Acknowledgment And Acceptance Of Disclaimer And Terms And Conditions
This Web Site is owned and operated by Mercury Messengers Pty Ltd (ABN 21 008 779 093) trading as Mercury. When you obtain information or buy services from this Web Site you agree to the terms, conditions and disclaimers as amended from time to time and as set out below (“Terms & Conditions”) and acknowledge that you have read and understood these Terms and Conditions. By using this Web Site you expressly agree to be bound by these Terms and Conditions.
Please read this Disclaimer and Terms and Conditions prior to ordering any services from this Web Site. These Terms and Conditions govern the use of this Web Site and the purchase of any services from it.
Mercury may amend these Terms and Conditions from time to time. Any amendment will be effective immediately. Your continued use of this Web Site after any amendment becomes effective constitutes an agreement by you to abide by and be bound by these Terms and Conditions, as so amended.
Should you have any questions or wish to clarify the meaning of any of these terms and conditions, please contact Mercury on (08) 9427 4777 prior to ordering any services from this Web Site.
The Mercury services provided via this Web Site are provided to you free of charge “AS IS.” Mercury uses its best efforts to maintain the Mercury services but Mercury is not responsible for the results of any defects that may be found to exist in the services, or any lost profits or other consequential damages that may result from such defects. You should not assume that the functions accessible from this Web Site are error-free or will be suitable for the particular purpose that you have in mind when using the Web Site.
Mercury its sub-contractors and employees will in no event be liable to any person or entity for any direct, indirect, consequential, incidental or other damages under any theory of law for any errors in the information and features on this Web Site, or for the use of any information or features available on this Web Site, including without limitation, damages for lost profits, business, data, or damage to your computer systems, even if you have advised Mercury of the possibility of such damages.
In no case shall Mercury or any of its contractors or employees be liable for any damages whatsoever, including direct, special, indirect or consequential damages, resulting from or in connection with the access to or use of this Web Site or the use and dissemination of information contained therein.
This Web Site may contain inaccuracies or typographical errors that will be corrected as they are discovered at Mercury’s sole discretion. Also, the information contained on this Site is periodically updated. Mercury reserves the right at any time and without notice to make modifications, improvements and/or changes to the information, these conditions, names, images, pictures, logo’s and icons or the products and services referred to on this Web Site.
The World Wide Web is maintained independently at countless sites around the world. From time to time, other Web Sites may be accessed from links on the Mercury Web Site. The information, names, images, pictures, logo’s and icons that may be accessed through links from this Web Site may originate outside the boundaries of the Web Site. Therefore, Mercury excludes any obligation or responsibility regarding any content derived, obtained, accessed within, through or outside the Mercury Web Site.
Whilst Mercury makes all reasonable attempts to exclude viruses from this Web Site, it cannot ensure such exclusion and no liability is accepted for viruses. Thus, you are recommended to take all appropriate safeguards before downloading information from this Web Site.
You agree to neither disturb the normal operation of this Web Site nor infringe the integrity of this Web Site by hacking, altering the information contained in this Web Site, prevent or limit access to this Web Site to other users, or otherwise.
All data provided by you to Mercury will be considered as confidential information and will not be disclosed by Mercury to any third party except as may be required for the provision of the Mercury services.
These terms and this disclaimer and any claim based on use of information from this Web Site shall be governed by the laws of Western Australia and the parties submit to the exclusive jurisdiction of the courts of Western Australia.
Trading Terms and Conditions
In these Terms and Conditions:
“Consignee” means the person or entity to whom goods are to be delivered by the Courier as specified by the Customer.
“Courier” means Mercury Messengers Pty Ltd ABN 21 008 779 093 trading as Mercury its servants, agents, and Sub-Contractors.
“Customer” means the person or entity entering into this contract with the Courier, and includes the Customer’s servants and agents.
“Sub-Contractor” means and includes:
(a) Any person, firm or company with whom the Courier may arrange for the carriage of any goods the subject of this contract;
(b) Railways operated by the Commonwealth of Australia or any State or Territory thereof or any other person; and
(c) Any person who is now or later a servant, agent, employee or Sub-Contractor of any other persons referred to in (a) and (b) above.
2. COURIER IS NOT A COMMON CARRIER
2.1 The Courier is not a common carrier and will accept no liability as such.
2.2 All goods or articles are carried or transported and all storage and other services are performed by the Courier subject to these conditions.
2.3 The Courier reserves the right to refuse to transport any goods for any person, firm or company at its discretion without being bound to give any reason for such refusal.
3. RIGHT TO SUB-CONTRACT
3.1 The Customer authorises the Courier to engage a Sub-Contractor for the carriage of any of the goods subject to this contract at its discretion.
3.2 The Sub-Contractor is deemed to be entitled to the full benefit of these Terms and Conditions to the same extent as the Courier. The Courier is deemed to have entered into this contract for its own benefit and also as agent for the Sub-Contractor.
4. METHOD OF CARRIAGE
4.1 If the Customer instructs the Courier to use a particular method of carriage, whether by road, rail, sea or air, the Courier will give priority to this method, provided that the method can reasonably and conveniently be adopted by the Courier. Where the Courier cannot reasonably and conveniently give priority to the method specified, the Courier may use any other method or methods to transport the goods at its absolute discretion, and the Customer is deemed to authorise such other method or methods.
4.2 The Customer is also deemed to have authorised all further or additional charges which may become payable as a result of the goods being carried by some other method or methods outlined in Clause 4.1.
5. DELIVERY OF GOODS
5.1 The Courier is authorised to deliver the goods at the address given to the Courier by the Customer for that purpose, and without prejudice to any other method of delivery.
5.2 The Courier is taken to have delivered the goods specified in the contract in accordance with the Terms and Conditions of the contract if at that address the Courier obtains from any person a receipt or signed delivery docket for the goods.
5.3 If the specified place of delivery is unattended or if the Courier is otherwise unable to effect delivery, the Courier has the option to deposit the goods at that place or to store the goods. If the Courier decides to store the goods the Customer must pay or indemnify the Courier for all costs and expenses incurred in or about such storage. Furthermore, the Courier has the discretion to re-deliver the goods to the Customer from the place of storage at the Customer’s expense.
5.4 If the Courier decides to deposit the goods in accordance with Clause 5.3, this is deemed to be delivery of the goods under this contract.
5.5 Where a Courier accepts goods from a Customer for forwarding by road, rail, sea or air to an address in a town or other place where the Courier has no receiving depot, the goods are deemed to be properly delivered under this contract if they are delivered to the designated agent in that town or other place.
5.6 The Customer agrees to any deviation by the Courier from the usual route or manner of carriage of the goods, which may be deemed by the Courier to be reasonable or necessary in the circumstances at its absolute discretion.
6. RESPONSIBILITY FOR LOSS OR DAMAGE TO GOODS OR MIS- DELIVERY
6.1 Unless otherwise agreed in writing, the goods are carried at the risk of the Customer and the Courier accepts no responsibility in tort or contract or otherwise for any loss or destruction of, or damage to, or misdelivery or failure to deliver, or delay in delivery of goods either in transit or in storage, whatever the reason.
6.2 The Customer agrees to indemnify the Courier against all loss, damage and expense sustained by any person (including the Courier) by reason of any such loss, damage, misdelivery, non-delivery or delay in delivery as mentioned in Clause 6.1.
7. EXPLOSIVE, INFLAMMABLE OR OTHERWISE DANGEROUS GOODS
7.1 The Customer must not tender any explosive, inflammable, or otherwise dangerous or damaging goods for carriage by the Courier unless the Customer gives the Courier a full description of the goods.
7.2 If the Customer fails to comply with Clause 7.1, the Customer is liable for all loss and damage resulting from this breach.
8. CUSTOMER’S WARRANTY AS TO OWNERSHIP OR OTHERWISE
8.1 The Customer expressly warrants to the Courier that the Customer is either the owner of, or authorised agent of the owner, of any goods under this contract.
8.2 By entering into this contract, the Customer agrees to accept these Terms and Conditions of this contract on behalf of the Consignee, as well as for all other persons on whose behalf the Customer is signing.
8.3 The Customer agrees to indemnify the Courier from any liability whatsoever to any person in respect of the goods the subject of this contract who claims to have, who has, or may have later on, any interest in the goods in whole or in part.
9. CUSTOMER’S WARRANTY AS TO PACKAGING OF GOODS
9.1 The Customer warrants that the Customer has complied with all laws and regulations relating to nature, packaging, labelling or carriage of the goods and that the goods are packed in an adequate manner to withstand the ordinary risks of carriage when having regard to the nature of the goods.
9.2 The Customer agrees to indemnify the Courier from and against any loss or damage arising from the Customer’s failure to comply with the warranty in clause 9.1.
10. NO INSURANCE OF GOODS BY COURIER
10.1 The Courier does not offer insurance to the Customer in relation to the goods and has no responsibility for effecting insurance of the goods itself. Accordingly insurance is the sole responsibility of the Customer and the Courier is under no liability whatsoever for the adequacy of any insurance cover effected by the Customer or the failure by the Customer to effect insurance of the goods.
11. CHARGES BY THE COURIER
11.1 The Courier’s charges are deemed to be earned as soon as the goods are loaded and despatched by the Courier.
11.2 The Customer will be and remains responsible to the Courier for all proper charges incurred by the Courier for any reason whatsoever.
11.3 The Courier is entitled to make a charge for any delay in loading or unloading the goods which results from the Customer’s default. The permissible delay period starts upon the Courier reporting at the relevant place for loading or unloading.
11.4 The cost of any labour to load or unload the vehicle is the responsibility of the Customer or Consignee of the goods.
12. TERMS OF PAYMENT
12.1 The Customer agrees to accept the terms of trading as strictly (30) days net from receipt of the Courier’s invoice/statement.
12.2 (a) The Courier retains a general lien over the goods and if the Customer fails to pay the charges due to the Courier for any service rendered by the Courier upon reasonable demand being made under this contract, the Courier has the right to detain and sell all or any other goods of the Customer which are in its possession.
(b) The Courier may also deduct charges so payable and all reasonable charges and expenses resulting from the detention and sale of goods out of monies arising from the sale.
(c) If there is any surplus arising from the sale of the goods, the Courier must render the surplus to the Customer.
12.3 Any sale under Clause 12.2 will not prejudice or otherwise affect the Courier’s right to recover charges due or payable for services rendered or the detention or sales of goods from the Customer.
12.4 The Customer agrees to pay all costs, legal or otherwise, incurred in the collection of charges due and owing by the Customer to the Courier for carriage of goods.
13.1 The Customer shall not either by itself, or through any related person or corporation, engage one or more of the Courier’s employees, contractors or Sub-Contractors to perform the same or substantially the same or similar services or a part of those services previously performed for the Customer by or on behalf of the Courier within a 12 month period prior to the Customer’s engagement of such person or persons.
13.2 If the Customer breaches the provisions of clause 13.1, the Customer will immediately pay to the Courier liquidated damages in the amount equivalent to the fees charged by the Courier to the Customer in the 12 month period to the date on which the Courier’s employee, contractor or Sub-Contractor, as the case may be, was so engaged, or if the Courier’s services have been provided to the Customer for a period of less than 12 months, then the amount equivalent to 12 times the average monthly fees charged by the Courier to the Customer.
14. GOODS AND SERVICES TAX
14.1 In this clause 14:
“GST” means any tax imposed by authority of any GST law enacted by the Commonwealth Parliament and includes goods and services tax within the meaning of the GST Act.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
14.2 The Customer agrees that to the extent that the Courier is or becomes liable to pay GST pursuant to making a taxable supply under the GST Act to the Customer, the Customer will pay or reimburse the Courier for that GST liability.
14.3 The Customer must pay the Courier the GST imposed in respect of the taxable supply made by the Courier to the Customer at the time when the Customer pays the Courier the amount owing in respect of that supply.
15.1 The Customer accepts that all rights, immunities and limitations of liability accruing to the Courier under these Terms and Conditions continue to have full force and effect, not withstanding any breach of contract or any condition by the Courier.
15.2 Notwithstanding anything in these Terms and Conditions, the Courier continues to be subject to any implied warranty provided by the Trade Practices Act 1974 (as amended) or any other Commonwealth or State legislation if and to the extent that the relevant Act applies to the contract and prevents any exclusion, restriction or modification of any such warranty.
15.3 The Courier is not bound by any agreement which purports to vary these Terms and Conditions unless the agreement is in writing and signed by or on behalf of the Courier by its duly authorised officer.
15.4 These Terms and Conditions are to be governed and construed by the laws of the State in which the Courier has its principal place of business wherever the contract is made. Accordingly, any proceedings in respect of any claim, matter or thing against the Courier must be instituted in that State only.
15.5 The clauses and provisions in these Terms and Conditions are severable from each other and if for any reason any clause or provision is invalid or unenforceable, such invalidity or unenforceability does not prejudice or in any way affect the validity or enforceability of any other clause or provision of these Terms and Conditions.