Standard Trading Conditions
Effective May 2014
DEFINITIONS
In these Trading Conditions, unless the context otherwise requires:
Amount Payable means, at any time, all amounts payable by the Customer to TRG at that time (whether or not those amounts have become due for payment under clause 10 or any other provision of these Trading Conditions) in connection with these Trading Conditions, the Goods and/or the Services (including any invoiced amount, interest, fees, costs or expenses).
Container includes any type of container, trailer, transportable rack, pallet, flat or unit load device or similar item.
Customer means the customer specified in an application for trading account (or if there is no application, the person giving instructions to TRG for the supply of Goods and/or Services or on whose behalf those instructions are placed with TRG) and includes all employees, officers, agents and contractors of the customer.
Default is defined in clause 16.
Goods means any property which is, or is proposed to be, the subject of the Services.
PPSA means the Personal Property Securities Act 2009 (Cth).
Services means any services, rights, benefits, privileges or facilities provided or to be provided by TRG to the Customer at any time and from time to time.
Trading Conditions means the standard trading conditions set out in this document, as modified or amended in accordance with clause 57.
TRG means TRG Transport Pty Ltd (ACN 100 280 144) and its related bodies corporate (as defined in the Corporations Act 2001 (Cth)) from time to time.
The terms "financing change statement", "financing statement", "security interest" and "verification statement" have the respective meanings given to them under, or in the context of, the PPSA.
INTREPRETATION
In these Trading Conditions, unless the context otherwise requires:
· a reference to law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated, replaced or re-enacted;
· the word "including" when introducing an example does not limit the meaning of the words to which the example relates; and
· the singular includes the plural and vice versa.
TRADING CONDITIONS
Nature of Services
1. All Services provided by TRG are governed solely by these Trading Conditions.
2. TRG is not a common carrier and will accept no liability as such. TRG may refuse at its sole and absolute discretion to accept any Goods for carriage without any reason.
Acceptance of Trading Conditions
3. The Customer may give instructions to TRG for the provision of Services, orally or in writing or in any other way.
4. Any such instructions will:
4.1 constitute an acknowledgement by the Customer that it has received, read, understood and agrees to be bound by these Trading Conditions;
4.2 constitute an offer by the Customer to purchase Services and TRG may accept this offer in writing or by supplying the Services to the Customer (whichever occurs first); and
4.3 constitute authorisation for TRG to act on behalf of the Customer in accordance with these Trading Conditions.
5. Notwithstanding any prior dealings between TRG and the Customer or any rule of law, any contracts, documents and other matter (including cash, cheques, bank drafts and other remittances) sent to TRG through the post will be deemed not to have been received by TRG unless and until they are actually delivered to TRG at its office address or placed in TRG's post office box, if so addressed.
Ability to Appoint Agents, Sub-contractors and Third Parties
6. TRG reserves complete freedom to decide the manner or procedure to be adopted for any or all of the various acts that will be necessary for the completion of the Services. That discretion will be varied only by instructions delivered by the Customer to TRG in writing and acknowledged by TRG in writing in sufficient time before the performance of any Services to reasonably allow TRG to adopt the manner of performing the Services required by the special instructions. TRG will have no liability or responsibility by virtue of the fact that there may be a change in the rates of cartage, wharfage, freight, storage or any other tariff before or after the performance of the Services by TRG.
7. Subject to and in accordance with these Trading Conditions, TRG agrees and the Customer authorises TRG as agent for the Customer to contract either in its own name as principal or as agent for the Customer with any sub-contractor of TRG for the carriage, movement, transport or storage of the Goods or for the performance of all or any part of the Services pursuant to or ancillary to these Trading Conditions.
Price and Payment
8. TRG may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue the Goods (or request same) and charge additional fees accordingly. Quotations are given on the basis of immediate acceptance and are subject to the right of withdrawal or revision by TRG. Quotations are valid only for the specified weight and volume ranges quoted and for the designated services and standard of services quoted. Quotations which do not include a validity period are deemed to be valid for 7 days. Where a quotation includes a validity period, TRG may cancel or amend the quotation on 7 days’ notice.
9. Unless otherwise agreed in writing:
9.1 the price charged for the Services will be exclusive of any transaction tax (including goods and services tax);
1.1 payments must be made in Australian dollars; and
1.2 the Customer must pay any duty (including customs duty), taxes, charges or fees in connection with the Goods and the Services.
2. The Customer becomes liable to pay TRG:
2.1 in respect of Services which constitute the transportation of Goods - on receipt of the Goods by TRG, or upon the start of the journey to collect the Goods (whichever occurs first); and
2.2 in respect of Services which constitute warehouse and container park services - on receipt of instructions for the provision of those Services from the Customer.
3. TRG may set-off any amount due and payable by TRG to the Customer against any amount due and payable by the Customer to TRG.
4. The Customer must not set-off any amount due and payable by the Customer to TRG against any amount due and payable by TRG to the Customer.
Lien
5. The Customer acknowledges that TRG has a special lien over the Goods and may retain possession of the Goods until all amounts owing by the Customer to TRG in connection with those Goods have been paid.
Security Interest
6. The Customer grants to TRG a security interest in the Goods to secure payment of the Amount Payable.
7. The Customer acknowledges and agrees that the rights of TRG under clause 14 are in addition to, and not in derogation of, any other rights of TRG under these Trading Conditions or provided by law (including TRG's special lien over the Goods).
Default
8. The Customer will be in Default if:
8.1 payment for the Services has not been received by TRG within 7 Business Days of the due date for payment;
8.2 it breaches any other material term of these Trading Conditions and such breach is not remedied within 7 days;
8.3 if it is a body corporate, it becomes an externally-administered body corporate or has an application for winding up filed against it;
8.4 if it is an individual, it commits an act of bankruptcy or becomes an insolvent under administration; or
8.5 any representation or warranty made by it in or in connection with these Trading Conditions or its application for trading account is incorrect, misleading or deceptive (whether by omission or otherwise) in any material respect.
The Customer agrees to ensure that no Default occurs.
9. If the Customer Defaults, TRG may:
9.1 treat any contract for the supply of Services as repudiated and sue for breach of contract;
9.2 refuse to supply any Services to the Customer on credit or at all;
9.3 exercise any other right or remedy available to it under these Trading Conditions or any applicable law; and/or
9.4 declare, by notice to the Customer, all monies owing by the Customer to TRG on any account immediately due and payable (including the Amount Payable).
Default Interest
10. The Customer will pay to TRG, by way of liquidated damages, interest at the rate of 2 per cent per month on any overdue amount calculated from the due date until payment is made in full. Such interest will be payable on demand by TRG.
Credit
11. Any agreement by TRG to grant the Customer credit upon these Trading Conditions has been or will be made in reliance on the Customer's application for trading account, credit application and such other documents and information as may be required by TRG.
12. Unless otherwise agreed in writing, the Customer must pay all amounts credited by TRG to the Customer within 14 days.
13. Until TRG grants the Customer credit by notice in writing or, if having granted credit, TRG exercises its powers to withdraw, refuse or suspend credit under clauses 17.2 or 22 or otherwise under these Trading Conditions, TRG will only supply Services to the Customer on the basis of cash in advance.
14. The granting of credit by TRG does not oblige TRG to extend any particular amount of credit to the Customer and TRG may withdraw, refuse, suspend or limit credit to the Customer at any time, in its absolute discretion, without notice or providing any reason.
15. The Customer must notify TRG in writing if there is any change in the shareholding or ownership of the Customer (if applicable) or any material change in the Customer's financial position.
Representations and Warranties
16. The Customer (on behalf of itself, the consignor and the consignee) represents and warrants to TRG that:
16.1 the Goods are fit for carriage and storage;
16.2 the Goods are packed to withstand ordinary risks of handling storage and carriage, having regard to their nature;
16.3 the Goods do not contain any explosive or volatile spirits or other items of a dangerous, inflammable or offensive nature;
16.4 the Goods and the performance of the Services in respect of the Goods are not prohibited by law;
16.5 it is the legal owner of the Goods or legally entitled to authorise their carriage;
16.6 all information provided to TRG in connection with these Trading Conditions (including all load information related to any Container or Goods) is true, accurate and complete, and is not, by omission or otherwise, misleading;
16.7 it will keep all and any information provided by TRG or any person acting on its behalf confidential save as where, TRG grants its permission to the Customer to disclose such information or where, the disclosure of such information is required by law;
16.8 it has complied with all laws relating to the nature, condition, packaging, handling, storage and carriage of the Goods; and
if it enters into these Trading Conditions as trustee of any trust, it is validly appointed as sole trustee of the trust; no action has been taken or proposed to remove it as trustee of the trust or to terminate the trust; no vesting date has occurred under the trust; it has the right to be fully
1.1 indemnified out of the trust fund for obligations incurred by it under these Trading Conditions; and its entry into these Trading Conditions is for a proper purpose and the benefit of the beneficiaries of the trust.
2. The representations and warranties in clause 24 are taken to be repeated on each date on which any Amount Payable remains outstanding on the basis of the facts and circumstances as at that date.
Indemnity
3. The Customer indemnifies TRG against all costs (including legal costs on a full indemnity basis), expenses, actions, claims, demands, losses (including consequential losses), damages and liabilities of any nature incurred at any time actually or contingently by TRG arising directly or indirectly in connection with:
3.1 a Default;
3.2 TRG (or any person acting on its behalf including an attorney appointed under these Trading Conditions) exercising or attempting to exercise any power or right in connection with these Trading Conditions (or considering to do so); or
3.3 the Services, the Goods or these Trading Conditions.
This is a continuing indemnity and survives expiration or termination of these Trading Conditions.
4. The Customer agrees to pay any amounts claimed pursuant to the indemnity in clause 26 within 7 days of demand by TRG.
Containers
5. Where Containers are left at the Customer’s premises or other premises nominated by the Customer for packing or unpacking, the Customer must notify TRG in writing when the Containers are ready to collect. TRG is not liable for Container detention charges incurred before the Customer so notified TRG or incurred for a period of 3 Business Days after the Customer so notified TRG.
Abandoning of Containers and Goods
6. TRG may at any time by written notice to the Customer determine any Containers or Goods to be abandoned. If the Customer does not pay all charges due and take delivery of the Containers or Goods within 7 days of receiving the notice, TRG may sell, dispose of or destroy the Containers or Goods. The Customer will be liable for all costs and expenses of such sale, disposition or destruction, including reasonable legal fees.
Insurance
7. TRG will not effect insurance on the Goods except upon receipt of express instructions given in writing by the Customer and the Customer's written declaration as to the value of the Goods and TRG’s acknowledgement of these instructions in writing. All such insurances effected by TRG are at the Customer's cost, and are subject to the usual exceptions and conditions of the policies of the insurer or underwriter taking the risk. At the discretion of TRG such insurance may name the Customer or owner as insured. In the event of any dispute in regard to liability under any such insurance policy for any reason whatsoever the Customer or other insured will have recourse against the insurer or underwriter only and TRG will have no liability or responsibility in relation to any such insurance policy.
Storage and Transport
8. Subject to express instructions in writing given by the Customer and accepted by TRG in writing (and without limiting the generality of clauses 6 and 7), TRG reserves to itself complete freedom to decide upon the means, route and procedure to be followed in the handling, storage and transportation of the Goods. TRG will have no obligation to take any action in respect of any Goods that may be recognisable as belonging to the Customer unless it has received suitable instructions relating to such Goods together with all necessary documents. In particular, TRG will not be obliged to notify the Customer of the existence or whereabouts of the Goods or to examine them or to take any other steps for their identification, protection or preservation or for the preservation of any claim by the Customer or any other party against TRG, insurer or any third party.
9. Storage of any Container or Goods is at the sole risk of the Customer. TRG may store or move Containers or Goods at any time and at any place at its discretion. TRG is not responsible for any loss or damage in respect of Containers or Goods while the Containers or Goods are under the care, custody or control of TRG.
Perishable, Non-deliverable, Hazardous and Damaged Goods
10. Where the Goods are perishable and are not taken up immediately upon arrival or are insufficiently or incorrectly addressed or marked or otherwise not identifiable, they may be sold or otherwise disposed of with or without notice to the Customer, consignor, owner or consignee of the Goods or any other person and payment or tender of the net proceeds of any sale after deduction of all costs, expenses and charges incurred by TRG in effecting such sale or disposal will be equivalent to delivery.
11. Where the Goods are non-perishable and cannot be delivered either because they are insufficiently or incorrectly addressed or marked or otherwise not identifiable or because they are not collected or accepted by the consignee or where they cannot be delivered due to failure to make any required payment, they may be sold or returned at TRG's option at any time after the expiration of 7 days from a notice in writing sent to the Customer at the address which the Customer gave to TRG on delivery of the Goods. All costs, charges and expenses incurred by TRG and arising in connection with the sale or return of the Goods will be paid by the Customer and may be deducted from the proceeds of the sale of the Goods.
12. In respect of clauses 33 and 34 above, TRG sells or otherwise disposes of such Goods as principal and not as agent and is not trustee of the power of sale.
13. In the event that any sale of Goods pursuant to clause 34 does not provide sufficient proceeds to discharge all liability of the Customer to TRG (including the Amount Payable), the Customer acknowledges that it is not released from the remainder of the liability to TRG merely by sale of the Goods.
14. In the event that the Goods are found to be dangerous they may be destroyed or otherwise dealt with at the sole discretion of TRG or any other person in whose custody they may be at the relevant time. If such Goods are accepted under arrangements previously made in writing they may nevertheless be destroyed or otherwise dealt with if they become dangerous to other goods or property. The expression "goods likely to cause damage" includes goods likely to harbour or encourage vermin or other pests and all such goods as fall within the definition of hazardous and dangerous goods in the legislation governing carriage by rail in the States and Territories of Australia.
15. TRG will be under no obligation to make any declaration to, or to seek any special protection or cover from, any road transport authority in respect of any Goods falling within the definition of that body:
15.1 of dangerous or hazardous goods; or
15.2 of goods liable to be stored in the open, unless written instructions to that effect are given to TRG by the Customer.
Storage of Goods Pending Delivery
16. Without limiting the effect of clauses 31 and 32, pending delivery, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of TRG at the Customer's risk and expense.
Collect On Delivery Goods
TRG may in its absolute discretion refuse instructions to collect on delivery (COD) in cash or otherwise. Where TRG does accept such instructions its only obligation to the Customer is to use reasonable diligence and care in such collection. TRG is not liable for any loss or
1. damage arising from such instructions or such collection whether caused by negligence or otherwise.
Exclusion and Limitation of Liability
2. The parties acknowledge and agree that:
2.1 State, Territory and Commonwealth legislation in Australia implies certain non-excludable guarantees, warranties and conditions into particular agreements for the supply of goods and services, which cannot be excluded, restricted or modified (Non-Excludable Guarantees);
2.2 TRG does not exclude, restrict or modify the Non-Excludable Guarantees and nothing in these Trading Conditions is intended or is to be construed as doing so; and
2.3 nothing in these Trading Conditions affects any remedies available to the Customer at law that cannot be lawfully excluded by TRG, including in respect of any of the Non-Excludable Guarantees which may be applicable.
3. The Customer acknowledges and understands that apart from any Non-Excludable Guarantees which may be applicable, TRG does not make or provide any express warranties or guarantees regarding the Services.
4. Subject to clause 41, to the maximum extent permitted by law, TRG excludes all warranties, terms, conditions and guarantees regarding the Services and any other goods or services supplied or provided by TRG under these Trading Conditions which are implied by law (including the general law) or custom.
5. To the maximum extent permitted by law, TRG's liability to the Customer for a breach of any of the Non-Excludable Guarantees in respect of any goods or services provided to the Customer under these Trading Conditions (including but not limited to the Services) is limited to any one of the following, at the option of TRG:
5.1 in the case of goods - replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the cost of replacing the goods or acquiring equivalent goods, or payment of the costs of having the goods repaired; and
5.2 in the case of services, including the Services - the supply of the services again, or payment of the cost of having the services supplied again.
6. To the maximum extent permitted by law, in no circumstances will TRG be liable to the Customer any consequential, incidental, special or economic loss, damage or injury (which may include loss of profits, loss or damage to goodwill, direct or indirect loss or damage to equipment or property, loss or damage arising from accident, loss of profits or other commercial losses) suffered or incurred by the Customer that arise in respect or as a result of these Trading Conditions.
7. If, notwithstanding any other provision in these Trading Terms, TFG is held to be liable to the Customer on any basis whatsoever, then without limiting or affecting clause 44, such liability will not in aggregate exceed the amounts actually paid or payable by the Customer under these Trading Terms as at the date the relevant liability arises.
8. Clauses 41 to 47 of these Trading Terms set out the entire liability of TRG to the Customer under applicable legislation or otherwise, to the fullest extent legally possible.
Notification of Liability
9. Any claim for loss or damage by the Customer in respect of the Services must be notified in writing to TRG within 7 days of delivery of the Goods or of the date upon which the Goods should have been delivered.
Contracting Out Of the PPSA
10. The Customer:
10.1 waives the right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to a security interest created under these Trading Conditions; and
10.2 contracts out of its rights to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in clause 50).
11. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 117, 118, 120, 121(4), 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143, which sections (or parts of sections) will not apply.
Personal Property Securities Register
12. The Customer must not register any financing statement or financing change statement on the Personal Property Securities Register in connection with these Trading Conditions without the prior written consent of TRG (which will not be unreasonably withheld).
13. The Customer acknowledges and agrees that TRG may register a financing statement or financing change statement on the Personal Property Securities Register in respect of the security interest provided for by these Trading Conditions.
Force Majeure
14. TRG is not liable for failure to perform its obligations under these Trading Conditions to the extent and for so long as its performance is prevented or delayed without substantial fault or negligence by TRG because of circumstances outside TRG’s control, failure of TRG’s vehicles or machinery, or failure of a sub-contractor of TRG, provided that TRG gives notice to the Customer.
15. If the occurrence of any event contemplated in clause 53 causes a delay of over 21 days in any obligation of TRG, then the provision of Services may be terminated by notice in writing by either party to the other party.
Severance
16. If a provision of these Trading Conditions would, but for this clause be unenforceable:
16.1 the provision must be read down to the extent necessary to avoid that result; and
16.2 if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Trading Conditions.
Change in Details
17. The Customer must not change its details as set out in its current application for trading account unless it has notified TRG of the proposed change in details not less than 15 Business Days before the change takes effect.
Variations and Waiver
18. TRG may at any time vary the terms and conditions applicable to future instructions from the Customer to TRG for the supply of Services and may notify the Customer of these changes or provide any other notice under or in connection with these Trading Conditions by email, facsimile, post or, in the case of a variation of these Trading Conditions, by publishing the revised Trading Conditions or notice on its website (www.trgtransport.com).
1. No waiver of any part of these Trading Conditions is valid and binding on TRG unless made in writing and duly executed by and on behalf of TRG.
Costs
2. The Customer must pay TRG all costs and expenses incurred by TRG in connection with these Trading Conditions including legal expenses (on a full indemnity basis), stamp duty (including fines and penalties) or the recovery of the Amount Payable or in otherwise enforcing TRG's rights against the Customer under these Trading Conditions
Assignment
3. The Customer may not assign or otherwise deal with its rights under these Trading Conditions.
4. TRG may assign or otherwise deal with its rights or obligations under Trading Conditions without the consent of any person.
Attorney
5. The Customer irrevocably appoints TRG and each of its authorised officers, jointly and severally, to be its attorney to do any act or thing which the Customer is required to do under these Trading Conditions, if the Customer is in Default (including executing and registering instruments).
6. TRG may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so. A third party may rely on a copy of these Trading Conditions certified by a solicitor as evidence of the appointment of TRG as the attorney of the Customer. The Customer must ratify all acts and things done by TRG and its authorised officers in the exercise of this power of attorney.
Applicable Law
7. These Trading Conditions and any document in connection with these Trading Conditions (including any written instructions) are governed by the laws of South Australia, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia.