TERMS AND CONDITIONS OF CARRIAGE
Effective 30/08/2021
1. DEFINITIONS
1.1. “Agreement” means this document.
“Carriage” means the whole of the operations and services undertaken by the Carrier
(whether gratuitously or not), including but without limiting the generality hereof
Storage, packaging, loading,
unloading or handling or other services where this is applicable.
“Carrier” means SUB60 EXPRESS COURIERS & LOGISTICS PTY LTD (ABN 41
651 124 999) or under any other business name and its officers, servants, agents
and Subcontractors.
“Charges” includes the Carrier’s charges for Carriage calculated under its rates
schedule or rates as otherwise agreed, the charges in clauses 6, 10 and 11 and any
tax levied on a transaction or supply under this Agreement.
“Consequential Loss” includes but is not limited to loss of profits, loss of business,
special damages or pecuniary loss.
“Consignment note” includes any customer order, manifest, delivery advice or bill of
lading.
“Customer” means the Person who requests the Carrier to provide services of
Carriage.
“Dangerous Goods” means Goods which are or may become dangerous,
inflammable, noxious or damaging, including radioactive material(s), or which are or
may become liable to damage any property whatsoever.
“Future Taxes” means any additional rates, taxes, charges, assessments and
impositions which any Government or statutory authority, in the future, requires to be
paid in connection with the Carriage and/or Storage of the Goods.
“Goods” means the property accepted from time to time from the Customer and
includes any Container not supplied by or on behalf of the Carrier.
“Goods and Services Tax” means a goods and services tax or any similar tax, impost
or duty.
“Person” includes a corporation, statutory body, partnership or any other entity.
“Place of Receipt” means the Sender’s address.
“Place of Delivery” means the Receiver’s address.
“Storage” means the whole of the operations and services undertaken by the Carrier
in respect of the Goods in receiving, storing and subsequently making the Goods
available for collection.
“Sub-contractor” means any sub-contractor of the Carrier and that sub-contractor’s
servants, agents or sub-contractors and indirect and direct subcontractors.
2. INTERPRETATION
2.1. Headings
Headings are inserted for ease of reference only and shall be disregarded in the
interpretation of this Agreement.
2.2. Severability
The parties acknowledge and agree that:
2.2.1. all provisions of this Agreement are reasonable in all circumstances, and each
provision is and shall be deemed severable and independent.
2.2.2. this Agreement is subject to all compulsory rules and requirements of law to
which the Carriage is subject to the intent and effect that if any provision hereof is to
any extent repugnant to or inconsistent with any such rules or requirements, or if all
or any part of any provision is judged invalid or unenforceable, such provision shall to
that extent, but no further, be deemed not to form part of these Conditions and shall
not affect the validity or enforceability of the remaining provisions.
2.2.3. Notwithstanding anything contained in this Agreement, the Carrier shall
continue to be subject to any implied terms, conditions, guarantees or warranties
imposed by the Competition and Consumer Act, or the Fair Trading Act, or any other
Commonwealth or State legislation to the extent that those Acts apply to this
Agreement and prevent, either expressly or impliedly, the exclusion or modification of
any such term, guarantee or warranty.
NOTICE TO PERSONAL USE / NON-BUSINESS CONSUMERSClause
2.2.3 means that, under the Competition and Consumer Act and similar legislation,
the following provisions are included in this Agreement:
• we (the Carrier) will carry out the services we have contracted to provide you (the
Customer) with due care and skill. This includes the services for which we engage a
Sub-Contractor;
• any materials we provide in connection with the services will be reasonably fit for
their purpose;
• if we have agreed with you that our services will be provided to you for a particular
purpose, both our services and the materials we provide in connection with the
services will be reasonably fit for that purpose and
• if we fail to meet these provisions, then we may be liable to you.
These provisions apply despite any terms to the contrary elsewhere in the
Agreement, but only if you are using our services for personal, non-business
purposes. If you are using our services for the purposes of your business, trade,
profession or occupation, these provisions do not override the other terms of the
Agreement.
2.3. Words importing the singular include the plural and vice versa, and words
importing a gender include other genders.
2.4. Where the Customer comprises two or more Persons, an Agreement or
obligation to be performed or observed by the Customer binds those Persons jointly
and severally.
2.5. Representation and Collateral Contracts Negatived
This Agreement contains the entire understanding of the parties as to its subject
matter. There is no other understanding, agreement, warranty or representation,
whether express or implied in any way defining or, extending or otherwise relating to
these provisions or binding on the parties with respect to the Storage and Carriage or
the matters to which this Agreement relates. The Carrier will not be bound by any
agreement purporting to vary these conditions unless such agreement is in writing
and signed on behalf of the Carrier by an authorised officer of the Carrier.
2.6. Governing Law
2.6.1. this Agreement is governed by and is to be construed in accordance with the laws of
the State of Queensland;
2.6.2. each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of
the Courts of Queensland and Courts entitled to hear appeals from those Courts;
2.6.3. no action arising out of this Agreement may be brought by a party more than one (1)
month after the cause of action has arisen except in the case of non-payment where the
appropriate statutory limitation to an action for recovery of a contractual debt will apply.
2.7. Carrier’s Discretion
Where discretion is given to the Carrier by any provision hereof, the exercise of that
discretion by the Carrier shall be absolute and unfettered. Such an exercise of discretion
may be unreasonable or arbitrary.
3. CARRIAGE / DEMISE
3.1. Common Carrier Negatived
The Carrier is not a common Carrier and will accept Goods for Carriage only on these
conditions. The Carrier reserves the right to refuse the Carriage of any Goods at its
discretion.
3.2. Carrier’s Undertaking
The Carrier undertakes, subject to the terms of this Agreement, to:
3.2.1. procure the Carriage of the Goods from the Place of Receipt to the Place of Delivery
and/or
3.2.2. by agreement, procure the Storage of the Goods.
3.3. The Carrier, at its discretion, may subcontract on any terms all or any part of its
undertaking herein.
4. CUSTOMER’S WARRANTIES ACKNOWLEDGMENTS OR INDEMNITIES
4.1. The Customer warrants that:
4.1.1. the Goods are fit for Carriage and Storage and have been suitably packaged for those
purposes and in compliance with all applicable laws and regulations;
4.1.2. the details of description, items, pallet space, quantity, weight, quality, value and
measurements supplied are correct;
4.1.3. the Customer has the authority of all persons owning or interested in the Goods to
enter into this Agreement on their behalf;
4.1.4. the Person delivering any Goods to the Carrier for Carriage and/or Storage is
authorised to sign this document for the Customer and by such signature or by the signature
of any other personacting for the Customer, the Customer accepts these terms and
conditions.
4.2. The Customer acknowledges that:
4.2.1. no representations have been made by any employee or agent of the Carrier to the
Customer;
4.2.2. the Carrier enters into this Agreement for and on behalf of itself and its
Sub-Contractors, all of whom shall be entitled to the benefit of the Agreement and shall be
under no liability whatsoever to the Customer or anyone claiming through it in respect of the
Goods, in addition to or separately from that of the Carrier under this Agreement;
4.2.3. The carrier has no responsibility for collection of cash or any other payment on behalf
of the Customer or to any other Person.
4.3. The Customer shall indemnify the Carrier against:
4.3.1. any loss or damage which may be suffered by the Carrier as a result of any breach by
the Customer of any warranty or acknowledgment herein;
4.3.2. all costs, demands, claims or expenses whatsoever and by whomsoever made arising
as a result of the Customer providing an incorrect description or advising an incorrect weight
of the Goods;
5. HIMALAYA CLAUSE / SUBCONTRACTING
5.1. Where the Customer is not the owner of some or all of the Goods, the Customer shall
be deemed for all purposes to be the agent of the owner.
5.2. The Customer undertakes that no claim or allegation shall be made against any servant,
agent or Sub-Contractor of the Carrier which imposes or attempts to impose upon any of
them any liability whatsoever in connection with the Goods, whether or not arising out of
negligence or a wilful act or omission on the part of any of them, and if any such claim or
allegation should nevertheless be made to indemnify the Carrier against all consequences
thereof.
5.3. Every such servant, agent, and Sub-Contractor shall have the benefit of all provisions
herein benefiting the Carrier as if such provisions were expressly for their benefit and for the
purpose of this clause the Carrier is or shall be deemed to be acting as agent or trustee on
behalf of and for the benefit of all such Persons, and each of them and all such Persons and
each of them shall be or be deemed to be parties to this Agreement.
5.4. The Customer shall save harmless and keep the Carrier indemnified against all claims
or demands whatsoever by whomsoever made in excess of the liability of the Carrier to the
Customer under these
conditions in respect of any loss, damage or injury however caused, whether or not by the
negligence or wilful act or omission of the Carrier, its servants, agents or Sub-Contractors.
6. ROUTE AND DEVIATION
6.1. The Customer authorises any deviation from the Carrier’s usual route or manner of
Carriage which may, in the Carrier’s discretion, be considered necessary or desirable.
6.2. The Receiver must take delivery of the Goods as soon as the Carrier is ready to deliver
them. If the Receiver fails to take delivery of the Goods, the Carrier shall be deemed to have
delivered the Goods in
accordance with this Agreement if the Goods are delivered to the Place of Delivery. The
Carrier may, at its option, without notice, unload the Goods at the Place of Delivery and store
the Goods at the
Place of Delivery and/or store the Goods at any other location, whether in the open or under
cover and with or without refrigeration. If the Carrier is, for any reason, unable to deliver the
Goods, the Carrier
may without notice return the Goods to the Customer at the Customer’s expense or store the
Goods, and such return to the Customer or Storage shall be deemed to constitute delivery
and any
responsibility that the Carrier has or had in respect of the Goods shall cease, and the
Customer shall be liable to reimburse the Carrier for any additional Carriage and/or Storage
costs incurred.
6.3. The Customer agrees and hereby authorises the Carrier at its discretion and at any time
without notice to the Customer to:
6.3.1. use any means of Carriage whatsoever. The Customer authorises the Carrier to adopt
such specialist Carriage, which may require the use of the services of other organisations or
bodies
necessary to ensure the safety of others (such as other road users) and to comply with all
government requirements.
6.3.2. proceed by any route whether or not it is the nearest or most direct or customary
route;
6.4. Any action taken by the Carrier under this clause and any delay resulting therefrom shall
be deemed to be included within the contractual route and shall not be a deviation.
6.5. If the Carrier effects arrangements for Storage or preservation of the Goods after
delivery, it does so as agent of the Customer and solely at the Customer’s risk and expense.
7. LIABILITY
7.1. At all times and in all circumstances and for all purposes, the Goods shall be and remain
at the sole risk of the Customer, and the Carrier shall be under no liability whatsoever for any
loss of Goods, or non-delivery, misdelivery, delay in delivery of, damage to or deterioration,
evaporation or contamination of Goods occasioned during Carriage or otherwise or for any
Consequential Loss arising from any
reason whatsoever, including without limiting the foregoing, arising from negligence or
breach of contract or wilful act or default on the part of the Carrier or otherwise. In any
contract for the Carriage
and Storage of Goods, damage can occur. If this happens, we will not be liable to you. We
therefore STRONGLY RECOMMEND that you obtain insurance before consignment.
7.2. The defences and exclusions of liability provided for in this clause and throughout this
Agreement generally apply in any action against the Carrier for loss of or damage to the
Goods whether the action
be founded in contract or in tort or otherwise.
7.3. The Carrier shall be entitled to the benefit of the exclusion of liability provided for herein
even if it is proved that any loss, damage or delay resulted from an act or omission of the
Carrier done with intent
to cause damage or recklessly or with knowledge that damage would probably result.
7.4. Nothing whatsoever done or omitted to be done or other conduct by the Carrier in
breach of this Agreement or otherwise, howsoever lawfully or unlawfully, shall under any
circumstances constitute a
breach going to the root of this Agreement, or a deviation or departure therefrom or
repudiation thereof such as to have the effect of disentitling the Carrier from obtaining the
benefit of and enforcing
all rights, defences, exceptions, immunities or limitation of liability and other like protections
contained in those conditions and all such rights, defences, exceptions, immunities, limitation
of liability, and
other like protections shall continue to have full force and effect in any event whatsoever.
7.5. The Customer shall notify the Carrier in writing of any claim intended to be made
pursuant to this Agreement within five (5) days after the date of delivery of the Goods or in
the case of Storage, within five
(5) days of the date of removal of the Goods from storage or in the case of non-delivery of
the Goods within five (5) days after the date on which the Goods should have been delivered
and unless such
claim is given within the said period of five (5) days; the claim shall be absolutely barred as
against the Carrier.
7.6. The Carrier shall not be liable for any loss of or damage to Goods or any Consequential
Loss arising from deterioration, contamination, evaporation, breakdown or malfunction of any
refrigeration or
cooling equipment, wrongful delivery, misdelivery, delay in delivery or non-delivery of Goods
whensoever or howsoever occurring or any damage, injury or loss of any nature whatsoever
sustained or
arising during Carriage.
8. DANGEROUS OR FRAIL GOODS
8.1. If the Carrier accepts Dangerous Goods for Carriage, such Goods must be
accompanied by a full declaration of their nature and contents and be properly and safely
packed in accordance with statutory
obligations applicable to the Carriage of those Goods.
8.2. The Customer shall indemnify the Carrier against all loss (including Consequential
Loss), damage or injury however caused arising out of the Carriage of any Dangerous
Goods, whether declared as such or
not and whether or not the Customer was aware of the nature of the Goods.
8.3. Where Dangerous Goods are delivered to the Carrier without written consent or where
they are not distinctly marked to indicate the nature and character of the Goods or if in the
opinion of the Carrier
the Goods are or are liable to become of a dangerous, flammable, noxious or damaging
nature; the same may at any time be destroyed, disposed of, abandoned or rendered
harmless without
compensation to the Customer and without prejudice to the Carrier’s right to Charges.
9. GENERAL LIEN
9.1. The Goods are accepted subject to a general lien for all charges now due or which may
hereafter become due to the Carrier by the Customer on any account whatsoever, whether
in respect of the Goods
comprised herein, or in respect of any other goods for which the Carrier provides or has
provided services of Carriage.
9.2. If charges are not paid when due, or the Goods are not collected when so required or
designated, the Carrier may, without notice, and immediately:
9.2.1. remove all or any of the Goods and store them as the Carrier thinks fit at the
Customer’s risk and expense;
9.2.2. open and sell all or any of the Goods as the Carrier thinks fit (whether by private treaty
or public auction) and apply the proceeds to discharge the lien and costs of sale without
being liable to
any Person for any loss or damage caused.
9.3. The parties agree that the lien attaches to Goods when the Goods are accepted by the
Carrier for Carriage.
9.4. The Customer agrees that the lien arising under these Conditions of Carriage and
Storage is a security interest.
9.5. If the Carrierrequests, then the Customer must promptly, upon receipt of a request from
the Carrier, do anything for the purposes of ensuring that any security interest created under,
or provided for by,
these Conditions of Carriage and Storage is enforceable, perfected (including but not limited
to perfection by registration), maintained and is otherwise effective. Anything that is required
by the
Customer to be done under this clause will be done by the Customer at its own expense.
The Customer agrees to reimburse the costs of the Carrier in connection with any action
taken by the Carrier
under or in connection with this clause.
10. STORAGE
10.1. Any Storage of Goods shall be solely at the Customer’s risk and expense, but the
provisions of clause 7 hereof shall nevertheless apply.
10.2. At the Carrier’s discretion, the Goods may be stored at any place and at any time and
be removed from any place at which they may be stored or otherwise held to any other place
to be stored. Dangerous
Goods held by the Carrier for Storage will be subject to the indemnity given by the Customer
in respect of Dangerous Goods in clause 8 hereof.
10.3. Where the Customer requests the Carrier to store the Goods, the Customer shall
provide an inventory of the Goods to the Carrier prior to Storage. The Carrier shall be
entitled to check the inventory and
may provide its own inventory of the Goods received at the time of receipt. The Carrier shall
provide the Customer with a copy of the inventory. Should the Customer sign the inventory,
the inventory
shall be conclusive evidence of the Goods received by the Carrier. Such inventory shall
disclose any visible items but not any contents unless the Customer requires, in which case
the Carrier shall be
entitled to make a reasonable charge for the preparation of such further inventory. Inspection
of the Goods shall be at the Customer’s risk.
10.4. Storage Charges do not include loading, unloading, removing, packing, unpacking,
stowing, restoring, assembling, cutting, re-manufacturing, preparation of reports and
inventories or delivering, all of
which attract extra Charges.
10.5. The Customer shall give 48 hours’ notice to the Carrier of its intention to remove
Goods from storage.
10.6. The Carrier shall not be obliged to deliver any Goods except to the Customer or to a
person authorised in writing by the Customer to receive the Goods without:
10.6.1. a direction in writing from the Customer;
10.6.2. payment of all amounts due by the Customer to the Carrier on any account
whatsoever.
10.7. The Customer shall remove its Goods from storage within seven days of receipt of
written notice from the Carrier.
10.8. The Carrier may open any document, wrapping, package or other container in which
the Goods are placed or carried to inspect them either to determine their nature or condition
or to determine their
ownership.
11. CARRIER’S CHARGES
11.1. Any instruction given by the Customer to the effect that Charges shall be paid by the
Receiver or any other third party shall be deemed to include a stipulation that if the Receiver
or third party does not
pay the Charges within seven days of the date of delivery or attempted delivery of the Goods
or within such other period as is agreed between the Customer and the Carrier, the
Customer shall pay such
charges.
11.2. The Carrier’s Charges shall be deemed fully earned on receipt of the Goods by the
Carrier and are non-refundable in any event.
11.3. The Customer shall pay interest at the rate of 1.5% per calendar month, calculated
daily and compounded weekly in respect of unpaid Charges. The Customer shall pay any
legal costs (on an indemnity
basis), collection costs or dishonoured cheque fees incurred by the Carrier in relation to any
default in payment by the Customer.
11.4. Should the Carrier be delayed by the Customer for a period in excess of 10 minutes in
loading, unloading or for any other reason beyond the control of the Carrier, the Customer
shall pay to the Carrier
the Carrier’s reasonable costs and losses incurred by the Carrier due to such delay.
11.5. The Customer shall be liable for and shall pay for (in addition to transport and Storage
charges and any other charges due under this Agreement):
11.5.1. all other charges incurred in relation to the Carriage of the Goods and/or in relation to
any other services provided by the Carrier and/or any third party, whether payable to the
Carrier and/or
third parties, including excise and customs duties (including any fine or penalty), shipping,
customs, railway, port fees, the Fuel Surcharge, other charges, and road tolls incurred on
dedicated
hourly or weekly vehicle hire transactions,
11.5.2. if the Goods are at any time re-quantified, re-weighed or re-measured, pay any
proportional additional charges; and
11.5.3. all taxes, including Future Taxes and any tax in the nature of a Goods and Services
Tax, levied on all or any part of the Goods and/or the Carriage or any other services.
11.6. Unless otherwise specified, Goods and Services Tax and any other applicable tax,
duties or charges, including Future Taxes, imposed by any Government or statutory authority
are additional to the price
quoted and invoiced.
11.7. Where Goods and Services Tax or any other tax, duties or charges including Future
Taxes is included in a quotation, the quotation is based on the rate ruling at the time of the
quotation and any
subsequent variation is to the Customer’s account.
12. NOTICES
12.1. Notices under this Agreement may be given or served by email, internet link, facsimile,
prepaid post or by hand to that party at its address and facsimile number as that party may
have notified in writing
to the other party