1. Definitions

“The Company” means SCHOLZ BULK HAULAGE PTY LTD and their officers, servants, agents and Sub-Contractors.
“Charges” mean the Company’s quoted charges for Transport calculated under its rates schedule or other agreed rates, additional charges as described in clause 4, the cost of and the Company’s Goods Cover and any tax including a goods and services tax (“GST”) levied directly on a transaction or supply under these conditions.
“Consignor” and “Consignee” include their servants, agents and employees.
“Goods” means the goods accepted from the Consignor and including any container, packaging or pallets supplied by or for the Consignor.
 “Sub-Contractor” means:

    1. any person the Company arranges to transport the Goods; and
    2. any person who is a servant, agent, employee or sub-contractor of the Company or any person in clause 1.1

2. Preliminary

    1. These Terms and Conditions apply to all agreements to carry goods, evidenced by a consignment note or otherwise, entered into between the Company and a Consignor.
    2. The Company is NOT a COMMON CARRIER and does not accept any liability as a common carrier and may refuse to transport goods or any class of goods for any person at its discretion.
    3. The Consignor is responsible for payment of the Charges in accordance with these Terms to the Company.
    4. The Consignor must make the Goods conform to the Consignee’s requirements and must pay any expense incurred by the Company if they do not.
    5. The Consignor must not tender for Transport any volatile or explosive Goods or Goods which are or may become dangerous, inflammable or offensive (including radioactive materials) or which are or may become liable to damage any person or property without first presenting to the Company a full written description disclosing the nature of those Goods;
    6. If in the Company’s opinion the Goods are or are liable to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, the Company may at any time and at the Consignor’s cost destroy, dispose of, abandon or render them harmless without compensation to the Consignor, Consignee or any other person and without prejudice to the Company’s right to any Charges.
    7. The Company may consolidate Goods with others and as principal or agent may arrange for Transport of the Goods by any Sub-Contractor on any terms.
    8. The Company is authorised to deliver the Goods at the address given to the Company by the Consignor or any other addresses directed by the Consignee.
    9. The Company is taken to have delivered the Goods upon obtaining from the Consignor or Consignee an acknowledgement of delivery.
    10. Insurance of the Goods will not be effected by the Company except with the express written instructions of the Consignor and at the Consignor’s cost.

3. Consignor’s Warranties

The Consignor warrants:

    1. It is either the owner or the authorised agent of the owner.
    2. There is no security interest in respect of the Goods which would adversely affect the Company’s ability to sell the Goods pursuant to Clause 5.
    3. It has fully and adequately described the Goods, their nature, weight and measurements and complied with all applicable laws and regulations about the notification, classification, description, labeling, transport and packaging of the Goods and that, given their nature, the Goods are packed in a proper way to withstand the ordinary risks of Transport;
    4. The Person delivering the Goods to The Company for Transport is authorised to do so and to sign this contract;

AND the Consignor indemnifies The Company against any loss, damage, expense, penalty, fine or liability arising from a breach of these warranties or these conditions.

4. Charges

    1. The Consignor must pay the Company the Charges forthwith upon the issue of an invoice.
    2. In addition to Transport costs, the Company may require the Consignor to pay:
      1. The cost, expense or loss to the Company’s property or any Person caused by the Goods.
      2. Freight by weight or measurement.
      3. The Company’s expenses and charges to comply with any law or regulation.
      4. The cost of labour or machinery or both to load and unload the Goods.
      5. An additional charge at industry rates if the Consignee is not present during normal trading hours or the time specified, or if there is any delay outside the Company’s control in loading or unloading greater than 30 minutes.
      6. The cost, expense or loss to the Company of storage, destruction, disposal, abandonment or alteration of the Goods in accordance with these Terms.
      7. The cost to make the Goods conform to the Consignee’s requirements.
    3. If any Charges are not paid on the date for payment the Consignor must pay interest on the unpaid Charges at the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Victoria).
    4. The Company will not refund any payment for Charges under any circumstances.

5. Lien

    1. The Company has a general lien on the Goods and on any other goods of the Consignor for all Charges due or which become due on any account.
    2. If the Charges are not paid or the Consignor or Consignee fails to take delivery or return of the Goods, or the delivery address is unattended, the Company may without notice:
      1. Store the Goods as the Company thinks fit at the Consignor’s risk and expense, or
      2. Sell all or any of the Goods as the Company thinks fit and apply the proceeds to discharge the lien and costs of sale.
    3. The Company may deduct or set-off proceeds under this clause from any moneys due to the Company by the Consignor or to the Consignor by the Company.

6. Charge and Caveat

    1. The Consignor and any director guarantor of the Consignor hereby charges all their right, title and interest in and to any property including real property of which the Consignor or director is registered proprietor whether alone or jointly in favour of the Company with and for the due and prompt payment of all money which the Consignor may owe the Company from time to time for charges due.
    2. The Consignor and any director guarantor of the Consignor acknowledges the charge given creates a caveatable interest to the benefit of the Company in any land of which the Consignor or director holds a legal or equitable interest.
    3. The Consignor or director shall be required, if requested by the Company, to execute a mortgage over any real property to secure payment of any charges due.

7. Exclusions and Limitations

    1. Subject to clause 10, the Company shall not be liable for any loss or damage to, or for misdelivery of or non-delivery of Goods, whether caused by the negligence of the Company or not, and specifically:
      1. The Company excludes all conditions, warranties and terms implied by statute, general law or custom, except where statutorily prohibited.
      2. The Company excludes all liability any loss for all acts or omissions of the Company in tort (including negligence), contract, bailment or otherwise for loss of, damage to or deterioration or contamination of the Goods, or any delay, non-delivery or other failure to supply the Transport or arising out of the Goods.
      3. The Consignor, Consignee and any other person subject to these Terms release and indemnify the Company against all loss, damage, cost and expense from any claim by any Person in tort (including negligence), contract, bailment or otherwise for loss or damage to any property, injury to, or death of any Person arising out of any acts or omissions of the Company or any or all of the Goods, the transport of the Goods, any delay, non-delivery or other failure to supply transport of the Goods.

8. Director’s Guarantee

If the Consignor is a corporation, each person who is a director of it by virtue of entering into an agreement with the Company to which these Terms and Conditions apply becomes personally bound to these Terms and Conditions in the event that the corporation defaults in performing any obligations.

9. Dispute Resolution

    1. In the event of a dispute concerning a consignment a Consignor or Consignee or any other person must make a claim in writing to the Company within two days of the date of delivery or, for non-delivery, within seven days of the anticipated date of delivery prior to commencing any proceedings.
    2. The failure to notify a claim within a time under clause 9.1 is evidence of satisfactory performance by the Company of its obligations.
    3. The Company may nominate a mediator to mediate the dispute and if that is not successful in resolving the dispute, the dispute may be referred to Arbitration at the Company’s discretion.
    4. The Consignor and Consignee are prevented from bringing any claim against the company after 6 months of the delivery date or the anticipated delivery date, subject to Clause 10.

10. Australian Consumer Law

These conditions are subject to any applicable implied warranty or guarantee in the Australian Consumer Law, Schedule 2, Competition and Consumer Act 2010 which cannot be excluded, restricted or modified.

11. Law

These conditions are governed by and must be construed under the laws of the State of Victoria and the parties submit to the exclusive jurisdiction of the courts of the State.

12. Severability

If a condition or part is unenforceable the unenforceability does not affect any other part of the condition or any other condition.

13. Lien

    1. The Company has a general lien on the Goods and on any other goods of the Consignor for all Charges due or which become due on any account.
    2. If the Charges are not paid or the Consignor or Consignee fails to take delivery or return of the Goods, or the delivery address is unattended, the Company may without notice:
      1. Store the Goods as the Company thinks fit at the Consignor’s risk and expense, or
      2. Sell all or any of the Goods as the Company thinks fit and apply the proceeds to discharge the lien and costs of sale.
    3. The Company may deduct or set-off proceeds under this clause from any moneys due to the Company by the Consignor or to the Consignor by the Company.