Terms and Conditions
360 Logistics Transport Terms and Conditions
In these Terms & Conditions:
“Carriage” means and includes the whole of the operations and services undertaken by the Carrier in respect of the goods including but not limited to transportation and storage.
“Carrier” means 360 Logistics Pty Ltd trading as 360 Logistics.
“Consignor” means the person with whom this Contract is made and any person on whose behalf the goods are being sent.
“Consignee” means any person receiving or accepting any Goods, the subject of Carriage by the Carrier. For the avoidance of doubt the Consignor and the Consignee may be the same person.
“Contract” means the contract between the Carrier and the Consignor which these Terms & Conditions form a part of.
“Goods” means the goods supplied by or on behalf of the Consignor to the Carrier together with any container, packaging or pallets supplied by or on behalf of the Consignor.
“GST” means the goods and services tax imposed by or under a GST law.
“GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
“GST Rate” means the rate of GST under the GST Law.
“Guarantor” means the directors of the Consignor;
"Hague-Visby-Rules" means the provisions of the International Convention for the Unification of certain rules Relating to Bills of Lading signed at Brussels on 25th August 1924 as amended by the Visby Protocol of 23rd February 1968 and the SDR Protocol of 21st December 1979.
“Invoice” means the tax invoice under the GST Law.
“Subcontractor” shall include any person who pursuant to a contract or arrangement with any other person (whether or not the Carrier) performs or agrees to perform the Carriage or any part thereof.
“Supply” means the same as In the GST Law.
“Taxable Supply” means any Supply under these Terms & Conditions in respect of which the Carrier is or may become liable to pay GST.
“Warsaw Convention” means the Convention for the Unification of Certain Rules Relating to International Carriage by Air dated 12 October 1929 as amended at the Hague, 1955 and supplemented by the Guadalajara Convention dated 18 September 1961 as applied respectively by the legislation of the Commonwealth of Australia and of New Zealand.
(i) The Consignor expressly warrants that it or its agent has the authority to sign the consignment note and the Contract for the Carriage of the Goods by the Carrier for or on behalf of the person or persons owning or having any interest in the Goods or any part of thereof.
(ii) Further, the person delivering the Goods to the Carrier for Carriage warrants that they have been given the authority to sign the consignment note for the Consignor.(iii) Without prejudice to the generality of the foregoing, the Consignor undertakes to indemnity the Carrier in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence of breach of contract or wilful act or default of the Carrier or others) to any person (other than the Consignor) who claims to have, who has or may hereafter have any interest in the Goods or any part thereof.
The Carrier is not a common carrier and shall not accept any liability as such. All Goods are carried by the Carrier subject only to these Terms & Conditions and the Contract and the Carrier reserves the right to accept or refuse the Carriage of Goods for any person, and the Carriage of any class or goods at its sole discretion.
(i) The Consignor acknowledges and agrees that the Carrier has not insured the Goods and that the Carrier is not responsible for insuring the Goods. If the Consignor and the Carrier by separate agreement in writing agree for the Consigner to insure the Goods then the Consignor shall be responsible to the Carrier for the costs of such insurance and the liability of the Carrier is limited to the physical loss of or damage to the Goods up to the limit of any amount recovered from the insurer.
(ii) In any event subject only to sub-clause (i) and to Clauses 18, 19 and 20 hereof, the Goods are at the risk of the Consignor and not the Carrier and the Carrier shall not be responsible in tort or contract or bailment or otherwise for any, and the consequences of any, loss of or damage to or deterioration of Goods or mis-delivery or failure to deliver or delay in delivery of Goods including chilled, frozen refrigerated or perishable Goods either in transit or in storage for any reason whatsoever including without limiting the foregoing the negligence or breach of contract or wilful act or default of the Carrier, any Subcontractor or others and this sub – clause shall apply to all, and the consequences of all, such loss of or damage to or deterioration of goods or misdelivery or failure to deliver or delay in delivery of Goods as aforesaid whether or not the same occurs in the course of performance by or on behalf of the Carrier or in events which are in the contemplation of the Carrier and/or the Consignor or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach of the Contract or a breach of fundamental term thereof.
(i) The Carrier and any Subcontractor shall be entitled to subcontract on any terms the whole or any part of the Carriage.
(ii) The Consignor undertakes that no claim or allegation shall be made, whether by the Consignor or any other person who is or may hereafter be interested in the goods, against any person (other than the Carrier) by whom (whether it is Subcontractor, principal, employer, servant, agent or otherwise) the Carriage or any part thereof is performed or undertaken which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or wilful act or default of the Carrier or others) in connection with the Goods, and if any such claim or allegation should nevertheless be made, the Consignor agrees to indemnify the Carrier and the person against whom such claim or allegation is made against the consequence thereof. Without prejudice to the foregoing and of the purpose of this sub-clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract
(iii) The Consignor undertakes to indemnify the Carrier against any claim or allegation made against it by any person in connection with any loss of or damage to the Goods occurring at any time during the carriage.Every exemption, limitation, condition and liberty herein contained and every right, exemption, from liability, defence and immunity of whatsoever nature applicable to the Carrier or to which the Carrier is entitled hereunder shall also be available and shall extend to protect-all Subcontractors, every servant or agent of the Carrier or of a Subcontractor, every other person (other than the Carrier) by whom the Carriage or any part thereof is performed or undertaken; and all persons who are or may be vicariously liable for the acts or omissions of any persons failing within paragraphs (i), (ii), (iii) hereof: And for the purpose of this clause the Carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
(i) The Consignor hereby authorises any deviation from the usual route or manner of carriage of the Goods, which may in the absolute discretion of the Carrier be deemed reasonable and necessary in the circumstances.
(ii) If the Consignor expressed of impliedly instructs the Carrier to use or it is expressly or impliedly agreed that the Carrier shall use a particular method of handling or Storing, the Goods or a particular method of Carriage whether by road, rail, sea or the air the Carrier shall give priority to that method but its adoption remains at the sole discretion of the Carrier and the Consignor hereby authorises the Carrier to handle store carry or have the Goods carried by another method.(i) The Carrier is authorised to deliver the Goods at the address given by Consignor for that purpose and it is expressly agreed that the Carrier shall be conclusively presumed to have delivered the Goods in accordance with this Contract if at that address the Carrier obtains from any person a receipt or a signed delivery docket for the Goods.
(ii) If the nominated place of delivery should be unattended or if delivery cannot otherwise be affected by the Carrier, the Carrier at it’s option may deposit the Goods at that place (which shall be conclusively presumed to be due delivery hereunder) or attempt to redeliver the Goods and to make an additional charge for every call made or for the amount of time of any delay until the delivery is effected or may store the Goods and if the Goods are stored by the Carrier the Consignor shall pay or indemnify the Carrier for all costs and expenses incurred in or about such storage. In the event that the Carrier stores the Goods the Carrier shall be at liberty at any time to redeliver them at the Consignor’s expense.The provisions of these Terms & Conditions apply to the container(s) packaging or pallet(s) as well as the Goods supplied by the Consignor who shall remain responsible for the conformity of such container(s) packaging and pallet(s) with any requirements of the Consignee and for the expense incurred by the Carrier arising from any failure by the Consignor to conform with the Consignees requirements.
Notice of seven (7) clear days must be given to the Carrier before removal of Goods from storage can be effected.
(i) The charges of the Carrier shall be considered earned as the Goods are delivered to the Carrier for Carriage or as soon as they are loaded and despatched from the Consignor’s premises and under no circumstances shall any of the charges of the Carrier be refunded.
(ii) The Carrier may charge freight by weight, measurement or value and may at any time reweigh, measure, revalue or require the Goods to be reweighed, remeasured or revalued and charge proportional additional freight accordingly.(iii) The Consignor is responsible to the Carrier for all its proper charges for any reason whether the Goods are delivered to the Consignee or not and whether damaged or otherwise. All charges for storage are due and payable quarterly in advance with a proportionate charge payable for a shorter period of storage.
(iii) The Carrier shall charge interest calculated at current bank rates and such amount shall be payable on all overdue amounts. All charges are subject to surcharge or discount from time to time without notice.(iv) Every special instruction to the effect that the charges shall be paid by the Consignee shall be deemed to include a stipulation that if the Consignee does not pay the said charges within seven (7) days of the date set for payment, or if no date is set for payment, within seven (7) days of delivery or attempted delivery of the Goods, then the Consignor shall pay the said charges within seven (7) days of being notified of the Consignee’s failure to pay as aforesaid.
(i) The Carrier shall have a particular and general lien on any Goods which are in the possession or control of Carrier (and any documents relating to those Goods) for all sums owed at any time by the Consignor to the Carrier (whether those sums are due from the Consignor on those Goods or documents, or on any other Goods or documents), and the Carrier shall have the right to sell such Goods along with any container, packaging or pallet by public auction or private treaty without the need to provide notice to the Consignor. The Carrier shall be entitled to retain the sums due to it, in addition to the charges incurred in detention/storage and sale of such Goods, from the proceeds of sale and shall render any surplus to the Consignor. (ii) Notwithstanding clause 12(i) nothing in this clause requires the Carrier to sell the Goods or prejudices the Carrier’s rights to use any of the Carrier’s other rights and remedies contained in the Contract to recover any outstanding charges or fees payable in respect of the Goods. Further, no exception shall be taken upon the grounds that the price realised from the sale of the Goods by the Carrier is less than the full market value of the Goods.
(iii) To the extent that the Personal Property Securities Act 2009 (PPSA) applies to the sale of the Goods under this clause 12, the Consignor agrees that the Carrier is not required to comply with any of the notice provisions under the PPSA.
(i) Upon notice in writing being given by or on behalf of the Carrier to the Consignor requiring the Consignor to remove any Goods or any part of them which are stored the Consignor must within one (1) month of the date of the giving of such notice pay any charges and remove and takeaway the Goods or part thereof. If upon the expiration of one (1) month from the giving of such notice the Consignor has failed to pay such charges as aforesaid and to remove the Goods or part thereof, the Carrier may remove such Goods or part thereof and store them in such place and in such manner as it thinks proper and at the risk and expense of the Consignor.
(ii) If the rent or charges in respect of the Goods or part thereof shall be in arrears and unpaid for three (3) months the Carrier may give notice of seven (7) days writing to the Consignor requiring the Consignor to pay the rent or charges in arrears and unpaid. Such notice may be given by sending the same through the post to or by leaving such notice at the Consignor’s last known place of business. If upon the expiration of seven (7) days from the giving of such notice the Consignor has failed to pay such rent or charges the Carrier may open any package or container in which the Goods are contained and may sell such Goods or any part thereof and the Carrier shall not be liable to any person for any loss or damage thereby caused.
If any of the Goods are subject to the control of customs then the Consignor hereby agrees to hold the Carrier harmless and indemnify the Carrier in respect of all customs and/or excise duties, costs, expenses and fines for which may in respect of such Goods pursuant to all laws and regulations.
(i) The Consignor shall not tender for Carriage any volatile spirits 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 whatsoever without presenting a full description disclosing the nature of such Goods and in any event shall be liable for all death, bodily injury, loss and /or damage caused thereby.
(ii) If in the opinion of the Carrier, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damaging nature, the same may at any time be destroyed, disposed of, abandoned or rendered harmless by the Carrier without compensation to the Consignor and without prejudice to the Carrier’s right to charge hereunder.(iii) The Consignor warrants that it has complied with all laws and regulations relating to the nature, packaging, labelling, storage and carrying of the Goods and that the Goods are packed in a manner to withstand the ordinary risks of Carriage having regard to their nature hereby indemnifies the Carrier for any liability whatsoever and for all costs and expenses incurred as a result of a arising out of the Consignor’s breach of this warranty. (iv) If any identifying document or mark is lost, damaged, destroyed or defaced the Carrier may open any document, wrapping, package or other container in which the Goods are placed or carried to either to determine their nature or condition or to determine their ownership or destination.
The Carrier shall not be bound by any agreement purporting to waive or vary these Terms & Conditions unless such agreement to so waive or vary shall be in writing and signed by an executive officer of the Carrier.
(i) Notwithstanding clause 4(ii) and in the event that the Consignor believes that it has a claim against the Carrier, no claim in respect of such loss or damage may be permitted unless notice of the claim is lodged in writing at an office of the Carrier in the State or Territory in which delivery was or ought to have been effected with seven (7) days after delivery was effected or would in the ordinary course of business has been effected.
(ii)The failure to notify a claim within a time under 17(i) is evidence of satisfactory performance by the Carrier of its obligations.(iii) Notwithstanding any other provisions hereof, other than Clauses 20 and 21, in any event, the Carrier shall be discharged from all liability whatsoever in respect of the Goods unless suit is brought within six (6) months from their delivery or from the date on which in the ordinary course of business delivery would be affected.
(i) Except in so far as otherwise provided by the Contract, the liability of the Carrier, howsoever arising, shall not exceed the following: (a) in respect of all claims other than those subject to the provisions of Clause 20 whichever is the lesser of:
(1) the value of, or
(2) the equivalent of US$2.00 per gross kilogram, in the currency of the loss or damage, (the exchange rate to apply being the rate as at the date of the delivery of the Goods) of,the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises; and
(b) in respect of claims for delay where not excluded by the provisions of these Terms and Conditions, the amount of the Carrier's charges in respect of the Goods delayed.(ii) The limitation of liability referred to in Clause 18 shall apply notwithstanding that the cause of the loss or damage is unexplained.
(iii) If agreed in writing prior to receipt of the Goods, the Carrier may accept liability in excess of the limits set out in these Terms and Conditions upon the Consignor agreeing to pay the Carrier’s additional charges for accepting such increased liability. Details of the Carrier’s additional charges will be provided upon request.
(iv) Compensation shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid.
(v) If there be no invoice value for the Goods, the compensation shall be calculated by reference to the value of such Goods at the place and time when they were delivered to the Consignor or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.(i) Where the Carrier contracts as a principal and sub-contracts the performance of the Carrier's services and it can be proved that the loss of or damage to or in respect of the Goods arose or was caused whilst the Goods were in the care or custody of the sub-contractor; the Carrier shall have the full benefit of all rights, limitations and exclusions of liability available to the sub-contractor in the contract between the Carrier and the sub-contractor and in any law, statute or regulation and the liability of the Carrier shall not exceed the amount recovered, if any, by the Carrier from the sub-contractor. (ii) Notwithstanding any other provisions in these Terms and Conditions, if it can be proved where the loss of or damage to the Goods occurred, the Carrier's liability shall be determined by the provisions contained in any international convention or national law, the provisions of which:
(a) cannot be departed from by private contract, to the detriment of the claimant, and
(b) would have applied if the claimant had made a separate and direct contract with the actual provider of the particular service in respect of that service or stage or carriage where the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention or national law shall apply.(iii) Notwithstanding any other provisions in these Terms and Conditions, if it can be proved that the loss of or damage to the Goods occurred at sea or on inland waterways and the provisions of Clause 19 do not apply, the Carrier's liability shall be determined by the Hague-Visby Rules. Reference in the Hague-Visby Rules to carriage by sea shall be deemed to include reference to carriage by inland waterways and the Hague-Visby Rules shall be construed accordingly.
(iv) Notwithstanding the provisions of the Clauses 19 if the loss of or damage to the Goods occurred at sea or on inland waterways, and the owner, charterer or operator of the carrying vessel is entitled to limit its liability at law and establishes a limited fund, the liability of the Carrier shall be limited to the proportion of such limitation fund as is allocated to the Goods.
(v) In the event of any inconsistency between these Terms and Conditions and the conditions of any Bill of Lading or Air Waybill issued by or on behalf of the Carrier as Principal, the conditions of any such Bill of Lading or Air Waybill shall prevail to the extent of such inconsistency but no further.(i) Where the Carrier acts as a principal in respect of a carriage of Goods by air, the following notice is hereby given:
If the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to Goods. Agreed stopping places are those places (other than the places of departure and destination) shown under requested routing and/or those places shown in carrier's timetables as scheduled stopping places for the route. The address of the first carrier is the airport of departure.
(ii) Notwithstanding any other provision of these Terms & Conditions, where the Carrier acts as a principal in respect of a carriage of Goods by air, the Carrier’s liability in respect of loss of or damage to such Goods shall be determined in accordance with the Warsaw Convention.
Personal Property Securities Act 2009 (i) In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Consignor and Carrier by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.(ii) Upon assenting to these Terms and Conditions in writing the Consignor acknowledges and agrees that these Terms and Conditions along with the Contract:
(a) constitute a security agreement for the purposes of the PPSA;
(b) create a security interest in all Goods being transported by Carrier over which Carrier invokes a lien; and
(c).create a security interest in all of the Consignor’s and the Guarantor’s, where applicable, present and after acquired property to secure all amounts due under the Contract.(iii) The Consignor undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Carrier may reasonably require to:(1) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (2) register any other document required to be registered by the PPSA; or(3) correct a defect in a statement.
(b) indemnify, and upon demand reimburse, the Carrier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Carrier.(iv) The Carrier and the Consignor agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms and Conditions.
(v) The Consignor hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
(vi) The Consignor waives its rights under sections 142 and 143 of the PPSA.(vii) Unless otherwise agreed to in writing by the Carrier, the Consignor waives its right to receive a verification statement in accordance with section 157 of the PPSA.
(viii) The Consignor shall unconditionally ratify any actions taken by Carrier under clauses 23.3 to 23.5.
(ix) Pursuant to section 275(6) of the PPSA, the Consignor agrees Carrier is not required to disclose to an interested person information pertaining to the Carrier’s Security Interest unless required to do so pursuant to the PPSA or at law generally.(x) If any provisions of these terms and conditions are inconsistent with the PPSA, these terms and conditions shall prevail to the extent of that inconsistency.
(i) In consideration of Carrier entering into the Contract, the Consignor charges all of its rights, title and interest (whether jointly or severally held) in any land, realty, real property, personal property and other assets capable of being charged, owned by the Consignor either now or in the future, to secure the performance by the Consignor of its obligations under the Contract (including, but not limited to, the payment of any money).
(ii) The Consignor indemnifies the Carrier from and against all of the Carrier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Carrier’s rights under this clause. (iii) The Consignor irrevocably appoints the Carrier and each director of Carrier as the Consignor’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Consignor’s behalf.(iv) A statement by the Carrier on any matter relating this document, including any amount owing by the Consignor to the Carrier from time to time, is evidence of its contents.
(i) The Carrier may cancel the Contract or cancel delivery of Goods at any time before the Goods are delivered 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 Carriage of the Goods. The Carrier shall not be liable for any loss or damage whatsoever arising from such cancellation.
(ii) In the event that the Consignor cancels the delivery of Goods then the Consignor shall be liable for any loss incurred by Carrier (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.All the rights, immunities of liability in the these Terms & Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of any of these Terms and Conditions by the Carrier or any other person entitled to the benefit of such provisions.
It is hereby agreed that if provision or any part of any provisions of the Contract is unenforceable such unenforceability shall not affect any other part or such provisions or any provisions of the Contract.
If the provisions of the Contract conflict with any State or Commonwealth legislation, the Contract shall continue in full force and effect except to the extent that they are or any part thereof is void by operation of that legislation.
These Terms and Conditions shall be governed by and in accordance with the laws of the State or Territory in which the Contract is entered into.
The Consignor shall not be entitled to set off against or deduct from any amount owing to the Carrier any sums owed or claimed to be owed to the Consignor by Carrier.
The Carrier 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 Carrier notifies the Consignor of such change.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, cyclone, pandemic, lock-down or other event beyond the reasonable control of either party.
The Contract shall prevail over the terms and conditions set out in any document used by the Consignor, the owner or any other person having an interest in the Goods and purporting to have a contractual effect.
The failure by the Carrier to enforce any provision of the Contract shall not be treated as a waiver of that provision, nor shall it affect the Carrier’s right to subsequently enforce that provision.
(i) This clause applies if the Carrier is or may become liable to pay GST in relation to any supply under the Contract.
(ii) Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such changes, the Consignor or named chargee must pay GST on the Taxable Supply to the Carrier of an amount equal to the GST exclusive consideration multiplied by the GST Rate. GST shall be payable by the Consignor or named chargee without any deduction or set off for any other amount at the same time as the GST exclusive consideration is payable. In all respects, GST shall be payable by the Consignor or named chargee under the Contract.
(iii) The Carrier must issue an Invoice or Invoices to the Consignor or named chargee for the amount of GST referrable to the Taxable Supply. The Carrier must include in any such Invoice such particular as are required by the GST Law in order that the e Consignor or named chargee may obtain an input tax credit for the amount of GST payable on the Taxable Supply.
(iv) If any part of the consideration is referrable to both a Taxable Supply and anything that is not a Taxable Supply, the amount of GST payable by the Consignor or named chargee shall be determined by the Carrier and shall be the same amount of GST that would be payable if the Taxable Supply were the only Supply made to the Consignor.
(v) If the Consignor or named chargee makes default in the payment on the due date of any amount payable pursuant to sub-clause.(i) 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 such interest shall compound monthly at such a rate after as well as before any judgment.
(ii) If the Consignor defaults in payment of any invoice when due, the Consignor shall indemnify the Carrier from and against all costs and disbursements incurred by the Carrier in pursuing the debt including legal costs on a solicitor and own consignor basis and the Carrier’s collection agency costs.(iii) Without prejudice to any other remedies the Carrier may have, if at any time the Consignor is in breach of any obligation (including those relating to payment), the Carrier may suspend or terminate the Contract and any of its other obligations under the Contract. The Carrier will not be liable to the Consignor for any loss or damage the Consignor suffers because the Carrier has exercised its rights under this clause.
(iv)If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) 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.(v) Without prejudice to the Carrier’s other remedies at law the Carrier shall be entitled to cancel all or any part of any order of the Consignor which remains unfulfilled and all amounts owing to the Carrier shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Carrier becomes overdue, or in the Carrier’s opinion the Consignor will be unable to meet its payments as they fall due; or
(b) the Consignor 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 Consignor or any asset of the Consignor.
(i)The Consignor agrees for the Carrier to obtain from a credit-reporting agency a credit report containing personal credit information about the Consignor in relation to credit provided by the Carrier.
(ii) The Consignor agrees that the Carrier may exchange information about the Consignor with those credit providers either named as trade referees by the Consignor or named in a consumer credit report issued by a credit reporting agency for the following purposes:(a) to assess an application by the Consignor; and/or
(b) to notify other credit providers of a default by the Consignor; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Consignor is in default with other credit providers; and/or
(d) to assess the credit worthiness of Consignor.(iii) The Consignor consents to the Carrier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
36. GUARANTEE AND INDEMNITY
In consideration of the Carrier having entered into the Contract with the Consignor at the request of the Consignor and the Guarantor, the Guarantor (and if more than one each of them jointly and severally) hereby:
(i) guarantees to the Carrier:(a) the due and punctual payment by the Consignor to the Carrier of all monies which are now owing or which may at any time hereafter become owing by the Consignor to the Carrier under the Contract or on any account whatsoever at the time and in the manner provided in these Terms and Conditions and if none is provided, at the time and in the manner required under law; and
(b) the due and punctual observance and performance by the Consignor of all its other liabilities, obligations and agreements (whether monetary or non-monetary, present or future, actual or contingent) to the Carrier pursuant to or in connection with the Contract, and any security or instrument related to the Contract.
(ii) agrees, acknowledges and declares that this guarantee shall be a continuing guarantee and shall not be modified or affected by any waiver or indulgence (whether as to time or otherwise) nor by the winding up or death (if a natural person) of any or all of the Carrier, the Consignor, or the Guarantor, nor by any variation to the Contract, nor by any other cause, matter or thing which but for this paragraph would or might have the effect of modifying or abrogating the liability of the Guarantor hereunder;
(iii) acknowledges that the Carrier's right to enforce this guarantee shall not be affected by any action taken or proceedings instituted by the Carrier against the Consignor whether under the Contract or otherwise;
(iv) acknowledges and agrees that the Guarantor shall be liable under this guarantee as if the Guarantor (and each of them) were principally liable to the Carrier and the Carrier shall not be required to take any action against the Consignor or serve any notice of demand on the Guarantor prior to taking any action against the Guarantor under this guarantee;(v) mortgages and charges in favour of the Carrier all the Guarantor’s real and personal property, assets and undertaking with the due and punctual payment of all monies which the Guarantor may become liable to pay to the Carrier under this guarantee and further agrees that it will upon demand execute such further documents as the Carrier may require in order to register a charge in the said terms over its assets and undertaking or any part thereof including where the Guarantor (or if more than one any one of them) is a company, a registered mortgage debenture over the whole of its assets and undertaking;
(vi) covenants with the Carrier that if the Consignor is wound up and:
(a) a liquidator of the Consignor shall lawfully disclaim the Contract or this guarantee at any time, then the Guarantor shall indemnify the Carrier from and against all losses, damages, costs and expenses which the Carrier may suffer as a result of the disclaimer and, insofar as it may be necessary so to do in order to give full effect to this indemnity, the Guarantor shall waive any rights of recourse which the Guarantor might otherwise have or have had against the Consignor arising out of this indemnity and no disclaimer shall operate so as to relieve the Guarantor of its obligations under this indemnity and it is expressly agreed that the provisions of this indemnity shall survive any termination of this deed arising out of any disclaimer;
(b) if any payments made by the Consignor to the Carrier under this deed constitute unfair preferences under the Corporations Act 2001 or are otherwise voided or voidable as against a liquidator of the Consignor (as determined by the Carrier in its absolute discretion or by the Court), the Guarantor shall remain or become liable to the Carrier under this guarantee for the amount of such payment or payments as if the payment or payments had not been made by the Consignor, in addition to any other rights the Carrier may have against the Guarantor in relation to the same;(vii) agrees that the Carrier is hereby irrevocably appointed as the Guarantor’s lawful attorney with full power for an on behalf of and in the name of the Guarantor to do all acts and things and sign and execute all deeds, documents and notices for and on behalf of the Guarantor as may be necessary or convenient for the purposes of giving effect to this guarantee, including but not limited to a mortgage or other security in favour of the Carrier; and (viii) agrees, acknowledges and declares that it has:
(a) executed these Terms and Conditions freely, voluntarily and in full knowledge and understanding of its contents;
(b) not been coerced or influenced by any person into executing this guarantee; and
(c) been advised by the Carrier to obtain independent legal advice on the contents of this guarantee prior to executing this document.(ix) The Carrier is not required to marshal, nor pursue all guarantors at the same time (or at all) and may seek recovery of any money owing by the Consignor and other obligations and enforce any securities against whichever of the Guarantors it so chooses in its absolute discretion and without prejudice to its rights against any other Guarantor.