1 DEFINITIONS and INTERPRETATION
1.1 Defined terms
In this Agreement unless the context otherwise requires the following expressions have the following meanings:
Agreement means the Quote together with these terms and conditions or if no Quote is issued, these terms and conditions.
Amount means the amount stated in the Quote, Initial Invoice and/or Final Invoice as the context requires.
Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Western Australia.
Client means the party entering into the Agreement for Services with the Contractor
Contractor means Big Red Removals ABN 32643158755
Dangerous Good means any firearms or Goods which are or may become of a dangerous, corrosive, highly combustible, explosive, damaging or noxious nature or are likely to encourage any vermin or pest.
Debt has the meaning given in clause 7(b).
Deposit means 10% of the Amount specified in a Quote, or where no Quote has been issued, the cost of two hours of work according to the Schedule of Fees
Delivery Address means the address identified by the Client as the delivery address.
Final Invoice has the meaning provided in clause 5.5(a).
Goods means all furniture and other property which are to be the subject of the Services.
Initial Invoice means an invoice issued to the Client prior to completion of the Services pursuant to clause 5.4.
Packing Box means a cardboard packaging box loaned by the Contractor to the Client pursuant to clause 8.
Performance Date means the date on which the Services were first performed in whole or in part.
Pick Up Address means the location where the Goods are collected.
Quote means the quote for Services which may be provided by the Contractor to the Client and annexed to these terms and conditions.
Schedule of Fees means:
(a) $130/hour for a 2 man team; Monday to Friday
(b) $170/hour for a 3 man team; Monday to Friday
(c) $50/hour per packer; Monday to Friday
(d) $140/hour for a 2 man team on Saturday
(e) $180/hour for a 3 man team on Saturday
(f) $160/hour for a 2 man team on Sunday or public holiday
(g) $190/hour for a 3 man team on Sunday or public holiday
(f) $60/hour per packer on Saturday
(g) $70/hour per packer on Sunday or public holiday
Services means the services that the Contractor shall perform under this Agreement as may be described in the Quote and any additional services provided in accordance with this Agreement.
Service Provider means the Contractor or the subcontractor as the context requires.
Service Vehicle means any vehicle used to perform the Services.
Valuable Good means jewellery, precious objects, works of art, antiques, money, collections of Goods or any valuable equipment, and all Goods valued over of $1000.
In this Agreement, unless the contrary intention appears:
(a) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) a reference to includes or including must be construed without limitation;
(c) the singular includes the plural and vice versa;
(d) a reference to $ is a reference to Australian currency;
(e) no provision of this Agreement will be construed adversely against a party because that party was responsible for drafting the provision.
2.1 Use of Subcontractors
The Contractor reserves the right to use external subcontractors to perform the services.
3.1 Estimate only
Unless expressly stated to be an agreement to perform the works for a fixed fee, the Quote is a non-binding estimate of costs only.
A fixed fee Quote is valid for a period of 5 Business Days after the Issue Date.
3.3 Changes to Quotes
(a) Quotes are prepared on the basis of the Contractor’s experience and the information supplied by the Client regarding:
(i) the nature, size and quantity of Goods to be moved;
(ii) the Pick Up Address and the Delivery Address, including information about access, the presence of stairs or other restrictions or difficulties in accessing the building or the Goods; and
(iii) the date of the move.
(b) The Client acknowledges that changes to these details provided by the Client may result in changes to the fees charged (including for fixed fee Quotes) for the Services and the Contractor reserves the right to amend their fees accordingly. The Contractor will notify the Client as soon as a change to the fees occurs as a consequence of a change to the details provided by the Client.
4 ACCEPTANCE OF SERVICES
4.1 Client acceptance
The Service Provider will provide the Services in accordance with this Agreement. The Client is deemed to have accepted, and is bound by, the terms of this Agreement by instructing the Contractor to proceed with performance of the Services.
5 PRICE AND PAYMENT
5.1 Calculation of the Amount
(a) Unless expressly stated in the Quote to be performance of Services on a fixed fee basis, the Contractor will charge, and the Client will pay, for the Services in accordance with the Schedule of Fees.
(b) In providing the Services, the Service Provider is entitled to a 15 minute break for every two hours worked which is included in calculating the total hours worked for the purpose of the Quote or the Final Invoice.
5.2 Fixed fee arrangements
(a) If the Contractor has agreed to perform Services for a fixed fee, the Contractor may, acting reasonably, vary the Amount in accordance with the Schedule of Fees, or where not accounted for in the Schedule of Fees, based on the actual cost incurred by the Contractor in performing the Services if:
(i) the Service Provider has supplied any additional services not referred to when the Quote was provided, including any additional services provided pursuant to clause 6(b);
(ii) access to the Pick Up Address or the Delivery Address was not as described, and did not allow free movement of the Goods without the need to alter the Services provided, hire additional equipment, additional staff or extend the time required to complete the Services;
(iii) access to the Pick Up Address or the Delivery Address was not suitable for the Service Vehicle to get within 25 meters of the doorway and as a result the Service Provider was required to complete additional work not included in the Quote;
(iv) the Service Provider incurred charges for parking, toll roads, congestion fees, or any other charges levied by the government for transportation of Goods from the Pick Up Address to the Delivery Address;
(v) the Client understated the amount of Goods and as such the Service Provider had to perform additional trips;
(vi) any of the details on the Quote changed;
(vii) any of the information supplied by the Client was incorrect or inaccurate; or
(viii) the Client asked the Service Provider to park the Service Vehicle in a place where the Service Vehicle became subject to a parking fine.
(a) Within one Business Day of instructing the Contractor to provide the Services, the Client is required to pay the Deposit.
(b) The Deposit will not be refunded unless the Contractor terminates without cause pursuant to clause 12.
5.4 Advance Payment
(a) The Contractor may require the Client to pay an amount which represents its reasonable estimate of the fees which will be payable in respect of the Service (including taking into account any variations) at any time before the Performance Date or completion of the Services by providing the Client with an Initial Invoice.
(b) If the Client fails to pay the amount of an Initial Invoice upon demand, the Contractor may immediately cease providing the Services and retain any Goods in its possession in accordance with clause 7.
5.5 Final Payment
(a) Upon completion of the Services the Contractor will issue to the Client a Final Invoice identifying the final Amount payable, taking into account:
(i) any amounts already paid under an Initial Invoice in accordance with clause 5.4; and
(ii) the amounts payable in accordance with the fixed fee or Schedule of Fees (as applicable); and
(iii) in the case of a fixed fee agreement, the value of any variations made under clause 5.2, valued in accordance with the Schedule of Fees.
(b) The Final Invoice must be paid by the Client to the Contractor upon delivery of Goods at the Delivery Address.
(c) The Final Invoice must be paid to the Contractor:
(i) in cash; or
(d) If the Amount paid pursuant to the Initial Invoice exceeds the value of the Services as set out in the Final Invoice, the Contractor must refund the overpayment within 5 Business Days of completion of the Services.
6.1 Non delivery
(a) If the Service Provider does not deliver the Goods because:
(i) there is no authorised person at the Delivery Address to receive the Goods on the Service Provider’s arrival;
(ii) the Service Provider cannot gain access to the Delivery Address;
(iii) the Client fails to pay an Initial Invoice; or
(iv) of any reason beyond the Service Provider’s control including but not limited to industrial disputes, weather or traffic or road conditions,
the Service Provider will be entitled to, at its sole election:
(v) return the goods to the Pick-up address or
(vi) unload the Goods at a location of its choice, including a warehouse or other storage facility.
(b) The Service Provider will be entitled to charge an additional amount for transport, labour, storage and for any subsequent re-delivery of the Goods when action is taken in accordance with clause 6(a).
(c) Risk in the Goods remains with the Client at all times.
(d) The Service Provider reserves the right to refuse to deliver the Goods or place them in areas they deem to be dangerous, a health and safety risk to their employees or the general public or for any other reason
7.1 General lien
(a) The Goods are subject to a general lien for any outstanding amounts owed by the Client pursuant to this Agreement.
(b) The Contractor reserves the right to retain the Goods in the event that there are reasonable grounds to believe that the Client is unable or unwilling to pay any amount payable to the Contractor under this Agreement (Debt), until such time as the Debt has been paid in full.
(c) If the Debt remains outstanding for 10 Business Days after the date for payment of the Final Invoice stated in clause 5.5(b), the Contractor may sell any or all of the Goods and apply the proceeds to satisfy any part of the Debt that is outstanding.
(d) Any costs associated with the storage or sale of such Goods will be borne by the Client and also recouped from the proceeds from the sale of Goods under this clause 7.
8 PACKING BOXES
(a) At the written request of the Client, the Contractor will loan to the Client up to 40 Packing Boxes [at no additional cost to the client].
(b) Where a request has been made in accordance with clause 8(a), unless otherwise agreed between the parties in writing, the Packing Boxes will:
(i) be delivered by the Contractor to the Pick Up Address 10 Business Days before the Performance Date; and
(ii) be collected by the Contractor from the Delivery Address 10 Business Days after the Performance Date.
(c) If any Packing Box is returned to the Contractor in an unusable condition (in the sole opinion of the Contractor) the Contractor may charge, and the Client will be obliged to pay, the replacement cost of the unusable Packing Box.
(d) If any packing box isn’t returned to the contractor the contractor may charge the client and the client will be obliged to pay replacement cost of the packing box.
9 REFUSAL OF CARRIAGE OF GOODS
9.1 Refusal of carriage
The Service Provider reserves the right, at its sole discretion, to refuse to accept the carriage of Goods for any reason.
10 CLIENT’S OBLIGATIONS
10.1 Client’s obligations
The Client will:
(a) be, or cause a person authorised in writing by the Client to be, present when the Goods are loaded at the Pick Up Address and unloaded at the Delivery Address;
(b) provide the Contractor with any information reasonably required to provide the Services and advise the Service Provider of any special requirements for the care of any particular Goods;
(c) prior to the Performance Date provide the Contractor with written notice of Goods which comprise:
(i) Valuable Goods;
(ii) Dangerous Goods; or
(iii) fragile Goods.
11.1 Client warranties
The Client warrants that:
(a) any information provided by the Client which has been reasonably relied upon by the Contractor in agreeing to perform the Services is accurate and correct;
(b) it is the owner of the Goods or the authorised agent of the owner;
(c) except where the Service Provider has packaged the Goods, the Goods are packed in a manner adequate, having regard to their nature, to withstand the ordinary risks of removal, carriage and storage;
(d) it has read these terms and conditions;
(e) the Goods do not include any:
(i) Valuable Goods;
(ii) Dangerous Goods; or
(iii) Fragile Goods
other than as has been disclosed to the Contractor in writing prior to the Performance Date.
12.1 Contractor’s right to terminate
The Contractor may terminate this Agreement without cause by giving at least five Business Days’ notice to the Client.
13 LIMITATION OF LIABILITY
13.1 Contractor’s limitation of liability
To the extent permitted by law:
(a) the Contractor is not liable for any consequential loss;
(b) where the Contractor is liable for damaged Goods, it may repair or replace damaged Goods at the its sole discretion;
(c) the Service Provider will not be liable to pay the Client more than $200 for any single item of damaged Goods or $1,000.00 in respect of all Goods moved or stored by the Contractor whichever is the lesser;
(d) the Contractor is not liable for any damage to the Goods, and need not replace or repair any damaged Goods, which:
(i) arises from conditions or matters which were not known to the Service Provider when it agreed to perform the Services;
(ii) relates to Goods which are fragile or Valuable Goods if the Service Provider was not notified of those items;
(iii) was unavoidable due to the nature of the Goods or the nature of the Pick Up Address or the Delivery Address;
(iv) arose from causes which are outside of the Service Provider’s control;
(v) occurred to Goods that have pre-existing scratches, tears or marks;
(vi) occurred to an electronic item and no external damage has been caused to that item;
(vii) was not reported to the Contractor in accordance with clause 13(f);
(viii) are pre-packed Goods and the Goods were not packed by the Service Provider;
(ix) are flat packed Goods that have not been taken apart or are Goods that are not designed to be moved;
(x) suffer minor scratches or tears during the removal unless the Contractor has been negligent.
13.2 Assessment by independent valuer
If the value of the damaged Goods cannot be agreed between the Contractor and the Client, the value of the damaged Goods shall be assessed, at the cost of the Client, by an independent valuer according to the age and condition of the item (not its replacement value).
13.3 Reporting damage
Any damage to the Goods must be reported to the Contractor in writing before the Service Provider leaves the Delivery Address.
These terms and conditions may only be amended by an agreement in writing signed by a duly authorised representative of each party.
The Contractor is an independent contractor performing this Agreement. This Agreement does not create any agency, partnership, employment or other joint relationship between the Service Provider and the Client.
14.3 No set-off, counterclaim or deduction
All payments due to the Contractor under this Agreement must be paid in full without any set-off, counterclaim or deduction.
14.4 Entire agreement
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
14.7 Applicable law
This Agreement is governed by the laws of Western Australia and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Western Australia