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Conditions of Service - Carways Pty Ltd – (ACN 008 489 192)

1. Dictionary

“charges” means our quoted charges for services calculated under our rates schedule or other agreed rates, any taxes, duties and the government charges levied on the services and any other amounts under condition 7.3.

“consumer” means an individual who acquires our services wholly or predominately for personal, domestic or household use or consumption.

“Chain of Responsibility Laws” means the Heavy Vehicle National Law and regulations, or any laws of Australia that relate to road transport, including but not limited to a law or regulation relating to transport of dangerous goods, fatigue management, speeding, speed limiting, maintenance, load restraint, mass or dimension

“contract” means the transport contract between you and us including these conditions.

“force majeure event” means anything outside our reasonable control, including without limitation, fire, storm, flood, earthquake, explosion, accident, road or rail closures, rail derailment, wharf delays, war, terrorism, sabotage, epidemic, quarantine restriction, labour dispute or shortage, act or omission of any third person or public authority.

“hidden defect” means a defect or fault in a vehicle that is not visible at the time of inspection for the purpose of completing our vehicle condition report that which is the cause of or contributes to any damage or deterioration to the vehicle.

‘laws” means all applicable laws, regulations, guidelines, codes, standards or polices of the Commonwealth of Australia, any state, territory or local authority.

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“services” means the transportation of the vehicle.

“sign or signature” includes a provision in electronic form.

“subcontractor” means any person who we arrange to provide services for the vehicle and any person who is an agent, employee or subcontractor of that person.

writing” means any representation of words, figures or symbols capable of being rendered in visible form. “us”, “we”, “our” means Carways Pty Ltd and its related bodies corporate within the meaning of that expression in section 9 of the Corporations Act 2001 (Cth) carrying on business in its own name and under any business name and its officers, employees, agents and subcontractors.

vehicle” means the car, trailer or item picked up or accepted from you or on your behalf.

“you, “your” means the person contracting with us on these conditions.

“your associates” means any of your officers, employees, agents, representatives, contractors or subcontractors

2. Consumer Contract

If you are a consumer:

(a) These conditions do not affect any rights you have under Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(b) Condition 9 (limitations and exclusions of liability) except for conditions 9.3(a)* and 9.3(b)*, does not apply to the contract unless and only to the extent the contract is for the carriage of a vehicle by ship and to the extent permitted by law 9.3(c)

(c)  The laws in force in the place in which the contract is made apply to the contract.

*Condition 9.3(a) limits our liability for damage to the vehicle unless that damage is noted and signed for.

*Condition 9.3(b) and 9.3(c) is a list of causes of damage or types of damage to the vehicle for which we will not be liable.

3. What You Need to Know About Us and Our Services

3.1 The services provided on the conditions set out in this agreement

3.2 We are not a common carrier, do not accept any liability as a common carrier and may refuse to provide services to you or a vehicle for any reason.

3.3 We rely on the details supplied by you to us but we do not admit their accuracy or completeness and our signature on the contract or vehicle condition report is only an acknowledgement that we have picked up or received the vehicle.

3.4 Our services commence when we, or our agent, pick up or accept the vehicle, and we earn our charges then.

3.5 We contract as agent and trustee for our employees, agents and subcontractors so they also have the benefit of the contract and these conditions (including any exclusions or limitations of liability we have) to the same extent as us and as if they were parties to it.

3.6 You acknowledge the condition of the vehicle by undertaking a joint survey and accept the vehicle condition report by:

(a) signing the vehicle condition report

(b) or if you do not sign the Vehicle Condition Report, it is deemed accurate in all material respects

4. Dangerous Goods

4.1 You must not tender for services any dangerous goods and you promise that dangerous goods have not been put in the vehicle.

4.2 Dangerous goods mean any articles or substances which are, or may become a risk to health, safety property or the environment (but not goods inherently part of a vehicle like petrol in the tank or LP gas connected to the vehicle).

5. Your Promises

5.1 You promise us:

(a)  You are either the owner or the authorised agent of the owner of the vehicle and have authority to enter into the contract;

(b)  You have fully and accurately described the vehicle and its value; and

(c)  The vehicle can be safely handled and transported.

(d) The vehicle can be moved under its own power, has working brakes and windows are intact

(e) The vehicle has a minimum ground clearance of 130mm all around.

6. What we can do

6.1 We can:

(a)  deliver the vehicle at the delivery address supplied by you or your agent and we will be taken to have delivered the vehicle if at the delivery address we obtain an acknowledgement of delivery or delivery occurs under 6.2;

(b)  deviate from any usual route or mode of transport to provide the services; and

6.2 If the delivery address is unattended during normal business hours or, if the delivery address is a private address, during the prearranged delivery period, we can, at your expense, return the vehicle to our nearest depot which will constitute delivery.

6.3 We:

(a)  claim a general or particular lien on the vehicle and documents relating to the vehicle for all charges due;

(b)  may under the lien hold the vehicle at our facility until we recoup any outstanding

charges without any notice to you; and

(c)  may set-off or deduct from any payment due to you any charges you owe us

7. Our Charges

7.1 You or the person you nominate must pay our charges:

(a)  prior to transport of the vehicle; or

(b)  within 30 days of the date of invoice if you have an account with us.

7.2 You must pay the charges if the person nominated to pay the charges doesn’t do so.

7.3 You must also pay:

(a)  any cleaning charge, or cost if cleaning of the vehicle is required by a quarantine authority;

(b)  our cost if we are unable to pick up a vehicle during normal business hours or, in the case of a

private address for pick up, during the pre- arranged pick up period;

(c)  our cost of returning the vehicle to our nearest depot under condition 6.2;

(d) cancellation of non-refundable bookings which attract an admin fee of $55 (all incl.)

(e) a futile fee of $88 (all incl.) which is charged when a vehicle is not ready at pickup, vehicle is not driveable or the sender is unavailable.

(f)  the cost of storage at $10.00 per day if you fail to collect the vehicle from us within 5 days of the agreed collection date, or within 5 days after we notify you the vehicle is available for collection, whichever is the later; and

(g)  interest at the rate under the Penalty Interest Rates Act 1983 (Vic) if any charges are not paid on the due date for payment.

8. Our Warranty

8.1 Subject to conditions 8.2 and 8.3, we warrant that the vehicle will be delivered to the delivery address in the same condition in which it is picked up or accepted by us.

8.2 If we breach our warranty we will pay you the lesser of:

(a)  the substantiated cost of repairs to the vehicle; or

(b)  the fair value of the vehicle as reasonably determined by us, in which case we will own the damaged vehicle or the vehicle if it is later found.

8.3 Our warranty is subject to the limitations and exclusions of liability in condition 9.3 and is for physical loss or damage only to the vehicle.

9. Limitations and Exclusions on our Liability to You

9.1 We make no express warranties except our warranty in condition 8 and exclude from these conditions all conditions, warranties, terms and consumer guarantees implied by laws, general law or custom except any the exclusion of which would contravene any laws or cause this condition to be void.

9.2 The vehicle is at your risk at all times and we exclude all liability to you or any other person for any loss or damage arising from performance or non-performance of the services, and whether in contract, bailment, tort including negligence or breach of statutory duty, unless and to the extent our warranty in condition 8 applies.

9.3 We will not pay for:

(a)  damage to the vehicle unless the damage is noted and signed for on the delivery receipt copy of the contract or vehicle condition report;

(b) Minor damage or markings that cannot be easily identified from standing one metre away from the vehicle

(c)  pre-existing damage, hail damage, mechanical or electrical damage or derangement, loss or damage to personal property or effects from or within the vehicle, damage to the vehicle due to movement of objects within the vehicle, insect damage and bird/animal droppings, stone chip(s), hidden defect, hail damage or a Force Majeure event; or

(d)  any indirect, special or consequential loss or damage including the request or requirement for a hire vehicle, loss of profits, business or anticipated savings or other economic loss, even if we know they are possible or otherwise foreseeable.

10. Force Majeure

10.1 If we cannot carry out an obligation under the contract either in whole or in part because of a force majeure event, then our obligations under the contract will be suspended for the duration of the event or waived to the extent applicable.

11. Chain of Responsibility

11.1 To the extent applicable at law, you and Carways acknowledge and agree that each party has obligations under the Chain of Responsibility Laws and will comply with such obligations

11.2 You must (and procure that your associates) comply with any directions, policies or procedures advised or notified by Carways or it’s associates to you and your associates with respect to loading or unloading of the vehicles or entry into, use of or egress from a premises.

12. You agree that this contract and the vehicle condition report are the complete agreement between you and Carways and that no representations have been made by an employee agent of Carways that affect this contract.