1. These Trading Conditions apply to all services provided by MKD Transcorp Pty Ltd.
2. DEFINITIONS.
In these Trading Conditions:
2.1 Abandoned Goods means Goods which have not been accepted for delivery and which have remained in the possession of MKD or its Service Provider for at least 90 days.
2.2 Administration Costs means all expenses and disbursements incurred by MKD with both MKD’s officer and employee time calculated at a rate of A$175.00 per hour.
2.3 Customer: means the person at whose request the Services are performed and will include all employees, officers, agents, principals, contractors, administrators, receiver managers and liquidators of the Customer and any other person acting on the Customer’s behalf.
2.4 Dangerous Goods means Goods which are or may become noxious, hazardous, inflammable, explosive or offensive , Goods which are otherwise liable to cause damage, loss or injury to any person or property whatsoever or howsoever caused, Goods which are listed in the Australian Dangerous Goods Code or are dangerous within the meaning of Laws concerning the transport of dangerous goods by air, sea, road or rail in the Commonwealth, States and Territories of Australia, including but not limited to Goods containing radioactive materials or goods likely to harbour or encourage vermin or pests.
2.5 Goods means any goods or items which are the subject of the Services provided by MKD to the Customer, including any container or packaging supplied by or on behalf of the Customer.
2.6 Government Authority means, without limitation, all departments, and agencies of the Commonwealth of Australia, or any of the States, Territories or Municipalities of Australia.
2.7 Insolvency Event means any one or more of the following:
(a) the Customer becomes insolvent or is otherwise unable to pay its debts as and whenthey fall due.
(b) the Customer (or any third party) institutes any insolvency, receivership, or bankruptcy proceedings with respect to the Customer, for the settlement of the Customer’s debts.
(c) the Customer makes a general assignment for the benefit of creditors; or
(d) the Customer ceases to conduct business.
2.8 Laws means any legislation or delegated legislation of the Commonwealth of Australia, or any of the States, Territories or Municipalities of Australia, including but not limited to regulations, ordinances, determinations, orders, rules, by-laws, standards, principles, guidelines, declarations, notices, plans of management and approvals of any Government Authority.
2.9 Legal Costs means any amounts that MKD has been or may be charged by, or is or may become liable to pay to, a law practice or debt collection company for the provision of legal services including disbursements.
2.10 MKD: means MKD Transcorp Pty Ltd (ABN 46 089 072 891).
2.11 Service Providers: means all officers, employees, agents, sub-contractors, and other parties employed or engaged by or on behalf of MKD, or whose services or equipment have been used by MKD to provide the Services.
2.12 Services: means the whole of the operations and services undertaken by MKD in anyway whatsoever connected with or concerning the Goods, including carriage, storage and
technology services provided by MKD.
3. All Services provided by MKD are governed solely by these Trading Conditions which, shall prevail over the Customer’s terms and conditions and any terms and conditions contained in any transport document including any bill of lading, waybill or consignment note except to the extent provided for in these Trading Conditions or as provided for by any mandatorily applicable law.
4. No modification, amendment or other variation of the Trading Conditions shall be valid and binding on MKD unless agreed in writing by an authorised officer of MKD.
5. MKD is not a common carrier and will not accept any liability, as such MKD may refuse at its sole and absolute discretion to accept any Goods for carriage without assigning any reason.
6. WARRANTIES, REPRESENTATIONS AND GUARANTEES
6.1 The Customer warrants, represents and guarantees to MKD that:
(a) it has fully and adequately described the Goods, their nature, weight, and measurements.
(b) it has complied with all applicable laws and regulations, including those about the nature, condition, notification, classification, description, consigning, labelling, transport, loading and packaging of the Goods.
(c) it will accurately and punctually provide all documents, information and assistance required by MKD to comply with the requirements of any applicable laws and
regulations or Government Authority.
(d) the Goods are packed in a manner adequate to withstand the ordinary risks of Services having regard to their nature.
(e) the contents of the Goods have been correctly labelled, and the label(s) have been securely fixed in a prominent position on the outer surface of the shipment that can be
clearly seen.
(f) it will provide any special equipment that MKD may need to load or unload the Goods on or off its vehicles.
(g) it will not tender any Dangerous Goods or temperature-controlled goods for the provision of Services without presenting a full description of those Goods to MKD and
disclosing their nature.
(h) the person delivering the Goods to MKD for the Services is authorised to do so.
(i) it has received, understands, and agrees to be bound by these Trading Conditions.
(j) all Services to be supplied by MKD and acquired by the Customer pursuant to these Trading Conditions are so supplied and acquired for the purposes of a business,
trade, profession, or occupation carried on or engaged in by the Customer, and not for personal use.
(k) it will maintain at its own cost such insurance policies to ensure full cover for any damage to or loss of all its Goods carried and/or stored by MKD.
(l) it understands that compliance with transport Laws is a shared responsibility of all parties in the supply chain. The Customer will take all reasonable steps to prevent breaches of road transport mass, dimension, loading, speed compliance and work hours Laws, and will not ask, require, or direct MKD or its officers, employees, agents, sub-contractors to provide Services which will result in a breach of the Law.
(m) the Goods will not damage or cause loss to other goods or equipment.
(n) the Goods and their carriage do not contravene any Laws.
(o) the Customer is the legal owner of the Goods or legally entitled to authorise their carriage.
(p) if the Customer acts for or on behalf of another party, that:
(i) no claim will be made against MKD by any third party; and
(ii) if a claim is made against MKD by an entity other than the Customer, that these Trading Conditions are enforceable against that party.
6.2 The Customer acknowledges that a breach or failure to observe all or any of the warranties, representations and guarantees in clause 6.1 could lead to penalties or damages to the Customer and to MKD.
6.3 If any identifying document or mark is lost, damaged, destroyed, or defaced MKD may open any document, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership or destination.
7. PROVISION OF SERVICES
7.1 MKD reserves complete freedom to decide the manner or procedure to be adopted for any or all the various acts that will be necessary for the completion of the Services.
7.2 If the Customer instructs MKD to use a particular method of providing the Services, MKD will give priority to that method but at its absolute discretion MKD may provide the Services by another method.
7.3 If MKD considers it is necessary or desirable, MKD may deviate from the usual route or method of transport.
7.4 MKD is authorised to deliver the Goods at the address given to MKD by the Customer and MKD will be taken to have delivered the Goods if MKD obtains from any person at that
address an acknowledgement of delivery.
7.5 If the delivery address is unattended or the Customer fails to take delivery of the Goods, MKD will try to contact the Customer to agree the appropriate next action, and may:
(a) if directed by the Customer to do so, leave the Goods at the unattended address, and the Customer will indemnify MKD against and hold it harmless from all claims by any party and from all loss or costs, of whatsoever nature, which MKD incurs because of the Goods being left in accordance with such instructions.
(b) if directed by the Customer to do so, deliver the Goods to an alternative address, at the expense of the Customer.
(c) store the Goods at the risk and expense of the Customer.
(d) return the Goods to the pick-up address at the expense of the Customer. and any such actions will constitute delivery.
7.6 MKD will dispose of Abandoned Goods in any way it deems fit at the expense of the Customer and without compensation to the Customer. The Customer will be given 14 days
written notice of MKD’s intention to dispose of the Goods.
7.7 The Customer will not hire, solicit, interfere with or endeavour to entice away, any driver employed or contracted to MKD until at least 6 months after the termination of their engagement with MKD.
8. SUBCONTRACTING
8.1 MKD may subcontract the Services (in whole or in part) on any terms.
8.2 MKD, in addition to acting for itself, also acts as agent of and trustee for each of its Service Providers so they are entitled to the full benefit of these Trading Conditions, including any exclusions or limitations of liability, to the same extent as MKD.
8.3 The Customer authorises MKD to contract on any terms whatsoever, the whole or part of the provision of the Services, including on terms which may limit or completely exclude liability in respect of the Services.
8.4 MKD may retain for its own benefit, without accounting to the Customer, any difference between charges and surcharges payable to the Subcontractor and charges and surcharges
payable by the Customer to MKD under these Trading Conditions.
8.5 Every exemption, limitation, condition, and liberty contained in these Trading Conditions and every right, exemption from liability, defence, and immunity of whatsoever nature applicable to MKD, or to which MKD is entitled under these Trading Conditions, is available and extends to each of MKD’s Service Providers, as if such terms and conditions were expressly for their benefit, who are entitled to enforce the same against the Customer.
8.6 The Customer undertakes that no claim or allegation whether arising in contract, bailment, tort (including negligence), under statute or otherwise will be made against any of MKD’s Service Providers by any person, which imposes or attempts to impose upon any of them, any liability whatsoever in connection with the Services. MKD’s Service Providers are entitled to enforce the foregoing covenant against the Customer.
9. PAYMENT
9.1 Any list of rates that MKD will charge the Customer for its Services are estimates only and MKD will determine the charge to the Customer prior to the performance of the Services. If MKD incurs costs because of its attempt to redeliver the goods, any delay in the loading or unloading of the goods (other than delays caused solely by MKD) or incur any other amounts relating to the goods or Services (including any charge passed on to MKD by a Service Provider), quotations and charges will be subject to revision accordingly with or without notice.
9.2 MKD’s charges must be paid in full within 14 days of the date of the invoice issued by MKD without discount, deduction, counterclaim, or setoff, and regardless of any dispute between MKD and the Customer.
9.3 Interest will be payable on any sum which remains due and unpaid after the date for payment, from the due date until the date of payment in full and will be charged at 4% above the cash rate published by the Reserve Bank of Australia for the relevant period.
9.4 In the event of a breach by the Customer of clause 9.2 , MKD reserves the right to suspend or to refuse to provide the Services to the Customer in its absolute discretion.
9.5 MKD may take any legal proceedings or take any action permitted under these Trading Conditions to recover amounts owing pursuant to these Trading Conditions and MKD may recover all Legal Costs and Administration Costs incurred in doing so.
9.6 MKD may charge 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, re-valued or re-measured and may charge proportional additional charges accordingly.
9.7 The Customer is responsible for all charges MKD incurs in relation to the supply of the Services, and MKD may increase its charges where it is required to pay on account of any duties, customs, freight, warehousing, taxes (including any goods and services tax or similar value added tax), fines, penalties, port storage and transport charges, insurance costs, importation costs, costs payable to MKD’s Service Providers resulting from any change in law, regulation, statute or proclamation, and all other costs, expenses, losses and minimum statutory obligations increased, levied or required by any government or authority.
9.8 MKD’s charges will be considered earned as soon as the Goods are delivered by MKD and under no circumstances will those charges be refunded.
9.9 Every special instruction to the effect that charges will be paid by a person other than the Customer will be deemed to include a stipulation that if that person does not pay those charges within 7 days of the date set for payment, or if no date is set for payment within 7 days of delivery or attempted delivery of the Goods, then the Customer will pay those charges within 7 days of being notified of that person’s failure to pay.
9.10 Unless stated to the contrary, MKD’s charges in connection with the carriage of Goods or the provision of Services are exclusive of any Goods and Service Tax. If such tax is applicable to the Goods or Services, the Customer will pay the tax in addition to and at the same time as it is required to pay MKD’s charges in accordance with this clause 9 .
9.11 MKD reserves the right to offset any amounts receivable from the Customer against any amounts payable to the Customer or any company affiliated with the Customer or any Relate Body Corporate of the Customer. This right exists irrespective of the date on which the liability is created, or debt incurred with MKD.
9.12 MKD is at liberty to use the payments made by the Customer (in satisfaction of the charges described in the invoice/statement) as it sees fit and in its absolute discretion; and the Customer acknowledges that the description of the charges or surcharges appearing on the invoice/statement does not require MKD to use the payment made for any particular purpose nor constitute a representation that it will do so.
9.13 MKD reserves the right at its sole discretion to alter at any time its payment terms with the Customer.
9.14 Where any amounts payable by the Customer to MKD are not paid within seven (7) days of the due date, all amounts due to MKD by the Customer shall immediately and without further notice, become due and payable.
10. RATE VARIATION
10.1 MKD may from time to time vary, remove, or add any rates, fees, charges, or other amounts in connection with the Services, and will provide the Customer at least 14 days prior written notice via MKD’s website or via such other method of written notice as MKD reasonably determines.
10.2 Where MKD needs to review and vary a fuel surcharge or to reflect a change in applicable law or regulations, MKD may not be able to provide the Customer with prior notice.
11. DANGEROUS GOODS
11.1 MKD may, at its discretion, accept Dangerous Goods for carriage.
11.2 If Dangerous Goods are not fully disclosed by the Customer to MKD and are discovered during carriage or storage, MKD may (at its discretion) remove, sell, destroy, or otherwise dispose of the Goods without compensation to and at the Customer’s expense, and MKD will be entitled to charge the Customer for the subject carriage of the Goods.
11.3 If MKD, or any of its agents or subcontractors, considers on reasonable grounds that the Goods may cause injury or damage, MKD may do anything appropriate to minimise or avoid such injury or damage, including destroying, disposing of, abandoning, or otherwise rendering harmless the Goods without compensation to and at the Customer’s expense, and MKD will be entitled to charge the Customer for the subject carriage of the Goods.
12. INSURANCE
12.1 MKD does not issue insurance. Upon request, MKD will provide the Customer with the contact details of insurance companies / brokers so the Customer may consider obtaining insurance from them directly.
13. LIABILITY AND INDEMNITY
13.1 Goods will always be at the risk of the Customer.
13.2 MKD excludes all liability for, and the Customer releases and indemnifies MKD its directors, officers, employees, agents, and subcontractors from and against, all losses, damages, costs, and expenses of any kind whatsoever, and howsoever arising, including in contract, tort (including negligence), under statute or otherwise and whether arising out of or in connection with the Services and/or the performance or non-performance of the Services.
13.3 The parties agree that neither party is liable to the other, and neither party may make a claim against the other, for any indirect or consequential losses suffered or incurred by the other party or any third party (including loss of profits, loss of revenue, loss of business (including loss or reduction of goodwill), loss of or corruption of data, loss of production, opportunity costs, and any other losses which are not fairly and reasonably considered as arising naturally from a breach of these standard terms and conditions of contract).
13.4 Where any applicable legislation:
(a) implies any term, condition, or warranty into the relationship between MKD and the Customer or into these Trading Conditions.
(b) imposes a consumer guarantee in respect of the Services; or
(c) otherwise gives the Client a particular remedy against MKD, and that legislation or any legislation avoids or prohibits provisions excluding or modifying the application of, or exercise of, or liability under, such term, condition, warranty, consumer guarantee or remedy, (a “Non-Excludable Condition”), then:
(d) that Non-Excludable Condition shall be deemed to be included in these Trading Conditions or apply to that relationship; or
(e) in the case of a consumer guarantee imposed on the Services, that Non-Excludable Condition shall apply in respect of those Services. However, MKD’s liability for any breach of such Non-Excludable Condition shall be limited, at MKD’s option, in any one or more of the ways permitted by that legislation including, where so permitted, to the supplying of those Services again, or the payment of the cost of having those Services supplied again, or the value of the Goods the subject of these Trading Conditions at
the time the Goods were received by MKD.
13.5 MKD’s directors, officers, employees, agents and subcontractors and Service Providers are entitled to the full benefit of these conditions, including any exclusions or limitations of liability, to the same extent as MKD.
13.6 All the rights, immunities, and limitations of liability in these Trading Conditions continue to have their full force and effect in all circumstances, even if MKD breaches any of these conditions.
13.7 The Customer will indemnify and hold harmless MKD from any loss, damage, expense, penalty, fine or liability that MKD may incur or any costs, damages, or expenses, including legal costs, MKD incurs either to the Customer or to anyone else:
(a) arising out of the Customer being in breach of any of its obligations, warranties, representations and guarantees set out in these Trading Conditions, even if MKD
inadvertently accepts a consignment that contravenes any of the Customer’s obligations.
(b) in connection with a claim made by any other person who has an interest in the Goods or Services.
13.8 Without limiting the effect of these Trading Conditions, the Customer agrees to indemnify and keep indemnified MKD for:
(a) any payments made to any Government Authority by MKD on behalf of the Customer.
(b) any penalties payable by MKD (pursuant to a Court Order or pursuant to an Infringement Notice) due to the Customer:
(i) providing information that is incorrect or misleading.
(ii) omitting to provide material information required to any Government Authority.
(iii) providing information in a manner which does not enable MKD to comply with its reporting requirements; and
(iv) failing to provide information or documentation requested by MKD.
(c) penalties associated with providing misleading or deceptive information regarding the Goods.
(d) all hire charges, costs, and liabilities, including charges payable by MKD for the use of transport equipment involved in the Services as set out in the contract between MKD and the owner, lessee, or operator of that transport equipment.
(e) liabilities or costs incurred by MKD on behalf of the Customer associated with the transport of Goods including, without limitation:
(i) amounts payable pursuant to a contract between MKD and another party (whether a Sub-contractor or otherwise) for damage to or cleaning of transport equipment; and
(ii) amounts incurred by MKD in exercising its rights pursuant to these Trading Conditions.
(f) damages payable by MKD arising from or contributed to by errors or misrepresentations by the Customer.
(g) losses and liabilities, including damages payable by MKD due to a breach of any of the warranties in clause 6 ;
(h) all expenses directly or indirectly incurred by MKD arising out of or in connection with the entry of an officer of any Government Authority or other authorised person on the premises of MKD for the purpose of exercising any powers pursuant to the requirements of any Government Authority and/or inspecting, examining, making copies of, taking extracts of documents on the premises.
(i) any taxes or charges assessed against MKD by any Government Authority in relation to the Goods or Services, including for the examination and treatment of the Goods; and
(j) any Legal Costs and Administration Costs incurred by MKD (calculated on a solicitor/client basis).
13.9 The Customer agrees to pay any amounts claimed pursuant to the indemnities in clauses
13.7 and 13.8 within seven (7) days of demand by MKD.
13.10 The nature of the indemnities in clause 13.7 and 13.8 will include, without limitation, all penalties, liabilities and damages assessed against MKD and its officers and employees, together with all Legal Costs and Administration Costs incurred by MKD and its officers and employees (calculated on a solicitor/client basis).
13.11 The Company may execute all or any of its rights pursuant to clause 14 to recover any amounts owing pursuant to this clause 6 .
14. LIEN AND SECURITY INTERESTS
14.1 From the time MKD, or its Service Providers, receives the Goods into its custody, MKD shall have:
(a) a special and general lien on the Goods and a right to sell the Goods whether by public or private sale or auction without notice, for any unpaid amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for all debts, charges, expenses, or any other sums due and owing by the Customer or the Customer’s principals, servants, or agents whatsoever; and
(b) a continuing security interest in favour of MKD for the payment of all amounts for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for all debts, charges, expenses, or any other sums due and owing by the Customer or the Customer’s principals, servants, or agents.
14.2 From the time MKD, or its Service Providers, receive the Goods into its custody, the Goods, and all the Customer’s present and future rights in relation to the Goods, are subject to MKD’s continuing security interest and shall cover all the costs and expenses of exercising the security interest, including the costs of a public or private sale or auction, including Legal Costs and Administration Costs.
14.3 MKD’s lien shall cover all costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including Legal Costs and Administration Costs.
14.4 In the event that any sale of Goods pursuant to clauses 14.1 to 14.3 does not provide sufficient proceeds to discharge all liability of the Customer to MKD, the Customer acknowledges that it is not released from the remainder of the liability to MKD merely by sale of the Goods.
14.5 MKD’s lien and rights granted by this clause 14 shall survive delivery of the Goods and MKD shall be entitled to retain the proceeds of sale of the Goods in respect of any outstanding amounts whatsoever referred to in this clause.
14.6 The Customer accepts that any sums due and owing by the Customer are secured debts and that any payment made to MKD in discharge of MKD’s lien does not amount to any preference, priority, or advantage.
14.7 MKD sells or otherwise disposes of such Goods pursuant to this clause 14 as principal and not as an agent and is not the trustee of the power of sale.
14.8 MKD shall be deemed to have custody and possession of the Goods whether the Goods are in the actual physical custody and possession of MKD or of any Service Provider of MKD, and whether MKD is in possession of any documents of title relating to the Goods.
14.9 MKD may, at the Customer’s expense, register its security interest in the Goods on the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth) (PPSA).
14.10 The Customer will (at its expense) provide all assistance and information to enable MKD to register its security interest(s), and to ensure that it is fully effective, perfected, and enforceable with the priority required by MKD.
14.11 The Customer will immediately inform MKD if an Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying MKD in writing at least fourteen (14) days before such change takes effect.
14.12 MKD is not required to give any notice to the Customer or any other person (including a notice of verification statement) unless the notice is required to be given by the PPSA and cannot be excluded.
14.13 Pursuant to section 115 of the PPSA:
(a) the Customer and MKD agree that sections 125, 142 and 143 of the PPSA do not apply to these Trading Conditions; and
(b) the Customer waives its right to receive any notice, details, or other document from MKD under sections 95, 121(4), 130, 135, 132(3)(d) and 132(4) of the PPSA.
14.14 The Customer will not:
(a) permit to subsist any other security interest in relation to the Goods which would rank ahead of MKD’s interest; or
(b) except in the normal course of business, sell, lease, or dispose of, or permit the sale, lease, or disposal of, the Goods.
14.15 In addition to any rights that MKD has under the PPSA, MKD shall have the right, as the Customer’s agent, at any time while any amounts owing by the Customer to MKD under any Contract remain outstanding, to enter the premises where Goods are stored and remove them without being responsible for any damage caused in doing so. The Customer shall indemnify MKD for all such moneys and all costs, charges, and expenses in repossessing the Goods.
14.16 The Customer and MKD agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 275(7)(b) -(e) of the PPSA. The Customer agrees that it will not authorise the disclosure of information under section 275(7)(c), or request information under section 275(7)(d), unless MKD approves. Nothing in this clause will prevent any disclosure by MKD that it believes is necessary to comply with its other obligations, or is permissible, under the PPSA or any other law.
15. NOTICE
15.1 If MKD is liable for damage to or loss of the Goods or any part of the Goods, no claim for the loss or damage may be made unless notice of the claim is provided to MKD in writing within 48 hours of delivery or, for non-delivery, within 7 days of the anticipated date of delivery.
15.2 The failure to notify a claim within a time under 15.1 is evidence of satisfactory performance by MKD of its obligations.
15.3 MKD will be discharged from all liability for loss or damage or the Services unless an action is brought within 6 months of completion of the Services or the anticipated date of completion of the Services.
16. GOVERNING LAW AND JURISDICTION
16.1 These Trading Conditions are governed by the laws applicable in the State of New South Wales and each party submits to the exclusive jurisdiction of the Courts of that State.
16.2 No failure, delay, relaxation, or indulgence by MKD in exercising any power or right conferred upon it under these Trading Conditions will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under these Trading Conditions.
16.3 If any provision of these Trading Conditions is invalid, void, or unenforceable, all other provisions which are capable of separate enforcement without regard to an invalid, void or unenforceable provision are and will continue to be of full force and effect in accordance with their terms.
16.4 Headings and italicised, highlighted, or bold type do not affect the interpretation of these Trading Conditions.
16.5 We reserve the right to amend these Trading Conditions at any time.