Application of Conditions
All Services We perform for You are subject to these Conditions.
Acceptance by You of these Conditions, as amended from time to time in accordance with clause 1.3, may be by any of the following ways:
by signing and returning a copy of these Conditions;
by performing an act that is done with the intention of adopting or accepting these Conditions, including continuing to acquire Services after receiving these Conditions or an amended version of them; or
by oral or email acceptance.
any orders or transactions that remain outstanding prior to the date of such variation; or
any contract for a specified term (under which you are required to source services exclusively from us or which require you to commit to purchasing a minimum volume of services) that incorporates the version of these Conditions that was applicable on Our Customer Portal as at the date of that contract, which version will continue to apply to such contract.
To be valid, any variation to these Conditions (other than in accordance with clause 1.5) must be:
in writing; and
signed by Our Managing Director and Your Person of delegated authority.
Your Obligations
Once accepted by You under clause 1.4, You are bound by these Conditions.
You are either the Owner of the Goods, or have the authority of the Owner of the Goods to acquire the Services from Us in accordance with these Conditions;
the Goods and Containers including their description, weight, contents, measure, quantity, condition, marks, numbers and value are complete and correct and are labelled in accordance with all applicable Laws;
the Goods and Containers are properly packed in a manner adequate to withstand normal handling or storage and to comply with all applicable Laws and Requirements;
You have and will comply with all applicable Laws and Requirements in relation to loading, handling and unloading of Goods and for ensuring that proper facilities and safeguards are in place for collecting, delivering, loading, handling and unloading of the Goods;
You will arrange appropriate insurance cover for the Goods for all risks (apart from those risks caused by Our negligence or misconduct) as required under clause 10.2; and
the Services are supplied to You for the purpose of a business, trade or profession or occupation engaged in by You.
You must give Us sufficient instructions to enable Us to adequately perform the Services.
You must provide Us with any information concerning the nature of the Goods and their packaging that We reasonably request.
You must declare in writing to Us any Goods which may be liable to customs duties or official restrictions.
Receipt of Goods
We are not deemed to receive any Goods until:
the Person delivering them has reported to Our reception office or Our warehouse;
We have specifically agreed to receive the Goods; and
Goods and Containers are received on the basis of tendered documentation and We accept no liability for any Loss or Claim arising from the condition, quality, weight or suitability of the Goods or Containers that You have provided Us.
Inspection
Subject to Our notification to you of any apparent discrepancies under clause 4.1, you acknowledge and agree that We are not obliged to carry out an inspection of the Goods beyond the visual verification referred to under clause 3.1(c).
If lawfully required by Authorities at any place, a Container has to be opened for the Goods to be inspected, We will not be liable for any Loss, Lost or Damaged Goods, or delay incurred as a result of any opening, unpacking, inspection or repackaging. We will be entitled to recover the reasonable costs of such opening, unpacking, inspection and repackaging from You.
Delivery and Disposal
We will use reasonable endeavours to:
promptly and carefully deliver the Goods to the address nominated by You;
follow any instructions You have given Us in relation to the Services; and
effect delivery at the date and time that You request.
We are entitled to depart from Your instructions (including deviating from the usual method of Service or route of carriage or changing the place of storage) if We reasonably consider it necessary to do so in the circumstances.
Subject to these Conditions and any Non-Excludable Rights, a failure to deliver in accordance with clause 5.1 does not:
confer a right of cancellation or refusal of acceptance of delivery by You; or
render Us liable for any Loss resulting from delayed delivery or non-delivery.
If the nominated delivery site is unattended or if delivery cannot otherwise be effected by Us, We may at Our absolute discretion:
Deposit the Goods at the delivery site (which Goods will be deemed delivered for the purposes of these Conditions); or
Store the Goods in the manner determined in Our absolute discretion, in which case You will be charged for all reasonable costs and expense incurred in relation to that storage.
We are conclusively presumed to have delivered the Goods to the delivery site if We obtain a receipt or signed delivery docket for the Goods.
If in Our opinion or the opinion of any Authority, Goods constitute a risk to other Goods, property, life or health those Goods may be destroyed, disposed of or otherwise dealt with at Our discretion and at Your risk and expense.
We may subcontract the whole or any part of the Services to any Subcontractor.
We are not, as a result of any subcontracting arrangement, relieved from the performance of any obligation under these Conditions.
We are liable to You for any act or omission, default or negligence of any Subcontractor as if it were Our act, omission, default or negligence.
You must indemnify Us by paying us for any Loss or Claim We suffer or incur arising from:
Your (or Your Personnel's) negligence, recklessness, wilful default or fraud;
any Claim made by any Person who claims to have or has any interest in the Goods and/or Containers;
Your breach of these Conditions or any warranty You provide in these Conditions; and
any duties, taxes, penalties or fines in relation to the Goods and Containers,
except to the extent such Loss or Claim is caused by Us or Our Personnel.
Dangerous Goods
You must provide Us with any additional information We request in relation to Notified Dangerous Goods.
Except in relation to Notified Dangerous Goods under clause 8.1, You warrant that the Goods provided by You to Us are not:
Dangerous Goods;
infested with vermin or pests;
explosive, radioactive or of unlawful nature
noxious, dangerous, hazardous, inflammable, volatile or offensive; or
of a kind reasonably capable of causing Loss, damage or injury to Us or any third party.
You will be liable for, and indemnify Us against, all Losses, however caused arising out of the tender of the transport or storage of any Dangerous Goods, whether declared or otherwise, and whether or not You are aware that the Goods consigned were Dangerous Goods, except to the extent such Losses are caused by Our negligence.
If You breach a warranty in clause 8.3, or if the details You provide in relation to Notified Dangerous Goods are inaccurate or incomplete (with the effect that the transport or storage of the Notified Dangerous Goods would create an unforeseen safety risk), the Goods may at Your cost, be destroyed, disposed of, abandoned or rendered harmless by Us without compensation to You and without prejudice to Our right of payment.
You warrant that You have complied with all Laws relating to the nature, packaging, labelling, storage or carriage of the Dangerous Goods and that the Dangerous Goods are packed in a manner adequate to withstand the ordinary risks of carriage or storage having regard to their nature.
Goods Requiring Temperature Control
Where We agree to provide Services in relation to Temperature Controlled Goods, You warrant that:
the Temperature Controlled Goods have been properly packed in the Container; and
the Temperature Controlled Goods have been properly maintained at the required temperature prior to Us providing the Services.
We will not be liable for any Loss to Claim in relation to Temperature Controlled Goods to the extent such Loss or Claim is caused by Your breach of the warranties under clause 9.2.
Where We agree to provide Services in relation to Temperature Controlled Goods where You have specified a desired temperature range, then:
You acknowledge that temperature variations can occur;
We will endeavour to ensure that the Services are provided at Your desired temperature range within accepted tolerance levels; and
You acknowledge that any temperature record maintained by Us will be conclusive evidence of the temperature during the Services (provided it can be verified with external or internal measurement testing data).
Risk and Insurance
You acknowledge and agree that You are responsible for ensuring that no Goods required to be carried are left behind or omitted and that We will not be liable to you for any Loss that You suffer or incur resulting from your mistake, accident or error in providing the Goods to us.
Lost or Damaged Goods
You must, as soon as possible after delivery or storage of the Goods by us, check whether there are any Lost or Damaged Goods.
We are liable for any Lost or Damaged Goods where the loss or damage has been caused by our negligence, wilful default or act or omission;
Despite clause 11.2(a), we will not be liable to You unless You notify Us with full details and a description within 30 days after delivery of the Goods (except where the relevant loss or damage is not obvious or not able to be detected by visual inspection, in which case We will not be liable to You for those Lost or Damaged Goods unless you notify us during the time within which it would be reasonable to expect the loss or damage to become apparent);
Where we are liable to You for any Lost or Damaged Goods under this agreement, You acknowledge and agree that, subject to clause 11.2(d), on and from 12 months from the date that you accept these Conditions under clause 1.4 (Ullage Commencement Date) we are entitled to deduct from any amount We owe You under this clause 11.2, an amount equivalent to the following sum: 1% of the total invoices payable by You to Us in the immediately preceding 12 month period commencing from the Ullage Commencement Date (Ullage Allowance). The Ullage Allowance applies to each 12 month period after the Ullage Commencement Date, based on the same calculation. Any unused portion of the Ullage Allowance does not carry over to the next 12 month period; and
the supplying of the Services again; or
the payment of the cost of having the Services supplied again.
Subject to clause 12.1 and 12.3, and to the extent permitted by Law:
neither party will be liable to the other for any Consequential Loss howsoever caused or arising (Consequential Loss Exclusion); and
each party's liability for any Loss arising under these Conditions is limited in aggregate to A$2,000,000 (Liability Cap).
Despite clause 12.2, the Consequential Loss Exclusion and Liability Cap will not apply to the extent that the liability:
arises under an indemnity given under this agreement;
is recoverable by a party under an insurance policy held under these Conditions;
arises as a result of any claim in respect of personal injury, illness or death of any person or damage or loss to any property (other than any Lost or Damaged Goods); or
arises as a result of fraud or criminal conduct by a party or its Personnel.
Without limiting the generality of the foregoing and subject to any Non-Excludable Rights, where the Goods consist of cargo to be carried by bulk tank, We will not be liable to any Person for any Loss arising from damage to Goods caused by materials, substances or chemicals present in the bulk tank prior to it being filled where the presence of such materials, substances or chemicals could not be detected by Our visual inspection reasonably carried out by Us. You should keep this in mind if this could cause issues for the Goods carried by a bulk tank container. .
Charges
The time for payment of the Charges will be stated on Our invoice, quotation or other order form. If no time is stated, then payment must be made within 30 days following the date of Our invoice.
You must pay Us all amounts owing on or before the due date without any deduction or deferral for any Claim or set-off.
Where You delay payment of any amounts owing under these Conditions, You will be liable to pay Us interest on the amount outstanding at the rate of 2% per annum above the business overdraft commercial rate of the National Australia Bank applicable during the period that the amount is overdue
Notwithstanding acceptance by You of any quotation or estimate, We may vary the Charges to account for any reasonable additional costs that we incur in the event that:
there is a difference in the weight, mass, density, length, width or general nature of the Goods to what You previously described to Us;
there is any change or alteration by You to the agreed date or time for commencement or completion of the Services;
additional Goods are provided for carriage and/or storage other than those previously advised to Us;
the Goods are not delivered to Us for transport or storage on the agreed date or at the agreed time; or
there is any loss of time in loading, unloading or adjustment of loads by reason other than Our own default.
You shall be liable for and shall pay Us, in addition to any Charges contemplated under these Conditions:
All freight storage Charges as notified to You;
Any fuel levy imposed, which may be adjusted by Us at any time on reasonable grounds to reflect various current market factors from time to time;
Any fee imposed by a governing road Authority for the provision of escorts, pilots or supervisors for heavy or over-dimensional transport;
Any additional costs arising from heavy or over-dimensional transport including those associated with permits, escorts, equipment, bridge/road works, detours and/or otherwise complying with Law;
All statutory charges including, but not limited to, Customs charges and excises (whether Australian or foreign) in relation to the transport or storage of the Goods or the provision of the Services; and
All taxes including, but not limited to, GST (whether Australian or foreign),
We can provide You with documentation to substantiate such additional amounts upon request.
Words or expressions used in this clause 14 that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the same meaning given to them in the GST Act.
Unless otherwise stated, any amount specified in these Conditions as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
Despite anything to the contrary in this clause 14, the Recipient is not obliged under these Conditions to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
If an adjustment event arises in relation to a taxable supply made by a Supplier under these Conditions, the amount paid or payable by the Recipient pursuant to clause 14.3 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or the other way around as the case may be.
If a third party makes a taxable supply and these Conditions require a party (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
Lien
We have a special and general lien over the Goods and Containers in Our possession for all sums payable by You to Us under or in accordance with these Conditions.
Subject to any applicable Laws:
if the Goods are not collected We may at Our option and without giving You notice:
You are liable to Us for the costs of any notice, publication, storage, sale or attempted sale under this clause.
On a sale under clause 15.2(a)(ii), We may apply the proceeds towards the payment of the expenses of sale and the balance towards payment of outstanding Charges and costs due by You.
Until full payment in cleared funds as well as all other amounts You owe Us under these Conditions or any other contract is received, in addition to any rights We may have under Chapter 4 of the PPSA, We are entitled at any time to exercise Our rights under clauses 15.2(a)(i) and 15.2(a)(ii). If there is any inconsistency with Our rights under clauses 15.2(a)(i) and 15.2(a)(ii) and Our rights under the PPSA, clauses 15.2(a)(i) and 15.2(a)(ii) prevail.
If We are engaged to store or arrange storage of Goods, we do not have to make the Goods available for collection or removal from the place of storage unless all Charges have been paid and unless You have completed and provided all documents that We reasonably require You to complete or provide.
Security Interest
You irrevocably authorises Us and Our solicitors to do the following:
register one or more financing statements or financing change statements (electronically or otherwise) on the Personal Property Securities Register established under section 147 of the PPSA in connection with this or any contract between the parties; and
register and record this or any other contract between the parties (electronically or otherwise) in such other places as We or Our solicitors may at any time consider necessary or desirable to perfect this or any other contract between the parties or to protect Our rights under this or any other contract between the parties.
You agree to provide Us with all information and do anything reasonably required by Us, to enable Us to register Our Security Interest with the priority that it requires and to maintain that registration.
The Security Interest under clause 16.1 attaches to the Goods when We obtain possession and the parties confirm that they have not agreed that the Security Interest arising under clause 16.1 attaches at any later time.
Our rights under clause 16.1 secure Our right to receive payment of all amounts owing to Us by You under this or any other contract.
You must not, without Our prior consent, do, or agree to do, any of the following in respect of the Goods:
vary or create another Security Interest in favour of a third party;
sell, assign or otherwise dispose of the Goods;
lease or license the Goods, or allow a surrender or variation of any lease or licence;
give control of the Goods to another Person;
part with possession of the Goods (including any chattel paper) other than by giving Us possession;
allow a set-off or combination of accounts;
change the nature of the Goods;
abandon, settle, compromise, or discontinue or become nonsuited in respect of any proceedings against any Person (other than Us) in respect of any of the Your rights in connection with the Goods;
exercise or waive any of Your rights or release any Person from its obligations in connection with the Goods;
allow any Personal property to become an accessory to, or commingled with, any property that is not Goods;
move any Goods outside Australia; or
deal in any other way with the Goods or any interest in it, or allow any interest in it to arise or be varied.
You agree to perfect and continuously maintain perfection of any Security Interest that itself forms part of the Goods and do everything necessary to ensure that a third Person cannot acquire an interest in any of the Goods free of Our Security Interest.
All payments received from You must be applied by Us in accordance with section 14(6)(c) of the PPSA. 17.9 Subject to section 275(7) of the PPSA, neither party will disclose information of the kind mentioned in section 275(1) of the PPSA.
If Chapter 4 (enforcement of security interests) of the PPSA applies:
We need not comply with any provisions of the PPSA that the parties may contract out of in relation to the Collateral; and
You may not exercise rights under sections 142 (redemption of collateral) or 143 (reinstatement of security agreement) of the PPSA to the extent the Law permits those rights to be excluded.
We need not give You any other notice required under the PPSA (including a notice of verification statement under section 157 of the PPSA) unless the notice cannot be excluded.
Force Majeure
Where We are unable to carry out any obligation under the Contract due to Force Majeure, We will be excused from such obligation to the extent of such prevention, restriction or interference so caused.
We will use all possible diligence and reasonable endeavours to remove the Force Majeure.
Suspend Service
We may suspend performance of the Services while any Charges owing by You to Us remain unpaid.
Privacy
To the extent and as required by Law, the parties must comply with the Privacy Act 1988 (Cth) (Privacy Act) in relation to any Personal Information (as defined in the Privacy Act) obtained or supplied in connection with the Services.
You agree to Us using Your Personal Information (as defined in the Privacy Act) for the primary purpose of providing You with the Services or any related secondary purpose.
We agree not to disclose Your Personal Information (as defined in the Privacy Act) to any third party without Your consent unless We are required or authorised to do so by Law.
You must notify Us in writing if You require Us to change Your details or if You would like access to Your Personal Information (as defined in the Privacy Act).
Notices
Our address for correspondence is: Address: Level 1, 80 George Street, Parramatta NSW, 2150.
Unless You notify Us otherwise Your address for correspondence will be any address or contact details contained in any delivery document You provide to Us.
Any notice sent by post is deemed to have been given on the third day following the day of posting.
Definitions and interpretation
Definitions
In these Conditions:
“Authority” means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity acting within its legal powers and exercising any jurisdiction within any nation, state, municipality, port or airport;
“Claim” includes any claim, demand, legal proceeding or cause of action, however arising, including one that is based in contract or tort (including negligence), under common law, equity or statute and whether involving a third party or a party to these Conditions or otherwise;
“Charges” means the costs payable by You to Us for performance of the Services specified in Our quotation or estimate, as may be varied in accordance with these Conditions;
“Conditions” means these Terms and Conditions of Service;
“Container” means any container used to carry Goods or any equipment comprised in or connected to a container in respect of which We perform or are requested to perform Services or which enters Our premises in connection with a Service;
"Consequential Loss" means any loss of profits or revenue (other than in respect of any Charges payable under these Conditions), loss of production, loss or denial of opportunity, loss of or damage to goodwill, loss of business reputation, future reputation or publicity, loss of use, loss of interest, losses arising from claims by third parties, loss of or damage to credit rating, loss of anticipated savings and loss of contract (other than these Conditions), whether direct, indirect or consequential;
"Customer" means the Person at whose request or on whose behalf We provide the Services, which may be the consignor, the consignee, the Owner or the bailee of the Goods;
“Dangerous Goods” means Goods which are or may become of a dangerous, inflammable, noxious, radioactive, volatile, explosive or damaging nature;
“Force Majeure” means (but is not limited to) acts of God, wars (declared or undeclared), rebellions, insurrections, acts of terrorists, acts of Government bodies (including but not limited to legislative bodies, courts, executive and administrative officers or agencies), road closures, floods, cyclones, strikes, boycotts, lockouts or other labour disturbances, maritime disasters, explosions, fires or any other matters of a similar or dissimilar nature which are beyond a party's reasonable control, or weather conditions that are so severe as to cause present or potential threats to personnel or equipment;
“Goods” means the cargo and its packaging in respect of which We provide or are requested to provide Services in accordance with the terms of this Agreement;
“Law” means:
legislation, regulations, proclamations, ordinances, orders, awards, directions, by-laws or practice notes of the Commonwealth, a State or Territory or any Authority;
certificates, licences, consents, permits, approvals, qualifications, registrations, standards and requirements of organisations having jurisdiction in connection with the supply of the Services under these Conditions; and
all other laws from which legal rights and obligations may arise.
“Loss” means any losses, liabilities, damages, costs, charges or expenses (including lawyer's fees and expenses on a full indemnity basis) whether direct or indirect (including Consequential Loss), fines and penalties;
"Lost or Damaged Goods" means Goods (excluding any Goods not permitted to be carried and/or stored by Us under these Conditions) which are lost, damaged or destroyed while in Our custody or control (or in the custody or control of Our Subcontractor);
"Non-Excludable Rights" has the meaning given in clause 1.2;
“Owner” means the owner of the Goods or Container;
"Person" includes (but is not limited to) any individual, partnership, firm, body corporate (being a company registered under the Corporations Act 2001 (Cth)), incorporated association, co–operative, owners' corporation or Government Agency and any other entity recognised by Law as a legal person;
"Personnel" of a Person means that Person's officers, employees, agents or contractors, except that for the purposes of this definition, We (and Our Subcontractors and Personnel) are not deemed to be Your Personnel;
“PPSA" means the Personal Property and Securities Act 2009 (Cth);
"Related Body Corporate" has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
“Services” means the services We provide to You under these Conditions whether provided gratuitously or otherwise including but not limited to carriage, transportation, warehousing, storage, packaging, handling services and distribution of Goods and Containers and any other services which You and Us may agree in writing are to be Services;
“Subcontractor" means any Person to whom We subcontract any of our obligations to perform the Services under these Conditions;
“Us, We or Our” means either DGL Warehousing & Distribution Pty Ltd ABN 46 625 569 922, DGL Townsville Pty Ltd ABN 61 147 824 299, Enlog Pacific Holdings Pty Ltd ABN 43 053 082 045 or DGL Operations Ltd NZBN 9429032804584 trading under any business name, as specified on the relevant quote, or order and, where the context permits, includes Our Personnel; and
“You or Your” means the Customer.
Interpretation
In these Conditions, unless a contrary intention is expressed:
a gender includes all other genders;
the singular includes the plural and the plural includes the singular;
headings and italicised, highlighted or bold type are inserted for guidance and do not affect the interpretation of these Conditions;
other parts of speech and grammatical forms of a word or phrase defined in these Conditions have a corresponding meaning;
a reference to legislation includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re-enactments of any of them from time to time;
the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in these Conditions do not limit what else is included and must be construed as if they are followed by the words 'without limitation' unless there is express wording to the contrary; and
a reference to '$', 'A$', 'AUD' or 'dollars' is a reference to the lawful currency of the Commonwealth of Australia.
General
These Conditions are governed by and are to be construed in accordance with the Law of the State of Queensland. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Queensland and Courts entitled to hear appeals from those Courts.
Neither party may assign or otherwise deal with any of its rights under these Conditions without the prior written consent of the other party, except that We may assign our rights under these Conditions to any Related Body Corporate, provided that such assignment would not cause a material detriment to You.
A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver. A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
If any provision of these Conditions is void, illegal, or unenforceable in any relevant jurisdiction, then that provision must, to that extent, be treated as deleted from these Conditions for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision in these Conditions.