In these conditions:
1.1 “We” means Sirva Pty Ltd, t/a Downards or alternatively an independent franchise trading under its registered trademark as Downards (as the case may require). “Us” and “Our” have corresponding meanings:
1.2 “You” means the party entering into the agreement for services with Us and includes the party to whom Our quotation is addressed and the party by whom the acceptance is signed and “Your” has a corresponding meaning:
1.3 “Goods” means all furniture and other effects which are to be the subject of the Services;
1.4 “Services” means the whole of the work to be undertaken by Us in connection with the Goods including removal and (if applicable) storage;
1.5 “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;
1.6 Words in the singular include the plural and words in one or more genders include all genders.
2. We are Not Common Carriers
WE ARE NOT COMMON CARRIERS AND ACCEPT NO LIABILITY AS SUCH. We reserve the right to refuse to quote for the carriage of goods for any particular person and for carriage of any goods or classes of goods at Our discretion.
3. Your Obligations and Warranties
3.1 Information supplied by You. You warrant that any information which You have provided to Us and on which We have reasonably relied in assessing any quotation or estimate of the resources necessary to carry out the work is accurate.
3.2 Owner or Authorised Agent. You warrant that, in entering into this agreement, You are either the owner of the goods, or the authorised agent of the owner.
3.3 Presence at Loading/Unloading. You will ensure that You or some person on your behalf is present when the Goods are loaded or unloaded, except if they are being unloaded into or loaded from store that We operate.
3.4 Dangerous Goods. You warrant that the Goods do not include any goods which are or may become of a dangerous, corrosive, highly combustible, explosive, damaging or noxious nature nor likely to encourage any vermin or pest unless You have disclosed to Us in writing the presence and nature of any such items prior to them being made available to Us for loading or storage. We may refuse to remove or store such items. If We discover any article or substance of this nature after the Goods have been received by Us, We may take any reasonable action, including destruction or disposal, as We may think fit without incurring any liability to You.
3.5 Fragile Goods and Valuable Items. You will, prior to the commencement of the removal or storage, give to Us written notice of any Goods which are of a fragile or brittle nature and which are not readily apparent as such, or which comprise jewellery, precious objects, works of art, money, collections of items or precision equipment in any case having a value in excess of $1,000.
3.6 Goods Left Behind or Moved in Error. You will ensure, to the best of Your ability, that all Goods to be removed (other than Goods being removed from store) or stored are uplifted by Us and that none is taken in error.
4. Method of Carriage and Subcontractors
4.1 Mode of Carriage. We shall be entitled to carry the Goods by any reasonable route (having regard to all the circumstances including the nature and destination of any other Goods being carried on the vehicle) and by any reasonable means.
4.2 Subcontractors. We may use a Subcontractor or Subcontractors 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.
4.3 Liability of Subcontractors and Employees. Any provisions in these conditions which limit Our liability also apply to Our Subcontractors and to Our employees and to the employees of Our Subcontractors. For the purposes of this subclause, We are, or are deemed to be, acting as 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.
5.1 We shall not be bound to deliver the Goods except to You or a person authorised in writing by You to receive the Goods. If We cannot deliver the Goods either because there is no authorised person there to receive them on Our arrival, or because We cannot gain access to the premises, or for any other reason beyond Our control, We will be entitled to unload the Goods into a warehouse and will be entitled to charge an additional amount for storage and for the subsequent re-delivery of the Goods. If this happens, We will endeavour to contact You to ascertain whether You have any alternate instructions.
6. Storage Conditions
6.1 Inventory. We will prepare an inventory of Goods received for storage and will ask You to sign that inventory. You will be provided with a copy of the inventory. If You sign the inventory, or do not do so and fail to object to its accuracy within 7 days of receiving it from Us, the inventory will be conclusive evidence of the Goods received by Us. The inventory will disclose only visible items and not any contents unless You ask for the contents to be listed, in which case We will be entitled to make a reasonable additional charge.
6.2 Contact Address. You agree to advise Us of an address to which We can forward any notice or correspondence and to promptly notify Us of any change of address.
6.3 Price Changes. Our storage charges will be as quoted to You for the first 26 weeks of storage. After 26 weeks, We may change the storage charges from time to time on giving 28 days’ written notice to You.
6.4 Warehouse Change. We are authorised to remove the Goods from one warehouse to another without cost to You. Not less than 5 working days beforehand, We will notify You of the removal and advise the address of the warehouse to which the Goods are being removed.
6.5 Inspection of Goods in Store. You are entitled, upon giving Us reasonable notice, to inspect the Goods in store, but a reasonable charge may be made by Us for this service.
6.6 Removal From Storage. Subject to payment for the balance of any fixed or minimum period of storage agreed, You may require the Goods to be removed from store at any time on giving Us not less than 5 working days’ notice. If you give us less notice, We will still use Our best endeavours to meet your requirement, but shall be entitled to make a reasonable additional charge for the short notice.
6.7 Compulsory Removal and Disposal. You agree to remove the Goods from storage within 28 days of a written notice of requirement from Us to do so. In default, We may after 14 days’ notice to You, sell all or any of the Goods by public auction, or if that is not reasonably practicable, by private treaty and apply the net proceeds in satisfaction of any amount owing by You to Us.
7. Charges and Payments
7.1 Variation of Work Required. If the work You ultimately require Us to do varies from the work for which a quotation or estimate has been given or if We are prevented from or delayed in undertaking the services or any part thereof (except where that prevention of delay results from a factor within Our control), We will also be entitled to make a reasonable additional charge. We will also be entitled to reimbursement from You of any amount which We have been required to pay to a third party (other than a Subcontractor) to obtain or effect delivery of the Goods.
7.2 Payment by Third Party. If you arrange with Us or instruct Us that Our charges are to be paid by a third party and if that party does not pay the charges within 14 days of the date set for payment or, if no date is set for payment within 14 days of the date of invoice, You agree to thereupon pay the charges.
7.3 Default Charges. If amounts are outstanding from You to Us for more than 30 days, We will be entitled to charge interest at the Commonwealth Bank maximum personal overdraft interest rate for amounts not exceeding $100,000 from time to time, calculated on daily rests.
7.4 Contractual Liens. All Goods received by Us will be subject to a general lien for any moneys due by You to Us relating to any Services provided under this or any other
agreement. If any amounts have been outstanding for a period of 26 weeks, We may give 28 days’ written notice to You of intention to sell and if the outstanding amount is not paid within that period, We may sell all or any of the Goods by public auction or, if that is not reasonably practicable, by private treaty and apply the net proceeds in satisfaction of the amount due.
8. Loss or Damage – Private Removals and Storage
8.1 Trade Practices Act. Except where the Services are required by You for the purpose of a business, trade, profession or occupation in which You are engaged, this agreement will be subject to the warranties implied by section 74 of the Trade Practices Act 1974 being in particular, a warranty by Us that the Services will be rendered with due care and skill and the following conditions of this clause 8 will apply.
8.2 Exclusions. We will not be liable for any loss or damage nor any delay which results from any cause beyond Our control, including delay in transit (unless resulting from Our negligence or breach of this agreement), industrial disputes, acts of God, weather difficulties or acts of third parties.
8.3 Damage to Goods – Packaging. If the goods sustain damage by reason of defective or inadequate packing or unpacking and the packing or unpacking (as the case may be) was not undertaken by Us or a Subcontractor, we will not be liable.
8.4 Damage to Goods – Inherent Risk. Certain goods (including electrical and mechanical appliances, computer equipment, scientific instruments and certain musical instruments) are inherently susceptible to suffer damage or disorder upon removal. Unless that damage or disorder results from the want of due care and skill on Our part, We will not be liable.
8.5 Notification of Loss or Damage. Any claim for loss or damage under this clause 8 is to be notified by You to Us in writing, or by telephone and later confirmed in writing, within a reasonable time after the date of delivery. We will have the best chance of locating any misplaced items, or ascertaining the cause of damage, if that notification is given to Us within 2 working days.
8.6 Maximum Value of Goods. In any claim for loss or damage under this clause 8, any estimate of the value of the Goods which You have provided to Us, whether for the purposes of insurance or otherwise, will be prima facie evidence that the total value of the Goods did not exceed that estimate at the time of loss or damage.
9. Loss or Damage – Commercial Removals and Storage
9.1 Application. If the Services are required by You for the purposes of a business, trade, profession or occupation in which You are engaged, the following conditions of this clause 9 will apply.
9.2 Negligence. We will only be liable for loss or damage resulting from Our negligence and in any event that liability will be limited to $100 per item or package, or $1,000 in respect of all Goods moved or stored under this agreement (whichever is the lesser).
9.3 Claims. In circumstances where We are liable under subclause 9.2, notice of the claim must be given by You to Us as soon as possible and written notice must be given within 14 days of the date of delivery or in the case of loss, the date upon which the Goods would ordinarily have been delivered, failing which We will have no further liability.
10.1 Our Insurance. We offer to arrange for the Goods to be insured during transit and storage and details of the type of insurance and the rates are set out in Our quotation and/or will be provided on request. This insurance will only be arranged if You request Us in writing to do so (including by so indicating in Your written acceptance of Our quotation).
10.2 Other Insurance. You may, of course, arrange insurance with an insurer of Your choice.
10.3 Assignment of Insurance. If We, in discharge of any liability, make payment of any amount to You in respect of loss of, damage to or delay in delivery of the Goods, You hereby assign to Us all rights which You have under any policy of insurance to recover that amount and You hereby irrevocably appoint Us as Your attorney with full power in Your name to claim and recover that amount and You will execute all documents and provide all information as may be necessary to enable Us to obtain the full benefit of this clause.
11.1 Notification of Dispute. If You or We consider that a dispute has arisen in relation to this agreement (either during the Services, or after they have been completed), written notice of the dispute will be given to the other party. Even if that notice is given, You and We must continue to perform any obligations outstanding by Us under the agreement.
11.2 Dispute Resolution. If You and We cannot resolve the dispute between Us, You are entitled to refer the dispute to the Australian Furniture Removers Association (telephone 1800 671 806) which has procedures for dispute resolution and We, but not You, will be bound by the outcome of that referral.
12. Variation and Notice
12.1 Variation. The terms of these conditions cannot be varied other than by Your and Our mutual consent. Our consent can only be given by a proprietor, director, secretary or manager and must be evidenced in writing.
12.2 Notice. Any notice to be given Us to You may be given personally or by prepaid post addressed to Your address last known to Us, or by facsimile to a facsimile number at that address, or by electronic mail.
13. Applicable Law
13.1 The law which governs this agreement will be the law applicable in the place in which the agreement is made.
14.1 We are committed to the protection of privacy and shall ensure information provided to Us or collected by Us is handled in accordance with applicable legislation.