MAD Terms & Conditions
1. Definitions “MAD” means Marine and Auto Depot Pty Limited, its successors and assigns any person acting on behalf of and with the authority of Marine and Auto Depot Pty Limited. “Customer” means the person requesting the services as specified in the invoice, document or order, and if there is more than one Customer then to each Customer jointly and severally. A Customer can include any agent authorised to act for the Customer on their behalf. “Goods and Equipment” means the Goods, Boat, car, item or thing being transported by MAD for the Customer. “Price” means the price payable (plus any GST) for the Services or Storage as agreed between MAD and the Customer in accordance with Clause 4 below. “Services” means all services requested by the Customer to MAD in accordance with MAD’s Rate Schedule. “Uncollected Goods” means any Bailed Goods which remain uncollected for a period of 7 days after the Company issues a Notice to Collect;
2. Terms and conditions For the protection of all parties it is agreed that this contract contains the entire agreement between the parties and that there are no promises, terms, conditions or obligations and no warranties or representations, other than those contained in this contract or otherwise required by law.
3. Liability 3.1 The merchandise travels at the Customer’s risk and/or stored at the Customer’s risk. MAD is not responsible for loss or damages resulting from the loss of merchandise at sea or on land, or failure to make shipment within the specified time, when such failure is due to fire, strike, boycott, flood, earthquake, windstorm, war, riot or revolution, government restriction or prohibition.
3.2 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
3.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, MAD is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MAD is sufficient evidence of MAD’s rights to receive the insurance proceeds without the need for any person dealing with MAD to make further enquiries.
3.4 If the Customer requests MAD to leave Goods outside MAD’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
3.5 MAD accepts no liability for any loss or damages caused to; (a) the marine vessel; or
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(b) the property, cargo, machinery or equipment abroad the marine vessel; or
(c) the property, cargo, machinery or equipment removed from the marine vessel;
whilst in the custody of MAD, where the loss or damage was bought about any act or omission on the part of MAD during the provision of the Services.
3.6 MAD accepts no liability for the personal injury or death of any servant or agent of the marine vessel owner where the personal injury or death was brought about by any act or omission on the part of MAD during the provision of the Services.
4. Price and Payment
4.1 At MAD’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by MAD to the Customer; or (b) the Price as at the date of delivery of the Goods/Equipment according to MAD’s current price list; or (c) MAD’s quoted price (subject to clause 3.2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.
4.2 MAD reserves the right to change the Price if a variation to MAD’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as fluctuations in the currency exchange rate or as a result of increases to MAD in the cost of materials and/or labour) will be charged for on the basis of MAD’s quotation and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by MAD within ten (10) working days. Failure to do so will entitle MAD to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4.3 At MAD’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by MAD, which may be:
(a) on delivery/completion of the Goods/Equipment;
(b) before delivery of the Goods/Equipment;
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(c) by way of instalments/progress payments in accordance with MAD’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by MAD.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and MAD.
4.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MAD nor to withhold payment of any invoice because part of that invoice is in dispute.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to MAD an amount equal to any GST MAD must pay for any supply by MAD under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5.1 Interest is payable on any outstanding invoices after seven (7) days. Interest will accrue on a daily basis from when the payment becomes due, until the date of payment, at a rate of twenty percent (20%) per calendar month.
5.2 If you are in default and have not paid the Price and payment in accordance with Clause 4 above or you are otherwise in breach of these Terms and Conditions MAD reserves the right to move your goods offsite for storage at the Customer’s cost. All costs associated with this are payable by the Customer and may include transport to/from offsite storage, admin fees, handling fees, legal fees and daily storage costs of any third party.
5.3 Further to any other rights or remedies MAD may have under this contract, if a Customer has made payment to MAD, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by MAD under this clause where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
5.4 Without prejudice to MAD’s other remedies at law MAD shall be entitled to cancel all or any part of any order of the Customer which remains
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unfulfilled and all amounts owing to MAD shall, whether or not due for payment, become immediately payable if:
(a) any money payable to MAD becomes overdue, or in MAD’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by MAD;
(c) the Client becomes 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
6. Title to Goods and Uncollected Goods
6.1 MAD and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid MAD all amounts owing to MAD; and
(b) the Client has met all of its other obligations to MAD.
6.2 Receipt by MAD of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
6.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 6.1 that the Customer is only a bailee of the Goods and must return the Goods to MAD on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for MAD and must pay to MAD the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for MAD and must pay or deliver the proceeds to MAD on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the
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Customer holds the resulting product on trust for the benefit of MAD and must sell, dispose of or return the resulting product to MAD as it so directs.
(e) the Customer irrevocably authorises MAD to enter any premises where MAD believes the Goods are kept and recover possession of the Goods.
(f) MAD may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of MAD.
(h) MAD may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
6.4 The Customer warrants that it has full and unencumbered title to any Bailed Goods.
6.5 In the event that: (a) MAD gives a Notice to Collect to a Bailor with respect to Bailed Goods and the Bailor fails to collect those goods within the 7 day period specified in that notice; and (b) MAD then gives a Notice of Disposal to a Bailor with respect to the same goods and the Bailor further fails to collect those goods (the “Uncollected Goods”) within the 3 month period specified in that notice; then: (c) All of the Bailor’s right, title and interest in the Uncollected Goods passes to MAD; (d) MAD may sell, dispose of or otherwise deal with the Uncollected Goods as it sees fit; (e) Any deposits, advance payments or progress payments made by the Bailor to MAD are forfeited by the Bailor to the MAD; (f) The Bailor forever releases MAD from any claims, actions, suits or proceedings arising in connection with the Uncollected Goods.
6.6 The Bailor acknowledges that MAD relies upon the warranty in clause 6.4 in exercising its right to sell, dispose or otherwise deal with Uncollected Goods under clause 6.5(d). The Bailor indemnifies MAD for any loss or damage incurred by MAD in connection with the Uncollected Goods, including any breach of the warranty in clause 6.4.
6.7 In the event of any inconsistency between these terms and conditions and any laws dealing with uncollected goods, these terms and conditions will prevail to the extent permitted by law.
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6.8 The Bailor is liable to MAD, and MAD may charge to the Bailor, the following charges in relation to any Goods or Uncollected Goods:
(a) A charge of $140.00 per square metre per month for storing the Uncollected Goods from the date of the expiration of the 7 day period in the Notice to Collect;
(b) An administration charge of $20.00, or such higher amount as may be reasonable, for each item of Bailed Goods;
(c) Any expenses of MAD incidental to the sale or such other disposition of the Uncollected Goods under clause 6.5(d).
6.9 The charges under clause 6.8 are a debt due and payable to MAD.
6.10 Any Goods or Uncollected Goods stored by MAD are at the Bailor’s risk.
7. Personal Property Securities Act 2009 (“PPSA”)
7.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
7.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment that has previously been transported/supplied and that will be transported/supplied in the future by MAD to the Customer.
7.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which MAD may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 7.3(a)(i)or 7.3(a)(ii);
(b) Indemnify, and upon demand reimburse, MAD for all expenses incurred in registering a financing statement or financing change statement on the Personal Property
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Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of MAD;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of MAD;
(e) immediately advise MAD of any material change in its business practices of selling/importing Goods (if applicable) which would result in a change in the nature of proceeds derived from such sales.
7.4 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
7.5 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7.6 Unless otherwise agreed to in writing by MAD, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
7.7 The Customer must unconditionally ratify any actions taken by MAD under clauses 7.3 to 7.5.
7.8 Subject to any express provisions to the contrary (including those contained in this clause 7) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
8. Partial Delivery/Severability When right to partial shipment exists, this contract is severable as to each shipment, and non-delivery, delayed delivery, or non-conformity with contract requirements of any part shall not affect Customer’s obligations to accept and pay for any other part, which acceptance and payment shall be made without prejudice.
9. Changes in Duty and/or Freight rates Any changes, after the date of this contract, in rate of duty, import taxes or valuations by customs, shall be for the account of the Customer unless otherwise specified. Any changes in freight rates between contract date and bill of lading date shall be for the account of the Customer.
Wherever ocean freight is paid, includes all charges until the freight is picked up by the Customer at the destination stipulated in the Ocean Bill of Lading “all charges” is meant ocean carriage, terminal handling
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charges, currency adjustments factors, container rental charges, container yard charges, bunker charges, any other surcharges imposed.
10. Transport 10.1 Vehicles rates are based on vehicles in driveable condition & are less than 5 metres long & 2500kgs. It they are outside this additional charges may apply. 10.2 Boat trailers &/or cradles must be in a safe & suitable condition for road transport. 10.3 It is the responsibility of the owner to insure their goods whilst in transit 10.4 MAD take no responsibility for the condition of stat write off vehicles brought from Auctions. 10.5 If the Customer/receiver refuses to check the goods or authorises a drop off whilst not present therefore do not sign a Proof of Delivery (POD) or a gate pass they forfeit their rights to any claim for theft or damage.
11. Depot 11.1 All unpack rates are based on containers with safe & reasonable packing 11.2 MAD reverse the right refuse, and charge for any time, spent dealing with unsafe, or poorly packed containers.
11.3 MAD loads very specialised loads of boats & cars takes no responsibility for any damage/theft which occurs at destination for export containers, it is the customers responsibility to ensure the devanning company has the appropriate equipment to unload these containers.
11.4 It is the owner’s responsibility to insure their goods whilst stored in marine & auto depots
11.5 Customers must advise MAD of any single item/goods worth more than $250,000 or is classified hazardous &/or dangerous goods before delivering to the depot.
11.6 All quotes are based on standard vehicles and boats, and should additional materials to ensure the goods are packed &/or unpacked safely, you will be notified, and additional charges will apply
12.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
12.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in
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which MAD has its principal place of business and are subject to the jurisdiction of the courts in that state.
12.3 MAD shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by MAD of these terms and conditions (alternatively MAD’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
12.4 MAD may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
12.5 The Client cannot licence or assign without the written approval of MAD.
12.6 MAD may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of MAD’s sub contractors without the authority of MAD.
12.7 The Customer agrees that MAD may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for MAD to provide Services to the Customer.
12.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
12.9 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.