Magnificent Horse Transport
Pty Ltd (ACN 619 142 899) [“MHT”]
TERMS AND CONDITIONS OF TRANSPORT
In this Agreement:
“Approvals” means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Authority to permit the full and proper performance of MHT’s obligations under this Agreement;
“Authority” means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister,
statutory corporation, instrumentality or entity;
“Business Day” means a day which is not a Saturday, Sunday or public holiday in NSW;
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Collection Site” means the site/s nominated by the Customer either at the time of placing an order or subsequently, as the location at which the Livestock is to be Collected;
“Collection Time” means the time at which the Customer has advised MHT that it shall have the Livestock available for collection at the Collection Site.
“Control” has the meaning set out in the Corporations Act 2001 (Cth);
“Costs” means any costs, penalties and all expenses including; court costs and legal fees reasonably incurred;
(i) the person who places an order with MHT for the provision of the Transport Services and if more than one then jointly and severally; or
(ii) the entity, or corporation on who’s authority the person placing an order with MHT for the provision of the Transport Services ostensibly acts.
“Customer Information“ means any details provided to MHT by the Customer including but not limited to; address and location of collection and delivery, Special Instructions, names and contact details of authorised persons, the gender, age, condition and any identifying features of the Livestock;
“Delivery Docket” means a delivery docket ordinarily used by MHT and issued on delivery;
“Delivery Site” means; the site/s nominated by the Customer either at the time of placing an order or subsequently, as the location at which the Livestock is to be delivered;
“Delivery Time” means the time at which MHT estimates the Livestock will be delivered to the Delivery Site;
“Drivers” means those members of MHT’s Personnel who drive vehicles for the purposes of the Transport Services;
“GST” means goods and services tax as defined in the A New Tax System (Goods & Services Tax) Act 1999 as amended.
“Laws” means acts, ordinances, regulations, rules, codes and by-laws of the Commonwealth or any state or territory;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Livestock” shall mean any and all livestock (together with any associated equipment or goods) to be collected, transported and delivered by MHT at the request of the Customer.
“MHT”, “we” or “us” means MAGNIFICENT HORSE TRANSPORT PTY LTD (ABN 246 191 42899);
“Notice” means any notice or other communication by one party to the other party under the terms of this Agreement including but not limited to any request, demand,
consent, waiver or approval;
“Order” means an order or direction communicated by the Customer to MHT for provision of Transport Services;
“Order Deadline” means no less than 7 days prior to the required Pick Up Time.
“Order Method” means the system as used by MHT from time to time, to facilitate an order for Transport Services;
“Personnel” means any employee, servant, contractor, agent, partner, director or officer of
“Pick Up Time” means the time by which the parties agree MHT will collect the Livestock at the Collection site;
“Rates” means the rates to be charged by MHT and advised to the Customer from time to time;
“Related Entity” has the meaning set out in the Corporations Act 2001 (Cth);
“Site” means each of the Collection Sites and the Delivery Sites;
“Site Procedures” means the policies and procedures of the Site, (including but not limited to any safety, health and environment policies);
“Special Instructions” means the special instructions set out in the Order;
“Taxes” means any present or future tax, fee, levy, duty, charge, withholding, penalty, fine, impost or interest imposed by any Authority including but not limited to any
tax in relation to sales, use, property, value added, goods and services, turnover, stamp duty, interest equalisation, business, occupation, excise, income, profits or receipts; and
“Transport Services” means the loading and unloading, carriage, storage, spelling or rest of Livestock (including any equipment); from the collection site and to the delivery site.
In this Agreement:
the headings will not affect interpretation of this Agreement;
a reference to “A$”, “$A”, “dollar” or “$” is to Australian currency;
a reference to time is to mean the time at the location of the Customer’s nominated pick up or collection address;
a reference to a party is to a party to this Agreement;
a reference to a party to a document includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
a reference to any thing (including but not limited to any right) includes part of that thing;
any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
The Customer wishes to engage MHT to provide the Transport Services to the Customer and MHT agrees to provide the Transport Services to the Customer, in accordance with the terms of this Agreement.
The Parties acknowledges that MHT will provide the Transport Services to the Customer, as an independent contractor.
The terms of this Agreement shall apply to each Order placed by a Customer.
MHT may subcontract any work in relation to the provision of the Transport Services, or any of MHT’s other obligations under this Agreement, to any third party and without the Customer’s prior consent.
This Agreement does not create any partnership, joint venture, agency or relationship of employment between the parties.
Orders, Pick Up and Delivery Obligations
The Customer must utilise MHT‘s Order method to place an Order, prior to the Order Deadline.
In placing an Order, the Customer warrants that it has read and agrees to be bound by the terms and conditions of this agreement.
MHT’s receipt of an Order shall not be deemed to be an acceptance of the Order.
Any quotation provided by MHT shall not be deemed to be an offer or promise to carry out the Transport Services.
The Customer acknowledges that any quotation provided by MHT is only an estimate of fees and charges based on the Customer Information given at the time of placing the Order and the Customer’s liability for fees and charges shall be those set out in MHT’s Tax Invoice.
The Customer Information provided to MHT must be sufficient, for MHT perform the Transport Services;
The Customer must ensure that an authorised and responsible person is present at both the Collection and Delivery site, at the Collection and Delivery Time.
In the event that the Customer fails to have the Livestock and/or an authorised and responsible person available at the Collection Site by the Pick Up Time, MHT reserves the right to impose on the customer an additional charge for waiting time, to be levied in periods of 15 minutes.
If through the Customer’s failure to comply with Clause 3.7, MHT has been put to unreasonable delay, then MHT may terminate this Contract immediately and recover from the Customer all reasonable costs and expenses incurred and arising from the Customer’s breach.
In the event that the Customer fails to have an authorised and responsible person available at the Delivery Site at the Delivery Time, MHT reserves the right to impose on the Customer, an additional charge for waiting time, to be levied in periods of 15 minutes up until an authorised person attend on site.
MHT shall at its sole discretion, determine the route and method by which the Livestock are transported to the Delivery Site and such discretion is deemed to be reasonable and necessary.
MHT may at its sole discretion transport the Customer’s Livestock in conjunction with Livestock owned by another other person, firm, body, corporation.
Delivery of the Livestock under this agreement shall be deemed to have occurred if either;
MHT‘s Driver obtains signed confirmation on the Delivery Docket by the Customer (or their authorised representative), to confirm that the Customer has received the Livestock at the Delivery Site, in accordance with the Order;
In the absence of the Customer (or their authorised representative), the Customer has directed MHT to unload and deposit the Livestock at an unattended Delivery Site,
whereupon the time of delivery shall be the time of unloading.
Property & Risk
The Parties expressly agree that;
MHT is not a “Common Carrier” or “Bailee for Reward“ and MHT’s provision of the Transport Services is subject only to the terms of this Agreement;
MHT shall not be held liable for any loss or damage suffered by the Customer arising out of the provision of the Transport Services;
MHT has (at its sole discretion) the right to refuse or accept Livestock for transport;
MHT has the right to sub-contract the Transport Services to other parties.
The Customer acknowledges and agrees that any Livestock in the possession or control of MHT shall be and will remain so, at the risk of the Customer and further MHT shall not be required to effect insurance over the Livestock whilst in its possession or control.
MHT shall not be liable for any claim for loss or damage, resulting from a delay in, or failure by, MHT to perform its
obligations, if such delay or failure arises from;
the Customer‘s failure to comply with any term of this Agreement and/or;
an event (or the effect of an event) of force majeure including but not limited to; extreme weather events, flood or fire, war, epidemics, strikes or lockouts, an Act of God,
physical disability, the conduct, legislation or regulations of public authorities, changes in relevant legislation, civil tumult or disturbance, terrorism, interruption or
delay caused by motor vehicle accident, the conduct of public authorities in management of road and transport infrastructure, or any cause beyond the reasonable control of MHT.
MHT accepts no responsibility at law in tort, contract or otherwise for any loss, damage, death to persons or Livestock or expense incurred by Customer, in the course of MHT providing the Transport Services and/or arising from the delay in or the failure to deliver the Livestock.
The Customer hereby indemnifies MHT at all times against all Claim’s, Cost’s and Liabilities whatsoever; which may be taken against MHT or incurred or become payable by MHT, arising from the provision of the Transport Services.
In the event of a breach by MHT of a Statutory Warranty under Australian Consumer Law, MHT’s Liability is limited to one of the following as determined solely by MHT:
the re-supply of the Transport Services by MHT; or
payment of the cost of re-supply of the Transport Services by a third party engaged by MHT; or
a refund of any monies paid under this agreement by the Customer.
Compliance, Safety and Livestock Health
The Customer must at all times takes all reasonable and necessary steps;
to inform MHT of all Site safety procedures, hazards and any other policies of the Customer or, the occupier of the Collection and Delivery Sites;
to ensure safe working conditions for all persons engaged in the performance of the MHT’s obligations under this Agreement;
facilitate (at the Customer’s cost), MHT’s drivers attendance at any safety induction program required to allow MHT access to each Site;
obtains any clearance certificates, approval, or right of access for MHT and its personnel, to enter and remain on a Site, strictly for the purposes of MHT performing its obligations under this Agreement;
The Customer must ensure that prior to collection, the Livestock are in good health and fit for transport
in accordance with the requirements of the Australian Standards and Guidelines for the Welfare of Animals (Land Transport of Livestock Sept 2012) [the “Guidelines”].
If at the time of collection MHT determines (at its sole discretion) and acting reasonably, that the Livestock fail to meet the minimum standards as set out in the Guidelines or, are otherwise unfit for travel, then MHT reserves the right to refuse to transport of any or all of the subject Livestock.
MHT reserves the right to vary the terms and conditions of this agreement; to transport lame, injured or sick Livestock, for the purposes of accessing emergency veterinary treatment and further; the costs of such transport and treatment shall be the responsibility of the Customer.
MHT will take all reasonable steps to obtain the Customer’s prior written or verbal consent to any variation required under Clause 5.4 however; in the event the Customer’s consent cannot be readily obtained, the Customer authorises MHT to seek veterinary
intervention or treatment and further indemnifies MHT against any costs or liability arising from MHT’s decision to exercise its rights under Clause 5.4.
MHT shall not be liable for any loss or damage arising from its refusal to transport Livestock under this clause .
Fees, Invoicing and Payment
The Customer acknowledges that any quotation given by MHT is given on the basis of the Customer Information provided at the time of placing an Order.
The Customer shall be liable to pay the amount as set out in MHT’s tax invoice.
If requested to do so by MHT, the customer must pay a deposit in the amount required by MHT prior to collection of the Livestock;
Any variation to the Customer Information provided subsequent to the placing of the Order, may give rise to further fees and charges payable by the Customer. MHT shall use it best endeavours to communicate any additional fees and charges to the Customer at
the time of amendment.
Subject to MHT’s satisfactory provision of the Transport Services and compliance with the terms of this Agreement, the Customer must pay MHT’s issued tax invoices in accordance with the Payment Terms detailed on the tax invoice.
In the event that MHT should (at its discretion) offer credit to the Customer, such credit shall be conditional upon the Customer entering into a separate credit agreement with MHT.
The Customer’s failure
to pay all fees and charges set out in MHT’s Tax Invoice, in accordance with
the Payment Terms, shall entitle MHT to charge interest on any unpaid monies at
the rate of 10% per annum on the outstanding balance; calculated and
compounding daily, until the date of repayment.
The Customer represents and warrants to MHT that:
The person placing the Order with MHT is duly authorised to do so on behalf of the Customer;
The Customer’s Livestock to be transported by MHT, shall be fit to travel and are not subject to any injury, infection, disease, or underlying health condition which is communicable and/or liable to cause the Livestock (and any other Livestock in MHT’s possession or control); pain, discomfort, injury, death or misadventure during the course of Transportation;
The Customer has complied with all relevant state and federal laws, codes and or regulations applicable to the care and control of the Livestock.
it consents to the deposit of its Livestock in storage or holding facilities which are utilised by MHT, at any time between Collection and Delivery of the Livestock.
It shall promptly pay to MHT all fees, expenses and charges due and payable to it by the customer;
The Customer Information provided to MHT at any time; was, and remains, at the date of communication of that information to MHT, true and correct and that it
further places no obligation on MHT to further investigate the accuracy or deficiency in the information provided;
The Customer may terminate this Agreement without penalty up to 24 hours prior to the Collection Time.
The Customer may terminate this Agreement within 24 hours of the Collection Time, by providing written notice to MHT
whereupon the Customer shall be liable to pay the Cancellation Fee as set out in MHT’s quotation or tax invoice.
XMHT may terminate this agreement at any time, if the Customer;
is in breach of this Agreement;
fails to give MHT adequate Customer Information;
provides any false or misleading warranties under Clause ;
commits an act of dishonesty, fraud, wilful disobedience, misbehaviour, or wilful neglect;
In the event that MHT has exercised its right to Termination under Clause [8.2], MHT shall not be liable for any actual or consequential loss or damage suffered by any party, person or entity arising from the termination;
The Customer shall indemnify (and keep indemnified) MHT against any claim (inclusive of costs) arising from clause [8.3] and this clause shall not merge on completion.
If MHT has any dispute or disagreement with the Customer in relation to the Transport Services or any matter relating to this Agreement, MHT will provide a written notice to the Customer setting out all relevant details and background information in relation to the dispute and the Transport MHT’s proposal for resolution of the dispute.
The Customer must respond to the dispute notice within 7 days.
The parties shall use all reasonable endeavours to mediate on any dispute prior to the filing of any application with a Court or Tribunal.
Any provision of this document which is invalid, is only invalid to that extent, without invalidating or affecting the remaining provisions of this document.
Any waiver of a right under this Agreement must be in writing and will not operate as a waiver in relation to any subsequent matter.
Any failure, delay, forbearance or indulgence by a party in an exercise, or partial exercise, of a right arising under this Agreement will not result in a waiver of that right or prejudice or restrict the rights of the party.
Any variation of, or amendments to, any terms of this Agreement must be in writing (inclusive or email, electronic messaging or Text Message Services) and agreed by both parties.
Any personal information about you, provided by you and other sources is protected under the Privacy Act 1988. Disclosure of such information may be compelled by law and as such you authorise us to
disclose such information to others where necessary.
This Agreement will be governed by the laws of NSW, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of, that state.