Port Air Industrial Estate Unit 3 B 1A Hale Street Botany NSW 2019 (and including all other registered offices) P/O Box 601 Botany NSW 1455 PH (02) 9700-0444 Fax (02) 9700-0488 Australian Touring Services PTY LTD T/AS ATS Logistics ACN 099 583 150 ABN 75 099 583 150. Standard Terms and Conditions of Contract.
These terms and conditions from part of any contract for services between the Company and the Consignor and Import/ Export Air must be read having regard to the provisions of the Trade Practices Act to the extent that those provisions are applicable to consumers as defined under section 4B. These terms and conditions do not have the effect of. Excluding, restricting or modifying rights under that act which cannot be excluded, restricted or modified by agreement.
Effective from 14th February 2002,
1. In these terms and conditions, “Company ” shall mean Australian Touring Services Pty Limited, T/AS ATS Logistics. Terms and “Consignment” shall mean the goods accepted from the Consignor together with any containers packaging or pallets supplied by or on behalf of the Consignor and used in the carriage, transportation and/or storage of those goods, “Consignor” shall mean the person with whom the Company contracts to provide Services.
“Services shall mean and include the whole of the operations and services undertaken by the Company in connection with the Consignment including but not limited to the collection carriage, transportation, delivery and/or storage of the Consignment.
“Subcontractor” shall include any person who pursuant to a contract or arrangement with any other person whether or not the Company performs or agrees to perform the Services or any part thereof.
2. The Company is not a common carrier and shall not undertake any obligations or accept any liability as such. All services are provided by the Company subject only to these terms and conditions and the Company reserves the right to accept or reject offers for the carriage transportation and/or storage of goods for any person or Corporation or for the carriage transportation and/or storage of any class of goods at its sole discretion.
3. (I) It is agreed that any person who delivers goods to the Company for or on behalf of the Consignor is authorised to do so, subject to these terms and conditions.
(ii) The Consignor warrants that in agreeing to these terms and conditions it is, or has the authority of the, person or persons owning or having any interest in the Consignment or any part thereof.
(iii) Without prejudice to the generality of the foregoing, the Consignor undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company, it’s Servants, or Agents, or others) in connection with the Consignment to any person (other than the Consignor) who claims to have, who has or who may hereafter have any interest in the consignment or any part thereof. It is agreed that this indemnity operates irrespective of whether the Company’s liability arises in events, which may constitute a fundamental breach of contract or a breach of a fundamental term.
4. (I) The Company and any Subcontractor shall be entitled to Subcontract on any terms the Services or any part thereof.
(ii) The Consignor undertakes:
(a) That no claim or allegation shall be made, whether by the Consignor or any other person who is or may hereafter be interested in the Consignment, against any person (other than the Company) by whom (whether as subcontractor, principal, employer, servant, agent or otherwise) the Services or any part thereof are provided which, imposes or attempts to impose upon such person any liability. Whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract; or willful act or default of the Company or others) in connection the Consignment and if any such claim or allegation should nevertheless be made the Consignor. Undertakes to indemnify the Company and the person against whom such claim or allegation is made against the consequences thereof. Without prejudice to the foregoing and for the purpose of this clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them to this extent be or be deemed to be parties to this contract;
(b) to indemnify the Company against any claim or allegation made against it by any person in connection with any liability of that person for any loss of or damage to the consignment occurring at any time during the provision of the Services.
(iii) It is agreed that each of the indemnities in sub-clause (ii) thereof operates irrespective of whether the liability of the Company or any other person arises in events, which may constitute a fundamental breach of contract or a breach of a fundamental term.
5. Every exemption, Iimitation, condition and restriction herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect (i) all Subcontractors, (ii) every servant or agent of the Company or of a Subcontractor, (iii) every other person (other than the Company by whom the Services or any part thereof are provided, and (iv) all persons who are or may be vicariously liable for the acts or omissions of any person falling within (i), (ii) or (iii) thereof and for the purpose of this clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them shall to this extent be or be deemed to be parties to this contract.
6. (I) If and only if the Company has agreed to insure the Consignment against physical loss or damage then the liability of the Company in respect of such physical loss or damage is limited to the amount if any, it is liable to pay up to the limit of such insurance.
(ii) Subject only to sub-clause (i) and to clause 23 hereof the Consignment is at the risk of the Consignor and not the Company and the Company shall not be liable to the consigner in tort (whether negligence or otherwise) or contract or bailment or otherwise for any, and the consequences of any, delay in collection of the Consignment or loss of or damage to or deterioration of the Consignment or mis-delivery or failure to deliver or delay in delivery of the Consignment for any reason whatsoever including without limiting the foregoing, the negligence or breach of contract or willful act or default of the Company or others and this clause shall apply to all, and the consequences of all, such delay in collection of the Consignment or loss of or damage to or deterioration of the Consignment or mis-delivery or failure to deliver or delay in delivery of the Consignment whether or not the same occurs in the course of performance by or on behalf of the Company of this contract or in events which are in the contemplation of the Company and/or the Consignor or in events which are foreseeable by them or either of them or in events which may constitute a fundamental breach of contract or a breach of a fundamental term.
7. If the Consignor expressly or impliedly instructs the Company to use, or it is expressly or impliedly agreed that the Company shall use, a particular method of handling or storing the Consignment or a particular method of carriage whether by road, rail, sea or air the Company shall give priority to that method but in any event the method or methods of handling, storing and/or carriage adopted by the Company shall remain at the sole discretion of the Company and the Consignor hereby authorises the Company to adopt any method or methods other than the method instructed or agreed.
8. The Consignor hereby authorises any deviation from the usual route of carriage or place of storage of the Consignment, which may in the absolute discretion of the Company be deemed desirable or necessary in the < circumstances.
9. (I) The Company is authorised to deliver the Consignment at the address nominated to the Company by the Consignor for that purpose and without prejudice to the foregoing it is expressly agreed that the Company shall be deemed to have delivered the Consignment in accordance with this contract if at that address it obtains from any person a receipt or signed delivery docket for the Consignment.
(ii) If the nominated place of delivery should be unattended or if delivery cannot otherwise be effected to any person at that place, the Company may, at its option, deposit the Consignment at that place (which shall be deemed to be delivery in accordance with this contract) or store the Consignment and if the Consignment is stored by the Company the Consignor shall pay or indemnify the Company for all costs and expenses incurred in or relating to such storage. In the event that the Consignment is stored by the Company, the Company may at its option redeliver it to the Consignor from the place of storage at the Consignor’s expense.
10. Where the Consignment is accepted for Carriage by rail to an address in a town or to a place where the Company has no receiving depot the Consignment shall be deemed delivered according to this contract if it is delivered to the nearest railhead.
11. The Consignor shall be and remain responsible to the Company for all charges incurred by the company for any reason. A charge may be made to the Consignor in respect of any delay in excess of thirty (30) minutes in loading or unloading caused by any reason other than from the default of the Company. Such permissible delay period shall commence upon the Company reporting for loading or unloading. Labour to load or unload the Consignment shall be the responsibility of and at the expense of the Consignor.
12. The Company’s charges shall be deemed fully earned as soon as the Consignment is loaded and dispatched from the Consignor’s premises or accepted for storage and shall be payable and non-refundable in any event.
13. The Company shall have a lien on the Consignment and any documents relating thereto and on any other Consignment of the Consignor in the possession of the Company or any documents relating thereto for all sums payable by the Consignor to the Company (irrespective of whether the sums are payable pursuant to this contract or otherwise by law) and if any sums are unpaid the Company shall have the right to sell any such Consignment by public auction or private treaty without notice to the Consignor.
14. (i) The Consignor shall not tender for carriage or storage 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 property whatsoever without presenting a full description disclosing the nature of such goods, and in any event shall be liable for all loss and damage caused thereby.
(ii) If in the sole opinion of the Company the Consignment becomes, or is liable to become, of a dangerous, inflammable, explosive, volatile, offensive or damaging nature the same may at any time be retained, destroyed, disposed of, abandoned or rendered harmless by the Company without compensation to the Consignor and without prejudice to the Company’s right to any charges hereunder and at the cost of the Consignor.
(iii) The Consignor warrants that it has complied with all laws and regulations relating to the nature, packaging, labeling, storage or carriage of the Consignment and that the Consignment is packed in a manner adequate to withstand the ordinary risks of storage and/or carriage having regard to its nature and. hereby indemnifies the Company for any liability whatsoever and for all costs and expenses incurred as a result of or arising out of the Consignor’s failure to comply with each of these warranties.
15. It is agreed that the Consignor shall be responsible for the conformity of any containers, packaging or pallets with any requirements of the consignee and for any expense incurred by the Company arising from any failure to so conform.
16. It is agreed that no servant or agent of the Company nor any other person has any power to waive or vary any of these terms and conditions unless such waiver or variation is in writing and signed by an executive officer of the Company.
17. If the Company is liable for damage to, or loss of, the Consignment or any part thereof, no claim in respect of such loss or damage may be made unless notice of the claim is lodged in writing at an office of the Company in the State in which delivery was, or ought to have been effected within seven (7) days after delivery was effected or would in the ordinary course of business have been effected.
18. Notwithstanding any other provision hereof other than clause 23, the Company shall in any event be discharged from all liability whatsoever in connection with the Consignment unless suit is brought within six (6) months after delivery was effected or would in the ordinary course of business have been effected.
19. Goods are accepted by the Company subject to the condition that the Company accepts no responsibility for the collection of cash on delivery or any other payments on behalf of the Consignor or any other person when goods are tendered by any person with instructions for the Company to collect any such payments the Company shall not be bound by such instructions notwithstanding that the Company may accept those goods as tendered and. perform other services of carriage, forwarding or storage in relation to those goods.
20. All the rights, immunities and exemptions from liability in these terms and conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this contract or of any of these terms and conditions by the Company or any other person entitled to the benefit of such provisions and irrespective of whether such may constitute a fundamental breach of contract or a breach of a fundamental term.
21. It is hereby agreed that if any provision or part of any provision of this contract is unenforceable such unenforceability shall not affect any other part of such provision or any other provision thereof.
22. The Consignor acknowledges that it is aware of and understands any applicable legislation relating to the disposal of uncollected goods and confirms that its place of abode for the purpose of that legislation is that set out on the documentation evidencing this contract.
23. Notwithstanding anything herein contained this contract is subject to the Trade Practices Act 1974 (as amended) if and to the extent that this Act implies a warranty into this contract and prevents the exclusion, restriction or modification of any such warranty.
Clause 24 Unless expressly agreed otherwise, all amounts payable by the consignor to the Company are expressed to be exclusive of GST. If GST is payable in relation to a supply made by the Company to the Consignor, then the amount payable for the supply will be the price specified, then the Consignor will pay to the Company an amount which compensates the Company for the GST payable.