1.1 “Contractor” shall mean Colpak Logistics Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Colpak Logistics Pty Ltd.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons) or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all cargo together with any packaging to be moved from one place to another by way of the Contractor’s services.
1.5 “Services” shall mean all Services supplied by the Contractor to the Client (and includes any advice or recommendations) and are as described on any quotation, invoice, consignment note, manifest, or any other form as provided by the Contractor to the Client.
1.6 “Price” shall mean the price payable for the Services as agreed between the Contractor and the Client in accordance with clause 9 of this contract.
2.1 Any instructions received by the Contractor from the Client for the supply of services and/ or the Client’s acceptance of Services supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Contractor.
2.4 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/ or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
2.5 Services are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
3.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
4. Contractor Not A Common Carrier
4.1 The Contractor is not a common carrier and will accept no liability as such. All articles are carried or transported and all storage and other Services are performed by the Contractor subject only to these conditions and the Contractor reserves the right to refuse any carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
5. Dangerous Goods
5.1 Unless otherwise agreed in advance in writing with the Contractor, the Client or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise dangerous Goods. The Client shall be liable for and hereby indemnifies the Contractor for all loss or damage whatsoever caused by any dangerous Goods.
6. Client’s Responsibility
6.1 The Client expressly warrants to the Contractor that the Client is etiher the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/ or storage and by entering into this contract the Client accepts these conditions of Contract for all persons on whose behalf the Client is acting.
6.2 The Client warrants it shall fully and accurately disclose the exact nature, weight and measurement of the Goods.
7. Nomination of Sub- Contractor
7.1 The contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent. The Sub-Contractor shall be entitled to the full benefit of these terms and conditions to the same extent as the Contractor. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Contractor shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
8. Servants or agents of the Contractor
8.1 The Client undertakes that no claim or allegation shall be made against any servant or agent of the Contractor which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify the Contractor and any such servant or agent against all consequences thereof.
9. Price and Payment
9.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Services supplied; or
(b) the Contractor’s current price as at the date of the delivery of the Services according to the Contractor’s current Price list; or
(c) the Contractor’s quoted price (subject to clause 9.2 and 9.3) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
9.2 The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation.
9.3 The Contractor may by giving notice to the Client increase the Price of the Services to reflect any increase in the cost to the Contractor beyond the reasonable control of the Contractor (including, without limitation, increases in fuel surcharge costs, taxes or customs duties, insurance premiums or warehousing costs).
9.4 The Contractor may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re- weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
9.5 At the Contractor’s sole discretion a deposit may be required.
9.6 At the Contractor’s sole discretion payment shall be due on delivery of the Goods.
9.7 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
9.8 Payment will be made by business cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Contractor.
9.9 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
10.Transportation and Storage of Goods
10.1 The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of the Contractor be deemed reasonable or necessary in the circumstances.
10.2 The goods may be warehoused or otherwise held at any place or places at the sole discretion of the Contractor.
10.3 At the Contractor’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at the Contractor’s address; or
(b) the Goods are delivered to the Client’s nominated address (as supplied to the Contractor by the Client for that purpose) and it is expressly agreed that the Contractor shall be taken to have delivered the Goods in accordance with this contract if at that address the Contractor obtains from any person a receipt or a signed delivery docket or consignment note for the Goods.
10.4 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.
10.5 The Client will be and shall remain responsible to the Contractor for all its proper charges incurred for any reason. A charge may be made by the Contractor in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Contractor. Such permissable delay period shall commence upon the Contractor reporting for loading or unloading.
10.6 The Client shall inspect the Goods on delivery and shall within twenty four (24) hours of delivery (time being of essence) notify the Contractor of any alleged damage to, or shortage in quantity of, the Goods. The Client shall afford the Contractor an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes there is any damage to, or shortage in quantity of, the Goods. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any damage or shortage in quantity.
10.7 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
10.8 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
11.1 The Client acknowledges that:
(a) the Contractor is under no obligation to arrange insurance of the Goods and it remains the Client’s responsibility to ensure that the Goods are insured adequately or at all; and
(b) under no circumstances will the Contractor be under any liability with respect to the arranging of any such insurance and no claim will be made against the Contractor for failure to arrange or ensure that the Goods are insured adequately or at all.
12. Limitation of Liability
12.1 Subject to any statutory provisions imposing liability , the Client acknowledges that the Goods are transported and/ or stored at the Client’s own risk. The Contractor shall not be under any liability for any loss or damage to the Goods whatsoever or howsoever arising (unless such loss or damage is due to the wilful neglect of the Contractor), nor for any instructions, advice, information or service given or provided to the Client or any person whether in respect of the Goods or any other thing or matter. The Contractor’s limitation of liability shall include all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Contractor or incurred or become payable by the Contractor.
12.2 The Contractor shall not be liable for any consequential or indirect loss, or loss of market, or consequences of delay whatsoever due to the failure by the Contractor to deliver the Goods promptly or at all, where due to circumstances beyond the control of the Contractor.
12.3 Liability of the Contractor arising out of any one incident for breach of these terms and conditions, howsoever arising, is limited to any of the following as determined by the Contractor:
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
13. Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Contractor.
13.3 If the client defaults in payment of any invoice when due, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.
13.4 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Contractor may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
(a) where the Client and/ or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/ or the Guarantor agree to mortgage and/ or charge all of their joint and/ or several interest in the said land, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/ or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Contractor elect to proceed in any manner in accordance with this clause and/ or its sub-clauses, the Client and/ or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/ or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Client’s and/ or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15. Unpaid Contractor’s Right to Dispose of Goods
15.1 The Contractor shall have a lien on any goods (and any documents relating to those Goods) in the possession or control of the Contractor for all sums payable by the Client to the Contractor, and the Contractor shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Client. The Contractor shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
16.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
17. Privacy Act 1988
17.1 The Client and/ or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Contractor.
17.2 The Client and/ or the Guarantor/s agree that the Contractor may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/ or
(b) To notify other credit providers of a default by the Client; and/ or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/ or
(d) to assess the credit worthiness of Client and/ or Guarantor/s.
17.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by the Contractor, its agents or distributors in relation to the Services; and/ or
(c) analysing, verifying and/ or checking the Client’s credit, payment and/or status in relation to provision of Services; and/ or
(d) processing of any payment instructions, direct debit facilities and/ or credit facilities requested by the Client; and/ or
(e) enabling the daily operation of Client’s account and/ or the collection of amounts outstanding in the Client’s account in relation to the Services.
17.5 The contractor may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/ or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be giverned by the laws of Queensland and are subject to the jurisdiction of the Courts of Queensland.
18.3 The contractor shall be under no liability whatever to the Client for any indirect loss and/ or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions.
18.4 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Contractor.
18.5 The Contractor reserves the right to review these terms and conditions at any time. If following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change.
18.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.7 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.
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