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Terms and Conditions

PART I – GENERAL TERMS AND CONDITIONS

  1. 1.         Definitions

1.1       “HS” means Hunter Stone Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hunter Stone Pty Ltd.

1.2       “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

1.3       “Consignee” shall mean the person to whom the Goods are to be delivered by way of HS’s Services.

1.4       “Goods” means all Goods or Services supplied by HS to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.5       “Freight” shall mean any cargo and/or vehicle together with any container, packaging, or pallet(s) to be moved from one place to another by way of HS’s Services.

1.6       “Equipment” shall mean all Equipment (including any accessories) supplied on hire by HS to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by HS to the Client.

1.7       “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by HS to the Client.

1.8       “Price” means the Price payable for the Goods as agreed between HS and the Customer in accordance with clause 4 below.

 

  1. 2.         Acceptance

2.1       The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.

2.2       These terms and conditions may only be amended with HS’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and HS.

 

  1. 3.         Change in Control

3.1       The Customer shall give HS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by HS as a result of the Customer’s failure to comply with this clause.

 

  1. 4.         Price and Payment

4.1       At HS’s sole discretion the Price shall be either:

(a)  as indicated on any invoice provided by HS to the Customer; or

(b) the Price as at the date of delivery of the Goods according to HS’s current price list; or

(c)  HS’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2       HS reserves the right to change the Price if a variation to HS’s quotation is requested.

4.3       HS may by giving notice to the Customer increase the Price of the Services to reflect any increase in the cost to HS beyond the reasonable control of HS (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).

4.4       The Carrier may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.

4.5       At HS’s sole discretion a non-refundable deposit may be required.

4.6       Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by HS, which may be:

(a)  on delivery of the Goods;

(b) before delivery of the Goods;

(c)  thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;

(d) the date specified on any invoice or other form as being the date for payment; or

(e)  failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by HS.

4.7       Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to five percent (5%) of the Price), or by any other method as agreed to between the Customer and HS.

4.8       Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to HS an amount equal to any GST HS must pay for any supply by HS under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.

 

  1. 5.         Delivery of Goods

5.1       The Customer must arrange to personally collect the Goods at HS’s address or arrange for the Goods to be collected by the Customer’s nominated carrier service. HS may, on the Customer’s request, arrange for the Goods to be delivered by HS or HS’s nominated carrier service, which will be at the Customer’s cost and added to the Price, unless otherwise agreed between HS and the Customer..

5.2       Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a)  the Customer or the Customer’s nominated carrier takes possession of the Goods at HS’s address; or

(b) if HS or HS’s nominated carrier delivers the Goods, at the time that the Goods are delivered to the Customer’s nominated address even if the Customer is not present at the address.

5.3       It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks. The Customer shall pay the cost of replacement, repair or rectification to any paths, driveways, and access routes to the property.

5.4       HS also reserves the right to refuse to enter the site to undertake the Services in the event that HS believes the site to be unsafe.  In this event, the Customer agrees that it is their responsibility to ensure the site is made safe before HS will enter the site, HS shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.

5.5       The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then HS shall be entitled to charge a reasonable fee for redelivery and/or storage.

5.6       HS may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.7       Any time or date given by HS to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and HS will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

 

  1. 6.         Risk

6.1       Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

6.2       If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, HS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HS is sufficient evidence of HS’s rights to receive the insurance proceeds without the need for any person dealing with HS to make further enquiries.

6.3       If the Customer requests HS to leave Goods outside HS’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.

6.4       Where the Customer has supplied materials for HS to complete the works, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. HS shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.

6.5       The Customer acknowledges that variations of colour and texture are inherent in concrete and also in all kiln fired products and natural stone. While every effort will be taken by HS to match colour, shade or grain of Goods to be provided, HS shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of Goods or sale samples and the final Goods supplied.

6.6       The Customer acknowledges that the curing time for concrete can be affected by elements such as temperature or the weather as such HS offers no guarantee as to the length of time the curing process will take.

6.7       HS offers no guarantee against cracking of concrete.

6.8       Where HS gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then HS shall require the Customer or their agent to authorise commencement of the works in writing. HS shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.

6.9       The Customer acknowledges that Goods supplied may:

(a)  exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and

(b) expand, contract or distort as a result of exposure to heat, cold, weather; and

(c)  mark or stain if exposed to certain substances; and

(d) be damaged or disfigured by impact or scratching.

 

  1. 7.         Measurement of Concreting Works

7.1       At the completion of the works the Customer or the representative of the Customer shall be in attendance and the works shall then be duly measured. In the absence of either the Customer or their representative HS shall carry out the necessary measurements and forward to the Customer their calculations. If the Customer does not object to the calculations within seven (7) days of receipt of the same then it shall be deemed acceptance of the same and the works completed.

 

  1. 8.         Title

8.1       HS and the Customer agree that ownership of the Goods shall not pass until:

(a)  the Customer has paid HS all amounts owing to HS; and

(b) the Customer has met all of its other obligations to HS.

8.2       Receipt by HS 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.

8.3       It is further agreed that:

(a)  until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to HS on request.

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for HS and must pay to HS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. 

(c)  the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for HS and must pay or deliver the proceeds to HS on demand.

(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of HS and must sell, dispose of or return the resulting product to HS as it so directs.

(e)  the Customer irrevocably authorises HS to enter any premises where HS believes the Goods are kept and recover possession of the Goods.

(f)  HS may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of HS.

(h)  HS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

 

  1. 9.         Personal Property Securities Act 2009 (“PPSA”)

9.1       In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

9.2       Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by HS to the Customer.

9.3       The Customer undertakes to:

(a)  promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which HS may reasonably require to;

(i)   register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii)  register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);

(b) indemnify, and upon demand reimburse, HS 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 Goods charged thereby;

(c)  not register a financing change statement in respect of a security interest without the prior written consent of HS;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of HS;

(e)  immediately advise HS of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

9.4       HS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

9.5       The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

9.6       The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

9.7       Unless otherwise agreed to in writing by HS, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

9.8       The Customer must unconditionally ratify any actions taken by HS under clauses 9.3 to 9.5.

9.9       Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

 

  1. 10.       Security and Charge

10.1     In consideration of HS agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

10.2     The Customer indemnifies HS from and against all HS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HS’s rights under this clause.

10.3     The Customer irrevocably appoints HS and each director of HS as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.

 

  1. 11.       Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

11.1     The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify HS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow HS to inspect the Goods.

11.2     Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

11.3     HS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

11.4     Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, HS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. HS’s liability in respect of these warranties is limited to the fullest extent permitted by law.

11.5     If the Customer is a consumer within the meaning of the CCA, HS’s liability is limited to the extent permitted by section 64A of Schedule 2.

11.6     If HS is required to replace the Goods under this clause or the CCA, but is unable to do so, HS may refund any money the Customer has paid for the Goods.

11.7     If the Customer is not a consumer within the meaning of the CCA, HS’s liability for any defect or damage in the Goods is:

(a)  limited to the value of any express warranty or warranty card provided to the Customer by HS in HS’s sole discretion;

(b) limited to any warranty to which HS is entitled, if HS did not manufacture the Goods;

(c)  otherwise negated absolutely.

11.8     Subject to this clause 11, returns will only be accepted provided that:

(a)  the Customer has complied with the provisions of clause 11.1; and

(b) HS has agreed that the Goods are defective; and

(c)  the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

11.9     Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, HS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a)  the Customer failing to properly maintain or store any Goods;

(b) the Customer using the Goods for any purpose other than that for which they were designed;

(c)  the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Customer failing to follow any instructions or guidelines provided by HS;

(e)  fair wear and tear, any accident, or act of God.

11.10  HS may in its absolute discretion accept non-defective Goods for return in which case HS may require the Customer to pay handling fees of up to forty-five percent (45%) of the value of the returned Goods plus any freight costs.

11.11  Notwithstanding anything contained in this clause if HS is required by a law to accept a return then HS will only accept a return on the conditions imposed by that law.

 

  1. 12.       Default and Consequences of Default

12.1     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 HS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

12.2     If the Customer owes HS any money the Customer shall indemnify HS from and against all costs and disbursements incurred by HS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HS’s collection agency costs, and bank dishonour fees).

12.3     Without prejudice to any other remedies HS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions HS may suspend or terminate the supply of Goods to the Customer. HS will not be liable to the Customer for any loss or damage the Customer suffers because HS has exercised its rights under this clause.

12.4     Without prejudice to HS’s other remedies at law HS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to HS shall, whether or not due for payment, become immediately payable if:

(a)  any money payable to HS becomes overdue, or in HS’s opinion the Customer will be unable to make a payment when it falls due;

(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

  1. 13.       Wet Hire

13.1     In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of HS and operates the Equipment in accordance with the Customer’s instructions. As such HS shall not be liable for any actions of the operator in following the Customer’s instructions.

 

 

  1. 14.       Cancellation

14.1     HS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice HS shall repay to the Customer any money paid by the Customer for the Goods. HS shall not be liable for any loss or damage whatsoever arising from such cancellation.

14.2     In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by HS as a direct result of the cancellation (including, but not limited to, any loss of profits).

14.3     Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 14.4    In the event that a Customer cancels an order, the Customer shall shoulder a restocking fee which is 30% of the order amount. The restocking fee will be for the costs incurred in packing the items for shipping/transport/pick-up and unpacking these again to return to our warehouse (since the order has been cancelled).

  1. 15.       Privacy Act 1988

15.1     The Customer agrees for HS to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by HS.

15.2     The Customer agrees that HS may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a)  to assess an application by the Customer; and/or

(b) to notify other credit providers of a default by the Customer; and/or

(c)  to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Customer.

The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

15.3     The Customer consents to HS being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

15.4     The Customer agrees that personal credit information provided may be used and retained by HS for the following purposes (and for other purposes as shall be agreed between the Customer and HS or required by law from time to time):

(a)  the provision of Goods; and/or

(b) the marketing of Goods by HS, its agents or distributors; and/or

(c)  analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

(e)  enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.

15.5     HS may give information about the Customer to a credit reporting agency for the following purposes:

(a)  to obtain a consumer credit report about the Customer;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

15.6     The information given to the credit reporting agency may include:

(a)  personal particulars (the Customer’s name, sex, address, previous  addresses, date of birth, name of employer and driver’s licence number);

(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;

(c)  advice that HS is a current credit provider to the Customer;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e)  that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f)  information that, in the opinion of HS, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);

(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;

(h)  that credit provided to the Customer by HS has been paid or otherwise discharged.

 

  1. 16.       General

16.1     The failure by HS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect HS’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2     These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which HS has its principal place of business, and are subject to the jurisdiction of the courts in that state. 

16.3     Subject to clause 11 HS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by HS of these terms and conditions (alternatively HS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

16.4     The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by HS nor to withhold payment of any invoice because part of that invoice is in dispute.

16.5     HS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

16.6     The Customer agrees that HS may amend these terms and conditions at any time. If HS makes a change to these terms and conditions, then that change will take effect from the date on which HS notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for HS to provide Goods to the Customer.

16.7     Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

16.8     The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

 

PART II – THE FOLLOWING TERMS AND CONDITIONS ARE ONLY APPLICABLE TO THE CARTAGE OF FREIGHT

 

  1. 17.       HS Not Common Carrier

17.1     HS 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 HS subject only to these conditions and HS 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.

 

  1. 18.       HS’s Servants or Agents

18.1     The Client undertakes that no claim or allegation shall be made against any servant or agent of HS which attempts to impose upon any of them any liability whatsoever in connection with the Freight and, if any such claim or allegation should nevertheless be made, to indemnify HS and any such servant or agent against all consequences thereof.

 

  1. 19.       Nomination Of Sub-Contractor

19.1     The Customer hereby authorises HS (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 Customer 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 HS.  In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled HS shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.

 

  1. 20.       Route Deviation

20.1     The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Freight that may in the absolute discretion of HS be deemed reasonable or necessary in the circumstances.

  1. 21.       Charges Earned

21.1     HS’s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and despatched from the Customer’s premises.

 

  1. 22.       Demurrage

22.1     The Client will be and shall remain responsible to HS for all its proper charges incurred for any reason.  A charge may be made by HS in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of HS.  Such permissible delay period shall commence upon HS reporting for loading or unloading.  Labour to load or unload the vehicle shall be the responsibility and expense of the Client or Consignee.

 

  1. 23.       Dangerous Freight

23.1     Unless otherwise agreed in advance in writing with HS the Client or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Freight.  The Client shall be liable for and hereby indemnifies HS for all loss or damage whatsoever caused by any Dangerous Freight.

 

  1. 24.       Consignment Note

24.1     It is agreed that the person delivering any Goods to HS for carriage or forwarding is authorised to sign the consignment note for the Customer.

 

  1. 25.       Delivery

25.1     HS is authorised to deliver the Goods at the address given to HS by the Customer for that purpose and it is expressly agreed that HS shall be taken to have delivered the Goods in accordance with this contract if at that address HS obtains from any person a receipt or a signed delivery docket for the Goods.

25.2     HS may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.

25.3     Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery for the purposes of this agreement.

25.4     It is the Customer’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery. 

25.5     The failure of HS to deliver shall not entitle either party to treat this contract as repudiated.

 

  1. 26.       Conditions of Storage

26.1     HS will prepare an inventory of Goods received for storage and will ask the Customer to sign that inventory.  The Customer will be provided with a copy of the inventory. If the Customer signs the inventory, or does not do so and fails to object to its accuracy within seven (7) days of receiving it from HS, then the inventory will be conclusive evidence of the Goods received. The inventory will disclose only visible items and not any contents unless the Customer ask for the contents to be listed, in which case HS will be entitled to make a reasonable additional charge.

26.2     HS is authorised to remove the goods from one warehouse to another without cost to the Customer. HS will notify the Customer 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).

26.3     The Customer is entitled upon giving HS reasonable notice to inspect the Goods in store but a reasonable charge may be made by HS for this service.

26.4     Subject to payment for the balance of any fixed or minimum period of storage agreed the Customer may require the Goods to be removed from the store at any time on giving HS not less than five (5) working days notice. If the Customer gives HS less than the required notice HS will still use their best endeavours to meet the Customers requirements, but shall be entitled to make a reasonable additional charge for the short notice.

26.5     The Customer agrees to remove the goods from storage within twenty-eight (28) days of a written notice of requirement from HS to do so. In default, HS may after fourteen (14) days notice to the Customer SELLALLOR 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 Customer to HS.

 

  1. 27.       Client’s Responsibility

27.1     The Client expressly warrants to HS that the Client is either HS or the authorised agent of HS of any Freight 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 the Consignee as well as for all other persons on whose behalf the Client is acting.

 

  1. 28.       Loss Or Damage

28.1     Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Freight:

(a)  HS shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Freight (whether the Freight are or have been in the possession of HS or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Freight or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and

(b) the Client will indemnify HS against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by HS in connection with the Freight.

 

  1. 29.       Insurance

29.1     The Client acknowledges that:

(c)  the Freight are carried and stored at the Client’s sole risk and not at the risk of HS; and

(d) HS is under no obligation to arrange insurance of the Freight and it remains the Client’s responsibility to ensure that the Freight are insured adequately or at all; and

(e)  under no circumstances will HS be under any liability with respect to the arranging of any such insurance and no claim will be made against HS for failure to arrange or ensure that the Freight are insured adequately or at all.

 

  1. 30.       Unpaid HS’s Rights to Dispose of Goods

30.1     HS shall have a lien on any Goods (and any documents relating to those Goods) in the possession or control of HS for all sums payable by the Customer to HS, and HS shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Customer.  HS shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.