TERMS AND CONDITIONS

Between : Illawarra Equine Services
And:    The Consignor  (you, your)

The following are the contractual Terms and Conditions upon which the  Consignor agrees applies to all contracts for carriage of Stock or  livestock from the Carrier:

1. Interpretation
In these Terms and Conditions, the following definitions will apply:

Agreement means the documents we supply you forming one agreement for  carriage of your Stock and livestock, comprising the following:-

(a) Consignment Note; and

(b) these Terms and Conditions.

Carrier means Illawarra Equine Services and includes only its servants, authorised agents and assigns.

Carriage shall mean where the context permits, the dispatch, pick up,  carriage, transportation, storage, consignment, delivery, agistment,  resting, temporary depasturing, livery or any other service performed by  the Carrier in relation to the Stock. The same meaning shall be  attributed to the words “carry” and “carried” when used in this context.
Consignor means the person, firm, body or corporation who places an  order with the Carrier for the carriage of the Stock or places Stock or  livestock with the Carrier for transportation.

Stock means the Stock and livestock which are the subject of the  Contract and shall include livestock of every description and any other  incidental items or accessories with them and any person travelling with  or attending upon the same.

GST means Stock and services tax imposed under the GST Law;

GST Law has the meaning given in the A New Tax System (Stock and  Services Tax)Act 1999 or any Act which amends or replaces that Act in  the future, imposing or relating to GST.
In writing for the purpose of the Contract shall mean by way of letter,  fax, or email sent to the last known business address, facsimile number  or email address of the receiving party.
Sub-Contractor includes any person, firm or Company with whom the  Carrier may arrange agistment, livery or storage including the  respective railways of any State of the Commonwealth of Australia.

2. General
2.1 All quotes given by us and all orders for  the carriage of Stock placed by you are accepted subject to these Terms  and Conditions.

2.2 Any other terms and conditions not contained  within these Terms and Conditions will not form part of any contract  between us and you unless those other terms and conditions are in  writing and attached to these Terms and Conditions.

3. Payment
The Consignor (notwithstanding that it may not be the owner of  the stock) will be and remain responsible to the Carrier for its proper  charges incurred for any reason whatsoever in relation to the Carriage  of the Stock unless otherwise stipulated by the Carrier, payment in full  of charges due to the Carrier shall be paid prior to or on delivery of  the consigned livestock transported, unless prior arrangements have been  made between the Carrier and the Consignor for a 7 day account to be  issued to the Consignor.

Payment will be made by cash, by bank cheque, or by direct credit, or  by any method as directed by the Carrier. Any direct credits must  appear as clear funds in the Consignors bank account prior to the  delivery of the consigned livestock.

4. Risk of Carriage and Right to Refuse Carriage
The Carrier is deemed not to be a common carrier for the purposes of  this contract and will accept no liability as such. All Stock is  carried, transported, stored or agisted at the risk of the Consignor and  under no account at the risk of the Carrier. The Carrier accepts no  responsibility at law in tort, contract or otherwise for any damage or  expense incurred in the course of loading, carriage, delivery, storage,  livery, or agistment and/or in arising from misdeliver or the failure to  delivery.
The Consignor further acknowledges that the Carrier shall not be liable  for the action or omission of a Sub-Contractor employed, appointed or  obtained by the Carrier. The Carrier reserves the right to refuse the  Carriage of Stock for any person, firm, body, corporation or company at  its discretion.

5. Carriage of Stock with Other Stock/ Alternate Route
The Carrier reserves the right at its absolute discretion to carry Stock  by any route it thinks fit and either alone or with Stock belonging to  any other person, firm, body, corporation or company. The Carrier at its  absolute discretion and without assigning any reason therefore, may  deviate from or alter, at any time the route chosen by it of the  Carriage of the Stock. The Consignor hereby authorizes any deviation(s)  or alteration(s) which shall be deemed necessary and reasonable in the  circumstances.

6. Correct Address
6.1 It is the responsibility of the Consignor to give  the Carrier the correct address for pick up and for delivery and to  arrange for a responsible person to be present at those addresses at the  time of pickup and delivery to enable the Carrier to pick up the Stock  and make effective delivery of the Stock.

6.2 The Carrier shall not be liable for any delay in  onward carriage or delivery of loss or damage resulting from the  Consignor’s failure to comply with this condition.

7. Amended Address
If the Consignor or its representative, subsequent to dispatch of the  Stock, directs the Carrier to deliver the Stock to an address (“the  amended address”) which is not the address for delivery originally given  to the Carrier by the Consignor (the “original address”), the Carrier  will use its best endeavour to have the Stock redirected to the amended  address. However the Carrier does not promise that it will be able to  redirect the Stock and is not responsible for any delay that may be  caused by such redirection. If the Stock cannot be redirected and are  delivered to the original address, the Carrier accepts no responsibility  to arrange the Carriage of Stock from the original address to the  amended address.

8. Use of Sub-Contractor(s)
The Consignor hereby authorizes the Carrier if it should think fit to do  so to arrange with a Sub-Contractor(s) for the carriage of the Stock.  Any such arrangement shall be deemed to be authorized by the Consignor  upon delivery of the Stock to such Sub-Contractor(s) whether by the  Consignor, the Carrier or a Sub-Contractor, and the Sub-Contractor who  accepts delivery shall hereupon be entitled to full benefit of these  terms and conditions to the same extent as the Carrier. The Consignor  hereby expressly agrees and acknowledges that, in so far as it may be  necessary to ensure that such Sub-Contractor(s) shall be so entitled,  the Carrier shall be deemed to enter into this Contract for its own  benefit and also as agent for the Sub-Contractor(s).

9. Authority to Sign Consignment Note
It is agreed that the person delivering any Stock to the Carrier is authorized to sign the Consignment Note for the Consignor.

10. Stock not Accepted for Delivery
If the Stock is not accepted for delivery when tendered, the Carrier may  hold the Stock as bailee and shall be entitled to storage fees and  other costs incurred at normal rates charged by the Carrier and as  bailee shall not be under any liability for loss or damage of Stock  howsoever caused, or at its discretion, the Carrier may return the Stock  to the Consignor at the cost and risk of the Consignor.

11. Insurance
The Consignor acknowledges that:

(a) Stock is carried at the Consignor’s sole risk and not at the risk of the Carrier or the Sub-Contractor;

(b) the Carrier is under no obligation to, and will not,  arrange  insurance of the Stock and it remains the Consignor’s responsibility to  ensure that the Stock is insured adequately or at all; and

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

12. Stock Health
12.1 The Consignor warrants that all livestock are free from disease and have had all required vaccinations.

12.2 Prior to carriage of the livestock, the  Consignor must advise the Carrier of any underlying health conditions,  prior illness, and/or history of illness of the livestock, and of any  medication the livestock are currently on.

12.3 The Consignor indemnifies the Carrier from liability whatsoever due to the Consignor’s failure to comply with this clause.

13. Lien
If the Consignor fails to pay the charges due under the Contract on the  due date or on reasonable demand being made in accordance with this  Contract, the Carrier may without formal notice to the Consignor or the  person, firm, body, corporation or company to whom the Stock are being  delivered pursuant to this Contract, “the Consignee”, detail and  exercise a lien over or sell any or all Stock which have been consigned  by the Consignor or are owned by the Consignor and are in the possession  of the Carrier or a Sub-Contractor and out of the proceeds of such sale  retain all charges and expenses so payable and arising from the  detention and sale and shall render the surplus, if any of such proceeds  and such of the Stock as remain unsold to the Consignor or Consignee,  as the Carrier sees fit. Any such sale shall be without prejudice to the  right of the Carrier to recover from the person, firm, body,  corporation or company liable to pay the same such charges due or  payable in respect of such service or the net detention or sale and  without prejudice to the Carrier’s right to lien over any remaining  Stock.

14. Default
14.1 Where the Consignor is in default in the performance of  any of their Obligations under the Agreement, the Carrier may, at their  election and without prejudice to any of their other Rights, refuse the  further carriage of Stock for the Consignor.

14.2 All costs and expenses incurred by the Carrier  in recovering monies due to them (including without limitation legal  costs on a solicitor and own client basis, administrative and  secretarial costs, debt collection agencies’ commission or other  collection costs) will be payable by the Consignor within seven (7) days  of written demand being made to the Consignor by or on the Carrier’s  behalf.

15. Warranties of Consignor
The Consignor expressly warrants with the Carrier that the Consignor is  either the owner or agent of the owner or the legal representative of  the owner of all Stock that are the subject matter of carriage. The  Consignor agrees that the delivery charges  payable to the Carrier are  incurred and considered payable at the uplifting of the Stock concerned  and that the Consignor is deemed to accept these conditions of carriage  at the commencement of any contract under consideration.

16. Force Majeure
The Carrier will be entitled to give notice to the Consignor to either  extend the time for delivery of the Stock for a reasonable period or to  terminate this Agreement if we are prevented from performing any of our  Obligations including (without limitation) making a delivery of Stock by  reason of force majeure (for example, and without limitation, breakdown  of plant or machinery, war, terrorist attack, strike, industrial  dispute, government interference, transport delay, act of God, flood,  fire, accident, non-delivery or shortage of supplies of Stock or any  other cause not under our control). The Carrier shall use its best  endeavours to cure such default and to comply with the terms and  conditions of this Contract as quickly as possible.

17. The Commonwealth Competition and Consumer Act 2010
and State Fair Trading Acts
This agreement has the affect of contracting out of all applicable  provisions of the Fair Trading Acts in each of the State and Territories  of Australia (including any substitute to those Acts or re-enactment  thereof), to the extent permitted by those Acts. Liability of the  Carrier arising out of any one incident whether or not there has been  any declaration of value of the Stock, for breach of warranty implied  into these terms and conditions by these Acts or howsoever arising, is  limited to any of the following as determined by the Carrier

(a) the supplying of the services again;

(b) the payment of the cost of having the services supplied again; or

(c) where the Consignor is a consumer as defined in the Competition  and Consumer Act 2010, then the Consignor may also be entitled to a  refund.

18. Personal Properties Securities Act 2009 (“PPSA”)
The Consignor acknowledges and warrants that the Carrier has a security  interest for the purposes of the PPSA in the Stock and any proceeds  described in clause 13 until title passes in accordance with the clause.
The Consignor must do all things and execute all documents necessary to  enable the Carrier to register its security interest with the priority  that the Carrier requires to perfect its security interest and to  maintain that registration. All payments received from the Consignor  must be applied by the Carrier in accordance with s.14 (6) (c) of the  PPSA.

19. Notices under PPSA
The Carrier does not need to give the Consignor any notice under PPSA  (including a notice of verification statement) unless the notice is  required by the PPSA and that requirement cannot be excluded.

20. Confidentiality
Subject to section 275(9) of the PPSA, neither party will disclose the  information of the kind mentioned in  section 275(2) of the PPSA.

21. Privacy Act Clause
All records maintained by us are collected and stored pursuant to our obligations under the Privacy Act.

22. Indemnity
The Consignor indemnifies the Carrier against any loss, damage or injury  caused to the Carrier or any other person or any property of the  Carrier or any other person of the Stock during the Carriage thereof and  further agrees to indemnify and keep the Carrier indemnified against  all damages, actions, claims, suits and demands made by any person in  respect of such loss, damage or injury arising from the breach of one or  both of the warranties contained in the clauses concerning ownership or  deemed ownership of this Contract.

The Consignor indemnifies the Carrier against any and all injuries,  actions, proceedings, claims, demands, liabilities, losses, damages,  costs, penalties and all expenses legal or otherwise (including court  costs and legal fees reasonably incurred) and of whatsoever kind and  nature arising out, of or alleged to arise out of, the delivery,  acceptance or rejection, ownership, possession and or use or storage of  the Stock.

23. Amendments to be in Writing
The Carrier is not bound by any Agreement purporting to carry these  conditions unless such Agreement shall is in writing and signed by the  Carrier.

24. Law of Contract
24.1 The Carrier, Consignor, Sub-Contractor, or any person,  firm or company connected to the carriage hereby acknowledges and is  deemed to be aware of the conditions irrespective of the signing name.

24.2 This Agreement is governed by the laws of New  South Wales. The parties submit to the jurisdiction of the Courts  exercising jurisdiction in New South Wales located nearest to Our  Premises with respect to any dispute which may arise between the parties  concerning this Agreement, the delivery of Stock or any other matter  arising out of the dealings between the parties including Stock.

25. Cancellation
The Carrier may cancel any contract which these terms and conditions  apply or cancel the services at any time before the services are  complete by giving written notice to the Consignor. On giving such  notice the Carrier shall repay to the Consignor any sums paid in respect  of the Price. The Carrier shall not be liable for any loss or damage  whatever arising from such cancellation.
In the event the Consignor cancels the services, then the Consignor  shall be liable for any loss incurred by the Carrier (including but not  limited to any loss of profits) up to the time of cancellation.

26. Miscellaneous
26.1 If any provision in this Agreement is or at any time  becomes illegal, invalid or unenforceable, the remaining provisions will  continue in full force and effect. Any illegal, invalid or  unenforceable provision will, so far as possible, be read down to the  extent that it may be necessary to ensure it is not illegal, invalid or  unenforceable. All Obligations of the Guarantor and you under this  Agreement will survive the severance of any provision, or part of a  provision, to the extent required to be fully observed and performed.

26.2 This Agreement represents the entire agreement  between the parties. No further or other covenants are implied between  the parties by way of collateral or other agreement or by reason of any  alleged promise, representation, warranty or undertaking given or made  by either party to the other on or before the execution of this  Agreement. The existence of any implied, collateral or other agreement  is negatived.