| TERMS AND CONDITIONS |
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| 1. Definitions |
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1.1. “Kynaston Transport” shall mean Kynaston Transport Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Kynaston Transport Pty Ltd .
1.2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Kynaston Transport to the Client.
1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4. “Operator” shall mean an employee of Kynaston Transport.
1.5. “Sub-Contractor” shall mean and include any person or firm with whom Kynaston Transport may arrange for the carriage or storage of any Goods that are the subject of the contract.
1.6. “Services” shall mean all Services supplied by Kynaston Transport to the Client and includes any advice or recommendations.
1.7. “Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of the Services provided by Kynaston Transport.
1.8. “Futile Fee” shall mean all costs (including, but not limited to hourly rates) incurred by Kynaston Transport.
1.9. “Delay Fee” shall mean all costs (including, but not limited to hourly rates) incurred by Kynaston Transport due to delays (including, but not limited to delays in accessing the delivery site) encountered by Kynaston Transport that are caused by the Client.
1.10. “Price” shall mean the price payable for the Services as agreed between Kynaston Transport and the Client in accordance with clause 3 of this contract. |
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| 2. Acceptance |
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2.1. Any instructions received by Kynaston Transport from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by Kynaston Transport shall constitute acceptance of the terms and conditions contained herein.
2.2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Kynaston Transport.
2.4. The Client shall give Kynaston Transport 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). The Client shall be liable for any loss incurred by Kynaston Transport as a result of the Client’s failure to comply with this clause.
2.5. At the time of quotation, the Client shall provide Kynaston Transport with an accurate description of the Goods to be transported. The Client acknowledges that if, at the time of pick-up, the Goods to be transported by Kynaston Transport are not as described by the Client at the time of quotation, then Kynaston Transport reserves the right to refuse to transport the Goods and charge the Client a Futile Fee. At Kynaston Transport’s sole discretion the Goods may be transported subject to a change in the quoted Price as per Clause 3.2. |
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| 3. Price And Payment |
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3.1. At Kynaston Transport’s sole discretion the Price shall be either:
a) as indicated on invoices provided by Kynaston Transport to the Client in respect of Services supplied; or
b) Kynaston Transport’s quoted Price (subject to Clause 3.2, Clause 3.3, and Clause 3.4) which shall be binding upon Kynaston Transport provided that the Client shall accept Kynaston Transport’s quotation in writing within thirty (30) days.
3.2. Kynaston Transport reserves the right to change the Price in the event of a variation (including, but not limited to the Goods, at the time of pick-up, not being as described by the Client at the time of quotation) to Kynaston Transport’s quotation.
3.3. Kynaston Transport may by giving notice to the Client increase the Price of the Services to reflect any increase (including, but not limited to an increase in fuel levies) in the cost to Kynaston Transport beyond the reasonable control of Kynaston Transport.
3.4. Kynaston Transport may charge Goods by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional costs accordingly.
3.5. At Kynaston Transport’s sole discretion a deposit may be required.
3.6. At Kynaston Transport’s sole discretion payment shall be due on delivery of the Services.
3.7. Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
3.8. Payment will be made by cash, or by cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Kynaston Transport.
3.9. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price. |
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| 4. Kynaston Transport Not Common Carrier |
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| 4.1. Kynaston Transport is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by Kynaston Transport subject only to these conditions and Kynaston Transport reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion. |
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| 5. Route Deviation |
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| 5.1. The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of Kynaston Transport be deemed reasonable or necessary in the circumstances. |
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| 6. Dangerous Goods |
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| 6.1. Unless otherwise agreed in advance in writing with Kynaston Transport the Client or its authorised agent shall not tender for carriage of any explosive, inflammable or otherwise dangerous Goods. The Client shall be liable for and hereby indemnifies Kynaston Transport for all loss or damage whatsoever caused by any Dangerous Goods. |
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| 7. Prohibited Goods |
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| 7.1. The Client acknowledges that each Australian State may have regulations pertaining to what materials may NOT be transported into that State and the Client warrants that it will not tender for carriage of any Goods that would be prohibited in the destination State. The Client shall indemnify Kynaston Transport from and against all liability if the Client is in breach of this Clause. |
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| 8. Client Packed Containers |
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8.1. If a container has not been stowed by or on behalf of Kynaston Transport , then Kynaston Transport shall not be liable for loss of or damage to the Goods caused by:
a) the manner in which the container has been stowed; or
b) the unsuitability of the Goods for carriage or storage in containers; or
c) the unsuitability or defective condition of the container. |
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| 9. Demurrage |
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| 9.1. The Client will be and shall remain responsible to Kynaston Transport for all its proper charges incurred for any reason. A Delay Fee may be charged by Kynaston Transport in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of Kynaston Transport. Such permissible delay period shall commence upon Kynaston Transport reporting for loading or unloading. Staff (with the exception of any Kynaston Transport crane Operator) required to load or unload the vehicle shall be the responsibility and expense of the Client. |
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| 10. Client ’s Responsibility |
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| 10.1. The Client expressly warrants to Kynaston Transport that the Client is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and by entering into this contract the Client accepts these conditions of contract as well as for all other persons on whose behalf the Client is acting. The Client shall indemnify Kynaston Transport from and against all liability if the Client is in breach of this Clause. |
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| 11. Client Instructions to a Kynaston Transport Operator |
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| 11.1. When transporting the Goods (including, but not limited to, loading or unloading the Goods using the vehicle crane or towing a vehicle owned by the Client) the Operator remains an employee of Kynaston Transport and transports the Goods in accordance with the Client’s instructions. As such Kynaston Transport shall not be liable for any actions of the Operator in following the Client’s instructions. The Client shall indemnify Kynaston Transport from and against all costs incurred and damages caused as a result of the Operator following the Client’s instructions. |
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| 12. Kynaston Transport Vehicles |
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12.1. Where any vehicle owned by Kynaston Transport is left on the Client’s premises (including, but not limited to overnight) then:
a) the vehicle shall at all times remain the absolute property of Kynaston Transport and is returnable on demand by Kynaston Transport. If the Client fails to allow Kynaston Transport to retrieve its vehicle (within reasonable business hours) then Kynaston Transport or its agent may enter upon any land or premises owned, occupied, or used by the Client, or any premises where the vehicle is situated, as the invitee of the Client and take possession of the vehicle without being responsible for any damage thereby caused; and
b) the Client shall keep the vehicle in its possession and control and shall not assign the benefit of the vehicle nor be entitled to a lien over the vehicle; and
c) the Client shall ensure that all reasonable care is taken in handling and parking the vehicle and that it is left securely locked when not in use. In the event that the vehicle is required to be moved by the Client, the Client warrants that the vehicle will only be moved by a fully licensed and competent driver and the Client accepts full responsibility for and shall keep Kynaston Transport indemnified against all liability in respect of all actions, proceedings, claims, damages, costs, and expenses in respect of any injury to persons or damage to property arising out of the use of the vehicle however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons; and
d) the Client accepts full responsibility for the safekeeping of the vehicle and t he Client agrees to insure, or self insure, Kynaston Transport’s interest in the vehicle and agrees to indemnify Kynaston Transport against physical loss or damage including, but not limited to, the perils of accident, fire, theft, vandalism, and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the vehicle; and
e) the Client shall not alter or make any additions to the vehicle (including, but without limitation, altering, making additions to, defacing or erasing any identifying mark, plate or number on or in the equipment) or in any other manner interfere with the vehicle. |
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| 13. Vehicle Access |
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13.1. The Client is solely responsible for providing immediate, free, clear, and safe access to the work site. This includes, but is not limited to, ensuring that there are no height restrictions likely to be imposed by overhead power lines or any other obstruction. If the Client cannot provide immediate, free, clear, and safe access to the work site, Kynaston Transport shall be entitled to charge the Client a Delay Fee.
13.2. The client acknowledges that Kynaston Transport will only operate its cranes within accordance with Australian statutory guidelines and standards.
13.3. Kynaston Transport shall not be liable for any loss or damage caused in accessing the work site beyond the reasonable control of Kynaston Transport (including, without limitation, damage to pathways, driveways, and concreted or paved or grassed areas).
13.4. The Client acknowledges that Kynaston Transport’s heavy vehicles will not drive on any surface other than a bitumen road. |
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| 14. Delivery Of Goods |
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14.1. Kynaston Transport is authorised to deliver the Goods to the Client’s nominated delivery address and it is expressly agreed that Kynaston Transport shall be taken to have delivered the Goods in accordance with this contract if at that address Kynaston Transport obtains from any person a receipt or a signed delivery docket for the Goods.
14.2. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable (including due to not being on site) to take delivery of the Goods at the nominated delivery site as arranged then Kynaston Transport shall be entitled (at Kynaston Transport’s sole discretion) to either:
a) charge the Client a reasonable fee for redelivery; or
b) unload the Goods. All risk for the Goods passes to the Client on delivery and the Client shall be liable for and hereby indemnifies Kynaston Transport against all loss of or damage to the Goods due to the Client failing to be at the nominated delivery site at the time of delivery.
14.3. At Kynaston Transport’s sole discretion the costs of delivery are included in the Price.
14.4. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
14.5. The Client shall inspect the Goods on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Kynaston Transport of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Kynaston Transport an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage.
14.6. The Client shall supply any dunnage required to facilitate the safe loading and unloading of the Goods. If Kynaston Transport is required to supply dunnage then Kynaston Transport reserves the right to charge the Client a reasonable fee for the dunnage.
14.7. The failure of Kynaston Transport to deliver shall not entitle either party to treat this contract as repudiated.
14.8. Kynaston Transport shall not be liable for any loss or damage whatever due to failure by Kynaston Transport to deliver the Services (or any of them) promptly or at all. |
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| 15. Insurance |
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15.1. The Client acknowledges that:
a) the Goods are carried and stored at the Client’s sole risk and not at the risk of Kynaston Transport; and
b) Kynaston Transport is under no obligation to arrange insurance of the Goods and it remains the Client’s responsibility to ensure that the Goods are insured adequately or at all; and
c) under no circumstances will Kynaston Transport be under any liability with respect to the arranging of any such insurance and no claim will be made against Kynaston Transport for failure to arrange or ensure that the Goods are insured adequately or at all. |
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| 16. Loss Or Damage |
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16.1. Subject to any statutory provisions imposing liability, Kynaston Transport shall:
a) not be under any liability for any loss of or damage to the Goods unless such loss or damage occurs whilst the Goods are in the actual custody of Kynaston Transport and under its actual control and unless such loss or damage is due to the wilful neglect or default of Kynaston Transport or its agents;
b) not be under any liability for any delay in delivery, mis-delivery, non-delivery, or deterioration of the Goods, nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay. |
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| 17. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) |
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17.1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
17.2. Liability of Kynaston Transport arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by Kynaston Transport:
a) the supplying of the Services again; or
b) the payment of the cost of having the Services supplied again; or
c) where the Client is a consumer as defined in the Trade Practices Act 1974 then the client shall also be entitled to a refund. |
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| 18. Cancellation |
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18.1. Kynaston Transport may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice Kynaston Transport shall repay to the Client any sums paid in respect of the Price. Kynaston Transport shall not be liable for any loss or damage whatever arising from such cancellation.
18.2. In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by Kynaston Transport (including, but not limited to, any loss of profits) up to the time of cancellation. |
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| 19. Default & Consequences of Default |
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19.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
19.2. If the Client defaults in payment of any invoice when due, the Client shall indemnify Kynaston Transport from and against all costs and disbursements incurred by Kynaston Transport in pursuing the debt including legal costs on a solicitor and own client basis and Kynaston Transport’s collection agency costs.
19.3. Without prejudice to any other remedies Kynaston Transport may have, if at any time the Client is in breach of any obligation (including those relating to payment), Kynaston Transport may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. Kynaston Transport will not be liable to the Client for any loss or damage the Client suffers because Kynaston Transport has exercised its rights under this clause.
19.4. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
19.5. Without prejudice to Kynaston Transport’s other remedies at law Kynaston Transport shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Kynaston Transport shall, whether or not due for payment, become immediately payable in the event that:
a) any money payable to Kynaston Transport becomes overdue, or in Kynaston Transport’s opinion the Client will be unable to meet its payments as they fall due; or
b) 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
c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client. |
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| 20. Kynaston Transport ’s Right to Dispose of Goods |
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| 20.1. Kynaston Transport shall have a lien on any Goods (and any documents relating to those Goods) in the possession or control of Kynaston Transport for all sums payable by the Client to Kynaston Transport , and Kynaston Transport shall have the right to sell the Goods by public auction or private treaty after giving notice to the Client . Kynaston Transport shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person. |
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| 21. Security And Charge |
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21.1. Despite anything to the contrary contained herein or any other rights which Kynaston Transport may have howsoever:
a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Kynaston Transport or Kynaston Transport’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Kynaston Transport (or Kynaston Transport’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
b) should Kynaston Transport elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Kynaston Transport from and against all Kynaston Transport’s costs and disbursements including legal costs on a solicitor and own client basis.
c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Kynaston Transport or Kynaston Transport’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 21.1. |
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| 22. Privacy Act 1988 |
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22.1. The Client and/or the Guarantor/s agree for Kynaston Transport to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Kynaston Transport.
22.2. The Client and/or the Guarantor/s agree that Kynaston Transport may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
a) to assess an application by the Client; and/or
b) to notify other credit providers of a default by the Client; and/or
c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
d) to assess the credit worthiness of Client and/or Guarantor/s.
22.3. The Client consents to Kynaston Transport being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
22.4. The Client agrees that personal credit information provided may be used and retained by Kynaston Transport for the following purposes and for other purposes as shall be agreed between the Client and Kynaston Transport or required by law from time to time:
a) provision of Services; and/or
b) marketing of Services by Kynaston Transport, its agents or distributors in relation to the Services; and/or
c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
22.5. Kynaston Transport may give information about the Client to a credit reporting agency for the following purposes:
a) to obtain a consumer credit report about the Client; and/or
b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client. |
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| 23. General |
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23.1. 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.
23.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland .
23.3. Kynaston Transport shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Kynaston Transport of these terms and conditions.
23.4. In the event of any breach of this contract by Kynaston Transport the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
23.5. 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 Kynaston Transport.
23.6. Kynaston Transport may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
23.7. Kynaston Transport reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Kynaston Transport notifies the Client of such change.
23.8. Kynaston Transport shall not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of Kynaston Transport.
23.9. The failure by Kynaston Transport to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Kynaston Transport’s right to subsequently enforce that provision. |
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