pallet, containers and packing materials. The word “handles” includes “possession”, the word “person” includes company, corporation and firm.

2. The Contractor is NOT A COMMON CARRIER and will accept no liability as such and it is hereby expressly agreed by and between the Contractor and the Client and the Contractor shall not be liable to be sued in like manner as if it had actually undertaken to carry the goods as a common carrier for hire. All articles are carried moved lifted or transported and all storage of other services are performed by the Contractor subject only to these conditions AND THE CONTRACTOR RESERVES THE RIGHT AT ITS DISCRETION TO REFUSE THE CARRIAGE MOVEMENT OR TRANSPORT OF ARTICLES FOR ANY PERSON FIRM OR COMPANY AND THE CARRIAGE ON TRANSPORT OF ANY CLASS OF ARTICLES and shall not be bound or required to give any reason for so doing.

3. Except as may otherwise be required by law –

(a) all goods carried and all ancillary services are performed by the Contractor upon and subject to these conditions only, and

(b) the client acknowledges that any prior agreement relating to the goods is extinguished, and

(c) the carriage of and performance of ancillary services in respect of the goods shall not constitute acceptance by the Client of any terms and conditions for the said carriage , or ancillary services, except these conditions, and

(d) the Client further acknowledges that no servant agent or other person engaged by or acting or purporting to be acting in behalf of the Contractor has any authority to vary these conditions or to enter into any contract with the Client upon any terms other these conditions.

4. Subject to and in accordance with the terms and conditions and instructions contained in this Contract, the Contractor agrees and the Client hereby employs and authorizes the Contractor as agent for the Client to contract either in its own name as principal or as agent for the Client to contract either in its own name as principal or as agent with any person firm or company (here in after referred to as “sub-contractor”) for the carriage movement transport or storage of the goods or for the performance of an other service to be performed by the Contractor pursuant to or ancillary to this contract.

Any such contract may be made upon the terms and of contract used by the sub-contractor with whom the Contractor may contract for such carriage movement transport storage or other services to the conditions of any special Contract which the sub-contractor may in any particular require, including in every case any term that the sub-contractor may employ another person firm or company for performance of the transport, movement, carriage storage or other services so contracted for.

5. The Contractor may, and is hereby expressly authorized by the Client, to delegate its authority hereunder to contract for the carriage movement transport and storage of the goods and the performance of any of its obligations hereunder, to such other person firm or company as it may think fit, and also if it thinks fit, may, and is hereby expressly authorized by the Client to constitute the relation of principal and agent between the Client and such person, firm or company for the purpose of contracting for such carriage movement transport or storage of for the performance of any such obligation.

6. The Contractor will not except, as may otherwise be required by law be liable for any loss or damage of or to the goods or for any loss or damage of or to the foods or for any loss or damage sustained by the Client (including loss or damage arising from misdelivery, non-delivery or delay including the loss damage or destruction of the goods or any other goods) arising from any act or omission in the carriage or the performance of any ancillary services (either by the method means agreed or contemplated by the Contractor and the Client or by any other method or means) and whether or not the loss or damage is due or alleged to be due to misconduct or negligence of the part of the Contractor or any person for whose acts or omissions but for this condition the Contractor would be liable and for whether or not the cause and loss or damage is known to the Contractor.

7. It is specifically agreed that all the rights, immunities and limitations of liability grate to the Contractor by provisions set forth in these conditions of contract shall continue to have their full force and effect in all circumstances and notwithstanding any breach of the contract or any conditions thereof by the Contractor.

8. If the Client instructs the Contractor to use a particular method of movement the Contractor will give priority to the method designed but if that method cannot be conveniently be adopted by the Contractor, the Client shall be deemed to authorize it to move or have the goods moved by another method or methods.

9. It is herby expressly agreed that no servant or agent of the Contractor (including every independent contractor from time to time employed by the Contractor) shall in any circumstances whatsoever be under any liability whatsoever to the Client, consignee or owner of the goods for any loss or damage delay of whatsoever kind or arising or resulting directly or indirectly form any act, neglect or default on its part while acting in the course of or connection with his employment and without prejudice to the generality of the foregoing provisions in this clause, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability defence, indemnity and immunity of, whatsoever nature applicable or subsidiary companies or to which Lopez Bros. Pty. Ltd. And its associated or subsidiary companies or to which Lopez Bros. Pty. Ltd. and its associated subsidiary companies is entitles to hereunder shall also available and shall extend to protect every such servant or agent

Lopez Bros. Pty. Ltd. and its associated or subsidiary companies acting as aforesaid and for the purpose of all the foregoing provisions in this clause Lopez Bros. Pty. Ltd. and its associated or subsidiary companies shall be deemed to be acting as agent or trustee no behalf of and for the benefit of all persons who are or might be its servants or agents from time to time (including independent contractors as a foresaid) and all such persons shall to this extent be or be deemed to be parties of this contract.

10. (a) The Client will at all times hereafter indemnity and keep indemnified the contractor against all loss or liability and all action, suits, proceedings, whatsoever which may be taken or made by any third party against the Contractor or be incurred or become payable in respect of or arising out of the carriage and ancillary services performed or to be performed by the Contractor for or on behalf of the Client or in respect of the goods carried or other wise handled or in respect of or arising out of resistance by the Contractor to or compromise by the Contractor for any such action, suit proceedings, claim or demand and also without affecting the aforesaid the Client further agree to indemnify and keep against all sum of money whether for damages, costs charges, expenses or otherwise howsoever which the Contractor may be ordered to pay or may properly pay to any person whatsoever in respect of any such action suit proceeding claim or demand.

(b) In the event of any action, suit, proceedings, claim or demand of the nature referred to in sub-clause (a) of this clause 10 being taken or made, the Contractor shall be entitled without reference to the Client to contest and defend the same. It may also compromise the same on such terms and conditions as it is advised by its Solicitors to be reasonable. Such contest, defense or compromise shall be binding upon the Client as if expressly authorized by it.

(c) Without in any way restricting the generally of the previous provisions, the Client shall indemnify and keep indemnified the Contractor against all payments it may take to any of his own servants, agents or subcontractors by way of indemnify to them in respect of or arising out of any of the matters referred to in sub clause 9a) of this clause 10.

(d) All costs and expenses incurred any the Contractor in any action, suit, proceedings, claim or demand referred to in sub-clause (a) of this clause 10 or by way of indemnity to its servants, agents or sub-contractors shall be within the liability of the Client to the indemnify the Contractor hereby created notwithstanding that there be joined in such action, suit, proceeding, claim or demand against the Contractor of its servants, agents or sub-contractors some subject matter of dispute both referred to in the said sub-clause 9a) of this clause 10 save and except such costs and expenses as are exclusively referable to such last mentioned subject matter or dispute.

11. The Carrier will not accept responsibility or liability for any accident, injury or damage to any goods machinery persons or properly arising from the use of cargo handling appliances or equipment and will only use such appliances and equipment at the sole risk of the Client. The Client will indemnify the Contractor against all claims (except by the employees of the Contractor) arising out of the use of such equipment and appliances and whether due to the negligence of the employees of the Contractor or otherwise.

12. It is agreed that the person giving instructions to the Contractor and entering into this contract on behalf of the Client is authorized by the Client so to do and to sign this contract on its behalf.

13. If any person fails to pay charged due to the Contractor in respect of any service rendered being made in accordance with this contract, the Contractor may detain and sell all or any of the goods of such person which are in its possession and out of the money arising from such sale retain the charges so payable and all charges and expenses of the detention and sale shall render the surplus, if any, of the moneys arising from the sale and such of the goods as remain unsold to the person entitled thereto. Any such sale shall be without precluding to the right of the Contractor to recover from the persons liable to pay the same any such charges due or payable in respect of such service of the said detention and sale.

14. The Client expressly warrants with the contractor that the Client is either the owner or authorized agent of the owner of any goods or property and hereby expressly indemnifies the Contractor against all claims by any other person, firm or company for loss or damage to the said goods or property the subject of this contract.

15. The Client shall specifically declare and fully describe in writing in the space provided herein the nature and value of all goods subject to special rates either of movement, carriage, transport or storage or insurance by reason of their value or their nature including goods of a noxious dangerous inflammable or hazardous nature of liquid or partly liquid in form of being capable of causing damage or injury to any other goods or person machinery property or conveyances.

16. All surcharges and further additional charges and expenses which may be or become ascertained and payable for or on account of or in connection with the performance of this contract by reason of the goods being subject to special rates due to their nature or value shall be payable by the Client.

17. Freight Charges shall be considered earned as soon as the goods are loaded and dispatched whether the goods are delivered to the consignee and whether damaged or otherwise.

18. Except as may otherwise be required by law these conditions shall be governed by and construed in accordance with laws of the State or Territory of the Commonwealth in which the invoice is issued. In any event the contractor shall be discharged from all liability in respect of loss or damage or otherwise howsoever arising unless notice of any claim by the Client against the Contractor stating the nature, amount and grounds of such claim within thirty (30) days from the date the claim arose and unless suit is brought within twelve (12) months from the date of invoice.

CLIENT SHALL NOTE THAT THE TRADE PRACTICES ACT AND OTHER LEGISLATION CREATES CERTAIN RIGHTS AND REMEDIES WHICH BY LAW CANNOT BE EXCLUDED BY THESE CONDITIONS OF CONTRACT.

Last modified: 16/06/2009