CONDITIONS OF CONTRACT
Please read these conditions of contract carefully and contact the Carrier if you have any questions or require any amendments to these conditions of contract.
|For individual Consumers and Small Business please refer to clause 15 for specific amendments to these conditions of contract in accordance with schedule 2 of the Competition and Consumer Act 2010 (Cth).
In this agreement, unless the context indicates a contrary intention:
Carrier means First Transport Services Pty Ltd, ABN 21 051 691 635 and shall include their servants, agents, employees and sub-contractors.
Charges means the charge and/or charges for the carriage and/or storage of the Goods which are as specified on the Account Application.
Claim includes any claim, including a notice, demand, debt, account, action, expense, cost, lien, liability, proceeding, litigation (including reasonable legal costs) investigation or judgment of any nature, whether known or unknown.
Consignor means the person with whom the Carrier contracts to deliver and/or store the Goods the subject matter of this Contract.
Consignee means the person to whom the Goods the subject matter of this Contract are to be delivered.
Delivery Address has the meaning given in clause 4.1.
Goods means the goods accepted from the Consignor together with any container, packaging or packets supplied by or on behalf of the Consignor.
2 Not a Common Carrier
The Carrier is not a common carrier and will accept no liability as such. All Goods are carried and/or stored by the Carrier subject only to this Agreement. The Carrier reserves the right in its absolute discretion to refuse to carry and/or store any Goods.
3 Performance of Service
3.1 The method(s) of undertaking the Services shall be at the sole discretion of the Carrier and the Consignor hereby authorises the Carrier to adopt any method(s) other than any method which the parties have agreed in writing to exclude.
3.2 Labour and equipment to load or unload the Goods is the responsibility and expense of the Consignor unless agreed otherwise in writing prior to the supply of the Services.
3.3 The Carrier shall not be liable for failure to fulfil its obligations under this Agreement where such a failure is due to force majeure which for the purposes of these Conditions is, but is not limited to government or legislative actions, embargoes, strikes, industrial disputes or actions, riots, civil commotion, insurrections, blockades, war, acts of God, fire, flood, storm and tempest, pandemic, lockouts or any other cause beyond the reasonable control of the Carrier.
4 Route and delivery
4.1 The Consignor authorises the Carrier to take the route or manner of carriage to the address nominated by the Consignor (Delivery Address) that the Carrier determines in its absolute discretion, to be the most appropriate for the Carrier to fulfil its obligations under this Agreement, including but not limited to any deviation from the usual route or manner of carriage of the Goods which the Carrier may in its absolute discretion deem to be desirable or necessary.
4.2 The Carrier is authorised to deliver the Goods at the Delivery Address and without prejudice to the foregoing, it is expressly agreed that the Carrier will have effected delivery of the Goods in accordance with this Agreement if the Carrier obtains from any person at the Delivery Address, a receipt or signed delivery docket (which may be in electronic form) for the delivered Goods.
4.3 If the Consignee is not in attendance at the Delivery Address during the Consignee’s normal trading hours or at the time specified for delivery, or if the Carrier arrives to effect delivery at the Delivery Address and is delayed in effecting delivery for any reason whatsoever, the Carrier may:
(a) deposit the Goods at that place (which shall be deemed to be delivery in accordance with this agreement); or
(b) store the Goods at the Consignor’s risk and if stored by the Carrier, the Consignor shall pay or indemnify the Carrier for all costs and expenses incurred related to such storage. In such circumstances the Carrier reserves the right to levy an additional charge for every attempt at delivery or for the amount of time of any delay until delivery is effected and the Consignor shall pay or indemnify the Carrier in respect of all such additional charges.
5 Warranties and Indemnities
5.1 The Consignor warrants that:
(a) it is either the owner of the Goods and/or the authorised agent of the person(s) owning or having any interest in the Goods and it enters into this agreement on its own behalf and/or as authorised agent of that person(s);
(b) by entering into this agreement it accepts the terms and conditions of this agreement for the Consignee as well as for all other persons on whose behalf the Consignor is acting;
(c) the Goods are accurately described on the consignment note or other similar documents;
(d) it has complied with all applicable laws and regulations relating to the nature, condition, packaging or carriage of the Goods about the notification, classification, description, labelling, transport and packaging of the goods and that, given their nature, the Goods are packaged adequately to withstand the ordinary risks of carriage;
(e) it will not tender to the Carrier for carriage and/or storage any dangerous, inflammable, explosive, volatile or offensive Goods or Goods which are or may become liable to damage any property whatsoever, without fully disclosing the nature of the Goods. If in the opinion of the Carrier the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile or offensive in nature the Carrier may at any time destroy, dispose of, abandon or render harmless the Goods without compensation to the Consignor and without prejudice to the Carrier’s rights to any Charges;
(f) it will pay all costs and expenses incurred by the Carrier in complying with the provisions of any such law or with any regulatory order or direction.
5.2 The Consignor indemnifies and keeps indemnified the Carrier:
(a) from and against all loss and damage (including all costs and expenses whatsoever) of any nature occurring in consequence or part consequence of the Consignor’s breach of any warranties in this agreement;
(b) and its officers, servants, sub-contractors and agents against all costs, damages, Charges and expenses (including any settlement costs) arising from any action, proceeding, claim or demand that may be brought, made or prosecuted against the Carrier in respect of loss of or damage to property or death or injury caused by or arising out of or in any way connected with the performance of this agreement.
6 Responsibility for Charges
6.1 The Consignor agrees to:
(a) pay the Carrier all Charges invoiced within the period specified on the Carrier’s invoice. The Carrier’s Charges will be payable in full on collection by the Carrier from the Consignor; or
(b) indemnify the Carrier for all charges and expenses incurred in the delivery of the Goods.
6.2 If the Consignor fails to pay to the Carrier the Charges, as and when they are due and payable, all earned Charges will incur interest at the rate that is 3% higher than the per annum interest rate quoted by the Reserve Bank of Australia as its Lender’s Medium Business Interest Rate (https://www.rba.gov.au/statistics/interest-rates/), calculated daily from the day after the date Charges were first due and payable until and including the day the Charges are paid by or recovered from Carrier.
6.3 The Carrier may include a fuel levy and other surcharges and/or fees as part of the Carrier’s overall pricing policy. The Consignor acknowledges that any fuel levy, other surcharges and/or fees may vary subject to circumstances in which delivery or attempted delivery of the Goods ensues. The current fuel levy and other surcharge pricing levied by the Carrier can be ascertained by making an enquiry of the Carrier’s sales office.
6.4 The initial fee indication provided by the Carrier to the Consignor is a provisional estimate only and the total charge to the Consignor shall be determined by the Carrier prior to the performance of the Services having regard to the Carrier’s fuel levy and other applicable surcharges and fees. The Carrier may increase its Charge where the Carrier’s cost of carriage and/or storage increases for any reason.
6.5 The Consignor is and remains responsible to the Carrier for all proper Charges incurred for any reason, including but not limited to Charges for delays in loading or unloading of Goods, being a delay not caused by the Carrier. Such delay period shall commence upon the Carrier reporting for loading or unloading of the Goods.
6.6 If any of the Goods are subject to the control of the Customs, all customs duty, excise duty, GST on taxable importation and other related costs shall be paid by the Consignor or other party as arranged by the Consignor.
7.1 If, after 14 days of the Carrier (including their agent or assigns) issuing a written demand, the Consignor fails to pay Charges and any other costs due to the Carrier under this agreement the Carrier may, at its option without notice, detain, sell all or any of the Consignor’s Goods which are in the Carrier’s possession on such terms as the Carrier thinks fit (acting reasonably) and apply the proceeds towards the discharge of any unpaid Charges and the cost of the detention and sale of the Goods. In doing so, the Carrier will not be liable to the Consignor for any loss or damage caused from that sale. Thereafter the Carrier shall pay the surplus of the proceeds, if any, and return any unsold Goods to the Consignor.
8.1 The Consignor authorises the Carrier to sub-contract the whole or any part of the carriage, and/or storage of Goods on the same terms and conditions as this agreement.
9.1 Insurance will not be arranged by the Carrier. It is the responsibility of the Consignor to obtain adequate insurance cover to ensure full recovery and compensation for any damage to or loss of all the Consignor’s Goods carried and/or stored by the Carrier.
10 Carrier enquiries
10.1 For the purposes of the Carrier assessing credit worthiness of the Consignor (Credit Check), the Consignor hereby irrevocably authorises the Carrier, its servants and agents to make such enquiries the Carrier deems necessary, including, but not limited to making enquiries by obtaining reports (as may be allowed by law) from persons nominated by the Consignor as trade referees, the Consignor’s creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies (Information Sources).
10.2 The Consignor agrees and consents to:
(a) the Information Sources providing to the Carrier such information as is requested by the Carrier and permitted to be given by law for the purpose of the Credit Check; and
(b) the Carrier disclosing the contents of any credit report or personal information to a credit reporting agency for the purposes of the credit agency creating or adding to any credit information file in relation to the Consignor.
11 Limitation on liability
11.1 The Goods are at the risk of the Consignor and the Carrier is not liable for any loss of or damage to the Goods or mis delivery, delay in delivery, concealed damage, deterioration, contamination, evaporation, non-delivery of Goods in transit or in storage or otherwise in its care, custody or control, or any consequential loss or damage arising there from howsoever caused.
11.2 The exclusion of liability in clause 11.1 extends to include not only loss of or damage to the Goods, but loss, damage or injury to any person, property or thing damaged in the course of the Carrier providing the Services under this agreement and to any indirect or consequential loss or damage whatsoever arising from such loss, damage or injury or from failure to deliver, delay in delivery or mis delivery, howsoever caused including but not limited to losses that are purely financial or economic losses, loss of opportunity, losses in connection with contracts, agreements or understandings the Consignor has with third parties, loss of market and any other losses whatsoever that do not arise directly from physical damage to or loss of the Goods and are consequential in nature.
11.3 Where this agreement includes any handling, installation, removal, assembly or erection of any kind whatsoever, the Carrier is not liable for any loss, damage or injury to any person, property or thing of any kind whatsoever, including any consequential or indirect loss or damage however arising caused or incurred during any part of the handling, installation, removal, assembly or erection.
11.4 Notwithstanding any other provision in this agreement, but subject always to clauses 11.1 and 11.2 , if any liability howsoever arising, attaches to the Carrier or any subcontractor of the Carrier, the Carrier’s liability shall be limited in the case of Services supplied under this agreement to the lesser of:
(a) supplying the Services again;
(b) payment of the cost of supplying the Services again; or
(c) AUD 500.00.
11.5 Despite anything else in this clause, the Carrier shall not be liable to the Consignor for any loss or damage caused in whole or part by an act of God, war, riot, insurrection, vandalism, sabotage, terrorism, strike, lockout, ban or other industrial dispute or disturbance, any law, rule or regulation of any government or governmental agency and executive, administrative decision, order or act of general or particular application which is outside the control of the Carrier.
11.6 In respect to this clause 11 the Carrier, in addition to acting for himself itself, is acting as agent of and trustee for each of his servants and agents and the Carrier shall hold the benefit of this clause 11 as trustee for its servants and agents.
11.7 The Carrier does not exclude or limit the application of any laws, including Schedule 2 of the Competition and Consumer Act 2010 (Cth), where to do so would contravene those laws or cause any part of these conditions to be void. Please refer to clause 15 in relation to Consumers and Small Business Contracts.
12 Pallets and crates
12.1 Pallets and crates on or in which Goods are delivered, carried or stored are not the responsibility of the Carrier and the Consignor shall indemnify and keep indemnified the Carrier from any loss or damage however caused arising out of or in relation to the condition or fitness for purpose of the pallets or crates.
13 Notice of loss and time bar
13.1 Any claim for loss or damage to the Goods or relating to the provision of the Services under this agreement must be notified in writing to the Carrier within fourteen (14) days of:
(a) delivery of the Goods; or
(b) the date by which the goods should have been delivered,
whichever is the earlier.
13.2 Where the Carrier does not receive any such notice in writing the Carrier shall be forever discharged from any and all liability to any person (including the Consignor) in respect of the Goods.
13.3 In any event whatsoever, the Carrier shall be discharged from any and all liability whatsoever unless a Claim is brought within six (6) months of the provision of the Services, delivery date or scheduled delivery date of the goods, whichever is the earlier.
14 No interference
14.1 The Consignor agrees that it will not:
(a) hire any of the Carrier’s drivers; or
(b) solicit, interfere with or endeavour to entice the Carrier’s drivers whilst engaged by the Carrier.
14.2 The Consignor further agrees that in the event that this clause is breached by the Consignor that the sum of $10,000 represents fair and reasonable compensation to the Carrier for the Carrier’s loss and damage sustained as a result of that breach.
15 Consumers and Small Business Contracts
15.1 In this clause,
(a) Consumer in relation to an industry, means a person to whom goods or services are or may be supplied by participants in the industry.
(b) Consumer Contract means a contract for a supply of goods or services to an individual whose acquisition of those good or services is wholly or predominately for personal, domestic or household use or consumption;
(c) Small Business Contract means a standard form small business contract as defined in section 23(4) of Schedule 2 of the Competition and Consumer Act 2010 (Cth).
15.2 If the Consignor is a Consumer, or these Conditions qualify as a Small Business Contract:
(a) Clause 5.2 is modified so that the Consignor is not required to indemnify the Carrier to the extent that the loss or damage was directly caused by, or in connection with, a negligent, unlawful, or wilful act or omission by the Carrier or its employees, agents and subcontractors.
(b) Clauses 11.1 and 11.3 are modified so that the Carrier’s liability is not excluded to the extent that the loss or damage was directly caused by or in connection with a negligent, unlawful, or wilful act or omission by the Carrier or its employees, agents and subcontractors.
(c) Clause 11.2 is modified to the extent that the Carrier will not be liable for any consequential or indirect loss or damage, unless the Carrier had actual knowledge that such loss might be incurred.
(d) Clause 11.4 is modified so that the:
(i) Carrier’s liability is limited to the lesser of the actual loss suffered by the Consignor or the value of the Goods at the time the Goods were received by the Carrier; and
(A) may make a claim against or impose liability upon any subcontractor; and
(B) is not required to indemnify the Carrier from and against any loss, to the extent that the claim, liability or loss was directly caused by, or in connection with, a negligent, unlawful, or wilful act or omission by the subcontractor.
(e) Clause 12 is modified so that the Consignor is not required to indemnify the Carrier for damage caused as a result of negligence of the Carrier or any other person.
(f) Clause 13 does not apply, and without limitation to any other clause in this agreement, the Carrier will be discharged from liability in relation to any claim:
(i) where the loss to the Consignor results from the act of a subcontractor; and
(ii) the Carrier’s right to make a claim against that subcontractor is subject to time limitations; and
(iii) the Consignor does not make its claim against the Carrier within a period reasonably sufficient to allow the Carrier to make a corresponding claim against the subcontractor within any applicable time limitation period, or
(iv) in all other cases, where the Consignor does not make its claim within 12 months from the earlier of the delivery of the Goods, if the Goods are not delivered, the date the Goods should have been delivered or where the claim does not relate to loss or damage to Goods, the time of the event giving rise to the claim.
16 Goods and Services Tax
16.1 GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) (as amended). Terms defined in the GST Act have the same meaning when used in this agreement.
16.2 Unless otherwise stated in this agreement, all amounts payable by one party to another party are exclusive of GST.
16.3 If GST is imposed or payable on any supply made by a party under this Agreement, the recipient of the supply must pay to the supplier, in addition to the GST exclusive consideration for that supply, an additional amount equal to the GST exclusive consideration multiplied by the prevailing GST rate. The additional amount is payable at the same time and in the same manner as the consideration for the supply.
17 Privacy and electronic communications
17.2 The Consignor acknowledges that the Carrier will from time to time, at its discretion, use electronic communications for transactions made under this Contract. Electronic communications include, but are not limited to, signature capture. The Consignor expressly consents to this practice and agrees that where the Consignor provides a signature it is confirming its agreement to that transaction.
17.3 The Consignor expressly agrees to receive commercial communications from the Carrier for marketing purposes at any email address either stated on the account application or at any other email address supplied by the Consignor to the Carrier. If the Consignor no longer wants to receive such communications, please advise us by sending an email to email@example.com
17.4 Telephone calls to or from the Carrier may be monitored by the Carrier for quality and coaching purposes.
On tendering the Goods to the Carrier the Consignor accepts terms and conditions of this agreement and on accepting the goods into its custody the Carrier accepts the terms and conditions of the agreement.
19 Entire agreement
The contents of this agreement constitutes the entire contract between the parties in relation to its subject matter and supersedes any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement whether orally or in writing.
The Carrier shall not be bound by an agreement purporting to vary these conditions unless such agreement shall be in writing and signed on behalf of the Carrier by a duly authorised executive officer of the Carrier.
21.1 If any clause or part of any clause of this Agreement is unenforceable, illegal or void, then it is severed and the rest of this agreement remains in force unless the severance would change the underlying principal commercial purpose or effect of this agreement.
21.2 All the rights, immunities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances and notwithstanding any breach of the Agreement by the Carrier.
A right or remedy created by this Agreement cannot be waived except in writing signed by the party entitled to that right or remedy. Delay by a party in exercising a right or remedy does not constitute a waiver of that right or remedy, nor does a waiver (either wholly or in part) by a party of a right or remedy operate as a subsequent waiver of the same right or remedy or of any other right or remedy of that party.
23 Governing law and jurisdiction
These terms and conditions shall be governed and construed in accordance with the laws in force in the State or Territory where the Carrier’s services were engaged.