STANDARD TRADING CONDITIONS OF CONTRACT
1. In these Conditions:
"Company" means (DELPAK PTY LTD ACN 117 401 886).
"Customer" means the person with whom this Contract is made.
"Dangerous Goods" means cargo which is volatile or explosive or which is or may become dangerous, inflammable or offensive (including radioactive materials) or which may become liable to damage any person or property whatsoever.
"Goods" means the cargo accepted by the Company together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.
"GST" means the goods and services tax imposed by or under a GST Law.
"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
"GST Rate" means the rate of GST under the GST Law.
"Invoice" means the tax invoice under the GST Law.
"Services" mean the whole of the operations undertaken by the Company in respect of the Goods.
"Subcontractor" includes any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
"Supply" means the same as in the GST Law.
"Taxable Supply" means any Supply under these Conditions in respect of which the Company is or may become liable to pay GST.
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. All Services are provided to the Company subject only to these Conditions
which prevail at all times over the conditions of contract of the Customer. In the event
of and to the extent of any inconsistency between these Conditions and the conditions
which are incorporated into the bill of lading, waybill, consignment note or other
transport document issued by the Company, these Conditions prevail.
3. The Customer warrants that it is either the owner or the authorised agent of the person or persons
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 authorised agent of that person or those persons.
Further the Customer undertakes to indemnify the Company in respect of any liability
whatsoever and howsoever arising (including without limiting the foregoing from
negligence or breach of contract or wilful act or default of the Company or others) in
connection with the provision of the Services and/or the Goods to any person (other than
the Customer) who claims to have, who has or may hereafter have any interest in the
Goods or any part of the Goods.
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4. The Customer warrants that it has complied with all laws and regulations relating to the nature,
condition, packaging, handling, storage and carriage of the Goods and that the Goods
are packed to withstand the ordinary risks of handling, storage and carriage, having
regard to their nature and indemnifies the Company for all liability and for all costs
incurred as a result of or arising out of a breach of this warranty. Further the Customer
shall provide to the Company all such assistance, information and documentation that
may be necessary to enable the Company to comply with such laws and regulations.
5. All customs and/or excise duties, costs, fines or penalties which the Company becomes liable to pay
for any reason whatsoever in respect of the Goods and any documentation relating to the
Goods pursuant to any applicable laws or regulations (whether or not resulting from or
arising out of the negligence of the Company) shall be paid by the Customer.
6.(i) The Customer shall not tender for the provision of Services by the Company
any Dangerous Goods without presenting to the Company a full description
disclosing their nature and in any event the Customer shall be liable for all death,
bodily injury, loss and/or damage thereby caused and shall indemnify the Company for
such liability.
(ii) If, in the 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.
7. The Goods are at the risk of the Customer and not of the Company and the Company shall not be
responsible in tort or contract or bailment or otherwise for any, and the consequences of
any, loss of or damage to or deterioration of the Goods or misdelivery or failure to
deliver or delay in delivery of the Goods including chilled, frozen, refrigerated or
perishable Goods either in transit or in storage or failure to provide or delay in providing
the Services for any reason whatsoever including without limiting the foregoing the
negligence or breach of contract or wilful act or default of the Company or others or
the conversion or misappropriation of the Goods by the Company's servants, agents or
Subcontractors.
This Clause shall apply to all, and the consequences of all, such loss of
or damage to or deterioration of the Goods or misdelivery or failure to deliver or delay
in delivery of the Goods or failure to provide or delay in providing the Services whether
or not the same occurs in the course of performance by or on behalf of the Company
of the Contract or in events which are in the contemplation of the Company and/or
the Customer or in events which are foreseeable by them or either of them or in events
which could constitute a fundamental breach or a breach of a fundamental term of the
Contract.
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8. Where any handling, installation, removal, assembly or erection of any kind whatsoever is required
to be undertaken by the Company, the Company shall not be liable for any death, injury,
loss or damage which may result from or arise out of what the Company undertakes.
Further the Customer shall indemnify the Company in respect of any such liability
whether or not that liability arises from negligence or breach of contract or wilful act or
default of the Company or the Company's servants, agents or Subcontractors.
9. (i) The Customer authorises the Company and any Subcontractor to subcontract
on any terms the whole or part of the provision of the Services.
(ii) The Customer undertakes:
(a) that no claim or allegation shall be made, whether by the
Customer or any other person who is or who may subsequently be
interested in the provision of the Services and/or in the Goods,
against any person (other than the Company) by whom (whether it is
a Subcontractor, principal, employer, servant, agent or otherwise) the
Services or any part of the Services are or is provided which imposes
or attempts to impose upon such person any liability whatsoever and
howsoever arising (including without limiting the foregoing from
negligence or breach of contract or wilful act or default of the
Company or others) in connection with the provision of the Services
and/or the Goods and if such claim or allegation should nevertheless
be made to indemnify the Company and the person against whom
such claim or allegation is made against the consequences of such
claim or allegation.
For the purpose of this Clause 9(ii), the
Company is or shall be deemed to be acting as agent or trustee on
behalf of and for the benefit of all such persons and each of them and
all such persons and each of them shall to this extent be or be deemed
to be parties to this Contract; and
(b) to indemnify the Company against any claim or allegation made
against it by any person in connection with any liability, arising out of or
relating to the provision of the Services and/or the Goods.
10. Every exemption, limitation, condition and liberty in these Conditions and every right, exemption
from liability, defence and immunity of whatsoever nature applicable to the Company or
to which the Company is entitled in accordance with these Conditions shall also be
available and shall extend to protect:
(i) all Subcontractors;
(ii) every servant or agent of the Company or of a Subcontractor;
(iii) every other person (other than the Company) by whom the Services or
any part of the Services are or is provided; and
(iv) all persons who are or may be vicariously liable for the acts or
omissions of any persons falling within paragraphs (i), (ii) or (iii) of this
Clause 10: and, for the purpose of this Clause 10, the Company is or shall
be deemed to be acting as agent or trustee on behalf of and for the benefit
of such persons and each of them and all such persons and each of them
shall to this extent be or be deemed to be parties to this Contract.
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11. (i) The Customer authorises any deviation from the usual manner in which the Services are
provided which may in the absolute discretion of the Company be deemed reasonable or
necessary in the circumstances.
(ii) If the Customer expressly or impliedly instructs the Company to use or it is
expressly or impliedly agreed that the Company will use a particular method of
providing the Services the Company will give priority to that method but its adoption
remains at the sole discretion of the Company and the Customer authorises the Company
to provide the Services by another method.
12.We are legally unable to sell or arrange Insurance on your behalf. However, we are able to provide
you with guidance on where and how your goods can be insured, and the likely cost.We
do not earn any form of remuneration or benefit for providing this service to you.
13. The charges of the Company shall be considered earned as soon as the Goods are delivered to the
Company and under no circumstances shall any of those charges be refunded. The
Company may charge by weight, measurement or value and may at any time reweigh,
remeasure or revalue or require the Goods to be reweighed, remeasured or revalued and
charge proportional additional charges accordingly. The Customer is and remains
responsible to the Company for all its proper charges whether or not the Goods are
delivered and/or the Services are provided as instructed and whether or not they are
damaged.
14. The Company shall have a lien on the Goods and any documents relating to the Goods and/or any
other Goods or cargo of the Customer in the possession or control of the Company and
any documents relating to those other Goods or cargo for all sums payable by the
Customer to the Company for that purpose and shall have the right to sell such Goods or
cargo by public auction or private treaty without notice to the Customer. The Company
shall be entitled to retain the sums due to it, in addition to the charges incurred in
detention and sale of such Goods or cargo, from the proceeds of sale and shall render
any surplus to the entitled person.
15. Every special instruction to the effect that charges shall be paid by a person other than the
Customer shall be deemed to include a stipulation that if that nominated person does not
pay those charges within seven (7) days of delivery or attempted delivery of the Goods,
then the Customer shall pay those charges to the Company within seven (7) days of
being notified of that person's failure to pay.
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16. The Company shall not be responsible in negligence or contract or otherwise for loss, damage,
costs, fines or penalties incurred by the Customer or any other person resulting from or
arising out of or in connection with any quotation, advice, statement, representation or
information given or made by or on behalf of the Company to the Customer or others
as to the classification of or any matter material to the valuation of or the liability for or
the amount, scale or rate of customs and/or excise duty or other impost, tax or rate
charged in respect of the Goods or any cargo whatsoever. In giving or making any
such quotation, advice, statement, representation or information the Company relies
solely on the particulars provided by the Customer which warrants that those particulars
accurately and completely describe all aspects of the Goods or cargo and the
transaction(s) relating to the Goods or cargo.
17. In all cases where liability of the Company has not been excluded, whether by these Conditions,
by statute or by international convention or otherwise, the liability of the Company
whatsoever and howsoever arising is limited to:
(i) Australian $100 or the value of the Goods the subject of the Contract at the time the
Goods were received by the Company, whichever is the lesser; or
(ii) in the case of a proven breach of an implied warranty provided by the Trade
Practices Act 1974 as amended, the payment of the cost of having the Services supplied
again.
18. The Company shall not be bound by any agreement purporting to waive or vary these Conditions
unless such agreement to so waive or vary shall be in writing and signed by an executive
officer of the Company.
19. (i) Any claim for loss or damage must be notified in writing to the Company within seven (7) days
of delivery of the Goods or of the date upon which the Goods should have been
delivered.
(ii) In any event the Company shall be discharged from all liability whatsoever in
connection with the provision of the Services and/or the Goods unless suit is brought
and notice given within nine (9) months of the provision of the Services or delivery of
the Goods or when the Services should have been provided or the Goods should have
been delivered.
20. (i) All the rights, immunities and limitations of liability in these Conditions shall continue to have
their full force and effect in all circumstances and notwithstanding any breach of this
Contract or of these Conditions by the Company or any other person entitled to the
benefit of such provisions.
(ii) It is agreed that if any provision or any part of any provision of these Conditions
is unenforceable such unenforceability shall not affect any other provision or any other
part of such provision.
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21. Notwithstanding anything herein contained the Company shall continue to be subject to any
implied warranty provided by the Trade Practices Act 1974 as amended if and to the
extent that that Act is applicable to this Contract and prevents the exclusion, restriction
and modification of such warranty.
22. These Conditions shall be governed by and construed in accordance with the laws of the State or
Territory in which this Contract was made.
23. (i) This Clause 23 applies if the Company is or may become liable to pay GST in relation to
any Supply under these Conditions.
(ii) Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such
charges, the Customer must pay GST on the Taxable Supply to the Company of an
amount equal to the GST exclusive consideration multiplied by the GST Rate. GST
shall be payable by the Customer without any deduction or set off for any other amount
at the same time as the GST exclusive consideration is payable. In all other respects,
GST shall be payable by the Customer to the Company upon the same basis as the GST
exclusive consideration is payable by the Customer under these Conditions.
(iii) The Company must issue an Invoice or Invoices to the Customer for the amount of
GST referrable to the Taxable Supply. The Company must include in any such Invoice
such particulars as are required by the GST Law in order that the Customer may obtain
an input tax credit for the amount of GST payable on the Taxable Supply.
(iv) If any part of the consideration is referrable to both a Taxable Supply and anything
that is not a Taxable Supply, the amount of GST payable by the Customer shall be
determined by the Company and shall be the same amount of GST that would be
payable if the Taxable Supply were the only Supply made to the Customer.
(v) If the Customer makes default in the payment on the due date of any amount payable
pursuant to Clause 23 (ii) then without prejudice to any other remedies of the Company, the Customer shall pay to the Company upon demand an amount equal to the amount of
any damages or interest or additional GST that may become payable by the Company
arising out of the default of the Customer.
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