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TERMS AND CONDITIONS OF SALE INCORPORATED

The Customer agrees to be bound by the provisions of these Credit Account Conditions and the T&Cs and acknowledges the Customer has, or has had the opportunity to have, received and reviewed a copy of the T&Cs. The Customer agrees that any terms and conditions contained in any order, offer, acceptance or other document of the Customer are expressly excluded to the fullest extent permitted by law.

GRANT OF CREDIT OR ACCOUNT

The Carrier may grant, vary or vary the terms on which the credit is given, or withdraw credit at any time, without prior notice, for any reason, in the Carrier’s absolute discretion.

The Carrier may at any time, including after any approval to grant credit, require the Customer to provide security in a form acceptable to the Carrier, including but not limited to payment of a deposit or pre-payment, as a condition for a grant of credit, a further grant of credit or continuance of a grant of credit, or for any order (including any special order).

PAYMENT TERMS

The Customer must, without set-off or deduction of any kind whatsoever, make full payment of the Carrier’s invoices within 14 days after the date of the invoice (or such alternative period agreed by the Carrier in writing).

ACTION

If the Customer does not strictly comply with the terms of these Credit Account Conditions or the T&Cs, the Carrier may take immediate action to recover any money owed by the Customer to the Carrier.

EXPENSES

The Customer must pay any credit card surcharge incurred by the Carrier from time to time if the Customer makes any payment to the Carrier using a credit card.

The Customer must pay the Carrier, on a full indemnity basis as a liquidated debt, the full amount of any bank fees or other expenses associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses incurred by the Carrier associated with any action by the Carrier to exercise any right or remedy under these Credit Account Conditions or the T&Cs.

OVERDUE AMOUNTS

The Carrier may charge the Customer interest on any overdue amounts owed by the Customer at a rate of 12.5% per annum, compounded monthly.

In addition, the Carrier may charge the Customer the Administration Costs on any overdue amounts owed by the Customer.

DELIVERY

  • The Carrier may:
    provide the Service by any method which the Carrier, in its absolute discretion, deems fit notwithstanding any instructions of the Customer that the Services are to be provided or supplied by some particular method;
    in its absolute discretion, carry, store, re-direct, handle, remove, assemble, erect, pack, unpack, load, unload or consolidate the Goods howsoever it deems fit, at the risk and expense of the Customer;
    sub-contract the Services (in whole or in part) on any terms, and the Carrier is or shall be deemed to be acting as agent of the Customer; and comply with any orders, directions or recommendations made by any government agency in relation to the Goods and/or the Services without recourse by, and at the risk and expense of, the Customer.
  • Where the Services involve the delivery of goods, the Carrier is authorised by the Customer to deliver the goods at the address given to the Carrier by the Customer, and the Carrier will be deemed to have duly delivered the goods if at such address the Carrier obtains from any person an acknowledgement of delivery. If the Customer or any nominated receiver fails to accept delivery of the Goods, the Carrier shall be entitled to store the Goods howsoever it deems fit, at the risk and expense of the Customer.
  • Any date quoted for delivery is an estimate only unless the Carrier notwithstanding any prior guarantee of a delivery date.
  • The Customer agrees to accept any Goods and Services despite any failure by the Carrier to deliver by a particular date and written advice given by the Carrier to the Customer is deemed the supply of the Goods or the Services and the Customer must pay for those Goods or Services in accordance with these Credit Account Conditions.
  • The Customer agrees that the Carrier may deliver the Goods or Services in parts or instalments and any such delivery by part or instalment does not give the Customer any right to terminate any Purchase Order or promise to accept or pay for the Goods or Services.

DANGEROUS GOODS

  • The Customer must make prior written declaration to the Carrier declaring any Goods that are or may be Dangerous Goods and if the Carrier agrees to accept them for carriage, they must be classified, packed, marked, labelled and documented in accordance with all laws and applicable statutory regulations for the carriage of the Dangerous Goods declared.
  • If, in the Carrier’s opinion, the Goods are or may become Dangerous Goods, the Carrier may, in its absolute discretion, refuse to provide the Services in respect of such Goods or refuse to continue to provide the Services in respect of such Goods or destroy, dispose of, abandon or render harmless such Goods without compensation to the Customer and at the expense of the Customer.
  • If, in the Carrier’s opinion, it is necessary and reasonable to do so to render any Goods or Services in relation to any Goods safe, the Carrier may open any Goods, container, package, wrapping or document.

LOADING AND UNLOADING

  • Unless the Carrier has agreed in writing to the contrary with the Customer:
    the Carrier shall not be under any obligation to provide any plant, power or labour, other than that carried by the collecting or delivering vehicle, required for loading or unloading the Goods;
    the Customer warrants that any plant, power or labour required for the loading or unloading of the Goods which is not carried by the vehicle will be provided by the Customer or on the Customer’s behalf;
    the Carrier shall be under no liability whatsoever to the Customer for any damage whatsoever, howsoever caused, if the Carrier is instructed to load or unload any Goods requiring plant, power or labour which, in breach of the warranty in sub-clause (b), has not been provided by the Customer or on the Customer’s behalf; and
    the Carrier shall not be required to provide any Services beyond the usual place of collection or delivery and if any such Service is given it shall be at the sole risk of the Customer and shall be deemed to be provided pursuant to these Credit Account Conditions, form a separate contract for Services and may be separately invoiced and becomes payable and must be paid at the same time and manner as the original Services.

SIGNED RECEIPTS

The Carrier may, if required, sign a document or electronic record prepared by, or on behalf of, the Customer acknowledging the receipt or delivery of the Goods but the burden of proving the condition of the Goods and their nature, quantity or weight at the time of collection shall rest with the Customer, the Customer hereby releases and holds harmless the Carrier from such burden and the Carrier may plead this clause in bar to any proceedings commenced by the Customer against the Carrier.

TRANSIT

  • Transit commences when the Carrier takes possession of the Goods at the point of collection or at the Carrier’s premises.
  • Transit shall end (unless otherwise previously determined) when the Goods are tendered at the usual place of delivery at the Customer’s designated address within customary cartage hours being 7am to 6pm or such other time as set out in a notice by the Carrier to the Customer provided that:
    if no safe and adequate access or no adequate unloading facilities there exist or are reasonably available, then transit is hereby deemed to end at the expiry of one clear day after the Carrier gives notice (including by telephone) of the arrival of the Goods at the Customer’s designated address has been sent to the Customer; and
    when for any other reason whatsoever Goods cannot be or have not been delivered or when Goods are held by the Carrier ‘to await order’ or ‘to be kept until called for’ or upon any like instructions and such instructions are not then given or the Goods are not called for within a one day, then transit shall also be deemed to end.

UNDELIVERED OR UNCLAIMED GOODS

  • If the Carrier is unable, for any reason, to deliver the Goods, or by virtue of the clause 2.5(b), transit is deemed to be at an end, the Carrier may sell the Goods (and any cargo, items or documents relating to such Goods) by public auction or by private treaty, and may retain the sums due to it by the Customer, in addition to any charges incurred in the detention and sale of such Goods, cargo or items from their proceeds and shall pay any surplus to the Customer.
  • The sale in accordance with sub-clause 12.2 discharges the Carrier from, and this Credit Account Conditions may be pleaded in bar to any proceedings against the Carrier for, all liability in respect of such Goods and Services provided that the Carrier shall do what is reasonable to obtain the fair value for the Goods.
  • The Carrier will not exercise the power of sale in this clause 12, if the Carrier knows the name and address of the Customer, until it has given reasonable notice to the Customer that the Goods will be sold unless within the time specified in the such notice (being a reasonable time in the circumstances from the giving of such notice) the Goods are collected or other reasonable instructions are given to the Carrier for the disposal of the Goods.

LIMITATION OF LIABILITY

  • The Carrier shall not be liable, and Customer hereby releases the Carrier from any claim in tort (including negligence), contract (including a fundamental breach of contract), bailment, contravention of any statute or breach of any statutory duty or obligation or otherwise for any, or the consequences of any:
    loss or destruction of or damage to the Goods whatsoever, howsoever caused;
    concealed damage, deterioration, contamination or evaporation of the Goods;
    mis-delivery of, or delay in delivery of, or failure to deliver, the Goods;
    delay in providing, or failing to provide, any Services;
    advice, representation, information or assistance provided to the Customer by the Carrier in the course of or in connection with the provision of any Services; and
    breach by the Customer of any warranty in these Credit Account Conditions.
  • Notwithstanding any other provision in Credit Account Conditions, but subject always to clause 13.1, if any liability whatsoever, howsoever arising, is found to attach to the Carrier, the Carrier’s liability shall be limited to, at the election of the Carrier, the lesser of, in the case of;

Services – the:

  • supplying of the Services again;
  • payment of the cost of supplying the Services again; or
  • amount of $500;

Goods – the:

  • replacement of the Goods or the supply of equivalent Goods;
  • repair of the Goods;
  • payment of the cost of replacing the Goods or of acquiring equivalent Goods;
  • payment of the cost of repairing the Goods; or
  • amount of $500.
  • Notwithstanding any other provision in Credit Account Conditions, but subject always to clause 13.1, the Carrier shall not in any event be liable to any person whatsoever for any consequential loss or loss of profits arising from, related to or suffered in connection with the provision of the Services or any loss of or damage to the Goods or any delay in providing the Services, or any delay in delivering, or failure to deliver, or mis-delivery of, the Goods.

CUSTOMER’S WARRANTIES

  • The Customer warrants that:
    it has complied with all applicable laws relating to Dangerous Goods;
    it is either the owner of the Goods or the authorised agent of the owner or a person who has an interest in the Goods, or any part thereof, and enters into Credit Account Conditions on its own behalf or as authorised agent of that person or persons, as the case may be;
    it has accurately and fully described the Goods to the Carrier and has provided all necessary instructions and information to the Carrier regarding handling, care and control of the Goods having regard to the nature and packaging of the Goods;
    any person who, on behalf of the Customer, provides or purports to provide instructions to the Carrier for the performance of the Services is authorised by the Customer to do so and is further authorised by the Customer to sign any contract on its behalf;
    the Goods are packed in a manner adequate to withstand the ordinary risks of cartage having regard to their nature;
    the Goods comply with all applicable laws including in relation to the consignment and packaging of the Goods and any and all expenses and charges of the Carrier in complying with the provisions of any such laws hereunder or with the requirement of any harbour, dock, railway, shipping, customs warehouse or other authority or company shall be paid to the Carrier by the Customer promptly on receipt of an invoice;
    it has not relied on any statement, warranty or representation made by, for or on behalf of the Carrier other than those that are expressly set out in Credit Account Conditions; and
    other than a claim or allegation against the Carrier, no claim or allegation shall be made by any person (including the Customer) against any sub-contractor, which imposes or attempts to impose any liability whatsoever and howsoever arising in connection with the provision of the Services or the Goods.

INDEMNITY TO THE CARRIER

  • The Customer shall indemnify the Carrier against:
    any and all liabilities and costs incurred by the Carrier (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss of or damage to the carrying vehicle and to other Goods carried) by reason of any error, omission, mis-statement or misrepresentation by the Customer or any other owner of the Goods or by any servant or agent of either of them, insufficient or improper packing, labelling or addressing of the Goods or fraud; and
    any and all claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence) by whomsoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods) in excess of the liability of the Carrier under the Credit Account Conditions in respect of any loss or damage whatsoever to, or in connection with, the Goods and Services whether or not caused or contributed to directly or indirectly by any act, omission, neglect or other wrongdoing on the part of the Carrier.

FRAUD

  • The Carrier shall not in any circumstances be liable in respect of Goods or Services where there has been fraud on the part of the Customer or the owner of the Goods, or the servants or agents of either, unless and only insofar as the fraud has been contributed to by the reckless complicity of the Carrier.

TIME LIMITS FOR CLAIMS

  • Notwithstanding any other provision in the Credit Account Conditions, and subject always to clause 13.1, the Carrier shall not in any event be liable to any person whatsoever, and the Customer hereby releases and forever holds the Carrier harmless from any claim for liability, for : damage to the whole or part of the Goods, or physical loss, mis-delivery or non-delivery of part of the Goods unless the Customer gives written notice thereof in writing within 7 days of the date of delivery, or due date for delivery in the case of mis-delivery or non-delivery, and the claim is made in writing within 7 days of such notice; and
    any other loss unless advised thereof in writing within 28 days of the date of delivery, or due date for delivery in the case of mis-delivery or non-delivery, and the claim is made in writing within in 35 days of such notice.
  • The Carrier shall in any event be discharged from all liability whatsoever and howsoever arising, and the Customer hereby releases and forever holds the Carrier harmless from any claim for liability, in respect of the Goods and Services unless suit is brought and notice in writing thereof given to the Carrier within one year of the date of delivery, or due date for delivery in the case of mis-delivery or non-delivery.

LIEN

  • The Carrier shall have a particular lien on the Goods (and any cargo, items or documents relating to such Goods) and a general lien against the Customer for any unpaid sums, including, without limitation, any Charges. If such lien, whether particular or general, is not satisfied within 28 days after notice is given to the Customer, the Carrier may sell such Goods (and any cargo, items or documents relating to such Goods) by public auction or by private treaty, and may retain the sums due to it by the Customer, in addition to any charges incurred in the detention and sale of such Goods, cargo or items from their proceeds and shall pay the balance remaining (if any) to the Customer.

DEALINGS WITH THIRD PARTIES

  • If the Carrier, at the request of the Customer, collects Goods from a third party then, despite any subsequent agreement to the contrary between the Carrier and the Customer, any conformation or receipt the Carrier may give the third party is no more than a record and is not, and the Customer releases the Carrier from any claim regarding, confirmation or otherwise of the quality, acceptability or condition of the Goods.
  • The Customer acknowledges that the Carrier will not be bound by any instruction by the Customer or a third party to collect any Charges from any third party. Any Charges billed, at the request of the Customer, to third parties who do not have an account with the Carrier will be calculated using the Carriers non-account schedule rates and the Customer will be liable for any Charges if payment is not promptly made by such third party.

CONTAINERS

  • The Customer shall be responsible for the return of any Container to the person who owns or is otherwise entitled to possession of a Container, or its agent, and the Customer hereby indemnifies and will keep indemnified the Carrier against any claim, demand or liabilities which may arise as a result of or relate to any failure by the Customer with respect to the Container or to failure to observe or not contravene any rights or interests of any owner or other person making a claim with respect to the Container.
  • Any Container supplied by the Carrier shall be inspected by the Customer prior to packing and stowage and returned to the Carrier clean and undamaged to the location and by the date nominated by the Carrier, failing which the Customer shall be liable for, and shall indemnify the Carrier against, any and all resulting costs and expenses incurred by, or levied by any person against, the Carrier.
  • If the Goods are packed or stowed into a Container by the Customer or its agent, the Carrier shall not be liable for, and the Customer releases and holds harmless the Carrier against any claim regarding any liability, damage or loss arising from, the unsafe or improper packing or stowage of such Goods.

RISK & INSURANCE

  • The Goods shall at all times remain at the risk of the Customer.
  • The Customer shall ensure that it, and any agent or subcontractor engaged by the Customer in relation to the Goods or Services, obtains and maintains all insurances required by all applicable laws with reputable insurers and all such other insurances as the Carrier may deem necessary. Any deficiencies in the cover or policy limits of insurances of such agents or subcontractors shall become the sole responsibility of the Customer to procure.

QUOTATIONS

Any quote or fixed fee offered by the Carrier:
is offered on an immediate acceptance basis and is subject to withdrawal or revision without notice at the discretion of the Carrier;
excludes all Disbursements; and
includes only those Services for which rates have been quoted or fixed – any additional Services which may be performed by the Carrier are charged at the Carrier standard rates as it may publish and vary from time to time – and if any costs of the Carrier underlying those Services that were quoted or fixed increase, the Carrier will pass on to the Customer, and the Customer undertakes to pay, those increases including any standard margin of the Carrier.

CHARGES AND PAYMENT

  • The Carrier may base its Charges by reference to freight weight, volume or value and the Carrier may, at any time, re-weigh or re-measure or re-value or require the Goods to be re-weighed or re-measured or re-valued and apply additional freight Charges accordingly.
  • Despite any other clause of these Credit Account Conditions and any other agreement between the Carrier and the Customer that does not expressly, in writing, waive or vary this sub-clause, the Carrier may vary the price, cost and any quote or fixed fee for any of its Services at any time and for any reason and without notice.
  • The Customer shall reimburse the Carrier for all Disbursements, if any, which are properly and reasonably incurred by the Carrier in the provision of the Services or in respect of the Goods.
  • Unless otherwise agreed in writing with the Carrier, the Carrier’s Charges must be paid in full within 30 days of the date of any invoice issued by the Carrier for any Disbursement and/or Carriage Fee. The Customer must pay the relevant amount by providing the Carrier with cleared funds without any set-off, abatement, counter-claim, deduction or withholdings whatsoever, irrespective of any dispute between the Carrier and the Customer in respect of any Goods and/or Services.
  • The Carriage Fee shall be deemed as earned as soon as the Goods are delivered to the Carrier, or when the Services begin to be performed by the Carrier, whichever is the earlier, and under no circumstances shall that Carriage Fee be refunded.
  • The Customer agrees to indemnify the Carrier for any costs or expenses incurred by the Carrier in recovering any Charges from the Customer, including but not limited to fees paid to solicitors instructed to act on behalf of the Carrier, and the Customer agrees that any such costs or expenses will be deemed to have been reasonably incurred by the Carrier in recovering the Charges.

SECURITY INTEREST

To secure the punctual payment of all amounts owed by the Customer to the Carrier, the Customer grants to the Carrier:
a security interest (as defined under the PPSA) over all present and after-acquired property of the Customer in relation to which the Customer can be a grantor of a security interest under the PPSA, whether or not the Customer has title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the Corporations Act); and
a fixed charge over all present and after-acquired property of the Customer in relation to which the Customer cannot be a grantor of a security interest under the PPSA.

The Customer agrees and acknowledges the Carrier may (without limiting the Carrier’s other rights under these Credit Account Conditions, at law or otherwise) lodge caveats over the Customer’s property and take any other action to secure and enforce the Carrier’s security under clause 24.1.
The Carrier’s security under clause 24.1 may become enforceable without the need for any demand or notice to the Customer.
If the Carrier’s security under clause 24.1 has become enforceable, the Carrier may appoint a Receiver of secured property or exercise any power exercisable by a Receiver even if a Receiver has not been appointed.

The Customer agrees on demand, and irrevocably appoints the Carrier, each director and secretary of the Carrier and any Receiver (as independent and several appointments) as the Customer’s agent and attorney, to execute any document (including, without limitation, any mortgage or transfer) or undertake any act, at the Customer’s cost, that the Carrier considers necessary or desirable to:
better secure the security under clause 24.1 in a manner consistent with any Document; or
assist in the completion, execution of, or exercise of any power under, any Document.

PERSONAL PROPERTY SECURITIES

  • The Customer agrees that moneys received by the Carrier will be applied, after satisfaction of any claim that the Carrier or Receiver is aware ranks in priority, in the following order:
  • first in payment of all expenses that the Carrier or Receiver incurs in the exercise of a power or otherwise in relation to any Document;
  • then in payment of any other outgoings that the Carrier or Receiver considers appropriate to pay;
  • then in payment to the Receiver of any remuneration;
  • then in payment to the Carrier or Receiver of any amount necessary to give effect to any indemnity under any Document; and
  • then in payment to the Carrier of all amounts owed by the Customer to the Carrier.

The Customer:

  • agrees with the Carrier that neither the Customer, nor the Carrier, will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);
  • agrees that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143;
  • agrees that, to the extent permitted under section 115(7) of the PPSA, the following provisions of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;
  • acknowledges that the Carrier may, at the Customer’s cost, register one or more financing statements in relation to any security under any Document;
  • waives, if permitted under the PPSA, the Customer’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and
  • will not, without prior written notice to the Carrier, change the Customer’s name or initiate any change to any documentation registered under the PPSA.

TRUST

If the Customer is acting as the trustee of any trust in making the Application for Commercial Credit or any request for the supply of Goods and Services, the Customer acknowledges and agrees that the obligations arising herein are entered into in the Customer’s personal capacity and as a trustee of each and every trust of which the Customer as trustee requested the supply of the Goods and Services and the Customer covenants with the Carrier as follows:

the provisions of Credit Account Conditions shall extend not only to any property (including land) of which the Customer is the beneficial owner but also all property (including land) wheresoever situate both present and future of the Trust;

the Customer has full and complete power and authority pursuant to the trust to enter into this Application for Commercial Credit and to grant security over the trust property and the provisions of the trust do not purport to exclude or take away the right of indemnity of the trustee against the trust, and the Customer will not release such right of indemnity or commit any breach of trust or be a party to any other action which might prejudice such right of indemnity;

notwithstanding anything in the trust documentation the Customer shall be and at all times remain personally liable to the Carrier to the performance of all covenants on the part of the Customer contained in this Application for Commercial Credit;

the execution of this Application for Commercial Credit is and shall be deemed to be for the benefit of both the trust and/or one or more of the beneficiaries of the trust; and

during the currency of these Credit Account Conditions or of any mortgage collateral to this Application for Commercial Credit, the Customer will not without the consent in writing of the Carrier cause, permit or suffer to happen any of the following events:

  • (i) the removal replacement or retirement of the Customer as sole trustee of the trust;
  • (ii) any alteration to or variation of the terms of the trust;
  • (iii) any advancement or distribution of capital of the trust;
  • (iv) any resettlement of the trust property; or
  • (v) if the trust is a unit trust, any transfer if any units of the trust.

The Customer further covenants with the Carrier that in the event that the Customer is guilty of any breach of duty in respect of the trust or ceases to be the sole trustee of the trust or otherwise suffers removal, replacement or retirement as trustee of the trust or in the event that there should be any breach of the covenants contained in clause 9.1 then immediately upon any such events the Customer will, at the option of the Carrier (notwithstanding anything in this Application for Commercial Credit), be deemed to be in default of the provisions of this Application for Commercial Credit (notwithstanding any delay or previous waiver of the provisions of this clause by the Carrier).

RELEASE AND INDEMNITY

Neither the Carrier nor any person appointed by the Carrier under any Document will be liable for any loss that the Customer suffers as a direct or indirect result of:

the exercise or attempted exercise of, or failure to exercise, any rights under any Document; or

any release or dealing with any security interest.

The Customer will indemnify the Carrier, each member of the Carrier’s Personnel and each Receiver or any other person appointed by the Carrier in relation to any losses, liabilities, expenses (including but not limited to legal expenses on a full indemnity basis) or taxes incurred in connection with:

the exercise or attempted exercise of any powers, rights, discretions or remedies vested in the person under any Document or the Corporations Act;

any proceedings, claims or demands in relation to any secured property; or

any negligence, breach of these Credit Account Conditions or Event of Default by the Customer or any member of the Customer’s Personnel.

DEFAULT

If an Event of Default occurs, the Carrier may (without limiting the Carrier’s other rights under these Credit Account Conditions, at law or otherwise) demand immediate payment of any money owed by the Customer, retain any money paid by the Customer, cease any further supply of Goods and Services to the Customer and take possession of any Goods and/or Services for which the Customer has not paid.

APPLICATION OF MONEY

If the Carrier or Receiver receives money under or because of any Document, and applies the money in payment of monies owing to the Carrier, the Carrier or Receiver may apply different parts of the money received to different parts of the monies owing in the absolute discretion of the Carrier or Receiver regardless of any appropriation by the Customer.

PURPOSE

The Customer warrants that any credit provided to the Customer by the Carrier is to be applied wholly or predominately for commercial purposes. The Customer acknowledges, agrees and warrants that the Services are being acquired solely for business purposes and that the Carrier is relying on the accuracy of all the information and representations provided by the Customer in this Application for Commercial Credit.
JOINT AND SEVERAL

If the Customer consists of more than one person, each person will be jointly and severally bound by the terms of these Credit Account Conditions.

PRIVACY NOTICE AND CONSENT

The Carrier may, before, during or after the provision of credit to the Customer, give any of the following information about the Customer, to a credit reporting agency:

identity particulars – name, sex, address (and previous two addresses), date of birth, name of employer, and driver’s licence number;

the Customer’s application for credit – the fact that the Customer has applied for credit and the amount;

the fact that the Carrier is a current credit provider to the Customer;

payments which are overdue by more than 60 days, and for which debt collection action has started;

advice that payments are no longer overdue in respect of any default;

information that, in the opinion of the Carrier, the Customer has committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with credit obligations); and

dishonoured cheques – cheques drawn by the Customer for $100 or more which have been dishonoured more than once,

for the purpose of obtaining a consumer credit report, or allowing the credit reporting agency to create or maintain a credit information file containing information, about the Customer or for any related purpose.

The Carrier may obtain:

information about the Customer from a business which provides information about the commercial creditworthiness of persons; and
a consumer credit report containing information about the Customer from a credit reporting agency,

for the purpose of assessing the Customer’s application for credit or a grant of any ongoing credit or for any related purpose.

The Carrier may, but is not obliged to, give a credit report containing information about the Customer to any person:

who is currently a guarantor; or

whom the Customer has indicated is considering becoming a guarantor,

for the purpose of a person deciding whether to act as guarantor or keeping a guarantor informed about any guarantee or for any related purpose.

The Carrier may exchange information about the Customer with those credit providers and suppliers (including trade references):
named in this application;

named in a consumer credit report issued by a credit reporting agency; and

of which the Carrier is, or becomes, aware,

for the purpose of assessing an application for credit, notifying other credit providers (including trade references) of a default, exchanging information with other credit providers (including trade references) as to the status of credit where the Customer is in default with other credit providers (including trade references), or assessing the Customer’s creditworthiness or for any related purpose.

The information obtained or disclosed about the Customer in accordance with these Credit Account Conditions may include a credit report and anything about the Customer’s creditworthiness, credit standing or credit history or any related information.

Without limiting the foregoing, the Customer consents and authorises the Carrier at any time and from time to time to:

obtain information about the Customer’s commercial activities and personal or commercial credit worthiness from:

  • (i) the bank or trade referee as disclosed in this Application for Commercial Credit; or
  • (ii) any other credit provider; or
  • (iii) any credit reporting agency; and

use, disclose or exchange with other credit providers information about the Customer’s personal or commercial credit arrangements in order to assess this Application for Commercial Credit, monitor credit worthiness and collect overdue accounts;

disclose to any credit opening agency any personal or commercial information (including an opinion) relating to the Customer to maintain or create a credit information file containing information about the Customer; and

disclose the contents of a credit report by credit reporting agency to contractors or agents of the Carrier, including the Carrier’s solicitors or collection agents for collection purposes.

This notice and consent applies to any and each and every Customer or other party named in this Application for Commercial Credit and the Customer hereby warrants it has the express agency and authority to accept this notice and give consent (whether alone, as trustee, or a member of a partnership or as a director of an applicant company) of any party named in this Application for Commercial Credit.

NOTICES

Any communication (including each notice, consent, approval, request and demand) under or in connection with this Application for Commercial Credit:

must be in writing;

must be signed by the party making it on (on that party’s behalf) by the solicitor for, or any attorney, director, secretary, or authorised agent of that party;

must be delivered by hand or posted by prepaid post to the address, or sent by fax to the number, of the addressee, set out in this Application for Commercial Credit or notified by that party to each other party from time to time; and

is taken to be received by the addressee:

  • (i) in the case of prepaid post sent to an address in the same country – on the third day after the date of posting;
  • (ii) in the case of prepaid post sent to an address in another country – on the fifth day after the date of posting by airmail;
  • (iii) in the case of facsimile or email – at the time in the place to which it is sent equivalent to the time shown on the transmission confirmation report produced by the transmission device from which it was sent; and
  • (iv) in the case of delivery by hand- on delivery;

but if the communication is taken to be received on a day that is not a business day or after 5:00pm, it is taken to be received at 9:00am on the next business day (“business day” meaning a day that is not a Saturday, Sunday or public holiday and on which banks are open for business generally, in the place to which the communication is posted, sent or delivered).

GENERAL

A certificate signed by a director or secretary of the Carrier stating that an amount of money is payable by the Customer to the Carrier will be prima facie evidence of the fact and the Customer will not object to the admissibility of such a certificate in any legal proceedings.
If any provision of these Credit Account Conditions is unenforceable, the provision will be severed and the remaining provisions will continue to apply.

The Carrier may assign any rights or benefits under these Credit Account Conditions to any third party.

The Customer may only assign any rights or benefits under these Credit Account Conditions with the Carrier’s prior written consent.

If there is any inconsistency or ambiguity between the terms of these Credit Account Conditions and any other the terms of any other agreement, the terms of these Credit Account Conditions will take precedence and will prevail to the extent of any inconsistency.

  • The Carrier is not a common carrier and accepts Goods for carriage only upon that condition and acceptance of Credit Account Conditions. These Credit Account Conditions are subject to any warranties implied by the Competition and Consumer Act 2010 (Cth) or any other applicable law or regulation to the extent such laws or regulations prevent the exclusion, restriction and/or modification of such warranties.
  • The Customer agrees (at its own expense) to promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required by, or on behalf of, the Carrier to give full effect to Credit Account Conditions and the transactions contemplated by it.
  • Time is of the essence in these Credit Account Conditions in respect only of any date or period for payment determined under the Credit Account Conditions or other thing to be done by the Customer.
  • The Customer shall be liable to pay demurrage for unreasonable detention of any vehicle, trailer, Container or other equipment at the Carrier’s current rates of demurrage and the rights of the Carrier against any other person in respect thereof shall remain unaffected.
  • The rights of the Carrier under these Credit Account Conditions may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law, and may be waived only expressly and in writing. Delay in exercising or non-exercise of any such right is not a waiver of that right. All rights, immunities, indemnities, exclusions and limitations of liability in these Credit Account Conditions standing for the benefit of the Carrier shall continue to have their full force and effect in all circumstances and notwithstanding any breach (including a fundamental breach) of the Credit Account Conditions by the Carrier or any other person entitled of the benefit of such provisions.
  • Every provision of these Credit Account Conditions, including, without limitation, every exemption, limitation, condition, right, defence and immunity available to the Carrier under these Credit Account Conditions shall benefit, be available to, and extend to protect, any sub-contractor of the Carrier or any person who is or may be vicariously liable for the acts or omissions of the Carrier or any sub-contractor thereto, and, in agreeing to Credit Account Conditions, the Carrier shall be taken to have done so not only on its own behalf but also as agent for such persons.
  • A provision of these Credit Account Conditions, or any right created under them, may not be varied except in writing, expressed to amend these Credit Account Conditions and signed by the Carrier.
  • The Carrier may terminate these Credit Account Conditions, or any right under them, at any time without cause, upon 90 days notice to the Customer and the Customer hereby releases the Carrier from all claims or and any liability whatsoever and howsoever arising directly or indirectly from any event that has or may occur on or after the date of notice of termination and from the termination by the Carrier of the Credit Account Conditions or any right under them.
  • The Carrier (or any person acting on its behalf) shall not be liable for its delay or non-performance under these Credit Account Conditions so long as, and to the extent to which, the fulfilment of such obligation is prevented as a consequence of any event beyond the control of the Carrier (or any person acting on its behalf), which by its nature could not have been foreseen by the Carrier (or such person), or, if it could have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism.
  • The laws of the State of South Australia, Australia, shall govern the validity, interpretation and performance of these Credit Account Conditions and any dispute, controversy or claim arising out of, relating to or in connection with these Credit Account Conditions, including any question regarding their existence, validity or termination, shall be resolved by arbitration in accordance with the Australian Centre for International Commercial Arbitration’s Rules, seated in Adelaide, Australia.

DEFINITIONS

In these Credit Account Conditions:

“Administration” means any of the following, or any analogous, events:

any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;

any person, or agent of a person, who holds any security interest (whether or not under the PPSA) takes possession of any of the Customer’s property (including but not limited to seizing the Customer’s property within the meaning of section 123 of the PPSA); or

a court or other authority enforces any judgment or order against the Customer for the payment of money or the recovery of any property;

“Administration Costs” means the costs likely to be incurred by the Carrier in managing the full payment of the Carrier’s invoices within 30 days after the date of the invoice which the parties have reasonably estimated to be the liquidated sum of $100 per notice sent to the Customer by or on behalf of the Carrier per invoice remaining unpaid by 30 days or more at the time of the Carrier’s issue of the notice.

“Application for Commercial Credit” means the application for commercial credit of which these Credit Account Conditions forms part;

“Carriage Fee” means the Carrier’s charges for any Services provided for or on behalf of the Customer;

“Carrier” means any entity that grants credit to the Customer pursuant to these Credit Account Conditions;

“Charges” means any Disbursement or Carriage Fee;

“Container” means any container, trailer, transportable tank, pallet, flat rack, bolster or any device otherwise used to consolidate or carry for the Goods;

“Corporations Act” means the Corporations Act 2001 (Cth);

“Credit Account Conditions” means these terms and conditions and which form part of the Application for Commercial Credit;

“Container” means any container, trailer, transportable tank, pallet, flat rack, bolster or any device otherwise used to consolidate or carry Goods;

“Customer” means the applicant named in the Application for Commercial Credit of which these Credit Account Conditions forms part;

“Dangerous Goods” means Goods which are volatile or explosive or which may be or become dangerous, inflammable or offensive and includes all Goods which are likely to fall within the definition of hazardous, dangerous, explosive, inflammable or radioactive in any law;

“Disbursement” means any monies paid to any person by the Carrier for, on behalf of or at the request of the Customer in the course of, or incidental to, the provision of the Services by the Carrier;

“Document” means the Application for Commercial Credit, these Credit Account Conditions, the T&Cs and any document contemplated by such documents;

“Event of Default” means any of the following, or any analogous, events:

the Customer fails to pay any amount due and payable under any Document when the amount is due and payable;

the Customer fails to comply with any obligations under any Document;

any representation, warranty or statement by the Customer in connection with any Document is untrue or misleading (whether by omission or otherwise) or fraudulent; or

the Customer becomes subject to Administration;

“Goods” means the cargo, baggage, equipment, machinery plant or items in relation to which any part of the Services have been or are to be performed, and any receptacle, Container, package, packaging or item in which they are contained with or with which they are stored or handled;

“law” means, as the case may be, legislation, regulations, codes or conventions applicable to this agreement or otherwise to the Goods;

“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;

“PPSA” means Personal Property Securities Act 2009 (Cth);

“Receiver” means a receiver or receiver and manager (or an additional receiver or receiver and manager);

“Services” means the whole or any part of the operations provided from time to time by the Carrier for the Customer, including but not limited to the carriage, storage, loading, unloading, packing, unpacking, freight forwarding, customs clearance or deconsolidation of ny Goods or any Container for or on behalf of the Customer pursuant to the T&Cs; and

“T&Cs” means the Carrier’s terms and conditions of sale as may be amended by the Carrier from time to time.