KIS Corporate Terms & Conditions
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In these conditions;
1.1 “Charges” means the fee for Services payable pursuant to any agreement between the Company and the Customer, including for the Carriage of Goods.
1.2 “Company” means KIS Transport Australia Pty Ltd ABN 75 155 179 972 and its related body’s corporate (as defined under the Corporations Act (Cwlth) 2001).
1.3 “Customer” means the party entering into the contract for carriage with the Company and, without limitation includes the sender or receiver of the Goods, any party requesting the Company to provide the Services and any agent, representative or employee of the Customer.
1.4 “Dangerous Goods” means goods of a hazardous, noxious, offensive, volatile, inflammable or explosive nature or goods the carriage of which is illegal, prohibited or restricted by any law of the Commonwealth of Australia or any State or Territory therein by reason of the content, packaging, labelling or other feature of the Goods.
1.5 “Goods” means the goods the subject of the Services and includes any container, packaging, pallets or handling equipment supplied by or on behalf of the Customer.
1.6 “Person” includes natural persons, companies, limited partnerships, government or other statutory authorities or instrumentalities and any other legal entity known at law.
1.7 “Quotation” means any quote for undertaking the Services provided to the Customer by the Company.
1.8 “Services” means all of the services undertaken by the Company for the Customer in connection with the Goods as set out in the Quotation or as otherwise agreed between the parties and, without limitation, may include carriage and/or storage of the Goods.
1.9 “Sub-contractor” means any Person who, pursuant to a contract or arrangement with any other person (but excluding a contract of employment) performs or agrees to perform the Services or any part thereof.
2. Exclusion as Common Carrier
2.1 The Company is not a common carrier and accepts no liability as such. The Company reserves the right to refuse the carriage of Goods for any Person and for the carriage of any classes of goods, at its discretion.
3. Carriage and Delivery
3.1 The method or methods of undertaking the Services shall be at the discretion of the Company and the Customer authorises the Company to adopt any method irrespective of whether the Customer has otherwise instructed the Company to undertake the Services by a particular method.
3.2 The Company is authorised to deliver the Goods at any address nominated by the Customer to the Company for that purpose.
3.3 If any such nominated place of delivery is unattended when delivery is attempted, or if for any other reason the Company is unable to effect delivery of the Goods or is delayed in so doing, the Company shall be entitled to handle and store the Goods in such manner as it may in its reasonable 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, and the Customer shall meet such reasonable charge as the Company may make and indemnify the Company for any other costs or expenses incurred as a result thereof.
3.4 Without limiting the generality of this clause 3:-
3.4.1 If the delivery method for the Services is rail and the delivery address is a location where the Company does not have depot or other infrastructure, the Company will be taken to have delivered the Goods if left at the nearest railhead.
3.4.2 The Company may consolidate the Goods for transport, with other Goods, including by the use of containers, pallets or rail wagons.
3.4.3 If any identifying document or mark on the Goods is lost, damaged or destroyed the Company may open the Goods or any container or other method of conveyance utilised to inspect.
3.5 The Company shall be entitled to make reasonable charge in respect of any delay in loading or unloading occurring otherwise then from fault on the part of the Company.
4.1 The Customer authorises the Company (at the Company’s discretion) to sub-contract the whole or any part of the Services and this authorisation extends to any such Sub-contractor.
4.2 Any provision in these terms and conditions excluding or limiting the liability of the Company or providing any relief or exemption from liability, to the Company, shall also extend to all Sub-contractors.
4.3 Where the Company subcontracts the whole or part of the Services the Customer covenants and agrees that for the period of performance of the Services and for a period of 12 months after the Services are provided it will not, without the written consent of the Company engage the Subcontractor to perform like or similar services to the Services. The Customer acknowledges that this covenant is provided to protect the reasonable commercial interests of the Company and that it will suffer loss and damage if the Customer breaches this covenant.
5. Qualification to Quotations
5.1 No Quotation will bind the Company unless it is given to the Customer, in writing.
5.2 The parties acknowledge that in respect of the charges;
5.2.1 Quoted Charges for the provision of the Services are dependent upon the information provided by the Customer.
5.2.2 Where the Customer provides information which is materially inaccurate, the Company will be entitled to charges based on its standard rates for the Services actually provided, even if this results in the invoicing of Charges in excess of those contained in any quote.
5.3 The provisions of this clause shall continue to apply even if the Company has billed the Customer and been paid before the inaccuracies are ascertained by the Company or conveyed to the Company by the Sub-contractor and in any such circumstances the Company may render a further Charge to the Customer.
5.4 In the event that an agreement for the carriage of the Goods is not based on a fixed amount (subject to variation in accordance with this agreement) then the following shall apply (subject to agreement to the contrary);
5.4.1 Freight will be paid at the hourly rate specified in the Company’s then standard rate schedule at the time of provision of Services.
5.4.2 Demurrage (if applicable) will be charged at the rate charged to the Company directly or indirectly by any railway or shipping authority or other freight provider.
5.4.3 If any of the Goods are or become under custom’s control, all custom’s duty, excise duty and costs (including any fines or penalties) the Company becomes liable to pay or pays will be paid by the Customer or reimbursed by the Customer to the Company at cost.
5.5 Where, in the course of providing the Services, the applicable rate or rates of the Company’s Sub-contractor are increased (or discounted rates offered to the Company by the Sub-contractor are reduced) the Company will be entitled to pass on the direct extra cost of such increase to the Customer without first obtaining its agreement.
6. Condition of Goods
6.1 The Goods must not be Dangerous Goods unless the Customer has expressly declared so in writing before provision of the Services.
6.2 Any Quotation provided is made on the basis that the Goods are not Dangerous Goods unless otherwise expressly agreed in writing.
6.3 The Customer warrants and assures the Company that;
6.3.1 The Goods are fit for carriage and have been suitable packaged for such purposes;
6.3.2 The Customer has the authority of all persons owning or having any interest in the Goods to enter into this agreement on their behalf;
6.3.3 The details of description, items, pallets base, quantity, weight, quality value and measurements supplied by the Customer (as applicable) are accurate and correct;
6.3.4 There is suitable practical road and approach access to the place from which the Goods are to be collected to the place in which the Goods are to be delivered (where applicable);
6.3.5 It accepts responsibility for loading and unloading of any Goods that consist of machinery for which a licence to operate is required;
6.3.6 The person delivering Goods for carriage is authorised to do so by the Customer.
6.4 The Company is authorised to open any document or container (of whatever description) in which the Goods are placed or carried to determine the nature or condition of the Goods or their ownership or destination.
6.5 If, in the Company’s reasonable opinion the Goods are or are liable to become Dangerous Goods, the Company may at the Customer’s cost destroy, dispose of or render harmless the Goods without a requirement to compensate the Customer.
7. Trading Terms and Payment
7.1 The Company’s trading terms are strictly seven (7) days from the date of invoice. Payment of the Charges must be made by the Customer to the Company in cleared funds and in full without any deduction or set off within the nominated timeframe.
7.2 Payment of the Charges must be made to or at the direction of the Company to its nominated bank account in Queensland (BSB: 014 018 Account 376329023) or to its current address at PO Box 289, Acacia Ridge, QLD 4110.
7.3 Where it is agreed that the Charges will be paid by a third party on behalf of the Customer, the Customer remains principally liable for charges incurred and will indemnify the Company against any loss resulting from non-payment of the Charges by the third party and, without limiting the generality, the Customer agrees that if or in so far as the Charges are not paid by the third party, they will be payable by the Customer on demand.
7.4 If Charges are not paid on the due date for payment, interest will accrue on the unpaid Charges at a rate equal to the overdraft rate of the Company’s principal financier for overdrafts above $100,000.00 plus a margin of 3%.
7.5 The following additional amounts will be payable where the circumstances described arise and will form part of the Charges;
7.5.1 Credit card payments incur an addition fee on the cost of the services provided. This percentage fee may vary from time to time. At present it is 2.2% (MasterCard and Visa) and 3.4% (American Express).
7.5.2 Where the Customer requests a copy of the contract or some other relevant document or information from the Company, a $5.50 administration fee will be payable. Such fee will increase to $80.00 if the request is made more than one year after the document was first created to offset the cost of archive retrieval.
7.5.3 All costs incurred by the Company in pursuing the recovery of overdue debts will be payable including, but not limited to debt collection fees and all other legal and administrative costs incurred (on an indemnity basis).
7.5.4 Where a person other than the Customer is nominated or agreed as paying the Charges but does not do so, the Customer will incur a $10.00 administrative fee to the Company in addition to the Company’s other rights hereunder.
7.5.5 Where the provisions of clause 8.1.2 are triggered a further administration fee of $5.50 will apply to each such event.
7.6 Where the Customer overpays an account or is otherwise provided a credit, any such overpayment or credit will, in the first instance, offset any amount owing on a Customer’s account and thereafter, will be available, only, as a credit against future Services to be provided by the Company to the Customer. Any such credit must be used within 12 months of the date it is granted but will thereafter lapse.
7.7 Claims by a Customer for an account credit must be made within 14 days of the date the Company invoices the Customer for the Services. Claims made outside such period will be of no force or effect.
8.1 All Goods are carried at the Customer’s risk.
8.2 If the Services include or result in the storage of the Goods by the Company or by a Sub-contractor then all Goods are stored at the Customer’s risk.
9.1 The Customer shall be responsible for obtaining its own insurance for the Goods whilst they are in the possession or control of the Company and any expense of such insurance shall be borne by the Customer.
9.2 The Company will not effect any insurance of the Goods unless otherwise expressly agreed in writing. Without limiting the generality of this clause the Company will not effect insurance whilst Goods are in storage.
10. Loss or Damage
10.1 The Company shall not be liable for any loss or damage to or failure to deliver or delay in delivery or mis-delivery of the Goods or any such loss arising from storage of the Goods howsoever caused and irrespective of the circumstances in which such loss, damage, failure to deliver, delay in delivery or mis-delivery may have occurred and notwithstanding that the same may have been due to or arisen as a result of any breach of contract or negligence or willful act or omission or misconduct on the part of the Company or any of its servants or agents or any other person.
10.2 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 mis-delivery.
10.3 All the rights, exclusions and limitations of liability in these conditions shall continue to have full force and effect notwithstanding any breach of this contract by the Company or any other person entitled to the benefit of such provisions.
10.4 Notwithstanding the foregoing, where legislation implies in these terms any condition or warranty, in that legislation prohibits provisions in a contract modifying or excluding the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in these terms. However, the liability of the Company for any breach of such condition or warranty shall be limited to one or more of the following in the sole and absolute discretion of the Company;
10.4.1 Supplying of the Services again; or
10.4.2 Payment of the costs of having the Services supplied again.
11.1 To the extent that a supply of Services provided by the Company, or any other supply made under or pursuant to these terms, is a taxable supply as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), the Company will increase its price in respect of the supply it makes by the amount of GST payable on the supply.
12.1 Goods are received and held by the Company subject to;
12.1.1 A lien for money due to the Company for the Services or any proper Charges or expenses upon or in connection with the Goods; and
12.1.2 A general lien for all money or charges due to the Company from the Customer for any services rendered by the Company to the Customer.
12.2 The parties agree that the lien referred to in this clause attaches to the Goods when the Goods are accepted by the Company to provide the Services.
13.1 Words importing the singular include the plural, and words importing one or more genders include all genders.
13.2 The Company will not be or be deemed to be in default or breach of this agreement as a result of the effects of force majeure. Force majeure will include (but is not limited to) any fire, flood, strike, civil disturbance, theft, crime, act of war or other matter beyond the control of the Company.
13.3 Any part of these terms being the whole or a part of a clause shall be capable of severance without affecting any other part of these terms.
13.4 Waiver by the Company of any breach by the Customer of any of these terms shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any other or subsequent breach.
13.5 A statement by any officer of the Company shall be prima facie evidence of any fact, matter or thing contained in such statement.
13.6 Any notice required to be given by one party to the other may be given in writing and delivered personally, posted to the address last notified by the other party, sent by facsimile to the facsimile number last notified to the other party or sent by electronic communication to the email address last notified to the other party. A notice so delivered will be deemed to have been received by the other party;
13.6.1 upon receipt of the written notice delivered personally;
13.6.2 At the time when in the ordinary course of postage it should have been delivered;
13.6.3 if sent by facsimile, at the time indicated in the sender’s record of transmittal; and
13.6.4 if sent by electronic communication immediately after transmission unless the sender receives a notice of non-delivery or delayed delivery; and
If notice by facsimile or electronic communication is sent on a non-business day or after 4:00pm on a business day, it shall be deemed received at 9:00am on the next following business day.
13.7 This agreement contains the entire understanding of the parties as to its subject matter. There is no other understanding, agreement, warranty or representation whether express or implied in any way defining or extending or otherwise relating to this agreement or binding on the parties with respect to the Services or the matters to which this agreement relates. The Company will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of the Company.
13.8 The Customer agrees that the Company can make any enquiries it deems necessary to investigate the Company’s credit worthiness including undertaking enquiries with financial institutions, credit reporting agencies, any personal credit and/or consumer credit information providers (the sources). The Customer authorises the sources to disclose any information concerning its credit worthiness in their possession to the Company. The Customer agrees that the Company may disclose any information in its possession concerning the Company’s credit worthiness to the solicitors.