Terms and Conditions of Trade
1. “Removalist” means Home James Removals, its successors and assigns or any person acting on behalf of and with the authority of Home James Removals.
2. “Client” means any person/s requesting the Removalist to provide the Services, or person/s acting on behalf of and with the authority of the Client (including any sender, consignor, actual owner of the Goods, bailer, consignee/s or the Goods, as well as their agents) entering into this contract (and is not limited to the person/s identified in the schedule) both in its own personal capacity and for and on behalf of any principal(s) or trust(s), whether or not disclosed to the Removalist. Where the Client comprises two or more persons, the obligations imposed and rights conferred upon the Client by this contract shall be imposed and conferred upon each person forming the Client, severally and all of them jointly, including all charges for Services provided by the Removalist.
3. “Consignee” shall mean the person to whom the Goods are to be delivered by way of the Removalist’s Services.
4. “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.
5. “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 pre-packing of the Goods, any advice or recommendations.
6. “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between the Removalist and the Client subject to clause 6 of this contract.
7. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
· The Commonwealth Competition and Consumer Act 2010 (“CCA”) and Fair-Trading Acts (“FTA”)
1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA 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.
2. Where the Client purchases 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. Liability of the Carrier arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the CCA or howsoever arising, is limited to any of the following as determined by the Carrier:
1. rectifying the Services; or
2. providing the Services again; or
3. paying for the Services to be provided again.
4. If the Carrier is required to rectify, re-provide, or pay the cost of re-providing the Services under clause 2.3 or the CCA, but is unable to do so, then the Carrier may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
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 Services provided by the Removalist.
2. These terms and conditions shall apply to any contract for the carriage of Goods (or the provision of other Services) that was entered into after being given reasonable opportunity to view them on the Removalist’s website, or as a result of the acceptance of any quotation accompanied by these terms and conditions. These terms and conditions shall also apply to any further such contracts if they are entered into without reference to any other conditions.
3. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Removalist.
4. 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.
5. None of the Removalist’s agents or representatives are authorised to make any representations, statements, promise, warranty, conditions or contracts not expressed by the manager of the Removalist in writing, nor is the Removalist bound by any such unauthorised statements.
6. 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 its discretion.
7. 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 this contract of cartage and/or storage, and by entering into this contract the Client accepts these conditions of contract for all other persons on whose behalf the Client is acting.
8. The Client recognises that there are always risks involved in the carriage of Goods, or the provision of Services, under this contract, 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 accepts that there are such risks, accepts any financial detriment or other losses that may result from the performance or non-performance of such work, and agrees that the Removalist shall not be responsible or liable for such losses. The effect of this clause may be varied where the Client chooses an Insurance option (see clause 13) or where it is otherwise agreed in writing.
9. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
· Errors & Omissions
1. The Client acknowledges and accepts that the Removalist shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
1. resulting from an inadvertent mistake made by the Removalist in the formation and/or administration of this contract; and/or
2. contained/omitted in/from any literature (hard copy and/or electronic) supplied by the Removalist in respect of the Services.
2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Removalist; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
· Change in Control
1. The Client shall give the Removalist 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 Removalist as a result of the Client’s failure to comply with this clause.
· Price and Payment
1. At the Removalist’s sole discretion the Price shall be either:
1. as indicated on any invoice provided by the Removalist to the Client; or
2. the Removalist’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. The Removalist reserves the right to change the Price:
1. if a variation to the Removalist’s quotation is requested. An additional charge of one hundred dollars ($100.00) shall be applicable for the carriage of substantially heavy items, such as pool tables or pianos;
2. to reflect any increase in the cost to the Removalist beyond the reasonable control of the Removalist (including, without limitation, foreign exchange fluctuations, or increases in taxes, customs duties, insurance premiums, or warehousing costs);
3. after re-weighing, or re-valuing or re-measuring the Goods;
4. in the event that any information supplied by the Client at the time of quotation is incorrect, 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;
5. 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. At the Removalist’s sole discretion, a non-refundable deposit may be required.
4. 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.
5. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Removalist, which may be:
1. on provision of the Services;
2. before provision of the Services;
3. the date specified on any invoice or other form as being the date for payment; or
4. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Removalist.
6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card – Visa, MasterCard or American Express (plus a credit card processing fee may apply per transaction), or by any other method as agreed to between the Client and the Removalist.
7. 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 Removalist nor to withhold payment of any invoice because part of that invoice is in dispute.
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.
9. The Client acknowledges and agrees that the Client’s obligations to the Removalist for the provision of the Services shall not cease until:
1. the Client has paid the Removalist all amounts owing for the particular Services; and
2. the Client has met all other obligations due by the Client to the Removalist in respect of all contracts between the Removalist and the Client.
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 shall continue.
· Provision of the Services
1. If the Client instructs the Removalist to use a particular method of carriage whether by road, rail, sea or air the Removalist will give priority to the method designated but if that method cannot conveniently be adopted by the Removalist the Client shall be deemed to authorise the Removalist to carry or have the Goods carried by another method or methods.
2. 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.
3. The Client hereby authorises the Removalist (if it should think fit to do so) to arrange with a sub-contractor for the carriage of any Goods that are the subject of the contract. 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 this contract for its own benefit and also as agent for the sub-contractor.
4. 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 to either leave the Goods at the unattended location (left at the Client’s sole risk), or to return at a later time until delivery in 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.
5. 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.
· Client-Packed Containers
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:
1. the manner in which the Goods have been packed; or
2. the unsuitability of the Goods for carriage or storage in the container(s); or
3. the unsuitability or defective condition of the container(s).
2. The Removalist shall, unless specifically instructed by the Client, pre-pack the Goods to a standard which suits the distance those Goods are to be transported.
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.
4. Goods requiring special appliances for loading and/or unloading are accepted for carriage only on condition that such appliances are made available by the Client at the collection and/or delivery address. If the Removalist is, without prior arrangement, called upon to load and/or unload such Goods, the Removalist shall not be liable to the Client for any loss whatever, howsoever caused, arising out of such loading and/or unloading and the Client shall indemnify the Removalist against all claims and demands whatsoever which could not have been made if such assistance had not been given.
· Client’s Responsibility
1. The Client expressly warrants to the Removalist that:
1. the Client is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract, and by entering into this contract the Client accepts these terms and conditions for the Consignee as well as for all other persons on whose behalf the Client is acting;
2. the Goods are fit for carriage, comply with any applicable legal requirements relating to the nature, condition and/or packaging of the Goods (and that the expenses of complying with such requirements or any other lawful requirements of any authority, other body or the company shall be at the Client’s cost) and are not Dangerous Goods;
3. the person handing over the Goods to the Removalist is authorised to sign and accept these terms and conditions;
4. it is solely the Client’s responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery;
5. any packaging, labelling and/or marking by the Client accurately describes the Goods as to content, weight and method of handling or otherwise, complies with applicable dangerous goods codes, any other applicable laws and with any relevant Australian or international standards;
6. at the Removalist’s discretion, where differences or omissions between address and/or contact information written on the consignment and/or other documentation or in any form of communication (including, but not limited to, email and telephone) provided by the Client to the Removalist, the Removalist shall reserve the right to choose which delivery information is followed and shall not be held liable for any associated costs in relocation of the Goods if this address is the incorrect one.
2. The Client shall indemnify the Removalist against any loss (including any fine, levy, charge or other monetary imposition to which the Removalist may become liable incidental to the carriage) damage, death or injury, including loss or damage to the Removalist’s containers and/or equipment arising out of:
1. the Client’s unreasonable detention of any vehicle container or other equipment of the Removalist;
2. any breach of the Client’s warranties under clause 9.1, including the failure to comply with clause 9.1(e).
· Dangerous Goods
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 agrees to:
1. 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;
2. 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.
2. Where Dangerous Goods and/or anything likely to encourage vermin or pests are accepted for carriage the Client warrants that the carriage thereof is not prohibited and they have fully disclosed in writing to the Removalist before the Removalist has taken possession of the Goods the full particulars and description of the Goods, the nature and value of the Goods, all requirements of lawful authorities for such carriage and all other relevant information.
3. The Removalist may, at its discretion, at the Client’s expense and without compensation thereto or to any other person with an interest in the Goods and without prejudice to its charges or any other rights hereunder:
1. remove, sell, destroy or otherwise dispose of any undeclared Dangerous Goods in its possession without being responsible or accountable for the value thereof to the Client or any other person with an interest thereto;
2. dispose of or destroy or abandon or render harmless any Goods which the Removalist believes have deteriorated or become objectionable, unwholesome, infested with vermin or pests, or a source of danger or contamination, or any declared Dangerous Goods which are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damaging nature.
· Loss or Damage
1. The Client acknowledges that:
1. the Goods are carried and stored at the Client’s sole risk and not at the risk of the Removalist; and
2. unless otherwise agreed in writing, the Removalist is under no obligation, and under no circumstances will the Removalist be under any liability, to arrange insurance of the Goods and it remains the Client’s responsibility to ensure that the Goods are insured adequately or at all. No claim will be made against the Removalist for failure to arrange or ensure that the Goods are insured adequately or at all.
2. 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 caused by:
1. any damage loss or destruction to Goods whilst in the possession of the Removalist, whether in transit (which includes, amongst other things, any packing, handling, installation, removal, assembly or erection), or in storage, or after they have been delivered or mis-delivered;
2. a mis-delivery, delay in delivery or non-delivery of Goods;
3. the carriage of Goods by a route other than the shortest or usual route;
4. any failure to collect cash on delivery (COD) on behalf of the Client;
and this clause shall apply whether or not any such occurrence was due to any wilful, fraudulent negligent or other act or omission of the Company.
1. For the purpose of clause 12, “loss or damage” shall include all or any direct or consequential loss or damage to the Client whatsoever and howsoever arising and without limiting the generality of the foregoing includes loss of profits, liabilities of the Client to third parties (whether actual or contingent) the cost of repair or replacement of Goods and the cost of collecting and redelivering Goods.
2. The reference in clause 11.2(a) to damage or to loss and destruction of Goods shall include damage loss or destruction caused by:
1. fire, overturning, collision road or rail accident involving the conveying vehicle;
2. theft; or
3. mishandling, incorrect loading or unloading or stowage of any vehicle, the method by which it is driven or through any other cause whatsoever.
3. 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 this contract or the occurrence of any of the events listed in this clause or clauses 2, 11 or 20, and this indemnity shall extend to the reasonable solicitor client costs of the Removalist in defending any action and in enforcing this indemnity.
· Valuation of the Goods
1. Where it is necessary to value the Goods, the following principles shall be applied and used for determining the current market value of those Goods unless there is clear evidence to the contrary:
1. tems less than five (5) years old shall be depreciated from their purchase price (or if this cannot be ascertained, a reasonable estimate of the purchase price) to account for the reduction in their value for age, condition, wear and tear, on the basis of the diminishing value method from the date of purchase or acquisition at the rate of twenty percent (20%) per annum (e.g. item is purchased four (4) years ago for one thousand dollars ($1000); depreciated value at twenty percent (20%) = $1000 x0.8×0.8×0.8×0.8 = $409);
2. items over five (5) years old shall be valued at twenty-five (25%) of the current market value of a new item of similar type and function at the time of commencement of this contract.
2. Valuations obtained in accordance with clause 13:
1. shall be subject to the following maximum values;
2. the value of the contents of individual cartons, bags, packages or containers of any type with a value of over two hundred and fifty dollars ($250) are deemed to be limited to a maximum thereof unless the Client notifies the Removalist in writing of a higher value prior to pick up;
3. the value of all other items shall be deemed to be limited to a maximum of one thousand five hundred dollars ($1500) per item unless the Client notifies the Removalist in writing of an alternate value prior to pick up.
3. Nothing in this clause shall operate in any way to extend the liability of the Removalist or to vary clauses 2, 11 or 13.
4. Where for the purposes of this agreement either party disagrees with any valuation of the Goods that has been carried out in accordance with clause 13.1, that party may within twenty-eight (28) days’ supply any clear evidence of an alternate valuation and the matter shall then be re-assessed by a Director or Manager of the Removalist within a further twenty-eight (28) day period
1. Where, prior to the commencement of any contract for the carriage of Goods, the Client agrees to make an additional payment in accordance with one or more of the Transit Insurance options (“TI”) offered by the Removalist, the Removalist agrees to accept an increased level of responsibility for damage, loss or destruction of the Goods, in the event of some, or all, of the occurrences listed in clause 11.4.
2. The effect on this contract of the Client selecting a TI will depend upon the option selected, as follows:
1. for fire, overturning or collision TI, sub-clause 11.4(a) shall not apply to this agreement; or
2. for fire, overturning, collision and theft TI, sub-clauses 11.4(a) and 11.4(b) shall not apply to this agreement; or
3. for all-risk TI, sub-clauses 11.4(a), 11.4(b) and 11.4(c) shall not apply to this agreement.;
3. In the event of a claim or potential claim:
1. the Client agrees to notify the Removalist in writing of any claims or potential claims within seven (7) days of the receipt of the Goods, or if a delivery is not made due to loss or total destruction of the Goods, within seven (7) days of the Client becoming aware of the event that caused the damage, loss or destruction of the Goods;
2. in the event of loss or damage or destruction, the Removalist will pay to the Client the reasonable costs of repair or restoration or an amount based on replacement cost less an allowance for age, condition, wear and tear. The Removalist will not pay on the basis of “new for old”. The Removalist may, at its discretion, choose to arrange for the repair of any damaged items at a repairer of its choice.
4. Unless otherwise agreed in writing, the following limitations are applicable to TI:
1. any liability resulting from the acceptance of an increased level of responsibility relating to antiques, jewellery, collections, documents, works of art and the contents of individual cartons with a value of over two hundred dollars ($250) is limited thereto, or five hundred dollars ($500) if nominated in writing prior to pick up, and any liability for other items is limited to one thousand five hundred dollars ($1500) per item or four thousand dollars ($4000) if nominated in writing prior to pick up;
2. the first one hundred dollars ($100) of any claim shall be payable by the Client and the maximum amount claimable where not otherwise limited by the terms of this agreement shall be one hundred thousand dollars ($100,000) per conveyance or occurrence;
3. any increased responsibility accepted for pairs or sets of items is limited to the repair or replacement of the lost or damaged part without reference to any special value that such item may have as part of such pair or set;
4. the increased level of responsibility does not extend to plants, animals, accidental damage to the contents of self-packed cartons or any self-packed items nor to electrical or internal derangement or failure of electrical or electronic goods, instruments or machinery;
5. the increased level of responsibility does not extend to loss or damage due to the nature, characteristics or inherent vice of any item making it susceptible to damage as a result of normal transit handling, road trauma or atmospheric conditions;
6. where the amount paid to the Removalist for accepting an increased level of responsibility is based on a consignment valuation that is less than the full value of the total consignment, then any compensation for damage, loss or destruction will be made only in the same reduced proportion;
7. the Removalist does not accept an increased level of responsibility whilst goods are in storage, other than storage required as part of the normal transit process.
5. Except as provided in this clause, nothing in this clause shall operate in any way to extend the liability of the Removalist or to vary clauses 11 or 12.
6. Fraud or attempted fraud shall void the Removalist’s acceptance of an increased level of responsibility and all attendant legal or other consequences.
· Conditions of Storage
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 seven (7) days of receiving it from the Removalist, 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.
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).
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 this service.
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.
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 after fourteen (14) days’ notice to the Client SELL ALL OR ANY OF THE GOODS by public auction or, if that is not reasonably practicable by private treaty and apply the net proceeds in satisfaction of any amount owing by the Client to the Removalist.
1. Without prejudice to any other remedies the Removalist 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 Removalist may suspend or terminate the provision of Services to the Client. The Removalist will not be liable to the Client for any loss or damage the Client suffers because the Removalist has exercised its rights under this clause.
2. The Removalist may cancel any contract to which these terms and conditions apply or cancel provision of Services at any time before the Services are 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.
3. 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).
4. 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.
· Personal Property Securities Act 2009 (“PPSA”)
1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
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 all collateral (account), being a monetary obligation of the Client for the Services that have previously been provided, and that will be provided in the future, by the Removalist for the Client.
3. The Client undertakes to:
1. 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 Removalist may reasonably require to;
1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
2. register any other document required to be registered by the PPSA; or
3. correct a defect in a statement referred to in clause 16.3(a)(i) or 16.3(a)(ii);
2. indemnify, and upon demand reimburse, the Removalist 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;
3. not register a financing change statement in respect of a security interest without the prior written consent of the Removalist;
4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without the prior written consent of the Removalist.
4. The Removalist 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.
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.
6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by the Removalist, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Client must unconditionally ratify any actions taken by the Removalist under clauses 16.3 to 16.5.
9. Subject to any express provisions to the contrary (including those contained in this clause 16) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
· Default and Consequences of Default
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 Removalist’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes the Removalist any money the Client shall indemnify the Removalist from and against all costs and disbursements incurred by the Removalist in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Removalist’s contract default fee, and bank dishonour fees).
3. Further to any other rights or remedies the Removalist may have under this contract, if a Client has made payment to the Removalist, and the transaction is subsequently 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 17 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.
4. Without prejudice to the Removalist’s other remedies at law the Removalist shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Removalist shall, whether or not due for payment, become immediately payable if:
1. any money payable to the Removalist becomes overdue, or in the Removalist’s opinion the Client will be unable to make a payment when it falls due;
2. 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
3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
· Security and Charge
1. In consideration of the Removalist agreeing to provide the 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).
2. The Client indemnifies the Removalist from and against all the Removalist’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Removalist’s rights under this clause.
3. The Client irrevocably appoints the Removalist and each director of the Removalist as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Client’s behalf.
· Privacy Act 1988
1. The Client agrees for the Removalist to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Removalist.
2. The Client agrees that the Removalist may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
1. to assess an application by the Client; and/or
2. to notify other credit providers of a default by the Client; and/or
3. 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
4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
3. The Client consents to the Removalist being given a consumer credit report to collect overdue payment on commercial credit.
4. The Client agrees that personal credit information provided may be used and retained by the Removalist for the following purposes (and for other agreed purposes or required by):
1. the provision of Goods; and/or
2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
4. enabling the collection of amounts outstanding in relation to the Goods.
5. The Removalist may give information about the Client to a CRB for the following purposes:
1. to obtain a consumer credit report;
2. allow the CRB to create or maintain a credit information file about the Client including credit history.
6. The information given to the CRB may include:
1. personal information as outlined in 19.1 above;
2. name of the credit provider and that the Removalist is a current credit provider to the Client;
3. whether the credit provider is a licensee;
4. type of consumer credit;
5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
6. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Removalist has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
7. information that, in the opinion of the Removalist, the Client has committed a serious credit infringement;
8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
7. The Client shall have the right to request (by e-mail) from the Removalist:
1. a copy of the information about the Client retained by the Removalist and the right to request that the Removalist correct any incorrect information; and
2. that the Removalist does not disclose any personal information about the Client for the purpose of direct marketing.
8. The Removalist will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
9. The Client can make a privacy complaint by contacting the Removalist via e-mail. The Removalist will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
· Unpaid Seller’s Rights to Dispose of Goods
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 this agreement 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 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. It 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.
1. If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
1. referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
2. conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
· Service of Notices
1. Any written notice given under this contract shall be deemed to have been given and received:
1. by handing the notice to the other party, in person;
2. by leaving it at the address of the other party as stated in this contract;
3. by sending it by registered post to the address of the other party as stated in this contract;
4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
5. if sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the