Terms and Conditions of Cartage

These conditions apply to all cartage dealings between Simmcal Pty Ltd t/a Northfleet (“Northfleet”) and the Client unless Northfleet otherwise agrees in writing.

1. COMMON CARRIERS AND QUOTES

1.1 We are not Common Carriers and accept no liability as such.

1.2 Notwithstanding any other provision of this agreement, the parties agree that We are not and will not be considered to be a bailee of the Cargo or any other assets of the Client.

1.3 We reserve the right to refuse to quote for the carriage of Cargo for any particular person and for the carriage of any Cargo or classes of Cargo, for example, but without limitation, hazardous materials or Cargo requiring refrigeration, at our discretion.

1.4 You must give us advance notice of any Cargo which is or could reasonably be expected to be of a dangerous, hazardous or noxious nature or which is capable of causing damage or injury to any person, property, animal, store, vessel, vehicle, aircraft or other conveyance in which of or with which such Cargo may be loaded, carried, packed or stored. Without limitation this includes Cargo, which is explosive, inflammable, radioactive, corrosive, poisonous or infectious.

1.5 We are entitled to open anything in which the Cargo is placed or carried in order to inspect them to find out their nature, condition or destination, or who owns them. We shall not be liable for any loss or damage to the Cargo caused by or arising directly or indirectly as a result of such opening and inspection.

1.6 All quotations issued by Us are subject to these terms and conditions. We reserve the right to vary or rescind quotations at any time prior to Your placing an order the subject of any such quotation unless We agree to lock the quotation in for a period of time.

1.7 Unless expressly stated otherwise prices are exclusive of GST. If GST is payable in respect of any supply, We may increase the price for the supply (“original amount”) by an amount sufficient so that the total amount payable in respect of the supply, after discounting for the amount of any GST payable in respect of the supply, is equal to the original amount.

1.8 We may charge by weight, measurement or value and may at any time reweigh, remeasure or revalue the Cargo or require that the Cargo be reweighed, remeasured or revalue. In the event of there being an increase in the weight, value or measurement of any of the Cargo, then We may claim an additional charge in order to be compensated for the inaccuracy in accordance with industry practice.

2. YOUR OBLIGATIONS AND WARRANTIES

2.1 Information supplied by You. We have relied upon information supplied by You. You warrant that the information You have provided to Us is and will remain complete and accurate in all respects and will provide updated information to ensure this is so.

2.2 Owner or Authorised agent. You warrant that You are the owner of the Cargo or authorised to act on behalf of the owner of the Cargo.

2.3 Presence at Loading/Unloading. It is agreed that no inventory of the Cargo being moved and/or stored will be taken prior to or during the removal of the Cargo. Any such inventory taken by Us prior to the Pickup Day, is or would be for the sole purpose of providing an estimate of Our fee. The pre-existing condition of any Cargo will be verbally agreed upon between Us and You, or Your Representative. In order to agree on the condition of any Cargo, You should ensure that at all times during the loading/unloading of any Cargo You, or Your Representative, are present. Where You, or Your Representative, leave, for any amount of time, We will not repair, or compensate You for any damage You claim occurred in Your absence.

2.4 Fragile Cargo. At least three (3) Business Days prior to the pickup day, You will provide written notice of Cargo which are of a fragile or brittle nature, and which are not readily apparent as such and any special precautions that should be taken when carrying that Cargo. Unless expressly agreed otherwise You are responsible for packaging the Cargo for transport.

2.5 Valuable Items. At least three (3) Business Days prior to the Pickup Day, You will provide written notice of items which compromise jewellery, precious objects, works of art, money, collections of items or precision equipment, and all items valued in excess of $3000. Notwithstanding the foregoing We make no guarantee that such Cargo will not be damaged, stolen, or misplaced. For valuable, unique or difficult to replace items We recommend you use a security service.

2.6 Cargo left behind or moved in error. It is Your responsibility to ensure that all Cargo to be moved or stored are picked up by Us, and that no Cargo that are to remain are taken in error. You must properly identify Cargo to us.

2.7 Acceptance of Cargo. At the completion of the move or transport, You or Your authorized representative may be asked to record on the document provided any damage to Cargo or property. If You or Your representative refuse to sign the record, this refusal will be taken to be a waiver of any right to claim for loss or damage.

3. METHOD OF CARRIAGE AND SUBCONTRACTORS

3.1 Mode of Carriage. We shall be entitled to carry the Cargo by any reasonable route, (having regard to all circumstances including the nature and destination of any Cargo being carried on the vehicle) and by any reasonable means. We may act reasonably but at Our discretion, depart from specific instructions including deviating from a usual route or changing a place of storage or mode of carriage.

3.2 Subcontractors. We may use a Subcontractor(s) to undertake the whole or any part of the Services, but if we do so, We will continue to be responsible to You for the performance of the Services.

3.3 Liability of Subcontractors and Employees. Any provisions in these conditions which limit Our liability

also apply to Our Subcontractors and to our officers and employees and to the employees of Our Subcontractors and without limitation to the driver of the transport vehicle. For the purpose of this sub-clause, We are or are deemed to be acting as an agent or trustee on behalf of each of the persons referred to, and each of them shall to that extent be deemed to be parties to this agreement. This agreement will inure to the benefit of these protected parties, notwithstanding that they are not signatories to this instrument; and may be pleaded by such a protected party as an absolute bar to litigation. We hold the benefit of this agreement as bare trustee and agent for all protected parties.

4. LOADING AND UNLOADING

4.1 Presence at Loading/Unloading. It is agreed that no inventory of the Cargo being moved and/or stored will be taken prior to or during the removal of the Cargo. Any such inventory taken by Us prior to the Pickup Day, is or would be for the sole purpose of providing an estimate of Our fee. The pre-existing condition of any Cargo will be verbally agreed upon between Us and You, or Your Representative. In order to agree on the condition of any Cargo, You should ensure that at all times during the loading/unloading of any Cargo You, or Your Representative, are present. Where You, or Your Representative, leave, for any amount of time, We will not repair, or compensate You for any damage You claim occurred in Your absence.

4.2 Notwithstanding the paragraph immediately above, You acknowledge and accept that We are not responsible for loading or unloading the transport vehicle (including any trailers or containers) nor the for the directing of such. You are encouraged to ensure that at all times You have a suitably experienced and qualified representative or representatives to conduct the loading and unloading. Our representative or driver may but is not required to supervise the loading or unloading process.

4.3 To the extent permitted by law We and the Protected Parties shall not be held liable to any person or party for damage of destruction of Cargo during the loading or unloading process. For the avoidance of doubt the loading and unloading process includes when the Cargo is awaiting loading or unloading as the case may be.

4.4 You release Us and the Protected Parties from all or any claims or suits of any type for loss, damage, cost or expense suffered by You (or other parties who may be interested in the Cargo) arising out of or in connection with the loading or unloading and waives its rights against Northfleet and the Protected Parties accordingly.

4.5 You agree to indemnify and keep indemnified Us and the Protected Parties from and against all and any loss, damage, action, suits, claims, demands, costs, charges, expenses of any kind whatsoever which You may suffer or incur in the course of loading or unloading the Cargo including its packaging, removal, assembly, disassembly, erection, placement or installation.

5. DELIVERY

5.1 We shall only deliver the Cargo to You or Your Representative. If we cannot deliver the Cargo, as

instructed by You, for any reason, including but not limited to You or Your Representative being absent; or We cannot gain access to the delivery location; or for any other reason beyond Our control, We will endeavour to contact You (on the phone number you have provided to us) to ascertain whether You have alternative instructions for delivering the Cargo. If We are unable to contact You, we will unload the Cargo into a warehouse or yard (of our choosing), and We will charge an additional amount for storage and for the subsequent re delivery of the Cargo, which you agree to pay.

5.2 If You ask Us to on forward the Cargo, then We deliver them when We give them to the on forwarding agent. 5.3 A receipt from a person at the destination is proof of delivery but shall not be taken to be the only way to establish delivery.

6. CHARGES & PAYMENT

6.1 You have no right to credit or a credit facility from us. Prior to commencing work, We may request a deposit of up the amount of our quotation or estimated fee. Otherwise, you can expect to be invoiced and make payment by credit or debit card on the day of provision of our Services.

6.2 Credit, charge or debit cards.

(a) We may require a credit or similar card (“Card”) as security for the provision of Our Services and if so, the following provisions shall apply. We may draw a security deposit at the commencement of the Services or require You to reserve a sum in the account which may be drawn upon. The deposit drawn or the sum to be withheld will be specified at the time of provision of the Services.

(b) Similar to (a) above, if You present a Card, You authorise Us to reserve credit with or obtain an authorisation from the Card Issuer (or draw upon the Card) up to an amount equal to the expected cost of the Services plus an additional sum to be advised at the time of hire as security.

(c) You hereby irrevocably authorise Us to charge or draw upon the Card (or any cash deposit) to recover or secure any loss, cost or damage pursuant to this agreement. If We charge the Card to recover an indemnity or loss, cost or damage We shall notify You of the amount charged and provide details of Our claim. If You dispute any amount drawn, You must respond in writing within 21 days of receiving notice from Us.

(d) The Card may be charged within 60 days after the Services have been completed, notwithstanding that any particular charge or amount of damages could have been but was not charged at the time.

(e) If You provide a bank deposit in lieu of a credit card or as part security for the Services, We will reimburse any cash deposit by way of electronic transfer of funds within 10 business days to the account notified by You.

6.3 Variation of Work Required and Delay. If the work You require Us to do varies from the work from which a quotation or estimate has been given, or if We are prevented from or delayed in undertaking the Service or any part thereof, (except where that prevention or delay resulted from a factor within Our control), We will charge additional fees for such a variation. You, also agree to pay any charges We have incurred from a third party (other than a Subcontractor) to obtain or effect delivery of the Cargo.

6.4 Delay. Delays due to traffic conditions or road repairs, selection of route and the like and vehicle break down are inherent in the transport industry. We will not be liable for any loss or damage or consequential loss as a result of Our transit or being delayed for any reason other than factors within Our control.

6.5 Alteration of Dates. If a date for performance by Us of any Services is agreed upon, and You require that date to be altered, or the Cargo is not available on that date, We will charge You an additional amount for any loss or additional expense occasioned by such alteration or unavailability.

6.6 Banking. We may bank any part payments of invoices, without prejudice to Our rights to recover the outstanding balance of any invoice, irrespective of Your stated intention when making that payment.

6.7 Late payment. If You do not pay us in accordance with our terms of trade You must pay interest on the outstanding balance at the Interest Rate until we are paid in full.

6.8 Insolvency. We reserve the right to suspend or cancel the Services if We believe you are or are likely to be unable to pay Your debts as and when they fall due.

7. LIEN ON CARGO UNTIL PAYMENT IS RECEIVED

All Cargo being moved or stored shall be subject to a general lien for any outstanding monies owed by You. Should circumstances arise that make it reasonable to conclude that You are unwilling or unable to pay any due charges in the required form or at a required place or time, We reserve the right to retain or refuse delivery of any Cargo or to re-enter Your premises or the place of storage and seize some or all of the Cargo delivered. When payment is not received within 14 days, We reserve the right to dispose of the Cargo in lieu of payment and offset the proceeds against money owed to Us. This shall not affect any rights We may have.

8. EXCLUSIONS

8.1 General. Except to the extent permitted by law, Our liability is completely excluded including for damage, deterioration or mis delivery. You must commence any action within 10 days after the date the Cargo was delivered or should have been delivered. We will not be liable for any loss or damage, nor any delay which results from any cause beyond Our control.

8.2 Damage to Cargo – Packaging. If the Cargo sustains damage by reason of defective or inadequate packing or unpacking, and the packing or unpacking (as the case maybe) was not undertaken by Us or Our Subcontractor, We will not be liable.

8.3 Damage to Cargo – Inherent Risk. Certain Cargo (including but not limited to electrical, mechanical appliances, computer equipment, scientific instruments, certain musical instruments, pot plants, plants and furniture made of pressed wood,) are inherently susceptible to suffer damage or disorder being moved no matter how carefully they are handled. We will not be liable in respect of these items.

8.4 Damage to Cargo – dismantling and re-assembly. Part of the removal may require the dismantling of Cargo and their re-assembly. At Your request We may do so but accept no responsibility for any damage or loss occurring or resulting from such dismantling and/or re-assembly. We will take all reasonable care in the attend to the re assembling of Cargo; however, We do not guarantee any Cargo re-assembled will be in accordance with manufacture requirements. We will charge an additional fee for any and all time it takes, to dismantle and re assemble any Cargo, regardless of whether or not the dismantling and/or re-assembly process has been completed. Particularly in the case of electronic equipment We suggest You consider engaging expert technicians for re-assembly.

8.5 It is Your responsibility to make sure that any containers, pallets or packaging which is delivered to Us with the Cargo is returned to the owner or lessee.

9. LOSS OR DAMAGE

9.1 You must Report any Damage before completion. As the existing condition of the Cargo is subject to verbal agreement, You must inspect all of the Cargo as it is unloaded and/or relocated AND any damage considered to have been caused by Us must be specified and documented immediately and provided to Us for Our consideration. No claims will be accepted for any damage discovered after We have left the move, except where We have pre-packed Your small items into boxes. If there is any damage to small items We have pre-packed, You must report the said damage to Us within 48 hours of the completion of Our Services and provide time stamped photographic evidence of the Cargo and the packing. Further, where such damage is discovered, the broken Cargo are to be left as found and no further unpacking of the relevant container is to occur, and We are to be contacted immediately.

9.2 Our Damage Only. If You, or a person with Your agreement participates in the move, and Cargo is damaged We are not liable for any such damage caused by You, or any person participating with Your agreement. For the avoidance of doubt, We will only be liable for loss or damage caused by Us or any third party contracted by Us to assist in providing the Services.

9.3 Option to Compensate. In lieu of repairing Cargo, We reserve the right to have the option to compensate You to the value of the damaged Cargo prior to the damage occurring. If that value cannot be agreed on between Us it shall be assessed by a licensed auctioneer or independent valuer chosen between us and if We cannot agree, chosen by the senior officer for the time being of the WA division of the Auctioneers & Valuers Assoc. of Australia Inc. or a successor body with similar objects. The cost of the valuer shall be borne equally by You and Us.

9.4 Repair Damage. Where possible, We will repair any damaged Cargo to as close to the condition of said Good prior to the damage occurring, and these repairs will be arranged by Us and We shall be responsible for all costs incurred to repair the Good. We do not accept any responsibility for any other losses whatsoever including any consequential loss or loss of value as a result of the repairs.

9.5 Vehicle Damage. In the event that Cargo is damaged during the transportation process, being that the vehicle is damaged by theft, flood, fire, collision, overturning or accident generally and We are compensated by Our insurer for the damage to Your Cargo, You will be compensated for the damaged Cargo to the value of the insurance proceeds We receive in respect to the damaged Cargo only less any excess We pay.

9.6 Sets. When an item is part of a pair, set, suite or collection, any repair or compensation will only be in respect of the proportionate part of the pair, set, suite or collection that was damaged, regardless of any special value the damaged or lost part may have as part of such a pair, set, suite or collection.

9.7 Insurance. We have no obligation to place insurances other than in respect of Our own vehicles, employees and subcontractors. Should You wish to ensure any aspect of the Services We recommend You contact an experienced insurance broker.

10. FORCE MAJEURE

10.1 If, as a result of a Force Majeure Event, a party becomes delayed or unable, wholly or in part, to perform any of the Services or its obligations under this transport contract:

(a) that party is to give the other party prompt notice (verbally and in writing) of the relevant Force Majeure Event with reasonably full particulars and, in so far as known to it, the probable extent to which it will be unable to perform, or be delayed in performing, the relevant obligations.

(b) the relevant obligations are suspended but only so far as, and for so long as, each party is affected by the relevant Force Majeure Event; and,

(c) that party is to use its best endeavours to overcome or remove the relevant Force Majeure Event as quickly as possible.

10.2 Paragraph (c) immediately above, does not require the affected party to settle any dispute on terms contrary to its wishes; or contest the validity or enforceability of any Law, regulation or legally enforceable order by way of legal proceedings.

10.3 Resumption. The obligation of the affected party to perform its obligations resumes as soon as it is no longer affected by the relevant Force Majeure Event.

10.4 Right to terminate. If clause 10.1 applies and the Force Majeure Event continues for a period of 45 days or more, either party may (without affecting the accrued rights and obligations of the parties as at the date of termination) terminate this Agreement by giving one months’ written notice to the other party.

11. GENERAL

11.1 Choice of Law. This agreement is governed by the laws of the State of Western Australia.

11.2 Compliance with law. In relation to the Cargo, You must comply with all legal requirements, and any requirements of the party to whom We deliver the

Cargo, including requirements relating to their shape, packaging, labelling and transportation.

11.3 Read Down. If any provision of this agreement or part of a provision of this agreement is or becomes legally ineffective, under the general law or by force of legislation, but would not have such effect if it were read down and, if it is capable of being read down, such provision, or part of a provision shall be read down accordingly.

11.4 Severance. If notwithstanding the foregoing a provision or part of a provision of this agreement still is or becomes legally ineffective: If the provision would not have such an effect if a word or words were omitted, that word or those words are hereby severed; and, in any other case, the whole provision is hereby severed; and the remainder of this agreement shall be of full force and effect.

11.5 Indemnity. You indemnify us for any loss or damage which we may suffer as a result of any breach by of these terms and conditions by You or the Client.

11.6 Trade practices law. The promise to repair (or compensate) damaged Cargo is in addition to any rights that You may have arising from the Competition and Consumer Act 2010 or similar legislation. Any rights You may have under that legislation are excluded to the extent permitted by law. All other rights are varied by these terms and conditions.

11.7 Warranty of Authority. Any person who signs this agreement on behalf of the Client warrants that for all purposes of the agreement he is the duly authorised agent of the Client. If such person is not the duly authorised agent of the Client, then in consideration of Us accepting the order he shall be deemed to be the Client and agrees to be bound by all the terms and conditions of this agreement.

11.8 Client as representative. Where a Client purchases any goods or services for the benefit of a 3rd party, whether as agent or in any other capacity, until that 3rd party has paid for the goods or service in full, the Client will remain liable as the primary debtor for those goods or Services.

11.9 Rest and meal breaks. Our drivers and operators shall take meal and rest breaks in accordance with law and good industry practice and fatigue management protocols. These breaks will not result in Us reducing or discounting our fee for the Service.

11.10 Subsequent Services. The parties agree that these terms and conditions will apply to the provision of all subsequent Services unless specifically varied in writing by the execution of a later agreement. By proceeding to allow Us to perform the Services You are deemed to have accepted these terms and conditions. You are not required to sign them.

11.11 No waiver. No waiver of Your obligations owed to us will be effective unless it is in writing and signed as accepted by our properly authorised officer such as a director or senior manager.

11.12 Amendments. Any amendments to this agreement must be evidenced in writing and signed as accepted by our properly authorised officer such as a director or senior manager.

11.13 Counterparts. This agreement may consist of a number of copies (including facsimile or electronic copies), each signed by one or more parties to the agreement. If there are a number of signed copies, they are treated as making up the one document and the date on which the last counterpart is executed will be the date of the agreement. This agreement is binding on the parties on the exchange of counterparts. A copy of a counterpart sent by facsimile or by electronic mail: must be treated as an original counterpart; is sufficient evidence of the execution of the original; and may be produced in evidence for all purposes in place of the original.

11.14 Unitized freight. We reserve the right to unpack any unitized freight and shall not be liable for any loss or damage to the Cargo caused by or arising directly or indirectly as a result of such unpacking.

11.15 Unsafe goods. If We think that the Cargo is or may become dangerous or offensive, We may, acting reasonably, do anything We consider necessary to avoid or minimise any loss, damage or offence. This includes destroying the Cargo.

12. DEFINITIONS AND INTERPRETATION

12.1 Definitions

“Business Day” means a day in which trading banks are open in Perth, Western Australia provided that day is not a Saturday, Sunday or Public Holiday.

“Cargo” means all items, goods and other effects which are to be the subject of the transport Services.

“Client” means the party for whom the Services are provided and includes the person placing or instructing Us in regard to the Services.

“Delivery Location” means the location nominated by You for the Cargo to be delivered in the agreed manner which may include a storage.

“Force Majeure Event” means an event beyond the reasonable control of a party which prevents or delays that party from performing any of its obligations under the transport Contract including without limitation inclement weather and its consequences, industrial action, epidemic and pandemic.

“Interest Rate” means the rate of interest specified in our quotation or Your credit application or request for an account and if no such rate is specified then 12% compounding interest per annum calculated based on a 365 day year.

“Pick Up Day” means the day You have requested, and We have agreed to move the Cargo from the Pickup Location to the Delivery Location.

“Pick Up Location” means the location/premises or locations nominated by You for the Cargo to be picked up.

“Services” means the whole of the work to be undertaken by Us in connection with the Cargo including transport, delivery and if applicable storage. By special arrangement and quotation, the Services may include disassembly and assembly or loading and unloading.

“PPSA” is reference to the Personal Property Securities Act (Cth) and “PPSR” is a reference to the register established and maintained pursuant to that Act.

“Protected Party” and “Protected Parties” means Northfleet and its officers, employees, agents and contractors and without limitation the driver of the transport vehicle.

“Subcontractor” means any person other than one of Our employees who, under any agreement or arrangement with Us (whether directly or indirectly) performs or agrees to perform the whole or any part of the Services.

“We” means SIMMCAL PTY LTD (ABN 12 113 203 777) trading as Northfleet and “Us” and “Our” and “Northfleet” have corresponding meanings.

“You” means the Client and the party entering into this agreement for Services with Us and includes the party to whom Our quotation is addressed and the party by whom the acceptance is signed (whether on its own behalf or on behalf of any other person), and “Your” has a corresponding meaning.

“Your Representative” means a person who has Your authority to make decisions and give instructions on Your behalf. Authority may be implied by conduct such as the person being sent by You to meet with Us or to be onsite.

12.2 Interpretation

(a) Words in the singular include the plural, and words in one or more gender include all genders.

(b) Headings are inserted for convenience and do not affect the interpretation of these terms and conditions. (c) Where two or more persons constitute a party hereto the covenants and agreements on the part of those persons herein contained will bind them and any two or more of them jointly and each of them severally.

(d) Reference to any statute or act includes all statutes and acts (State or Federal) for the time being enacted amending or modifying any statutes and all regulations, by laws, requisitions or orders made under any statute from time to time by any statutory public or other competent authority and any statutes or acts enacted in substitution for any such statute or act.

13. DISPUTE RESOLUTION

13.1 If a dispute arises out of this contract, a party to the contract must not commence court or arbitration proceedings relating to the dispute unless that party has participated in a mediation in accordance with paragraphs 13.2 and 13.3 of this clause. This paragraph does not apply to an application for urgent interlocutory relief.

13.2 A party to this contract claiming that a dispute has arisen from the contract (“the Dispute”) must give written notice specifying the nature of the Dispute (“the Notice”) to the other party or parties to the contract. The parties must then participate in mediation in accordance with this clause.

13.3 If the parties do not agree, within seven days of receipt of the Notice (or within a longer period agreed to in writing by them) on:

(a) the procedures to be adopted in a mediation of the Dispute; and

(b) (b) the timetable for all the steps in those procedures; and (c) (c) the identity and fees of the mediator; then: (d) (d) the President of The Law Society of Western Australia

will appoint the mediator and determine the mediator’s fees and determine the proportion of those fees to be paid by each party (to be in equal shares unless otherwise agreed by the parties);

(e) (e) the parties must mediate the Dispute:
13.3.e.1 with the mediator appointed under paragraph 13.3(d).

13.3.e.2 with a genuine commitment to participate; and

13.3.e.3 in accordance with the Mediation Guidelines of The Law Society of Western Australia.

13.4 If a party commences proceedings relating to the Dispute other than for urgent interlocutory relief, that party must consent to orders under the Magistrates Court (Civil Proceedings) Act 2004 that the proceedings relating to the Dispute be referred to mediation by a mediator.

13.5 If the parties do not agree on a mediator within seven days of the order referred to in paragraph 4, the mediator appointed by the President of the Law Society of Western Australia will be deemed to have been appointed by the Court. If a party:

(a) refuses to participate in a mediation of the Dispute to which it earlier agreed;

or

(b) refuses to comply with paragraph 13.6(e) of this clause, a notice having been served in accordance with paragraph 2; then

(c) that party is not entitled to recover its costs in any court proceedings or arbitration relating to the Dispute, even if that party is successful; and

(d) that party is deemed to have consented to a decree of the Supreme Court of Western Australia that it will specifically perform and carry into execution paragraph 13.6(e) of this clause.