| 1. |
Definitions: |
| 1.1 |
In these conditions :
"TOLL" means TOLL HOLDINGS LIMITED ACN 006 592 089, ABN 25 006 592 089 and its related bodies corporate within the meaning of that expression in Section 9 of the Corporations Act carrying on business in their own names and under any business names and their officers, servants, agents and Sub-Contractors.
"Sub-Contractor" means :
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| 1.1.1 |
any Person TOLL arranges to provide Services concerning the Goods; and
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| 1.1.2 |
any Person who is a servant, agent, employee or sub-contractor of TOLL or any Person in 1.1.1
"Person" includes any person, firm, corporation, governmental authority or state or federal government.
"Services" means the whole of the operations and services undertaken by TOLL in anyway whatsoever connected with or concerning the Goods.
"Goods" mean the goods accepted from the Sender with any container, packaging or pallets supplied by or for the Sender.
"Charges" mean TOLL's quoted charges for Services calculated under its rates schedule or other agreed rates, the charges in 6, the cost of any TOLL Goods Cover and any tax including a goods and services tax ("GST") levied directly on a transaction or supply under these conditions.
"Sender" includes, in the event of storage, the Storer.
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| 2. |
Services Basis: |
| 2.1 |
TOLL IS NOT A COMMON CARRIER and does not accept any liability as a common carrier and may refuse to perform Services in respect of the Goods for any Person or to offer TOLL Goods Cover for any Person or Goods.
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| 2.2 |
TOLL relies on the details supplied to it but TOLL cannot verify and does not admit their accuracy or completeness and a signature by TOLL is only an acknowledgment for the number of items received.
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| 2.3 |
TOLL will deliver Goods to other than the Receiver's address only by special arrangement in writing and provided suitable delivery facilities are available at all hours.
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| 2.4 |
Unless otherwise agreed TOLL will not exchange any pallets with any Person and the Sender must not transfer any pallets to any account TOLL may have with a pallet hirer.
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| 3. |
Sender's Obligations: |
| 3.1 |
The Sender must :
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| 3.1.1 |
not tender for Services any volatile or explosive Goods or Goods which are or may become dangerous, inflammable or offensive (including radioactive materials) or which are or may become liable to damage any Person or property without first presenting to TOLL a full written description disclosing the nature of those Goods;
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| 3.1.2 |
make the Goods conform to the Receiver's requirements and must pay any expense incurred by TOLL if the Sender fails so to do;
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| 3.1.3 |
if the Services include storage or holding of Goods:
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| 3.1.3.1 |
unless otherwise agreed, give at least 7 clear days notice to TOLL of its intention to collect the Goods or have them collected or redelivered; and
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| 3.1.3.2 |
if TOLL gives notice to the Sender requiring the Sender to remove the Goods or any part from storage, pay any Charges outstanding and then remove the Goods or that part within 7 days of the date of notice.
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| 4. |
Sender's Warranties and Indemnities: |
| 4.1. |
The Sender warrants:
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| 4.1.1 |
it has fully and adequately described the Goods, their nature, weight and measurements and complied with all applicable laws and regulations (including the Australian Code for the Transport of Dangerous Goods by Road and Rail, Civil Aviation Regulations and the International Maritime Dangerous Goods Code) about the notification, classification, description, labelling, transport and packaging of the Goods and that, given their nature, the Goods are packed in a proper way to withstand the ordinary risks of the Services;
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| 4.1.2 |
the Person delivering the Goods to TOLL for the Services is authorised to do so and to sign this contract;
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| 4.1.3 |
it is either the owner or the authorised agent of the owner of the Goods and it accepts these conditions for itself and the Receiver as well as for any other Person for whom the Sender is acting; and
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| 4.1.4 |
subject to any TOLL Goods Cover claim under 7, neither it nor any other Person will make an allegation or claim against TOLL or any other Person about the Services,
AND the Sender indemnifies TOLL from any loss, damage, expense, penalty, fine or liability arising from a breach of these warranties, the Sender's obligations or these conditions.
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| 5. |
TOLL's Rights: |
| 5.1. |
Generally:
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| 5.1.1 |
If in TOLL's opinion the Goods are or are liable to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, TOLL may at any time and at the Sender's cost destroy, dispose of, abandon or render them harmless without compensation to the Sender, Receiver or Third Party and without prejudice to TOLL's right to any Charges.
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| 5.1.2 |
If the Sender instructs TOLL to use a particular method of providing the Services TOLL will give priority to that method but at its absolute discretion TOLL may provide the Services by another method.
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| 5.1.3 |
If any identifying document or mark is lost, damaged, destroyed or defaced TOLL may open any document, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership or destination.
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| 5.1.4 |
TOLL may carry, store, redirect, handle, remove, assemble, erect, pack, unpack, load, unload or consolidate the Goods with others and as principal or agent may arrange for the Services to be provided by any Sub-Contractor on any terms.
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| 5.1.5 |
TOLL may lease, hire or use any container, pallet or rail wagon in which or on which the Goods may be placed or packed and subject to the terms of any bill of lading, hire lease agreement, equipment hand-over agreement, interchange receipt or other contract for transport whether by sea, rail, road or air and give any receipt for any container or pallet or rail wagon.
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| 5.2. |
In relation to transport or distribution of Goods:
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| 5.2.1 |
TOLL is authorised to deliver the Goods at the address given to TOLL by the Sender or any other address directed by the Receiver and TOLL will be taken to have delivered the Goods if at either address TOLL obtains from any Person an acknowledgement of delivery.
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| 5.2.2 |
5If the address is unattended or the Receiver fails to take delivery of the Goods, TOLL may :
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| 5.2.2.1 |
deposit the Goods at the Receiver's address;
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| 5.2.2.2 |
store the Goods; or
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| 5.2.2.3 |
return the Goods to the Sender and its action under 5.2.2.1, 5.2.2.2 or 5.2.2.3 will constitute delivery.
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| 5.2.3 |
If the transport method is rail and the Receiver's address is a town or place where TOLL does not have a receiving depot, TOLL will be taken to have delivered the Goods if they are delivered to the nearest railhead.
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| 5.2.4 |
If TOLL believes it is necessary or desirable, TOLL may deviate from the usual route or method of transport.
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| 5.3. |
For storage of Goods:
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| 5.3.1 |
If any Charges are unpaid for 7 days TOLL may require the Sender to remove the Goods.
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| 5.3.2 |
Unless and until all Charges have been paid, a receipt is signed by or on behalf of the Sender, and the Person applying for redelivery, if not the Sender, tenders a proper authority signed by the Sender, TOLL does not have to make the Goods available to any Person.
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| 5.3.3 |
If the Sender fails to remove Goods the subject of a notice under 3.1.3.2 within the period specified in the notice, TOLL may remove the Goods and return them to the Sender at the Sender's last known address, or store them in the manner and in the place as TOLL thinks appropriate at the expense and risk of the Sender.
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| 6. |
Services Basis: |
| 6.1. |
The Sender must or, if a Person other than the Sender is nominated on the front, then that Person must:
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| 6.1.1 |
unless otherwise agreed, pay TOLL the Charges in Australian dollars within 7 days of the date of TOLL's invoice;
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| 6.1.2 |
pay freight by weight or measurement as TOLL selects;
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| 6.1.3 |
if the Goods are at any time re-weighed or re-measured, pay any proportional additional freight and, if required by TOLL, an additional charge of $10.50 per item;
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| 6.1.4 |
pay any charge for demurrage at the rate charged to TOLL directly or indirectly by any railway or shipping authority or other Person;
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| 6.1.5 |
pay TOLL's expenses and charges to comply with any law or regulation or any order or requirement made under them or with the requirement of any market, harbour, dock, railway, shipping, customs, excise, or warehouse authority or other Person;
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| 6.1.6 |
if any of the Goods are under Customs control, pay all Customs duty, excise duty and costs (including any fine or penalty) which TOLL becomes liable to pay or pays;
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| 6.1.7 |
supply or pay for labour or machinery or both to load, unload, maintain or protect the Goods;
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| 6.1.8 |
if TOLL requires, pay an additional charge at industry rates if the Receiver is not present during normal trading hours or the time specified, or if there is any delay outside TOLL's control in loading or unloading greater than 5 minutes;
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| 6.1.9 |
pay the cost, expense or loss to TOLL of destruction or disposal under 5.1.1, storage and return under 5.2.2; of opening or inspecting under 5.1.3 and of advertising and sale under 8.2.2;
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| 6.1.10 |
compensate TOLL for any cost, expense or loss to TOLL's property or any Person caused by the Goods, the Sender, the Receiver or any Person acting for the Sender or the Receiver;
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| 6.1.11 |
if any Charges are not paid on the date for payment, pay interest on the unpaid Charges at a rate 4% higher than the prevailing rate under the Penalty Interest Rates Act 1983 (Victoria) and pay any charge or amount owing to TOLL under any other contract;
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| 6.1.12 |
if a copy of a contract or any part is required, pay TOLL a charge of $5.00; and
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| 6.1.13 |
pay TOLL any costs not recouped out of the proceeds of sale of the Goods under 5.3.3 or 8.2
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| 6.2 |
If a Person other than the Sender is nominated to pay the Charges and doesn't do so within 7 days of the date for payment, the Sender must pay the Charges and a transfer charge of $10.00 immediately upon TOLL's demand.
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| 6.3 |
TOLL's Charges are earned as soon as the Goods are picked up or accepted for storage, whether they are delivered or not and whether damaged or not.
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| 6.4 |
TOLL will not refund any payment for Charges under any circumstances.
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| 6.5 |
TOLL's quoted charges represent the exclusive value of the supply for GST purposes, unless specifically stated to include GST.
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| 7. |
TOLL Goods Cover : |
| 7.1 |
No Toll Goods Cover or insurance is provided by TOLL. It is the Sender's responsibility to insure the Goods during performance of the Services.
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| 8. |
Lien: |
| 8.1 |
TOLL has a general lien on the Goods and on any other goods of the Sender for all Charges due or which become due on any account whether for the Services concerning the Goods or any other goods or any other TOLL service.
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| 8.2 |
If the Charges are not paid or the Sender or Receiver fails to take delivery or return of the Goods, TOLL may without notice and, in the case of perishable or dangerous Goods immediately :
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| 8.2.1 |
store the Goods as TOLL thinks fit at the Sender's risk and expense, or
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| 8.2.2 |
open any package and sell all or any of the Goods as TOLL thinks fit and apply the proceeds to discharge the lien and costs of sale.
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| 8.3 |
TOLL may deduct or set-off from any monies due from TOLL to the Sender under any contract, debts and monies due from the Sender to TOLL under these conditions or any contract.
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| 9. |
Claims: |
| 9.1 |
If TOLL is liable for damage to or loss of the Goods or any part of the Goods, no claim for the loss or damage may be made unless notice of the claim is lodged in writing within 2 days of the date of delivery or, for non-delivery, within 7 days of the anticipated date of delivery
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| 9.2 |
The failure to notify a claim within a time under 9.1 is evidence of satisfactory performance by TOLL of its obligations.
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| 9.3 |
Despite any other condition other than 11, TOLL will be discharged from all liability for loss or damage or the Services unless an action is brought within 6 months of completion of the Services or the anticipated date of completion of the Services.
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| 9.4 |
Time is of the essence in relation to all time periods in this condition.
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| 10. |
Exclusions and Limitations: |
| 10.1 |
Subject to 11, TOLL excludes from these conditions all conditions, warranties and terms implied by statute, general law or custom.
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| 10.2 |
Subject to 11, the Goods will at all times be at the risk of the Sender and TOLL excludes all liability to any Person, including the Sender, for acts or omissions of TOLL in tort (including negligence), contract, bailment or otherwise for loss of, damage to or deterioration or contamination of the Goods, or any delay, non-delivery or other failure to supply the Services or arising out of the Goods, the Services or these conditions.
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| 10.3 |
Subject to 11, TOLL excludes all liability for, and the Sender and Receiver release and indemnify TOLL against all loss, damage, cost and expense from any claim by any Person in tort (including negligence), contract, bailment or otherwise for loss or damage to any property, injury to, or death of any Person arising out of any acts or omissions of TOLL or any or all of the Goods, the Services, any delay, non-delivery or other failure to supply the Services or these conditions.
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| 10.4 |
The exclusions, releases and indemnities in 10.2 and 10.3 extend to loss of profits, business or anticipated savings or any other indirect or consequential damage and to economic loss and even if TOLL knows they are possible or otherwise foreseeable.
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| 10.5 |
These conditions apply in all circumstances arising from a fundamental breach of contract or breach of a fundamental term.
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| 10.6 |
TOLL, in addition to acting for itself, also acts as agent of and trustee for each of its servants, agents and Sub-Contractors so they are entitled to the full benefit of these conditions, including any exclusions or limitations of liability, to the same extent as TOLL.
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| 10.7 |
Even if TOLL breaches any of these conditions, all the rights, immunities and limitations of liability in these conditions continue to have their full force and effect in all circumstances.
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| 10.8 |
TOLL is not liable for, nor bound by, any instructions to collect cash on delivery or any other payments for any Person.
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| 11. |
Limitation of Liability: |
| 11.1 |
The parties acknowledge that:
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| 11.1.1 |
under applicable state, territory and Commonwealth law (including the Trade Practices Act), certain conditions and warranties may be implied in any contract based on these conditions and rights and remedies may be conferred on consumers which cannot be excluded, restricted or modified by agreement (the "Non-Excludable Rights"); and
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| 11.1.2 |
notwithstanding any clause of these conditions, the Non-Excludable Rights are not excluded, restricted or modified by these conditions except to the extent permitted by law.
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| 11.2 |
Notwithstanding any other clauses in these conditions, if any liability is found to attach to TOLL to the Sender or any Person acting for the Sender, TOLL'S liability is to be limited to:
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| 11.2.1 |
the supplying of the services again; or
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| 11.2.2 |
the cost supplying the services.
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| 12. |
Law: |
| 12.1 |
These conditions are governed and must be construed under the laws of the State of Victoria and the parties submit to the exclusive jurisdiction of the courts of that State.
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| 13. |
Severability: |
| 13.1 |
If a condition or part is unenforceable the unenforceability does not affect any other part of the condition or any other condition.
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| 14. |
Variations and Waiver: |
| 14.1 |
TOLL is not bound by any waiver, discharge or release of a condition or any agreement which varies these conditions unless it is in writing and signed for TOLL by an authorised officer.
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| 14.2 |
If TOLL waives a breach of a condition the waiver does not operate as a waiver of another breach of the same or any other condition or as a continuing waiver.
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