In this conditions:
1.1. “We” means the Mover that has accepted your request to move the Goods on the App and “Us” and “Our” have corresponding meanings;
1.2. "You” means the Customer that has requested the Services on the Moofer App which We have accepted and in doing so enters into this agreement for Services with Us and “Your” has a corresponding meaning;
1.3. "App" means the application platform of Moofer App Pty Ltd trading as Moofer that enables You to connect and contract with Us for performance of the Services,
1.4. “Goods” means all goods You agreed We Move under the Moofer App which are to be the subject of the Services including but not limited to packaging, boxes, pallets, containers or other devices/materials used to protect and/or carry the goods provided by You for the Services;
1.5. “Services” means the whole of the work to be undertaken by Us in connection with moving the Goods;
1.6. "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.
1.7. Words in the singular include the plural, and words in one or more genders include all genders and words importing a person, include firm, corporation o other entity where appropriate.
2.1. We are not common carriers and accept no liability as such. We reserve the right to refuse at our sole discretion to provide services for any particular person and any goods or classes of goods.
3.1. Information supplied by You.
You warrant that any specific detail and information which You have provided to Us as required on the App and on which We have reasonably relied in assessing any quotation or estimate of the resources necessary to carry out the work is accurate and sufficient to perform the Services.
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 entitled on its behalf to consign the goods upon and subject to the terms of this agreement.
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.
3.4. Adequacy of Packing/ Suitability of Goods for Services.
You warrant that the Goods are adequately packed (if packed by You and not Us) and suitable for the Services contracted. You warrant the accuracy of all markings and brandings of the Goods, descriptions, values and others particulars furnished to Us for the Services.
3.5. Dangerous Goods.
You warrant that the Goods do not include any firearms or 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. We may refuse to remove 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.
3.6. Value of Goods.
You warrant that you will not request Our Services in respect of moving the Goods where their value is greater than $10,000 per shipment. If you do, You warrant that You will not make a claim against us or hold Us responsible or liable in any way and will indemnify us for any loss, damage, expense or liability occurring as a result of the provision of Our Services in relation to such items.
3.7. Fragile Goods and Valuable Items.
You will, prior to the commencement of the Services, 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 are unique and valuable such as jewellery, precious objects, works of art, money, financial instruments, collections of items or precision equipment in any case having a value in excess of $10,000. If you do not, You warrant that You will not make a claim against us or hold Us responsible or liable in any way and will indemnify us for any loss, damage, expense and/or liability occurring as a result of the provision of Our Services in relation to such items.
3.8. Goods left behind or moved in error.
You will ensure, to the best of Your ability, that all Goods to be removed are uplifted by Us and that none is taken, or left behind, in error.
3.9. Plumbing and Electrical Work.
You acknowledge and warrant that You are contracting our Services to Move the Goods and that We are not experienced plumbers or electricians. Should you request Us, or should we reasonably be required, to disconnect or reconnect any Goods or any items from or to any service for the purpose of Us performing the Services, You warrant that any loss and/or damage or other incident occurring as a result of such work is for Your account, responsibility and/or liability. You warrant that You will not make a claim against us or hold Us responsible or liable in any way and will indemnify us for any loss, damage, expense and/or liability occurring as a result of the provision of such work.
4.1. Mode and Method of Services.
We shall be entitled to arrange or perform the Services by any reasonable method, mode, means or route (having regard to all the circumstances including the nature and destination of any other goods being carried on or in the conveying vehicle).
4.2. Liability of Employees.
Every one of our employees and agent shall have the benefit of all provisions herein benefiting Us as if such provisions were expressly for their benefit and in entering into this agreement, We, to the extent of these provisions, do so not only for Us, but also as agent and trustee for such parties who each 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, the owner if You are acting as agent for the owner or a person that has been authorised 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 deposit the Goods into a warehouse at your risk and expense and will be entitled to charge You for additional amounts in respect of the storage, further transport and related expenses and for the subsequent re-delivery of the Goods.
6.1. Our fees and charges will be paid by You upon our completion of the Services on delivery as provided for in the above provision in accordance with Clauses 5 and 23 of the Moofer terms of service.
7.1. Australian Consumer Law.
Except where the Services are required by You for the purposes of a business, trade, profession or occupation in which You are engaged, this agreement will be subject to the guarantees set out in sections 60, 61 and 62 of the Australian Consumer Law (as enacted as Schedule 2 of the Competition and Consumer Act 2010 (“CCA”)) being, in particular, a guarantee that the Services will be rendered with due care and skill, and the following conditions of this clause 7 will apply.
7.2. Exclusion of Liability.
We will not be liable for any loss or damage nor any delay which results from any cause beyond Our control.
7.3. 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.
7.4. 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.
7.5. Notification of Claims.
Any claim for loss or damage under this clause 7 is to be notified by You to Us on the App within 7 days 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.
7.6. Maximum value of Goods.
In any claim for loss or damage under this clause 7, 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 exceed that estimate at the time of loss or damage.
In all cases where liability cannot be excluded or limited by this agreement for breach of any condition or warranty in respect of the Services pursuant to statute or otherwise, Our liability is limited to Us providing supply of the Services again or the payment of the cost of having the Services supplied again as determined at our sole discretion.
7.8. Consequential Loss.
Without limiting the generality of the foregoing, We shall in no circumstances be liable for loss or damage other than the Goods, including direct, indirect or consequential loss or damage including but not limited to loss of market, loss of profits, loss of contracts howsoever caused, unless We actually knew that such loss or damage could be incurred.
You will indemnify Us in respect of any claim, loss, damage, cost, expense and/or liability incurred by Us as a result of Your breach of the terms, conditions or warranties of this agreement.
Any right You may have against Us will be extinguished in relation to any claim where You do not commence legal proceedings against Us within 12months from the date of this contract.
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 8 will apply.
8.2. Notification of Claims.
Notice of Your claim against Us must be given by You to Us in writing within 7 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 liability.
Subject to the terms and conditions of this agreement and mandatory applicable statute, convention or law, Our Services are supplied at Your risk and We are not liable for any loss or damage suffered by You or any other person, howsoever caused or arising from acts or omission of Us, Our employees, agents or otherwise, whether:
(a)arising from an authorized or unauthorized act or contemplated or uncontemplated act under this agreement;
(b)caused by a breach or fundamental breach of contract, breach of bailment, negligence, recklessness, wilful misconduct and/or any other cause whatsoever;
8.4. Limitation of Liability.
In all cases where liability cannot be excluded or limited by this agreement for breach of any condition or warranty in respect of the Services pursuant to statute or otherwise, Our liability is limited to Us providing supply of the Services again or the payment of the cost of having the Services supplied again determined at our sole discretion.
8.5. Consequential Losses.
Without limiting the generality of the foregoing, We shall in no circumstances be liable for loss or damage other than the goods, including direct, indirect or consequential loss or damage arising from the Services including but not limited to loss of market, loss of profits, loss of contracts howsoever caused.
8.6. All Causes of Action.
The rights, immunities, defences and limits provided for in these conditions shall apply in any action against Us for loss or damage whether the action be founded in contract, bailment, tort, statute or otherwise notwithstanding any breach of any term or fundamental term of this agreement.
You will indemnify us in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, outlay, cost or other liability incurred by us howsoever caused or incurred in connection with the Services or as a result of Your breach of any of the terms, conditions and/or warranties of this agreement.
Any right You may have against Us to any legal remedy shall be extinguished unless legal proceedings are brought against us within 6 months from the date of this contract or the date the Services were completed or the date the Services should have been completed, whichever date occurs first.
8.9. Small Business.
If You are a “Small Business” and this agreement is a “Small Business Contract” as defined under Schedule 2 of the CCA, the parties to this agreement agree that:
(a) Our right to limit or exclude liability as aforesaid is based on a low cost rate service. Accordingly, You should obtain your own insurance to cover any loss or damage resulting from our Services.
(b) Your indemnity referred in clause 8.7 above will not apply to the extent that the claim, loss, damage, payment, fine, expense, duty, tax impost, outlay, cost or other liability incurred by us resulted from the negligence, recklessness or wilful misconduct of the Company, its servants or agents.
(c) The wording of the consequential loss clause 7.8 will replace the wording in clause 8.5 above
(d) The wording of the timebar clause 7.10 will replace the wording in clause 8.8 above.
8.10. Computer, Printers, Servers.
If you are requesting the Move of computers, printers and/or servers, you warrant that any loss and/or damage or other incident occurring during the Services will be for Your account, responsibility and/or liability. You warrant that You will not make a claim against us or hold Us responsible or liable in any way and will indemnify us for any loss, damage, expense and/or liability occurring as a result of the provision of Our Services for such Goods.
9.1. Other than the cargo insurance arranged for the Customer pursuant to the App and given Our rights to limit and/or exclude liability herein, you should seek you own insurance cover for any loss or damage you may incur.
10.1. Any interpretation of, or dispute arising under, this Agreement shall be governed by the laws of, and shall be determined exclusively by the courts of, the place in which the Services are performed.
11.1. By requesting Us to supply the Services pursuant to the App and agreeing to Our terms and conditions therein, You are bound by these terms and conditions on Our acceptance to perform the Service on the App.
11.2. By accepting the terms and conditions herein, You agree that you did not rely on any representation, promise, warranty or condition by Us not expressly made (in writing) part of this contract.
12.1. It hereby agreed that if any provision or part of any provision of this contract is unenforceable, such unenforceability shall not affect the application of any other part of such provision or any other provision hereof.
12.2. Should We elect not to exercise any of Our rights under this contract, under any other contract/agreement or under law, such election shall not constitute a waiver of any rights We may have against You.
13.1. To the extent of any inconsistency, these terms will prevail over any other terms or a part thereof issued by Us or You.
13.2. The use of the Customer’s own form is no derogation to these terms and conditions.