1.1. These are Terms and Conditions of carriage of Leopold Transport Pty Ltd (“Leopold Transport”) to the Consignor.
1.2. Leopold Transport reserves the right to vary these Terms and Conditions at any time by written notice to the Consignor.
1.3. These Terms and Conditions, and any invoices or other documentation, constitute the entire agreement between the parties and may only be amended in writing.
1.4. If there is any conflict between any terms of these Terms and Conditions, the order of priority for the purpose of construction is:
(a) Any other Terms and Conditions agreed in writing by Leopold Transport;
(b) These Terms and Conditions;
(c) Any other part of this agreement; and
(d) The invoice for the Goods and Services provided by Leopold Transport.
1.5. The Consignor acknowledges that it has read and accept to be bound by these Terms and Conditions.
1.6. In these Terms and Conditions the following terms are defined as follows:
(a) ‘Leopold Transport’ means Leopold Transport Pty Ltd ACN 123 315 515/ABN 79 420 499 335;
(b) ‘Contract’ means this contract and any other documents;
(c) ‘Consignor’ means the party entering the contract of carriage with Leopold Transport, and shall include both the party identified as the Consignor and the party to which the Services will be charged as identified on any Consignment Note relating to that contract;
(d) ‘Consignee’ means the party receiving the Goods, and shall include the party identified as the Consignee on any Consignment Note relating to that contract;
(e) ‘Consignment Note’ means a document, whether physical or electronic, that fully describes the requirements of the Consignor with respect to the delivery of the Goods and provides Leopold Transport with all information that Leopold Transport may require to meet its legal and operational requirements in providing Services to the Consignor;
(f) ‘Goods’ means the cargo accepted from the Consignor together with any container, packaging or pallets supplied by or on behalf of the Consignor;
(g) ‘Services’ means the whole of the operations and services undertaken by Leopold Transport in connection with the Goods including but not limited to the carriage of the Goods;
(h) ‘Sub-contractor’ means any person or corporation who pursuant to a contract or arrangement with any other person or corporation (whether or not Leopold Transport) performs or agrees to perform the Services or any part thereof;
(i) ‘Vehicle” means any road vehicle used by Leopold Transport or a sub-contractor in supplying the Services including but not limited to: rigid trucks; prime movers; trailers whether loaded or unloaded; trailers whether attached to prime movers or detached; and shipping containers whether on trailers or on the ground.
2. NOT A COMMON CARRIER
Leopold Transport is not a common carrier and accepts no liability as such. Leopold Transport may refuse the carriage or transport of Goods for any person or corporation. The carriage of any class of Goods is at the complete and sole discretion of Leopold Transport.
3. WARRANTIES BY THE CONSIGNOR
3.1. The Consignor warrants that:
(a) The Consignee alone owns the Goods, or if there is more than one owner the Consignor acts as their agent and they agree to the handling, transport or storage of the Goods and the supply of the Services under the terms of this Contract;
(b) The Consignor has complied with all applicable laws and regulations to the nature, condition, packaging or carriage of the Goods and that the Goods are packed in a manner, having regard to their nature, adequate to withstand the ordinary risks of carriage;
(c) The Goods have been accurately described in writing in the space provided on the Consignment Note or otherwise at the time of placement of the order of carriage;
(d) The weight of the Goods consigned is correctly declared on each Consignment Note and that the weight of the Goods notified by the Consignor is accurate and includes the weight of any containers, pallets and packing materials;
(e) The Consignor has complied with all laws that relate to the Goods and the packing, marking, loading, restraint and pleading of the Goods to ensure that they can be lawfully handled, transported and stored;
(f) The Consignor has not asked Leopold Transport to handle, transport or store the Goods in any way that could be unlawful;
(g) The Consignor will notify Leopold Transport in advance of any special exemption, examination, authority or permit required in relation to the Goods and the way they are packed or loaded; and
(h) If the Consignor is responsible for the loading of a vehicle, the Consignor shall:
(i) Ensure the Goods and Vehicle are packed, loaded and restrained safely, securely and in accordance with all laws; and
(ii) Ensure that the mass of the Goods within the vehicle is within the carrying capacity of the Vehicle and is appropriately distributed within the vehicle;
3.2. The Consignor indemnifies Leopold Transport against any expenses, charges or losses reasonably sustained or incurred by Leopold Transport in complying with the requirements of any law or of any authority, or otherwise incurred as a result of a breach of these warrantees.
4. AUTHORITY AND AGENCY
4.1. The Consignor agrees that any person who placed an order for the carriage of freight by:
(a) Electronic transmission; or
(b) Facsimile or mail on stationary purporting to be that of the Consignor; or
(c) Telephone, where that order is stated by that person to be placed on behalf of the Consignor; or
(d) By any other means agreed between Leopold Transport and the Consignor; shall be deemed to be authorised by the Consignor to do so.
4.2. The person delivering Goods to Leopold Transport for carriage is authorised to sign any Consignment Note on behalf of the Consignor.
4.3. The Consignor warrants that in agreeing to the terms in this Contract, the Consignor is or has the authority of the person or persons owning or having any interest in the Goods or any part thereof.
4.4. The Consignor agrees to indemnify Leopold Transport against any liability whatsoever (without limiting the foregoing, whether arising as a result of any breach of this Contract or negligence or wilful act or omission or misconduct on the part of Leopold Transport or any of its servants or sub-contractors or agents to the extent permitted by law) in respect of the Goods to any person (other than the Consignor) who claims to have, who has or who may have any interest in the Goods or any part thereof.
4.5. Notwithstanding that the Consignor may enter into the Contract of carriage as agent for a principal, whether disclosed or not, the Consignor remains personally liable under the contract for carriage, such liability to include but not limited to liability for payment of all charges relating to the carriage of the Goods.
5. METHOD OF CARRIAGE AND DEVIATION
5.1. The method or methods, modes, routes or procedures of the Services shall be at the sole discretion of Leopold Transport and the Consignor authorises Leopold Transport to adopt any methods, modes, routes, or procedures of Services other than those which may have been instructed or agreed.
5.2. The Consignor authorises any deviation from the usual route of carriage.
It shall be the responsibility of the Consignor to provide appropriate facilities and equipment for the loading of the Goods and it shall be the responsibility of the Consignor to safely and effectively load the Goods onto the Leopold Transport vehicle. Any damage caused to the Goods during loading shall be the responsibility of the Consignor and Leopold Transport shall not be held responsible by the Consignor for such damage.
7.1. Leopold Transport shall not be bound to deliver the Goods except to the Consignee as nominated by the Consignor to Leopold Transport.
7.2. If Leopold Transport is unable to deliver the Goods at the point of destination for any reason (including, but not limited to, failure on the part of the Consignee to take delivery within a reasonable time), Leopold Transport shall be entitled to handle and store the Goods in such manner as it may in its discretion determine, and shall be entitled to make a reasonable charge in respect of such handling and/or storage and subsequent delivery of the Goods.
7.3. It shall be the responsibility of the Consignor to ensure that the Consignee provides appropriate facilities and equipment for the unloading of the Goods. It shall be the responsibility of the Consignee to safely and effectively unload the Goods from the Leopold Transport vehicle. Any damage caused to the Goods during unloading shall be the responsibility of the Consignee and Leopold Transport shall not be held responsible by the Consignor or the Consignee for such damage.
8. DANGEROUS GOODS
8.1. If the Goods are or include dangerous Goods:
(a) The Consignor warrants that the Consignor has compiled, and will, comply with the Australian Code of the Transport of Dangerous Goods by Road and Rail and has made the required declaration in relation thereto; and
(b) The Consignor indemnifies Leopold Transport against any expenses, charges or losses sustained or incurred by Leopold Transport as a result of a breach of the warranty in clause 8.1(a) above and also for any expenses, charges or losses (including, but not limited to, expenses and losses arising from damage to other goods or property and cleanup costs arising from spillage or the like howsoever caused) sustained or incurred by Leopold Transport in complying with the requirements of any law or regulation or of any authority as a result of the dangerous nature of the Goods whether or not arising from any breach of contract or of this warranty, negligence or any other fault on the part of the Consignor.
8.2. If in the reasonable opinion of Leopold Transport the Goods, either by themselves or in combination with any other Goods are likely for any reason (including, but not limited to, fire, explosion, seepage or any form of contamination) to cause injury to persons or damage to other goods or to property (including, but not limited to, property of Leopold Transport or of any sub-contractor) or to the environment, the Goods may be retained, destroyed, disposed of, abandoned, removed or rendered harmless by Leopold Transport without compensation to the Consignor and without prejudice to Leopold Transports’ right to any charges including the cost of such action.
8.3. Leopold Transport shall not be required to store dangerous goods on behalf of the Consignor. Dangerous goods must be consigned for prompt delivery to the Consignee.
9. LOSS OR DAMAGE
9.1. Subject to clause 13 of this Contract, the Goods shall at all times be at the risk of the Consignor, and Leopold Transport shall not be liable in tort or contract or otherwise for any loss of, or damage to, or failure to deliver, or, delay in delivery or misdelivery of the Goods howsoever caused and irrespective of the circumstances in which such loss, damage, failure to deliver, delay in delivery or misdelivery may have occurred and notwithstanding that the same may have been due to, or have arisen as a result of, any breach of contract or, an unauthorised or uncontemplated action or negligence, or wilful act of omission or misconduct, on the part of Leopold Transport or any of its servants or agents or any other person.
9.2. This exclusion of liability extends to include not only loss of or damage to the Goods themselves, but loss, damage or injury to any person, property or thing damaged during or in the course of the provision of the Services, and to any indirect or consequential loss arising from such loss, damage or injury or from failure to deliver, delay in delivery or misdelivery.
9.3. All the rights, immunities and limitations of liability in these Conditions of Carriage shall continue to have full force and effect notwithstanding any breach of this contract by Leopold Transport or any other person entitled to the benefit of such provisions.
9.4. The Consignor will be liable for, and will indemnify Leopold Transport against any liability incurred by it for, any damage caused by or arising out of the nature or condition of the Goods or the manner in which they are packed or any defect in the Goods.
Leopold Transport has public liability insurance, but no insurance cover is provided by Leopold Transport. Insurance of Goods carried by Leopold Transport is the responsibility of the Consignor, and no claims will be accepted unless required so by law.
11. PAYMENTS AND LIENS
11.1. Every special arrangement to the effect that charges shall be paid by any person other than the Consignor shall be deemed to include a stipulation that if such other person does not pay the charges within 30 days of the date on which the Goods are delivered or are available for delivery, the Consignor shall pay the charges.
11.2. The Goods are accepted subject to a general lien for all charges now due or which hereafter may become due to Leopold Transport by the Consignor. If the lien is not satisfied, Leopold Transport may at its option and without any notice, in the case of dangerous or perishable Goods forthwith and in any case upon the expiration of one month, sell the Goods or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge or the lien and costs or sale without being liable to any person for any loss or damage thereby caused.
11.3. Additional charges may be applied to the whole of the operations and Services undertaken by Leopold Transport in connection with the Goods including but not limited to the carriage of the Goods. These charges may include but are not limited to timeslot deliveries, hand unloading, returns, express service, dangerous goods or tailgate delivery.
11.4. Rate weight breaks are based on each consignment. Unless otherwise stated in this Contract, the rates and conditions contained in the rate schedule shall remain current until such time as they are changed or revoked.
11.5. The Consignor shall promptly pay all charges invoiced by Leopold Transport related to the carriage of the freight within 14 days from the date of invoice.
11.6. If the Consignor fails to pay Leopold Transport in accordance with clause 11.5 Leopold Transport shall charge the Consignor an administration charge equal to 1% per month on the overdue amount, as at the first day of each month.
11.7. If the Consignor fails to pay Leopold Transport in accordance with clause 11.5 Leopold Transport shall as its sole discretion take such action as Leopold Transport deems necessary (including but not limited to legal action) to recover the outstanding amount and the Consignor shall pay all of the associated costs (including but not limited to legal costs) of such action.
12. DIESEL FUEL SURCHARGE
Rates quoted will be adjusted by a variable fuel surcharge based on actual fuel costs using a benchmark fuel price of $0.80 per litre. The fuel surcharge will be applied to all invoiced amounts.
13. TIME ALLOWANCE
The rates allow for a loading time at the point of pick up of 20 minutes for first pallet & 5 minutes per pallet thereafter with a maximum of 1 hour per pick up.
14. REGISTRATION OF SECURITY INTEREST
14.1. The Consignor acknowledges and agrees that following commencement of the Personal Property Securities Act 2009 (Cth) (‘PPSA’), the following provisions apply to this Contract;
(a) The Consignor agrees that Leopold Transport has a security interest (as defined under the PPSA) created under this Contract in relation to the Goods and Services;
(b) The Consignor agrees to treat the security interest as a continuing and subsisting interest in the Goods and Services, with priority over any registered or unregistered general (or other) security and unsecured creditor, even if the Goods become fixtures or assessions before paid in full and that the security interest secures all money owing to Leopold Transport under this Contract or otherwise;
(c) The Consignor agrees that Leopold Transport has a security interest (as defined by the PPSA) created under this Contract in relation to the Consignment Note. The Consignor agrees to treat that security interest as a continuing and subsisting interest in the Consignment Note, with priority over any registered or unregistered general (or other) security and any unsecured creditor;
(d) The Consignor grants to Leopold Transport, a Purchase Money Security Interest (PMSI) and agrees that the PMSI granted will continue to apply to the Goods and/or Consignment Note and includes the proceeds of sales of the Goods and any further dealings of the Consignment Note;
(e) The Consignor agrees and acknowledges that the PMSI attaches to all Goods and the Consignment Note;
(f) The Consignor acknowledges and agrees that Leopold Transport has the right to register a financing statement in respect of the Goods and Consignment Note and agrees to sign any further documents and provide any further information, such information to be complete, accurate and current in all respects, that Leopold Transport reasonably requires, to register a financing statement and its security interest, with the priority that Leopold Transport requires, and to maintain those registrations;
(g) The parties agree that neither will disclose to “interested persons”, as defined in Section 275(9) of the PPSA, or any other person, any information of the kind described in Section 275(1) of the PPSA;
(h) The Consignor waives any right to receive any notice under the PPSA, including a notice of verification statement, unless the notice is required by the PPSA and that the requirement cannot be excluded;
(i) This clause does not create a security interest in respect of the Goods and/or Consignment Note, if the creation of that Security Interest by this clause would cause this clause to be void. If prior acts prevent the security interest being void, then this clause will not create a security interest in respect of the Goods and/or Consignment Note until those prior acts have been carried out.
15. AMENDMENTS AND VARIATIONS
15.1. Leopold Transport is entitled to amend these Conditions of Carriage at any time by giving 30 days notice, in writing to the Consignor. Without affecting any other method, such notice may be given by forwarding a copy of the amended conditions to the Consignor by ordinary prepaid post addressed to, or by facsimile transmitted to a number located at the Consignor’s principal place of business, or any address notified by the Consignor to Leopold Transport as its business address, or by electronic transmission to any address from which the Consignor transmits orders for consignments to Leopold Transport.
15.2. Leopold Transport shall not otherwise be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of Leopold Transport by an authorised officer.
16. PROVISIONS SEVERABLE
If any provision or part of any provision of these conditions is unenforceable, illegal or void then it is severed and the rest of these conditions remain in force.
17. CLAIMS AGAINST LEOPOLD TRANSPORT
If, notwithstanding clause 9 in this Contract, Leopold Transport is liable for loss of or damage to or delay in the delivery of the Goods or any part thereof, no claim in respect of such loss or damage or delay may be made unless the notice of the claim is lodged in writing addressed to the Company Secretary within seven days after delivery was effected or would in the ordinary course of business have been effected.
18. GENERAL CONDITIONS OF CARRIAGE
18.1. Leopold Transport does not hold active pallet accounts. Transfer of pallets is the responsibility of the Consignor.
18.2. Weight distribution of full loads must comply with legal axle weight limits. These limitations may sometimes reduce the capacity to less than the theoretical maximum loading weight.
18.3. Definitions & Conversions -
(a) Pallet Space is 1.2m wide x 1.2m deep x 2.6m high with a maximum weight of 1 tonne. Weight in excess of 1 tonne is charged at per kg based on the pallet rate.
(b) Cubic Conversion factor is 1m3 = 333kg
(c) General Service and Express Service are defined in the Leopold Transport Transit Time Schedules. The Transit Time Schedules may be reviewed from time-to-time and changes will be notified in writing.
19.1. Freight and other related charges for the provision of the Services shall be deemed fully earned as soon as the Goods are accepted by Leopold Transport from the Consignor.
19.2. In addition to standard freight charges, Leopold Transport shall be entitled, where applicable, to other charges as set out in the Schedule or Rates which may be provided to the Consignor from time to time.
19.3. Leopold Transport is entitled to open any document or any container (of whatever description) in which the Goods are placed or carried to inspect the Goods either to determine their nature or condition or to determine their ownership or destination.
19.4. Where Leopold Transport freight charge is based in whole or in part on weight or measurement of the Goods, Leopold Transport may at any time weigh or measure the Goods, and may charge a proportional additional amount if any original or stated weight is found to be incorrect.
19.5. If the Goods delivered to Leopold Transport for carriage are not as described on any Consignment Note or otherwise at the time of placement of the order for carriage, Leopold Transport may adjust any quoted freight or related charges to reflect the correct description of the Goods.
19.6. If the Goods delivered to Leopold transport for the carriage require any repacking or reloading to comply with any law, Leopold Transport may charge the Consignor for the cost incurred.
19.7. If the Consignor required Leopold Transport to store Goods during the delivery process Leopold Transport shall charge the Consignor for daily storage costs at its standard storage rate.
19.8. Leopold Transport and the Consignor acknowledge that the business relationship between the two parties is governed by the Leopold Transport standard terms & conditions, provided that the client engages the Services offered by Leopold Transport and in the absence of a signed and returned rates schedule.
19.9. Failure by Leopold Transport to assist on strict performance of any term, warranty or condition of these Terms and Conditions will not be taken as waiver.
19.10. The Consignor must not assign or transfer its obligations under these Terms &Conditions without the prior written consent of Leopold Transport.
19.11. Any notices to be given under these Terms and Conditions must be provided to theaddress as stated in this Consignment Note.
19.12. This Contract is governed by and must be construed in accordance with the Laws of the State of Victoria and the Commonwealth of Australia. Theparties submit to the non-exclusive jurisdiction of the Courts of the State of Victoria and theCommonwealth of Australia.
19.13. The Consignor must keep any and all information provided to and by Leopold Transport in relation to the Services supplied by Leopold Transport confidential.
In signing this document the Consignor acknowledges receipt of the Leopold Transport Terms & Conditions of Carriage, and, in particular, acknowledges that Clause 9 therein relating to Loss or Damage is understood and accepted.