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1.1 “Client” shall mean the Client or any person or persons acting on behalf of and with the authority of the Client; and where:
(a) more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price; and
(b) the Client is an incorporated body, the Directors thereof guarantee its performance.
1.2 “Goods” means any goods or cargo together with any container, packaging, or pallet(s) which the Client has requested or arranged to be moved from one place to another by way of the Removalist’s Services, or for storage by the Removalist.
1.3 “Removalist” means Crusader National Pty Ltd ACN 613 692 774, its successors and assigns or any person acting on behalf of and with the authority of Crusader National Pty Ltd and each related entity (as defined in the Corporations Act 2001) of Crusader National Pty Ltd ACN 613 692 774 from time to time. This agreement extends to a company which is not now, but is in the future a related entity of Crusader National Pty Ltd ACN 613 692 774.
1.4 “Services” means all services provided by the Removalist to the Client at the Client’s request from time to time, as described on the quotations, invoices, consignment note, manifests, sales order or any other forms as provided by the Removalist to the Client, and includes storage and prepacking of the Goods, any advice or recommendations.
1.5 “Terms and Conditions” means these terms and conditions as varied, amended or supplemented from time to time.
2. Acceptance of Terms and Conditions
2.1 The Client istaken to have exclusively accepted and isimmediately bound, jointly and severally, by these Terms and Conditions if the Client places an order for, or accepts Services provided by theRemovalist.
2.2 These Terms and Conditions are to be read in conjunction with the Removalist’s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by the Removalist to the Client. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 The Removalist 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 Removalist subject only to these conditions and the Removalist 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 itsdiscretion.
2.5 The Client expressly warrants to the Removalist that the Client is either the owner, or the authorised agent of the owner, of any Goods or property that is the subject matter of these Terms and Conditions of cartage and/or storage, and by entering into these Terms and Conditions the Client accepts these Terms and Conditions for all other persons on whose behalf the Client is acting.
2.6 The Client recognises that there are always risks involved in the carriage of Goods, or the provision of Services many of which are outside the Removalist’s or the Client’s control. All basic quoted prices are for the provision of carriage and other services whereby the Client understands and acceptsthat there are such risks, accepts any financial detriment or other losses that may result from the performance or nonperformance of such work, and agreesthat the Removalist shall not be responsible or liable for such losses. The effect of this clause may be varied where it is otherwise agreed in writing between theparties.
3. Price and Payment
3.1 At the Removalist’s sole discretion the price payable by the Client for the Services (“Price”) shall be either:
(a) as indicated on any invoice provided by the Removalist to the Client; or
(b) the Removalist’s quoted price (subject to clauses 3.2 and 3.3) which will be valid for the period stated in the quotation or otherwise for a period of twenty-eight (28) days.
3.2 The Removalist reserves the right to change the Price:
(a) if a variation to the Removalist’s quotation isrequested;
(b) to reflect any increase in the cost to the Removalist beyond the reasonable control of the Removalist (including, without limitation, foreign exchange fluctuations or increasesin taxes, customs duties, insurance premiums, or warehousing costs);
(c) after re-weighing, re-valuing, or re-measuring the Goods. An additional charge shall be applicable for the carriage of substantially heavy items, such as pool tables, spas or pianos;
(d) in the event that any information supplied by the Client at the time of quotation isincorrect, inadequate, or inaccurate. The Removalist reserves the right (at its sole discretion) to either change the Price or to perform the Services strictly in accordance with the original quotation. If the Removalist agrees to perform the additional/alternative Services, the Price shall be varied pro-rata to allow for an adjustment in quantity, volume and/or weight of the Goods, plus additional loading and unloading times.
3.3 If the loading or unloading process is delayed for a period of time in excess of thirty (30) minutes due to any factor outside of the Removalist’s control, an additional charge shall apply for such delay based on the Removalist’s usual hourly rate.
3.4 At the Removalist’s sole discretion, a non-refundable deposit shall be required upon acceptance of the Removalist’s quotation to enable the booking date to be confirmed.
3.5 The Removalist’s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and dispatched from the Client’s premises.
3.6 Time for payment for the Services being of the essence, the Price will be payable by the Client, without any deduction or set off in law or in equity whatsoever, on the date/s determined by the Removalist, which may be:
(a) on completion of the Services;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which isseven (7) daysfollowing the date of any invoice given to the Client by the Removalist.
3.7 Payment may be made by cash, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and the Removalist.
3.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Removalist an amount equal to any GST the Removalist must pay for any provision of Services by the Removalist under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition. the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
3.9 The Client acknowledges and agrees that the Client’s obligations to the Removalist for the provision of the Services shall not cease until:
(a) the Client has paid the Removalist all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to the Removalist in respect of these Terms and Conditions between the Removalist and the Client.
3.10 Receipt by the Removalist of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised and until then the Removalist’s ownership or rights in respect of the Services, and this agreement, shall continue.
4. Provision of the Services
4.1 The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of the Removalist be deemed reasonable or necessary in the circumstances.
4.2 The Client hereby authorises the Removalist (if it should think fit to do so) to arrange with a subcontractor for the carriage of any Goods. Any such arrangement shall be deemed to be ratified by the Client upon delivery of the said Goods to such sub-contractor, who shall thereupon be entitled to the full benefit of these Terms and Conditions to the same extent as the Removalist. In so far as it may be necessary to ensure that such sub-contractor shall be so entitled the Removalist shall be deemed to enter into these Terms and Conditions for its own benefit and also as agent for the sub-contractor.
4.3 The Client shall provide an authorised representative at pickup to ensure the correct Goods are loaded. Regardless of whether or not such a representative is provided, and whether or not the Client provides the Removalist with a list of items to be moved, the Client shall be liable for all reasonable additional charges whatsoever arising from the movement of incorrect Goods or the non-carriage of Goods which the Client intended to be carried.
4.4 The Goods will be delivered in unassembled state. If assembly is required, the Client must request this at the time of booking and additional charges will be applicable.
4.5 The Customer will be asked at the time of booking if access to the upload and delivery locations are deemed standard (defined as follows):
(a) a ground level building to which a legally registered heavy vehicle (maximum height 4.3 metres) collecting or delivering a consignment can safely and legally approach, park and depart without disruption, overhead obstructions or cost; and
(b) once parked be within a walking distance of no more than fifteen (15) metres from the vehicle’s loading or unloading point to the allocated entry of the building via a maximum of five (5) steps; and
(c) be a regular, safe and stable surface, and over the distance the rise and fall shall not exceed one and a half (1.5) metres with a gradient of not more than one in five (1 in 5); and
(d) the point of collection or placement within the building shall not exceed twenty-five (25) metres from the allocated building entry point.
4.6 Should the Client’s pickup or delivery points be outside what is deemed standard, as defined in clause
4.5 (and the Client has not notified the Removalist prior to the pickup/delivery date), the Removalist reserves the right to amend the quotation (as per clause 3.2) and request further payment due to the difficulty of the access.
4.7 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Removalist shall be entitled (at their sole discretion) to either leave the Goods at the unattended location (left at the Client’ssole risk), orto return at a latertime until delivery is completed (storing the Goods at any convenient place in the meantime), and the Client agrees to pay any reasonable additional charges incurred thereby to the Removalist.
4.8 Any time specified by the Removalist for the delivery of Goods is an estimate only and the Removalist will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Removalist is unable to deliver the Goods as agreed solely due to any action or inaction of the Client then the Removalist shall be entitled to charge the Client any additional costs incurred by the Removalist as a direct consequence of any resultant delay or rescheduling of the delivery.
5. Client-Packed Containers
5.1 If the Goods have not been packed by or on behalf of the Removalist, the Removalist shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the Goods have been packed; or
(b) the unsuitability of the Goods for carriage or storage in the container(s); or
(c) the unsuitability or defective condition of the container(s).
5.2 The Removalistshall, unlessspecifically instructed by the Client, pre-pack the Goodsto a standard which suits the distance those Goods are to be transported.
5.3 The Client agrees to notify the Removalist in writing, prior to pick up, of any Goods that are inherently fragile or of a nature or value that is not readily apparent, and of any special precautions which should be taken when carrying the Goods, of which the Removalist cannot be reasonably expected to be aware.
6. Dangerous Goods
6.1 Goods are accepted by the Removalist on the condition that they comply with the requirements of any applicable law relating to the nature, condition and packaging of the Goods. The Client agreesto:
(a) to notify the Removalist in the event that any Dangerous Goods Act or similar legislation (“DGA”) applies to the Goods, and guarantees that all requirements of any such laws have been met;
(b) ensure that the Goods are fully described in writing on all relevant paperwork, including their name and nature, and in the case of Goods to which a DGA applies, are accompanied by a consignment note that
complies with the Act, etc.
6.2 Where, in the opinion of the Removalist, any Goods are dangerous, corrosive, noxious, explosive, flammable, perishable, or capable of attracting vermin or pests, the Removalist may refuse to carry or, if carriage has commenced, take any action reasonable to dispose, destroy, or otherwise deal with the Goods at the expense of the Client, and without incurring any liability to the Client.
7. Insurance and Loss or Damage
7.1 The Client acknowledges and agrees that the Removalist will not be obtaining insurance for the Goods and it is up to the Client to obtain the insurance asrecommended by the Removalist at the time of providing the quote to the Client or booking in the provision of the Services.
7.2 The Client acknowledges that the Removalist undertakes to carry out the carriage and/or storage of Goods with professionalism, due care and skill.
7.3 Save as expressly provided in these Terms and Conditions and subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods, the Removalist shall not be liable to the Client for any loss or damage suffered by the Client directly or indirectly (including but not limited to economic loss, loss of profits, liabilities to third parties) caused by:
(a) any damage, loss, or destruction to Goods in the provision of the Services;
(b) a mis-delivery, delay in delivery, or non-delivery of Goods;
(c) theft, overturning, fire, collision, road or rail accident not involving the conveyingvehicle;
(d) mishandling, incorrect loading or unloading, or stowage of any vehicle, the method by which it is driven or through any other cause whatsoever; and
(e) the carriage of Goods by a route other than the shortest or usualroute; this clause shall apply whether or not any such occurrence was due to any wilful, fraudulent, negligent or other act or omission of the Removalist.
7.4 The Client agrees that, in the event the Removalist is liable for any loss or damage to the Goods, that liability will be for an amount equal to the value of the lost Goods or thee damage to the Goods only, up to a maximum combined value of $150.00 per box.
7.5 The Client shall indemnify the Removalist against any action, claim, suit, fine or demand brought by any third party, the Client or the owner of the Goods, against the Removalist as a result of or in connection with any breach by the Client of any term of these Terms and Conditions or the provision of the Services by the Removalist, and this indemnity shall extend to the legal costs (on a full indemnity basis) of the Removalist
in defending any action and in enforcing thisindemnity.
8. Conditions of Storage
8.1 The Removalist will prepare an inventory of Goods received for storage and will ask the Client to sign that inventory. The Client will be provided with a copy of the inventory. If the Client signs the inventory, or does not do so and fails to object to its accuracy within the earlier of seven (7) days of receiving it from the Removalist, or the Goods being removed from storage, then the inventory will be conclusive evidence of the Goods received. The inventory will disclose only visible items and not any contents unless the Client asks for the contents to be listed, in which case the Removalist will be entitled to make a reasonable additional charge.
8.2 The Removalist is authorised to remove the Goods from one warehouse to another without cost to the Client. The Removalist will notify the Client of the removal and advise the address of the warehouse to which the Goods are being removed not less than five (5) days before removal (except in emergency, when such notice will be given as soon as possible).
8.3 The Client is entitled, upon giving the Removalist reasonable notice, to inspect the Goods in store but a reasonable charge may be made by the Removalist for thisservice.
8.4 Subject to payment for the balance of any fixed or minimum period of storage agreed, the Client may require the Goods to be removed from the store at any time on giving the Removalist not less than five (5)
working days’ notice. If the Client gives the Removalist less than the required notice the Removalist will still use their best endeavours to meet the Client’s requirements, but shall be entitled to make a reasonable additional charge for the short notice.
8.5 The Client agrees to remove the Goods from storage within twenty-eight (28) days of a written notice of requirement from the Removalist to do so. In default, the Removalist may SELL ALL OR ANY OF THE
GOODS in accordance with clause 16.
9.1 The Removalist may cancel any arrangement or agreement or the provision of Services to the Client at any time before the Services have commenced by giving written notice to the Client. On giving such notice the Removalist shall repay to the Client any money paid by the Client for the Services. The Removalist shall not be liable for any loss or damage whatsoever arising from such cancellation.
9.2 In the event that the Client cancels provision of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Removalist as a direct result of the cancellation (including, but not limited to, any loss of profits).
9.3 In the event that the Client cancels provision of the Services after the Removalist’s arrival for pickup of the Goods, the Client shall pay the Removalist the lesser of either the full Price or the time spent at pickup, which shall be charged at the Removalist’s usual hourly rate with a minimum charge of two (2)hours.
10. Default and Consequences of Default
10.1 The Removalist shall be entitled to charge interest on all outstanding monies due by the Client at the rate of 12.0% per annum.
10.2 All legal costs(on a full indemnity basis), charges, duties and other expensesincurred by the Removalist in respect of this agreement or the securities or other documentation required hereunder or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Client failing to perform their covenants and obligations contained herein, shall be paid by the Client to the Removalist. The expenses include, but are not limited to, the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.
10.3 Further to any other rights or remedies the Removalist may have under this agreement, if the Client has made paymentto the Removalist by credit card, and the transaction issubsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Removalist under this clause 10 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
10.4 If the Client (a) defaultsin the due and punctual observance of all or any of its obligations or covenants under this agreement; or (b) being a person, dies or commits an act of bankruptcy or enters into a debt arrangement or composition under the Bankruptcy Act 1966 or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs; or (c) being a company, takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs, then all monies owed by the Client to the Removalist shall become immediately due and payable and the Removalist without prejudice to any right or remedies open to itmay:
(i) treat as discharged all or any obligation arising from any agreement with the Client;
ii) retain any security given or monies paid by the Client or available though the enforcement of any guarantee, security, or bond and apply this in reduction of any sum of money owed or owing by the Client to the Removalist;
(iii) take such steps asit may deem necessary to mitigate the damagessuffered including the putting to use, hiring out, or sale of any goods supplied under this agreement;
(v) appoint in writing any person or persons to be a receiver or receiver and manager of the property charged under clause 14 below or any part of the charged property. The receiver so appointed shall be the agent of the Client and the Client shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of the Client have all the powers conferred on a receiver under the Corporations Act 2001;
(iv) exercise any other right or remedy available to it under the PPSA including to enforce the security interests created by this agreement.
11. Security and Charge
11.1 The Client hereby in favour of the Removalist charges with the due and punctual payment and the due, punctual and complete performance of all their liabilities and obligations hereunder or on any account whatsoever to the Removalist all their legal and equitable interest of whatsoever nature held in any real property both present and future and the Client hereby consents to the Removalist lodging a caveat or caveats noting its proprietary interest herein.
11.2 The Client grant a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, including in relation to any personal property including any debts owed the Client, in favour of the Removalist to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.
11.3 If requested by the Removalist the Client must immediately sign any documents, provide all necessary information and do anything else required by the Removalist to ensure that the Removalist’s security interest created in favour of the Removalist is a perfected security interest.
11.4 The Client must not do or permit anything to be done that may result in the security interest granted to the Removalist ranking in priority behind any other security interest.
11.5 To the fullest extent permitted by the PPSA the Client agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
11.6 The Client hereby waives any rights the Client may otherwise have to:
(a) receive any notices or statements the Client would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
(b) apply to a Court for an order concerning the removal of an accession under section 97 of thePPSA;
(c) object to a proposal of the Removalist to dispose or retain any collateral under sections 130 and 135 of the PPSA; and
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
12. Unpaid Seller’s Rights to Dispose of Goods
12.1 All Goods or carried for, on behalf of, the Client that are received by the Removalist shall be subject to a general lien for any monies owed by the Client to the Removalist as a result of these Terms and Conditions or any previous agreement between the Removalist and the Client. In order to exercise its rights under this lien, the Removalist shall have the right to seize or retain or to defer or refuse delivery of any Goods that are the subject of this lien should circumstances arise that make it reasonable to conclude that the Client is unwilling or unable to pay any due charges in the required form or at the required place or time. Where the charges of the Removalist remain unpaid for a minimum period of twenty-eight (28) days, the Removalist may give twenty-eight (28) days’ written notice by certified or registered mail to the last known address of the Client of its intention to sell the Goods. If the amount owing is not paid within that further period the Removalist may open any packages, DISPOSE OF THE GOODS or SELL ALL OR ANY OF THE GOODS by auction or by private treaty at its absolute discretion. Out of any monies arising the Removalist may retain its charges and all charges and expenses of the detention and sale. The Removalist shall credit the surplus, if any, to the person entitled to it. Any such sale shall not prejudice or affect any other rights that the Removalist may have to recover any outstanding charges due or payable in respect of such service or the said detention or sale.
13.1 The failure by the Removalist to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Removalist’s right to subsequently enforce that provision. 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.
13.2 These Terms and Conditions shall be governed by the laws of Western Australia, the state in which the Removalist has its principal place of business, and are subject to the jurisdiction of the Courts in that state.
13.3 The Removalist shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Removalist of these Terms and Conditions (alternatively the Removalist’s liability shall be limited to damages which under no circumstances shall exceed the Price).
13.4 The Client undertakes that no claim or allegation shall be made against any servant or agent of the Removalist which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify the Removalist and any such servant or agent against all consequencesthereof.
13.5 The Client agrees that the Removalist may amend these Terms and Conditions at any time. If the Removalist makes a change to these Terms and Conditions, then that change will take effect from the date on which the Removalist notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Removalist to provide Services to theClient.
13.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic or epidemic event or other event beyond the reasonable control of either party.
13.7 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.