Felix Transport Pty Ltd – Terms & Conditions

Background
These Terms and Conditions apply to each contract for the transport of Goods by or on behalf of the Company to any Customer.
Definitions
1. ‘Company’ means Felix Transport Pty Ltd ACN 620 961 391 and its related entities, successors and assigns.
2. ‘Contract’ means the contract for the supply of Goods or Services referred to in paragraph 3 of these Terms and Conditions.
3. ‘Contract Particulars’ means an applicable document describing the Goods and/or Services forming part of this Contract.
4. ‘Customer’ means any entity that has engaged the Company to provide the Services.
5. ‘Goods’ means cargo together with any container, packaging, or pallet supplied by the Customer to the Company for the purposes of movement from one place to another by way of the Company’s Services.Definitions
6. ‘Services’ means:
  1. transport and storage services; and
  2. any services supplied by the Company to the Customer.
7. ‘Price’ means the cost of the Goods or Services as agreed between the Company and the Customer.
Terms and Conditions
1. A contract for the supply of the Services (Contract) will be formed, on these Terms and Conditions, immediately upon the Company receiving any instructions from the Customer for supply of the Services.
2. No subsequent terms and conditions will apply in substitution of these Terms and Conditions or in any way override or amend these Terms and Conditions.
3. These Terms and Conditions together with any relevant invoices constitute the entire agreement between the Company and the Customer.
4. The Customer may not cancel any Contract without the prior written consent of the Company.
Company’s obligations
Subject to this Contract, the Company:
1. must use all reasonable due care and skill;
2. must provide the Goods or Services as set out in the Contract Particulars; and
3. may use any competent and qualified employee, representative, associate, officer, agent or subcontractor to provide the Goods or Services.
Customers obligations
Without limiting its other obligations under the Contract, the Customer must:
1. give the Company in writing timely directions, instructions, decisions and information sufficient to facilitate the provision of the Goods or Services by the Company;
2. promptly provide the Company with access to any equipment and all information necessary to enable the Company to carry out its obligations under the Contract;
3. comply with all reasonable directions given to it by the Company; and
4. comply with all of its obligations as set out in the Contract.
Services
1. The Services will be as described in the Contract Particulars.
2. The Company is not a common carrier and accepts no liability as such. The Company reserves the right to accept or refuse the provision of Services in respect of the Goods at its sole discretion.
3. Quotations are made subject to measurements being verified at time of shipment and should these vary to those used for quotation then the freight will be subject to re-measurement and additional costs.
4. Freight is payable upon the gross measurement including pallets.
Charges and payment
1. Payment for Goods
  Payment for Goods must be made on or prior to the completion of the provision of Goods unless otherwise agreed in writing.
2. Payment for Services
  1. The Company will invoice weekly unless otherwise agreed.
  2. Payment for Services must be paid within 7 days unless otherwise agreed in writing.
  3. Call-out fees may be applied at rates depending on the Customer’s location.
3. Late payment
  If the Customer fails to make any payment by the due date the Company may, without prejudice to any other right or remedy available to it:
  1. charge the Customer interest on any sum due at the rate of 4% above the rate of the Company’s principal banker compounded daily;
  2. charge the Customer for all expenses and costs incurred by the Company resulting from the Customer’s failure to pay;
  3. take any reasonable action it deems appropriate to recover any amount due;
  4. cease or suspend for any such period as the Company thinks fit, supply of any further Goods or Services to the Customer;
  5. by notice to the Customer, terminate any Contract with the Customer so far as unperformed by the Company.
4. The Services begin as soon as the Company takes custody of the Goods.
5. All charges are exclusive of GST, duties, levies or any other taxes or charges. The Customer will be liable to any such costs on an ongoing basis.
6. All Goods supplied by the Company are charged separately from the Services.
7. Where there is any change in the costs incurred by the Company in relation to the Goods or Services beyond the reasonable control of the Company, the Company may vary its price for those Goods or Services in order to take account of any such change.
8. The Customer must indemnify the Company or for any unforeseen costs incurred by the Company for the provision of the Services.
9. Surcharges may be applied on emergency and/or outside Business Hours visits.
Payment default
If the Customer becomes, or resolves to become, insolvent, bankrupt or have a receiver, administrator, liquidator, trustee or similar official appointed, then:
1. the Customer must notify the Company immediately;
2. all amounts outstanding by the Customer to the Company immediately become due and payable; and
3. the Customer’s right to possession of any Goods which have not been paid for in full by the Customer ceases, and the Company will be entitled to recover possession of those Goods.
Risk and insurance
Other than is required by law, all risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods is at all times the responsibility of the Customer.
Delivery of Goods
1. The method of providing the Services is at the sole discretion of the Company.
2. A receipt signed by anyone at the place of delivery is conclusive evidence that the Goods were delivered.
3. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Contract.
Delays
1. The Company will not be liable for any delay in the delivery of the Goods beyond the Company’s reasonable control including, but not limited to:
  1. weather sufficiently inclement to prevent delivery of the Goods;
  2. loss or damage by fire, explosion, earthquake, lightning, storm, tempest, civil commotion or any similar cause;
  3. disputes between employers and employees or strikes or lockout affecting the trades employed in the provisions of the Services;
  4. a variation requested by the Customer;
  5. The Company or the Customer acting in accordance with a notice or order given by an any governmental or semi governmental or local government authority; or
  6. any other delay beyond the reasonable control of the the Company.
2. If, for any of the reasons specified in this clause, the Company is prevented from supplying the Goods by the date determined between the parties, then the date will be extended for such period as the Company determines (in its absolute discretion) acting reasonably.
3. The Company is not responsible for any delays or failure in delivering the Goods to the extent that those delays are caused by any act or omission of the Customer.
Warranties, exclusions and limitation of liability
1. This clause does not exclude or limit the application of any statutory provision where to do so would contravene that statute or cause any part of this clause to be void.
2. The Company warrants that it will make all reasonable efforts to:
  1. provide the Services in a timely manner; and
  2. deliver the Goods without damage or loss to the Customer.
3. The Customer warrants that it is either the owner or the authorised agent of the person owning or having any interest in the Goods or any part of the Goods and enters into this Contract on its own behalf or as authorized agent of that person.
4. The Customer warrants:
  1. that it has fully and adequately described the Goods, their nature, weight and measurements and has complied with all applicable laws and regulations relating to the notification, classification, description, labelling, transport, nature, condition, and packaging of the Goods;
  2. that the Goods are not explosive, flammable or dangerous for the purposes of all relevant laws and regulations;
  3. that the Goods comply with the requirements of any applicable law relating to the nature, condition and packaging of the same;
  4. that the packaging, container or pallets delivered with the Goods comply with all relevant requirements; and
  5. that it is the owner or authorized agent of the owner of the Goods and hereby accepts to be bound by these Terms and Conditions accordingly;
  6. that the person delivering the Goods to the Company or arranging for the delivery of the Goods to the Company or the pickup of the Goods from the Company is the authorized agent of the Customer;
  7. that all relevant duties and charges are paid.
    Any expenses incurred by the Company in making good any failure by the Customer will be added to the Price.
5. The Company may arrange for the carriage of any or all the Goods the subject of the Contract by a sub-contractor and does so for its own benefit and also as agent for the sub-contractor. Any such arrangement will be accepted by the Customer and any sub-contractor is entitled to the full benefit of these Terms and Conditions.
6. The Customer must continually indemnify the Company against any liability, penalty or expense incurred by the Company as a result of a breach of these Terms and Conditions by the Customer.
7. The Customer accepts all liability for any damage or loss caused or attributed to the Goods while in the possession of the Company other than by negligence or willful act or default by the Company.
8. If in the reasonable opinion of the Company, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or a damaging nature, they may at any time be destroyed, disposed of or abandoned or rendered harmless by the Company without compensation to and at the cost of the Customer.
  1. For the sake of clarity, the Customer indemnifies the Company against any expenses, loss or damages incurred or sustained as a result of the Goods being or becoming dangerous including as a result of any spillage, seepage, combustion or contamination or as a result of any disposal, destruction, abandonment, repair or rendering harmless of the Goods by the Company.
  2. The Company expressly excludes the following items and will not provide the Services in respect of these items unless it otherwise agrees in writing: firearms, live ammunition; live animals; illegal substances; weapons of any sort.
9. Insurance is the responsibility of the Customer and the Goods will at all times be at the risk of the Customer.
10. The Company will not be liable for any consequential loss whatsoever arising from any loss or damage to the Goods.
Insolvency
1. If the Customer becomes, or resolves to become, subject to any form of insolvency administration, then:
  1. the Customer must notify the Company immediately; and
  2. all amounts outstanding by the Customer to the Company become immediately due and payable.
Lien
1. Where the Company has not received the whole of the Price, or the payment has been dishonored, the Company will have:
  1. a lien on the Goods;
  2. the right to retain the Goods and any documents relating to those Goods;
  3. a right to stop the Goods in transit whether or not delivery has been made or ownership has passed; and
  4. a right to sell the Goods to recover its loss.
Restraint
The Customer hereby agrees not to solicit or in any way entice employees or contractors of the Company to carry out any work with respect to the Services on behalf of itself or for any other entity other than by way of the Company herein.
Termination
1. The Company may terminate this Contract at any time by giving reasonable notice to the Customer.
2. Upon termination of this Contract any accrued rights or remedies of the Company are unaffected.
3. Upon termination of this Contract by the Company the Customer will remain liable for any monies owed to the Company by the Customer.
General
1. The Contract is governed by laws of South Australia & courts of South Australia.
2. The Company may vary these Terms and Conditions at any time from time to time.
3. If any term or part of a term in these Terms and Conditions is illegal or unenforceable it may be severed and the remaining terms or parts will continue in force.
4. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A Single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
5. Any indemnity or any obligation under these Terms and Conditions is independent and survives termination of this Contract. Any other term by its nature intended to survive termination of this Contract survives termination.