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  • CONDITIONS OF CARRIAGE
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CONDITIONS OF CARRIAGE

 1.   Definitions  

 “Carriage” means all transport services provided by the  Carrier to the Consignor, including, but not limited to,  dispatch, pick-up, carriage, transportation, storage,  consignment, delivery, agistment, resting, temporary,  depasturing, livery or any other service provided by the  Carrier in relation to the Goods. The same meaning shall be  attributed to the word "carried" when used in the contract. 

 “Carrier” means Horselink Pty Ltd ACN 664 901 160  its  servants and agents. 

 “Collateral” means the personal property offered up as  security for the debt or other obligation owed to the Carrier  by the Consignor. The Collateral for the purposes of this  agreement means the Consignor’s Goods. 

 “Consignor” means any person/s, firm, body or corporation  (or person/s acting on behalf of and with the authority of  the Consignor) placing an order with the Carrier to  undertake Carriage of the Goods, or places Goods with the  Carrier for transportation, and if there more than one  person or entity requesting Carriage, is a reference to each  person jointly and severally.  “Goods” shall include goods and livestock of every  description, together with any other incidental items or  accessories, the subject of the contract.  “Sub-contractor” shall mean and include:  i.  railways operated by the Commonwealth or  any State;  ii.  iii.  2.  any other person, firm or company with  whom the carrier may arrange the carriage of  goods the subject of this Contract and any  person who is now or hereafter a servant,  agent, employee or subcontractor thereof;  any person, firm or company with whom the  Carrier may arrange to have the goods  including livestock the subject of any carriage  contract stores and/or agisted and/or  liveried and any person who is hereafter a  servant agent employee or sub-contractor  thereof.  Acceptance  2.1  3.  The Consignor is taken to have exclusively  accepted, and is immediately bound, jointly and  severally, by these terms and conditions if the  Consignor delivers up the Goods to the Carrier’s  possession for the Carriage thereof.  Price  3.1  3.2  3.3  4.  At the Carrier’s sole discretion, the price shall be  either:  (a)  calculated in accordance with the Carrier’s fee  schedule; or  (b)  the Carrier’s quoted price in respect of a  specific carriage.  The Carrier reserves the right to change the price to  reflect any increases to the Carrier in the cost of  performing the Carriage of the Goods, which are  beyond the reasonable control of the Carrier.  The charges of the Carrier shall be considered  earned as soon as the Goods are in the hands of the  Carrier, its servants or agents.  Carriage of the Goods   4.1  The Carrier is not a common carrier and will accept  no liability as such. All Goods are carried or  transported including all storage, agistment, livery  and other services by the Carrier subject only to  these conditions and the Carrier reserves the right  to refuse to carry or transport goods for any person,  corporation or company at its absolute discretion.  4.2  4.3  4.4  4.5  4.6  4.7  4.8  4.9  If the Consignor instructs the Carrier to use a  particular mode of carriage the Carrier will use its  best endeavours to use same provided if that  method or means is unavailable at the date of  planned movement then subject to further  instructions from the Consignor, providing they  readily available to the Carrier, the Carrier shall be  entitled to use its discretion to adopt some  alternative method or means and the Consignor  shall be deemed to authorise the Carrier to carry or  have the goods carried by such other method or  means.  The Consignor hereby authorises any deviation from  the usual route or manner of cartage of goods which  may in the absolute discretion of the carrier be  deemed reasonable or necessary in the  circumstances.  The Carrier reserves the right at its absolute  discretion to carry the Goods in any manner and by  any means or methods as it thinks fit. The Carrier at  its absolute discretion and without assigning any  reason therefore may alter at any time the manner,  means or method chosen by it for the carriage of  Goods. The Consignor authorises any such  alteration(s) which shall be deemed necessary and  reasonable in the circumstances.  The Consigner hereby authorises the Carrier to  arrange with a Sub-contractor for the Carriage of  any goods the subject of this contract. Any such  arrangement shall be deemed to be ratified by the  Consignor 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 Carrier.   The Consignor hereby expressly agrees and  acknowledges that insofar as it may be necessary to  ensure that Sub-contractor shall be so entitled the  Carrier shall be deemed to enter into this contract  for its own benefit and also as agent for the Sub contractor.  The Carrier is authorised to pick up the Goods from  the address for collection and to deliver the Goods  to the address for delivery given to the Carrier by  the Consignor and shall be taken to have delivered  the Goods for the purpose of this Contract if, at the  said address it obtains form any persons receipt or  a signed delivery order or acknowledgement of  delivery for the Goods or the Carrier delivers to the  Consignor a certificate in writing signed by a duly  authorised representative to the Carrier that the  Goods were delivered at the address for the delivery  given to the Carrier by the Consignor.  It is the responsibility of the Consignor to give the  Carrier the correct address for pick up and for  delivery and to arrange for a responsible persons to  be present at those addresses at the time of pickup  and delivery to enable the Carrier to pick up the  Goods and make effective delivery and the Carrier  shall not be liable for any delay in onward carriage  or delivery of loss or damage resulting from the  Consignor’s failure to comply with this condition.  If the Goods are not accepted for delivery when  tendered, the Carrier may hold the Goods as bailee  and shall be entitled to storage fees at normal rates  charged by the Carrier and as bailee shall not be  under any liability for any loss of or damage of the  Goods howsoever caused, or at its discretion the  carrier may return the Goods to the Consignor at  the cost and risk of the Consignor.  1  Horselink Conditions of Carriage  5.  Risk and Insurance   5.1  5.2  6.  The Goods are at the risk of the Consignor at all  times and, under no circumstances does the Carrier  undertake to insure, or arrange for the insurance of,  the Goods against any insurable risk whatsoever.   The Consignor:  (a)  warrants that the Goods are fully insured  against all risk which may arise during the  Carriage of the Goods; and  (b)  (c)  acknowledges and agrees that the Carrier is  not responsible, and cannot be held  responsible for, any incidents whatsoever in  which may void any insurance policy that the  Consignor has for the Goods; and  hereby agrees to produce to the Carrier any  insurance policy affecting the Goods if  requested to do so by the Carrier prior to the  Carriage of the Goods.  Default and Consequences of Default   6.1  6.2  6.3  7.  Interest on overdue invoices shall accrue daily from  the date when payment becomes due, until the date  of payment, at a rate of 10% per annum.  If the Consignor owes the Carrier any money the  Consignor shall indemnify the Carrier from and  against all costs and disbursements incurred by the  Carrier in recovering the debt (including but not  limited to internal administration fees, collection  agency costs and legal costs on a solicitor client  basis).  Without prejudice to any other remedies the Carrier  may have, if at any time the Consignor is in breach  of any obligation (including those relating to  payment) the Carrier may suspend or terminate the  Carriage of the Goods, and any of its other  obligations under these terms and conditions. The  Carrier will not be liable to the Consignor for any  loss or damage the Consignor suffers because the  Carrier exercised its rights under this clause.  Loss or Damage   7.1  7.2  7.3  7.4  8.  The Consignor acknowledges that it has been given  the opportunity to inspect the Carrier's facilities and  vehicles and acknowledges that they meet the  standard applicable to the freight/transport industry.  Unless otherwise expressly agreed in writing, no  responsibility at law in tort, contract or otherwise  shall be accepted by the Carrier for any loss,  damage, or misdelivery of or failure to deliver or  delay in delivery of goods either in transit, storage,  agistment, livery or alteration or carriage for any  reason whatsoever.  The Carrier shall in no circumstances be liable for  indirect or consequential loss or damage arising  from the services performed in respect of the  Goods including loss of market, loss of profit or loss  of contracts howsoever caused.  Any liability of the Carrier in relation to the Carriage,  howsoever arising or incurred, is limited to the cost  charged to or incurred by the Consignor for  Carriage.  Consignor Responsibilities   8.1  The Consignor expressly warrants with the Carrier  that:  (a)  the Consignor is either the owner or the  authorised agent of the owner of all Goods the  subject matter of Carriage and by entering  into any arrangement to carry the Goods the  Consignor expressly accepts these conditions  of Carriage as owner or agent of the owner.  (b)  (c)  (d)  8.2  The  the Consignor will indemnify the Carrier for  any veterinarian fees incurred at any time  while the Goods, if livestock, are in the custody  of the Carrier.  the Carrier may, at its discretion, provide or  arrange for any other party to provide feed,  water, agistment or temporary depasturing  during Carriage.   the Consignor will indemnify the Carrier for  any costs incurred under cl 8(c).   Consignor  acknowledges  that  the  transportation of such Goods is a high-risk activity.  There are inherent dangers in loading and unloading,  and a foreseeable risk that the livestock will be  injured in transit or suffer from travel sickness or  die.  9.  Cancelation   9.1  9.2  10.  The Carrier may cancel any contract to which these  terms and conditions apply or cancel the Carriage of  the Goods at any time before the Goods have been  loaded for Carriage, by giving written notice to the  Consignor. On giving such notice, the Carrier shall  repay to the Consignor any sums paid in respect of  the Price. The Carrier shall not be liable for any loss  or damage whatever arising from such cancellation.  In the event that the Consignor cancels the Carriage  of the Goods, then the Consignor shall be liable for  any loss incurred by the Carrier up to the time of  cancellation.  Personal Property Securities Act 2009 (Cth) (“the  Act”)  10.1  10.2  10.3  These terms and conditions constitute a security  interest for the purposes of the Act and where the  context requires words used in these terms and  conditions should be given the same meaning as in  the Act.  As security for the price and other monetary  obligations owing pursuant to these terms and  conditions, the Consignor:  (a)  grants to the Carrier a security interest, being  a charge over the Collateral AND any  proceeds realised from either the sale thereof  or any insurance policy relating thereto.  (b)  (c)  consents to the registration of the security  interest created by these terms and conditions  on the Personal Property Securities Register  (“PPSR”).  consents to the Carrier registering a financing  statement and/or financing change statement  with the PPSR.  The Consignor undertakes to:  (a)  promptly sign any further documents and/or  provide any further information requested by  the Carrier to complete and register any  financing statement or any financing change  statement with the PPSR;  (b)  (c)  indemnify and, upon demand, reimburse the  Carrier for all expenses incurred in searching,  registering and/or discharging a financing  statement or any other document with the  PPSR and any reasonable enforcement fees  and expenses in relation to such security  interests; and  not grant any encumbrance to any other  person in the collateral without first obtaining  the consent in writing of the Carrier. The  2  Horselink Conditions of Carriage  Carrier will be entitled, at its sole discretion, to  withhold consent without providing a reason.  10.4  10.5  11.  The Consignor acknowledges and waives its rights  to notice as a debtor or grantor under sections 95,  121(4), 129(2)(a), 130, 132(3)(d), 132(4), 135 and  137(2) of the Act.  The Consignor declares that, to the extent  permitted under the Act, sections 142 and 143 of the  Act will not apply to these terms and conditions and  the security interest granted under this clause.  Applicability of Legislation   11.1  11.2  11.3  12.  Except as required by statute and including the  Competition and Consumer Act 2010 (Cth), all  implied conditions and warranties are hereby  excluded, subject to the extent that such conditions  and warranties cannot be excluded under statute.   Except as required by statute and including under  the Competition and Consumer Act 2010 (Cth), the  Carrier does not accept liability for any direct,  indirect or consequential loss or damage caused to  the Consignor or any other person which arises out  of the negligence or carelessness of the Carrier or  any of its employees, servants or agents.  Notwithstanding anything herein contained, the  Carrier shall be bound by any implied warranty  under the Trade Practices Act 1974 (Cth) or the Fair  Trading Act 1997 (NSW) and any similar relevant  legislation but only to the extent that such Act is  applicable to this contract and prevents the  exclusion, restriction or modification of that  warranty and subject to the exceptions contained in  that Act, in such case, the liability of the Carrier is  limited to the supplying of its services again or the  payment of the cost of having the service supplied  again, as determined by the Carrier.  General  12.1  12.2  12.3  12.4  12.5  The failure by the Carrier to enforce any provision of  these terms and conditions shall not be treated as a  waiver of that provision, nor shall it affect the  Carrier’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.  These conditions shall be governed and construed  in accordance with the laws of the State of New  South Wales.  The Consignor agrees that the Carrier may amend  these terms and conditions at any time. If the Carrier  makes a change to these terms and conditions, then  that change will take effect from the date on which  the Carrier notifies the Consignor of such change in  writing. The Consignor will be taken to have  accepted such changes if the Consignor makes a  further request for the Carrier to perform Carriage  of Goods for the Consignor.   Where the Carrier is unable, wholly or in part, by  reason of any fact, circumstance, matter or thing  beyond the reasonable control of the Carrier,  including, but not limited to, any act of God, war,  terrorism, strike, civil commotion, lock-out, general  or partial stoppage, restraint of labour, industrial  action, fire, flood, storm, etc. (“Force Majeure”) to  carry out any obligation under the contract, and the  Carrier gives the Consignor prompt notice of such  Force Majeure, with reasonably full particulars  thereof and, insofar as is known, the probable  extent to which it will be unable to perform, or be  delayed in performing, that obligation, and uses all  reasonable diligence to negate or remove that Force  Majeure as quickly as possible, that obligation is  suspended, so far as it is affected by Force Majeure,  during the continuance thereof. The requirement  that any Force Majeure shall be negated or removed  with all reasonable diligence shall not require the  settlement of strikes, lockouts or other labour  disputes, or claims or demands by any government  on terms contrary to the wishes of the Carrier.  12.6  The Consignor acknowledges that it has had the  opportunity to seek independent legal advice in  relation to these terms and conditions. 

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