Terms and Conditions
Grays Bendigo Pty Ltd – Terms and Conditions
1.1 “Supplier” means Grays Bendigo Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Grays Bendigo Pty Ltd.
1.2 “Client” means the person/s hiring and/or acquiring the Goods and/or Services, as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all goods, equipment, machinery and containers supplied by the Supplier to the Client either on a loan basis (as part of the Services), a hire basis, or on a “for sale” basis at the Client’s request from time to time (and where the context so permits shall include any supply of Services).
1.4 “Services” means all services supplied by the Supplier to the Client and are as described on the quotations, invoices, consignment note, sales order or any other forms as provided by the Supplier to the Client and includes any advice or recommendations.
1.5 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by the Supplier to the Client.
1.6 “Cargo” means cargo together with any packaging, or pallet(s) to be moved from one place to another by way of the Supplier’s Services.
1.7 “Price” means the payable for the supply of Goods and/or Services as agreed between the Supplier and the Client subject to clause 3 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods and/or Services.
2.2 These terms and conditions are to be read in conjunction with the Supplier’s quotation, consignment note, hire agreement, or any other forms as provided by the Supplier to the Client. If there are any inconsistencies between these documents then the terms and conditions contained in that document shall prevail.
2.3 These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Supplier.
3. The Commonwealth Competition and Consumer Act 2010 (CCA) and Fair Trading Acts (FTA)
3.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Competition and Consumer Act 2010 (CCA) or Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
3.2 Where the Client acquires Goods and/or Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.3 Liability of the Supplier for breach of warranty implied into these terms and conditions by the CCA or howsoever arising, is limited to (as determined by the Supplier):
(a) for Services (arising out of any one incident whether or not there has been any declaration of value of the Cargo): rectifying, re-supplying, or paying the cost of re-supplying the Services; or
(b) for Goods: repairing or replacing the Goods; and
(c) if the Supplier is unable to do any of these things, then the Supplier may refund any money the Client has paid for the Goods and/or Services, but only to the extent that such refund shall take into account the value of Goods and/or Services which have been provided to the Client which were not defective.
3.4 If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the Supplier’s sole discretion;
(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods;
(c) otherwise negated absolutely.
3.5 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Supplier has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 3.5.
3.6 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
4. Change in Control
4.1 The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause
5. Price and Payment
5.1 At the Supplier’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Supplier to the Client in respect of the supply of Goods and/or Services; or
(b) the Price as at the date of Delivery according to the Supplier’s current pricing schedule; or
(c) the Supplier’s quoted Price (subject to clause 5.2) which shall be binding upon the Supplier provided that the Client shall accept in writing the Supplier’s quotation within thirty (30) days. Unless specified otherwise.
5.2 The Supplier reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including changes to kilometres or weight, measurement or value of the Cargo) is requested; or
(c) in the event of any increase in the cost to the Supplier beyond the reasonable control of the Supplier (including, without limitation, labour, materials, overflow, foreign exchange fluctuations, or increases in taxes, customs duties, insurance premiums, or warehousing costs),
5.3 At the Supplier’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods and/or Services being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
(a) on, or before, Delivery;
(b) by way of instalments in accordance with the Supplier’s payment schedule;
(c) payment for approved Clients shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by the Supplier.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and the Supplier.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply of Goods and/or Services by the Supplier 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.
6.1 Delivery of the Goods/Cargo (“Delivery”) is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods/Cargo at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods/Cargo to the Client’s nominated address. The Supplier is authorised to deliver the Goods/Cargo at the address given to the Supplier by the Client for that purpose and it is expressly agreed that the Supplier shall be taken to have made Delivery in accordance with this contract if at that address the Supplier obtains from any person a receipt or a signed delivery docket for the Goods/Cargo.
6.2 The Client must take Delivery (by receipt or collection) whenever the Goods/Cargo are tendered for Delivery. In the event that the Client is unable to take Delivery as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.3 The Supplier may deliver the Goods/Cargo in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by the Supplier for Delivery is an estimate only and the Supplier 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 Delivery to take place at the time and address as was arranged between both parties. In the event that the Supplier is unable to supply the Goods and/or Services as agreed solely due to any action or inaction of the Client then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Goods and/or Services at a later time and date.
6.5 At the Supplier’s sole discretion, the cost of delivering the Goods is either included in, or in addition to, the Price.
7.1 in the event that the Client believes that they have any claim against the Supplier then they must lodge any notice of claim for consideration and determination by the Supplier within seven (7) days of the date of Delivery, or for non-delivery within seven (7) days of the anticipated date of Delivery. Upon such notification the Client must allow the Supplier to inspect the Goods and/or review the Services.
7.2 The failure to notify a claim within the time limits under clause 7.1 is evidence of satisfactory performance by the Supplier of its obligations.
8.1 The Supplier may cancel any contract to which these terms and conditions apply or cancel provision of the Goods and/or Services at any time before the Goods/Cargo have been delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage whatever arising from such cancellation.
8.2 In the event that the Client cancels the Goods and/or Services, then the Client shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
9. Default and Consequences of Default
9.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
9.2 If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
9.3 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods and/or Services to the Client (and repossession the Goods as per clause 14.3(b). The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
9.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
10. Privacy Act 1988
10.1 The Client agrees for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Supplier.
10.2 The Client agrees that the Supplier may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
(e) The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
10.3 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
10.4 The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other purposes as shall be agreed between the Client and Supplier or required by law from time to time):
(a) the provision of Goods and/or Services; and/or
(b) the marketing of Goods and/or Services by the Supplier, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods and/or Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods and/or Services.
10.5 The Supplier may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
10.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that the Supplier is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Supplier, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by the Supplier has been paid or otherwise discharged.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and collateral (accounts) – being a monetary obligation of the Client for Services – that have previously been provided and that will be provided in the future by the Supplier to the Client.
11.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier;
(e) (where applicable) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 The Supplier and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by the Supplier, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by the Supplier under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of the Supplier agreeing to supply Goods and/or Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
12.3 The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13.1 The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’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 and any contract to which they apply shall be governed by the laws of Victoria, the state in which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in that state.
13.3 Subject to clause 3, the Supplier 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 Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price).
13.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
13.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
13.6 The Client agrees that the Supplier may amend these terms and conditions at any time. If the Supplier makes a change to these terms and conditions, then that change will take effect from the date on which the Supplier 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 Supplier to supply Goods and/or Services to the Client.
13.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
13.8 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.
14. Terms Applicable to the Hire of Goods
14.1 Hire Period
(a) Hire charges shall commence from the time the Goods depart from the Supplier’s premises and will continue until the return of the Goods to the Supplier’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
(b) The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
(c) No allowance whatsoever can be made for time during which the Goods are not in use for any reason, unless the Supplier confirms special prior arrangements in writing. In the event of Goods breakdown, as per clause 14.2(a)(i), provided the Client notifies the Supplier immediately, hiring charges will not be payable during the time the Goods are not in use, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
14.2 Client’s Responsibilities
(a) The Client shall:
(i) notify the Supplier immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Goods by giving such notification;
(ii) satisfy itself at commencement that the Goods are suitable for its purposes;
(iii) be solely responsible for ensuring temperature settings on refrigerated Goods are to the Client’s requirements;
(iv) not use the Goods for any illegal purpose or store any illegal, prohibited, or unprotected corrosive substances or items in or on the Goods;
(v) notify the Supplier of any dangerous items which are to be stored in the Goods and comply with any regulatory body requirements and/or occupational health and safety laws relating to such storage or which relate to the use, or movement of, the Goods;
(vi) not move the Goods from their specified location without the express written approval of the Supplier;
(vii) grant the Supplier the right to enter the site where the Goods are stored at all reasonable times to view the state of the Goods;
(viii) ensure that any person(s) moving the Goods have the appropriate skills and licences to do so;
(ix) operate any refrigerated Goods with an adequate power source;
(x) on termination of the hire, deliver up the Goods complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to the Supplier;
(xi) keep the Goods in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Goods;
(xii) not alter or make any additions to the Goods (including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Goods), or in any other manner interfere with the Goods;
(xiii) employ the Goods solely in their own work and shall not permit the Goods or any part thereof to be used by any other party for any other work;
(xiv) not exceed the recommended or legal load and capacity limits of the Goods;
(xv) not fix any of the Goods in such a manner as to make them legally a fixture forming part of any freehold;
(b) Immediately on request by the Supplier the Client will pay:
(i) the new list price of any Goods that are for whatever reason destroyed, written off or not returned to the Supplier;
(ii) all costs incurred in cleaning the Goods;
(iii) all costs of repairing any damage caused by the ordinary use of the Goods up to an amount equal to ten percent (10%) of the new list price of the Goods;
(iv) the cost of repairing any damage to the Goods caused by the negligence of the Client or the Client’s agent;
(v) the cost of repairing any damage to the Goods caused by vandalism, or (in the Supplier’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Goods by the Client;
(vi) any costs incurred by the Supplier in collecting and returning the Goods to the Supplier’s premises if the Client does not return the Goods to the Supplier’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do so.
(vii) any lost hire fees the Supplier would have otherwise been entitled to for the Goods, under this, or any other hire agreement;
(viii) any insurance excess payable in relation to a claim made by either the Client or the Supplier in relation to any damage caused by, or to, the Goods whilst the same is hired by the Client, and irrespective of whether charged by the Client’s insurers or the Supplier’s.
14.3 Title and Risk
(a) The Goods are and will at all times remain the absolute property of the Supplier, and the Client must return the Goods to the Supplier upon request to do so.
(b) If the Client fails to return the Goods to the Supplier as is required under this agreement or when requested to do so, then the Supplier or the Supplier’s agent may (as the invitee of the Client) enter upon and into any land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused. Any costs incurred by the Supplier as a result of the Supplier so repossessing the Goods shall be charged to the Client.
(c) Only to the extent that the hire of the Goods exceeds a twelve (12) month hire period (or a six (6) month hire period with the right of renewal), clause 11 shall apply, and this agreement a security agreement for the purposes of PPSA generally, and in particular Section 20.
(d) The Client is not authorised to pledge the Supplier’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.
(e) The Supplier retains property in the Goods nonetheless all risk for the Goods passes to the Client on Delivery.
(f) The Client accepts full responsibility for the safekeeping of the Goods and indemnifies the Supplier for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
(g) The Client will insure, or self-insure, the Supplier’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Client will not use the Goods nor permit them to be used in such a manner as would permit an insurer to decline any claim.
(h) The Client accepts full responsibility for and shall keep the Supplier indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the Hire Period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
15. Terms Applicable to the Sale of Goods
(a) Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
(b) If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
(c) If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
15.2 Title to Goods
(a) The Supplier and the Client agree that ownership of the Goods shall not pass until:
(i) the Client has paid the Supplier all amounts owing to the Supplier; and
(ii) the Client has met all of its other obligations to the Supplier.
(b) Receipt by the Supplier 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.
(i) It is further agreed that:
(ii) until ownership of the Goods passes to the Client in accordance with clause (a) that the Client is only a bailee of the Goods and must return the Goods to the Supplier on request.
(iii) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(iv) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
(v) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
(vi) the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
(vii) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred.
(viii) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.
(ix) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
16. Terms Applicable to the Carriage of Cargo
16.1 Acceptance of Cargo for Carriage
(a) The Client acknowledges that the Cargo is carried or transported, and other Services are performed by the Supplier, subject only to these conditions and the Supplier 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 its discretion.
16.2 Client-Packed Containers
(a) If the Cargo has not been packed by or on behalf of the Supplier then the Supplier shall not be liable for loss of or damage to the Cargo caused by:
(i) the manner in which the Cargo has been pre-packed; or
(ii) the unsuitability of the Cargo for carriage or storage; or
(iii) the unsuitability or defective condition of the Cargo.
16.3 Client Warranties
(a) The Client expressly warrants to the Supplier that the Client is either the owner, or the authorised agent of the owner, of the Cargo or property to which this contract for carriage shall apply, and by entering into this contract the Client accepts these conditions of contract for all other persons on whose behalf the Client is acting. Furthermore should any person make a claim or commence proceedings against the Supplier alleging an interest in any part of the consigned Cargo then the Client agrees to indemnify the Supplier from and against all liability, injury, loss or damage suffered by the Supplier as a result of such actions.
(b) The Client warrants that the Client has complied with all relevant laws and regulations in relation to the safety, health, condition, packaging, labelling and carriage/storage of the Cargo and that the Cargo is packaged in a manner to withstand ordinary risks associated with their carriage/storage having regard to their nature or condition. The Supplier may at any time request the Client by notice in writing to remove the Cargo within a specified time and if such notice is not complied with, may dispose of (including by way of sale), remove or destroy at the expense of the Client any or all of the Cargo which in the opinion of the Supplier have become or are likely to become deleterious, deteriorated, objectionable, unwholesome, damaged or contaminated. If Cargo is sold under this clause then such sale shall be made under the provisions contained in clause 16.8 below.
16.4 Method of Transport and Route Deviation
(a) If the Client instructs the Supplier to use a particular method of carriage whether by road, rail, sea or air the Supplier will give priority to the method designated but if that method cannot conveniently be adopted by the Supplier the Client shall be deemed to authorise the Supplier to carry or have the Cargo carried by another method or methods.
(b) The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of the Cargo that may in the absolute discretion of the Supplier be deemed reasonable or necessary in the circumstances.
16.5 Dangerous Items
(a) Unless otherwise agreed in advance in writing with the Supplier the Client or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise dangerous items. The Client shall be liable for and hereby indemnifies the Supplier for all loss or damage whatsoever caused by any dangerous items.
16.6 Loss or Damage
(a) Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Cargo (including but not limited to chilled, frozen, refrigerated or perishable Cargo):
(i) the Supplier shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Cargo (whether the Cargo is or has been in the possession of the Supplier or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Cargo or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
(ii) the Client will indemnify the Supplier against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by the Supplier in connection with the Cargo.
(a) The Client acknowledges that:
(i) the Cargo is carried and stored at the Client’s sole risk and not at the risk of the Supplier; and
(ii) the Supplier is under no obligation to arrange insurance of the Cargo and it remains the Client’s responsibility to ensure that the Cargo is insured adequately or at all; and
(iii) under no circumstances will the Supplier be under any liability with respect to the arranging of any such insurance and no claim will be made against the Supplier for failure to arrange or ensure that the Cargo is insured adequately or at all.
16.8 Supplier’s Rights To A Lien On Cargo
(a) The Supplier shall have a right to take a particular and general lien on any Cargo the property of the Client or a third party owner which are in the possession or control of the Supplier (and any documents relating to that Cargo) for all sums owed at any time by the Client or a third party owner to the Supplier (whether those sums are due from the Client on that Cargo or documents, or on any other items or documents), and the Supplier shall have the right to sell such Cargo or items by public auction or private treaty after giving notice to the Client. The Supplier shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Cargo or items, from the proceeds of sale and shall render any surplus to the entitled person.
(b) Notwithstanding clause 16.8(a) nothing shall prejudice the Supplier’s rights to use any of the Supplier’s other rights and remedies contained in this agreement to recover any outstanding charges or fees payable in respect of the Cargo that were not recovered out the sale of the Cargo in accordance with clause 16.8(a) and no exception shall be taken upon the grounds that the Price realised is less than the full market value of the Cargo.