1.1. “Business Hours” means the hours between 7:00am and 5:00pm, Monday to Friday (excluding public holidays).
1.2. “Client” means the person or entity named in a Quotation or any person acting on behalf of the Client, whether by actual or implied authority.
1.3. “Goods” means any items which are required to be collected, moved, packed or otherwise shifted in the provision of the Services to the Client.
1.4. “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.5. “Hourly Rate” means those fees charged by TVTC for Services provided by them as disclosed in a Quote or as published from time to time on the Website.
1.6. “Invoice” means an invoice or other document issued by TVTC to the Client, indicating an amount payable by the Client for the provision of TVTC’s Services.
1.7. “Location” means the location at which TVTC is to undertake the Services and includes, but is not limited to, the location where Goods are collected and the location where Goods are delivered.
1.8. “Price” means the price of the Services as agreed or Quoted between TVTC and the Client, plus the cost of any Variations.
1.9. “Quote” means:
1.9.1. any written document provided by TVTC or its representative, to the Client (now or at any time in the future) providing an indication of the Price and Services which are to be completed by TVTC on behalf of the Client; or
1.9.2. any oral quotation provided by TVTC or its representative, to the Client (now or at any time in the future) providing an indication of the Price and Services which are to be completed by TVTC on behalf of the Client.
1.10. “Services” means the whole of the operations and services to be undertaken by TVTC or any person or entity on behalf of TVTC in respect of the Goods, including but without limiting the generality of this definition, loading, unloading, carriage and storage of the Goods and any other matters otherwise identified and contained in a Quote provided to the Client, subject to any Variations.
1.11. “Subcontractor” means any person or entity who pursuant to a contract or arrangement with any other person or entity (whether or not TVTC) performs or agrees to perform the whole or any part of the Services.
1.12. “Terms” means these Terms and Conditions.
1.13. “TVTC” means The Van That Can Pty Ltd ACN 164 573 693, its successors and assigns or any person acting on behalf of and with the authority of TVTC, which for the avoidance of doubt, shall include employees.
1.14. “Variation” means any change or addition to the Services.
2.1. These Terms will apply to any Quote entered into between TVTC and the Client for the supply of Services by TVTC to the Client.
2.2. The person(s) whom accept a Quote hereby acknowledge and guarantee that they have full authority to enter into these Terms on behalf of the Client.
2.3. The Client will give TVTC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice).
2.4. The Client will be liable for any loss incurred by TVTC as a result of the Client’s failure to comply with clause 2.3.
2.5. These Terms supersede any and all previous Terms that may and or did previously govern the relationship and any contracts between TVTC and the Client.
2.6. These Terms constitute all terms of all Quotes that currently exist and/or may be entered at any time in the future between TVTC and the Client.
2.7. TVTC will not be required to disclose these Terms for each new Quote unless the Terms have been changed.
2.8. These Terms represent the entire agreement between TVTC and the Client and cannot be varied, waived or amended without express written consent by TVTC.
3.1. Acceptance of a Quote and these Terms is to be effected by the Client by any one of the following means:
3.1.1. signing and returning a copy of a Quote and/or Terms;
3.1.2. giving TVTC written or verbal instructions to continue with the Services or otherwise failing to notify TVTC that their Services are no longer required after receiving a Quote; or
3.1.3. oral acceptance.
3.2. Upon acceptance of a Quote by the Client, the parties agree these Terms will be binding and can only be rescinded in accordance with these Terms or with the express written consent of TVTC.
3.3. Quotations are subject to withdrawal or revision without notice to the Client at TVTC’s discretion.
4. Negation of Legal Liability – Not a Common Carrier
4.1. TVTC is not a common carrier and accepts no liability as such. Services are arranged or performed by TVTC subject only to these Terms of contract which constitute the entire agreement between TVTC and the Client. No person has the authority of TVTC to waive or vary these conditions and TVTC reserves the right to refuse at its sole discretion the carriage of the Goods for any client or any other Service whether before or after the carriage or Service has commenced and further reserves the right to open and inspect all Goods at its discretion and at the Client’s expense.
5.1. The Client will seek its own insurance cover for the Goods and the Goods will be at the sole risk of the Client. No insurance will be effected by TVTC on the Client’s behalf. Should any insurer dispute liability for any reason, the Client shall have no recourse against TVTC whatsoever and any recourse by the Client shall be against the insurer.
6.1. If TVTC is instructed by the Client and agrees to use a particular method or mode of transport and/or Service, TVTC shall give due consideration to the method or mode designated but shall at all times have the right to choose, vary or change any such method and/or mode of transport and/or Service and/or route and/or procedure to be followed in respect of the Services performed and the Client hereby authorises TVTC or a subcontractor to handle or store or carry the Goods by any method.
7. Right to Subcontract
7.1. TVTC at its discretion may subcontract on any terms the whole or part of the Services.
7.2. The Client undertakes that no claim or allegation may be made against any servant, agent or Subcontractor of TVTC that imposes or attempts to impose any liability whatsoever arising out of or in any way connected with the Goods or the Services whether or not arising out of negligence or a wilful act or omission on the part of any of them and if such claim or allegation should be made, to indemnify the Carrier against all consequences of any such claim or allegation.
7.3. Every exemption, limitation, condition and liberty contained in these Terms and every right, exemption from liability, defence and immunity of whatsoever nature applicable to TVTC or to which TVTC is entitled to under these Terms will also be available to and extend to protect:
7.3.1. All Subcontractors;
7.3.2. Every servant or agent of TVTC or of a Subcontractor;
7.3.3. Any other person or entity by whom the Services or any part of them are undertaken; and
7.3.4. Any person or entity who are or might be vicariously liable for the acts or omissions of any person or entity falling within clause 7.3.1, 7.3.2 or 7.3.3.
7.4 For the purposes of Clause 7.3, TVTC is or will be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons or entities and each of them will, to this extent, be deemed to be parties to this agreement.
8. Exclusion of Liability
8.1. The client agrees that neither TVTC, nor servants, agents or Subcontractors at any time pursuant to these terms will in any circumstances (except where statute otherwise requires) be under any liability whatsoever (whether in contract, tort or otherwise) for:
8.1.1. And personal injury or loss of or damage to , deterioration, evaporation or contamination of the Goods; or
8.1.2. misdelivery, delay in delivery or non-delivery of the Goods or any part hereof,
wether in the course of the Services or otherwise or for any consequential loss or injury of any kind whether such matters in clause 8.1.1 and 8.1.2 is caused or is alleged to have been caused by the negligence or wilful act or default of TVTC, its officers, servants, agents or Subcontractors or by any cause whatsoever.
8.2. TVTC will be entitled to the benefit of the exclusion of liability under clause 8.1 even if is proved that the loss or damage resulted from an act or omission done with intent to cause damage, or recklessly and with knowledge that the damage would probably result.
8.3. Nothing whatsoever done or omitted to be done or other conduct by TVTC in breach of these Terms or otherwise will under any circumstances constitute a fundamental breach ore repudiation of these Terms such as to have the effect of disentitling TVTC from obtaining the benefit of or enforcing any rights , defences, exemptions, immunities and limitations of liability of TVTC contained in these Terms, with all such any rights , defences, exemptions, immunities and limitations of liability and such protection to have full force and effect in any event whatsoever.
8.4. Should a Court of competent jurisdiction find the preceding 3 clauses to be invalid or in any way restricts their operation, then for damaged or lost Goods, TVTC’s liability is limited to either (at TVTC’s sole discretion) compensation for loss of value, replacing the Goods or repairing the Goods.
8.5. If compensation is to be awarded by TVTC for loss of value due to damage, the amount will be determined by TVTC after consideration of the purchase price of the item, the pre-damage condition, the severity of the damage, whether the damage affects the structural integrity and function of the item or is cosmetic only, the age of the item, and the second-hand value of similar items available on the open market.
8.6. Should TVTC decide to replace the Goods, TVTC may do either of the following:
8.6.1. pay to the Client a monetary sum equivalent to the value of the Goods; or
8.6.2. procure a physical replacement.
8.6.3. The value of the Goods for a monetary replacement pursuant to clause 8.4 will be as agreed to between TVTC and the Client and failing agreement, by reference to the Good’s wholesale value.
8.6.4. If a physical replacement is to be provided pursuant to clause 8.4, TVTC undertakes to use all reasonable endeavours to obtain an exact replacement for the damaged goods, however, the parties recognise that it may not be possible to provide an exact match and in such event there will be no claim against TVTC, provided that a replacement of equivalent value and design is obtained.
8.7. Where Goods are part of a pair, set, suite or collection, TVTC’s liability shall extend only to the proportionate part of the pair, set, suite or collection, regardless of any special value the damaged or lost part may have as part of a pair, set, suite or collection.
8.8. TVTC’s liability to repair the damaged Goods is limited to repairing same to the same condition, as near as possible, as the Goods were prior to the damage.
8.8.1. If TVTC elects to undertakes repairs in accordance with clause 8.4 the repairs shall be arranged by TVTC and are to be completed within 2 months of the damage occurring.
8.9. TVTC accepts no other liability for any other losses whatsoever including consequential losses resulting from lost or damaged Goods and will not be liable to compensate the Client for any delay in either replacing or repairing damage to the Goods.
9. Warranties by Client
9.1. The Client warrants:
9.1.1. That it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods or any part thereof to consign the Goods upon and subject to these Terms. Without prejudice to the foregoing warranty, the Client undertakes to indemnify TVTC in respect of any liability whatsoever and howsoever caused in respect of the Goods to any person who claims to have, has or may acquire an interest in the Goods or any part thereof; and
9.1.2. That the person releasing the Goods to TVTC is authorised to do so and accept these Terms on the Clients behalf.
9.2. The Client expressly warrants that the Goods are fit for carriage and have been suitably packed for those purposes and the Client hereby indemnifies TVTC against any claim for loss or damage, howsoever incurred to the Goods as a result of the packing.
9.3. The Client will ensure that the Client or some person on the Client’s behalf will be present when the Goods are being loaded or unloaded.
9.4. You warrant that TVTC and its commercial vehicles can gain access to the Locations, and that there are adequate parking and loading/unloading facilities available. If parking is not provided and parking fines are incurred, the Client agrees to pay the parking fines or costs.
9.5. The Client warrants that they will be present to instruct TVTC at the commencement of the Services, be available to discuss any extenuating circumstances throughout the Services, be available to answer any questions from TVTC throughout the Services, be present at the completion of the Services and therefore be responsible to ensure that nothing the Client required to be moved has been left behind and that all Goods arrive in satisfactory condition. If the Client or the Client’s representative is not present at these times, for any reason, then TVTC will not accept liability for any alleged damage or liability for any costs incurred by you as a result of goods being accidently left behind.
9.6. Before the provision of the Services, the Client will fully disclose any self-combustible, dangerous or hazardous Goods and label such Goods accordingly whereupon TVTC may at its absolute discretion accept or decline to proceed with the Quote.
9.6.1. In the event of discovery by TVTC of illegal, hazardous or dangerous Goods not being disclosed or Goods likely to attract any vermin and/or pest, TVTC may take any reasonable action, including destruction of the Goods, and the Client hereby agrees that all costs incurred by the said non-disclosure are fully recoverable from the Client, and the Client hereby indemnifies TVTC from any claims for loss or damage, of whatsoever kind, incurred as result of any action taken by TVTC under this clause.
10.1. At TVTC’s sole discretion the Price will be either:
10.1.1. as indicated on Invoices provided by TVTC to the Client in respect of Services undertaken; or
10.1.2. TVTC’s Quoted Price (subject to clause 13).
10.2. Where more than one Client has entered into this agreement, the Clients will be jointly and severally liable for all payments of the Price.
11.1. TVTC will be entitled to submit Invoices to the Client at any time.
11.2. Payment is due under these terms within seven (7) business days from the date of issue of the Invoice.
11.3. The quantum of the Invoice will be the sum total of:
11.3.1. the values of Services carried out;
11.3.2. additional amounts which TVTC will be entitled to claim, including but not limited to Variations;
11.3.4. any interest; and
11.3.5. an administrative fee of $50 for following up previously unpaid Invoices, less any amounts previously paid.
11.4. Payment must be made by cash, bank cheque, credit card (which will incur a surcharge of up to three percent (3.0%) of the Price), direct debit, or by any other method as agreed to between the Client and TVTC.
11.5. In the event that the Client’s payment is dishonoured for any reason the Client will be liable for any dishonour fees incurred by TVTC.
11.6. GST and other taxes and duties that may be applicable will be added to the Price, except when they are expressly included in the Price.
12. Overdue Payments and Default
12.1. The parties agree that time for payment is of the essence, and failure to comply with clause 11.2 will constitute a fundamental breach of these Terms.
12.2. If payment is not made in accordance with clause 11.2, then the Client will be required to pay:
12.2.1. interest on overdue amounts, and such interest will accrue daily from the date after the payment becomes due, until the date of payment, at a rate of nine percent (9.0%) per annum; and
12.2.2 recovery costs including but not limited to court fees and legal expenses on an indemnity basis.
12.3. Without prejudice to any other remedies TVTC may have, TVTC reserves its rights to suspend Services to the Client.
12.4. TVTC will not be liable to the Client for any loss or damage, consequential or otherwise that the Client suffers because TVTC exercised its rights under clause 12.3.
12.5. Without prejudice to TVTC’s other remedies at law TVTC will be entitled to terminate the Services, whether or not the Services remain unperformed and all amounts owing to TVTC will, whether or not due for payment, become immediately payable in the event that:
12.5.1. any money payable to TVTC becomes overdue, or in TVTC’s opinion the Client will be unable to meet its payments as they fall due; or
the Client becomes bankrupt, 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
12.5.2. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1. The parties agree the following will constitute a Variation:
13.1.1. Additional Goods are required to be moved as part of the Services, not otherwise included or anticipated in a Quote;
Where the Location is such that access or ease of way is restricted and for the avoidance of doubt this will include, but is not limited to:
b. scaffolding; and
c. construction works.
13.1.2. where the Client requires TVTC to work outside the Business Hours or on gazetted Public Holidays and Sundays.
13.2. TVTC is not responsible for the removal of rubbish from, or clean-up of, the Location when it has been stated in the Quote that no allowance has been given for rubbish removal or dump fees. This is the responsibility of the Client or the Client’s agent and if required to be completed by TVTC, will be deemed a Variation.
13.3. In the event a Variation is required, the client acknowledges that TVTC will be entitled to charge reasonable fees for same in addition to any Quote.
13.4. TVTC will not be liable for any loss or damage suffered by the Client in relation to the Services where such loss or damage results from the state or condition of the Client’s Location.
14.1. TVTC does not provide any guarantee as to delivery and/or pick up times, and the parties agree that any date or time provided by TVTC is indicative only.
14.2. TVTC will not be liable for any delays or costs howsoever incurred by the Client, whether or not as a result of the action of other parties, and including (but in no way limiting the generality of this clause):
14.2.1. inclement weather, latent Location conditions;
14.2.2. delays relating to other trades, service providers or suppliers;
14.2.3. industrial action or actions of the staff of any other utility;
14.2.4. traffic conditions; or
14.2.5. the breakdown of TVTC’s commercial vehicles.
14.3. TVTC reserves the right to unilaterally terminate the contract if TVTC is of the opinion that it is suffering unreasonable delays and/or costs as a result of those factors under clause 14.2 and the Client agrees that TVTC shall not be liable for any loss, damage, consequential or otherwise, suffered by the client as a result of termination under this clause.
14.4. If TVTC chooses to exercise its right under clause 14.3, then such a termination may be made orally or in writing.
14.5. TVTC acknowledges that it may only Invoice for time actually expended on the provision of the Services if termination is effected by TVTC under clause 14.3.
15.1. If the nominated place of delivery is unattended or if delivery cannot otherwise be effected, TVTC shall reserve the right to deposit the Goods at the Location (which will conclusively be presumed to be due delivery under these Terms) or store the Goods at any place chosen at the discretion of TVTC and if the Goods are stored, the client agrees to pay or indemnify TVTC for all costs and expenses incurred due to such storage. TVTC will be entitled to charge an additional amount for storage and for the subsequent re-delivery or return of the Goods.
16. Cancellation Policy
16.1. If on any scheduled day for the provision of the Services, TVTC’s employees are stood down (ie. informed that they cannot work, do not have access to the Location or must cease work or must wait for another contractor to complete Services before proceeding) the Client will (in addition to any other amounts payable) pay TVTC their hourly rate (and a proportional part for every part of an hour) between the time TVTC’s employees are directed to stand down, and the time they are directed to resume the Services.
16.2. If TVTC’s employees arrive at the Location as scheduled and are sent away and can provide no Services that day, then the Client will (in addition to any other amounts payable) pay TVTC its Price for that day or a minimum of two hours work as determined by the Hourly Rate, whichever is the lesser.
16.3. In the event a client wishes to cancel the Services of TVTC, the Client must provide a minimum of 24 hours’ notice otherwise the Client must pay to TVTC its Price for the Services or a minimum of two hours work as determined by the Hourly Rate, whichever is the lesser.
17. Personal Guarantee
17.1. TVTC reserve the right to request any director, partner, manager, employee, agent or owner of the Client to provide a personal guarantee to TVTC prior to or during the provision of Services.
18. Security and Charge
18.1. Despite anything to the contrary contained herein or any other rights which TVTC may have whatsoever:
18.1.1. All Goods are accepted subject to a general lien for all charges now due or that may become due to TVTC by the Client on any account whatsoever and that such lien attaches to Goods when TVTC takes possession of the Goods at the Location and shall be deemed a valid security interest.
18.1.2. upon request by TVTC, and where the Client is the owner of land, realty or any other asset capable of being charged, the Client agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to TVTC or TVTC’s representative to secure all amounts and other monetary obligations payable under these Terms. The Client acknowledges and agrees that TVTC, or TVTC’s representative, will be entitled to lodge where appropriate a caveat, which caveat will be withdrawn once all payments and other monetary obligations payable hereunder have been met;
18.1.3. TVTC reserves the right to seize and hold Goods or any other items secured by an interest under clause 18.1.1 and 18.1.2 and where payment is not forthcoming within four (4) months from the date of the Invoice, dispose and sell same in lieu of payment.
18.1.4. should TVTC elect to proceed in any manner in accordance with these clauses and/or its sub-clauses, the Client will indemnify TVTC from and against all TVTC’s costs and disbursements including legal costs on a solicitor and own Client basis;
18.1.5. The Client agrees to irrevocably nominate constitute and appoint TVTC or TVTC’s nominee as the Client’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 18.1.
18.1.6. the Client irrevocably agrees and consents to TVTC or TVTC’s agent entering upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where Goods or other secured property or items are situated and take possession same in order to enforce any of TVTC’s rights under this clause 18.
19. Personal Property Securities Act 2009 (“PPSA”)
19.1. Upon assenting to these Terms in writing the Client acknowledges and agrees that:
19.1.1. these Terms constitute a security agreement for the purposes of the PPSA; and
19.1.2. a security interest is taken over any Goods, items or other property where such is created under clause 18 of these Terms.
19.2. The Client undertakes to:
19.2.1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TVTC may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and
19.2.2. indemnify, and upon demand reimburse, TVTC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Services charged thereby.
19.3 The parties agree that, to the extent permitted by the PPSA:
19.3.1 Sections 125,142 and 143 of the PPSA do not apply;
19.3.2 Any right to receive a notice or statement arising by virtue of sections 129, 130, 132, 134 and 135 of the PPSA is waived;
19.3.3 Any right to receive a copy or any notice of any verification statement confirming registration of a financial statement or a financing change statement relating to any security interest is waived.
20.1. Notwithstanding anything contained in this agreement, TVTC will continue to be subject to any implied terms, conditions, guarantees or warranties imposed by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or State legislation in so far as such may be applicable and prevents exclusion or modification of any such term, condition, guarantee or warranty.
20.2. If any part or all of a clause of these Terms is deemed void, illegal or unenforceable, the offending part or clause may be severed from these Terms without affecting the enforceability of the remaining clauses of the Terms.
20.3. TVTC will be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TVTC of a Quote.
20.4. Under no circumstances will the liability of TVTC exceed the Price of the Services.
20.5. The Client will not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by TVTC.
20.6. TVTC may license or sub-contract all or any part of its rights and obligations without the Client’s consent. The Client agrees and understands that they have no authority to give any instruction to any of TVTC’s sub-contractors without the authority of TVTC.
20.7. TVTC reserves the right to review a Quote and these Terms at any time. If, following any such review, there is to be any change to a Quote or Terms, then that change will take effect from the date on which TVTC notifies the Client of such change.
20.8. Neither party will be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.9. The failure by TVTC to enforce any provision of a Quote will not be treated as a waiver of that provision, nor will it affect TVTC’s right to subsequently enforce that provision.
20.10. These Terms are governed by the laws of the State of Queensland and the Client hereby submits to the jurisdiction of Queensland for the purposes of the interpretation and application of these Terms.