In these conditions:
- “Carrier” shall mean Best Freight Services Pty Ltd. and its successors and assigns or any person acting on behalf of and with the authority of Best Freight Services Pty Ltd.
- “Sub-contractor” shall mean and include any person who pursuant to any contract or arrangement (other than a contract of employment) performs or agrees to perform the Delivery or any part thereof.
- “Client” shall mean the Client or any person or persons acting on behalf of and with the authority of the Client. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
- “Consignee” shall mean the person to whom the Goods are to be delivered by way of the Carrier.
- “Goods” shall mean the goods received from the Consignee including any container, packaging or pallets received therewith.
- “Services” shall mean all services supplied by the Carrier to the Clients and are as described on the quotations, invoices, consignment note, sales order or any other forms as provided by the Carrier to the Clients and includes any advice or recommendations.
- “Price” shall mean the cost of the Services as agreed between the Carrier and the clients subject to clause 4 of this contract.
These terms and conditions are to be read in conjunction with the Carrier’s quotation, agreement, or any other forms as provided by the Carrier (Best Freight Services Pty Ltd.) to the Clients. If there are any inconsistencies between these documents, then the terms and conditions contained in this document shall prevail.
The Client shall give the Carrier (Best Freight Services Pty Ltd.) 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 the Carrier because of the Client’s failure to comply with this clause.
3. Not a Common Carrier
The Carrier (Best Freight Services Pty Ltd.) is not a common carrier and accepts no liability as such, and it is agreed that the Carrier shall not be liable to be sued as, or as if it had undertaken the liability of, a common carrier. The Carrier (Best Freight Services Pty Ltd.) reserves the right to refuse the transport of goods for any person and the transportation of any goods or classes of goods at its discretion.
The Services provided by the Carrier (Best Freight Services Pty Ltd.) is performed by the Carrier (Best Freight Services Pty Ltd.) upon and subject to these conditions only.
4. Price, Payment and Liens
4.1) At the Carrier’s (Best Freight Services Pty Ltd.) sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Carrier (Best Freight Services Pty Ltd.) to the Clients in respect of Services supplied; or
(b) The Carrier’s (Best Freight Services Pty Ltd.) quoted Price (subject to clause 4.2) which shall be binding upon the Carrier provided that the Clients shall accept in writing the Carrier’s quotation within thirty (30) days.
4.2) The Carrier (Best Freight Services Pty Ltd.) may by giving notice to increase the Price of the Services to reflect any increase in the cost to the Carrier (Best Freight Services Pty Ltd.) beyond the reasonable control of the Carrier (including, without limitation, increases in the Terminal fees, or Empty depot fees, or increases in taxes).
4.3) 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 seven (7) days following the date of the invoice, unless otherwise agreed by the Carrier (Best Freight Services Pty Ltd.).
4.4) At the Carrier’s sole discretion;
(a) payment shall be due on delivery of the Goods, or
(b) payment shall be due as per the Carrier’s Credit Application approval.
Payment will be made by cash, or by credit card (plus a surcharge of up to 2.5% of the Price), or by direct credit, or by any other method as agreed to between the Client and the Carrier (Best Freight Services Pty Ltd.)
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
4.5) The Carrier (Best Freight Services Pty Ltd.) shall have a general lien on the Goods and any other goods of the Client which are in the possession of the Carrier for all charges now due or which may hereafter become due to the Carrier by the clients. If the lien is not satisfied, the Carrier may at its option and without any notice sell such Goods or part thereof by public auction or private treaty and upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of detention and sale without being liable to any person for any loss or damage thereby caused.
5. Assurances, Authority and Agency
5.1) Best Freight Services Pty Ltd assures that:
(a) The Client has complied with all applicable laws and regulations relating to the nature, condition, packaging or delivery of the Goods and that the Goods are packed in a manner, having regard to their nature, adequate to withstand the ordinary risks of Delivery.
(b) The Goods are accurately described in writing in the space provided on the consignment note, if any, which relates to the Delivery.
(c) Agreed to the terms here of the client is or has the authority of the person or persons owning or having any interest in the Goods or any part thereof; and
(d) the Goods do not include any explosive, inflammable or otherwise dangerous goods or goods which are or may be liable to damage other goods or property whatsoever other than as are specifically and fully described and disclosed as such in writing to the Carrier (including on any consignment note relating to the Delivery) and that the Client has complied, and will comply, with the Australian Code for the Transport of Dangerous Goods by Road and Rail.
5.2) If in the opinion of the Carrier (Best Freight Services Pty Ltd.) the Goods, either by themselves or in combination with any other goods, are likely for any reason to cause injury to persons or damage to other goods or to property or to the environment, the Goods may be retained, destroyed, disposed of, abandoned, removed or rendered harmless by the Carrier without compensation to the Client and without prejudice to the Carrier’s right to any charges hereunder including the cost of such action.
5.3) Any person delivering the Goods or any portion thereof to the Carrier is authorised to enter into a contract of Delivery on behalf of the Client and to sign any consignment note or handling equipment service voucher for the Client.
5.4) The Client indemnifies the Carrier (Best Freight Services Pty Ltd.) against:
(a) any liability whatsoever (without limiting the foregoing, whether arising as a result of any breach of this contract or negligence or wilful act or omission or misconduct on the part of the Carrier or any of its servants or agents) in respect of the Merchandises to any person (other than the Client) who claims to have, who has or who may hereafter have any interest in the Goods or any part thereof; and
(b) any expenses, charges or losses sustained or incurred by the Carrier because of a breach of any of the warranties herein.
5.5) Nevertheless that the Client may enter into the contract of Carrier’s Services as agent for a principal, whether disclosed or not, the Client shall remain personally liable under the contract for the Services, such liability to include but not be limited to liability for payment of the charges.
6. Method of Delivery and Departure
6.1) The method or methods of undertaking the Delivery shall be at the sole discretion of the Carrier (Best Freight Services Pty Ltd.) and the Client hereby authorises the Carrier to adopt any method or methods other than any method which may have been instructed or agreed.
6.2) The Client authorises any change from the usual route of delivery.
7.1) The Carrier (Best Freight Services Pty Ltd.) is authorised to deliver the Goods at any address nominated by the Client to the Carrier for that purpose.
7.2) If the Carrier is unable to deliver the Goods for any reason, the Carrier shall be entitled to handle and store the Goods in such manner as it may in its discretion determine, and shall be entitled to make a reasonable charge in respect of such handling and/or storage and subsequent delivery of the Goods.
7.3) The Carrier shall be entitled to make a reasonable charge in respect of any delay in loading or unloading occurring otherwise than from default on the part of the Carrier.
8. Exclusion and Limitation of Liability
8 (a) Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, the Carrier (Best Freight Services Pty Ltd.) shall not be liable for any loss or damage suffered by the Client or any other person, howsoever caused or arising, whether:
(i) arising from an authorised or unauthorised act OR contemplated or uncontemplated act under this contract;
(ii) caused by the negligence and/or recklessness and/or wilful misconduct of the Carrier’s servants, employees, agents, Subcontractors or otherwise;
(iii) a breach or fundamental breach of contract;
(iv) resulting from, or attributable to, any quotation, statement, representation or information, verbal or written, made or given on behalf of the Carrier or its servants, agents, employees or Contractors as to the classification of, liability for, amount, scale or rate of customs duty, excise duty or other impost or tax applicable to any goods subject of any Service;
(v) occasioned by the Carrier complying with any requirement or directive of any Government Authority in relation to the Goods;
(vi) occasioned by examination of the Goods by any Government Authority;
(vii) occasioned by treatment of the Goods by any Government Authority (including without limitation, any fumigation or decontamination or other treatment by AQIS)
(b) In all cases where liability cannot be excluded by this agreement because of mandatory applicable statute, convention or law, the liability of the Carrier (Best Freight Services Pty Ltd.) is limited to the less of AUD$100.00 or the value of the Goods the subject of the agreement at the time the Goods were received by the Carrier.
(c) In all cases where liability cannot be excluded, for the purpose of determining the extent of the Carrier’s (Best Freight Services Pty Ltd.) liability for loss of or damage to the Goods under this agreement or any mandatory applicable legislation, the value of the Goods lost or damaged is agreed to be the invoice cost value.
(d) 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, the liability of the Carrier is limited to any one or more of the following as determined by the Carrier at its absolute discretion:
(i) providing supply of the Services again; or
(ii) payment of the cost of having the Services supplied again.
(e) Unless as may otherwise be expressly agreed in writing or required by law, the goods shall at all times be at the risk of the Client and no responsibility in tort or contract or otherwise will be accepted by the carrier for any loss of or damage to or deterioration of or failure to deliver or delay in the delivery or mis delivery of the goods howsoever caused.
(f) Further without limiting the generality of the foregoing, the Carrier shall not be liable for any loss or damage suffered by the Client or any other person as a result of a failure or inability of the Carrier or Contractor to collect or receive C.O.D. payments from any consignees or their agents whether caused by the negligence of the Carrier’s servants, agents, employees, Contractors or otherwise.
(g) No declaration of value will be made for the purpose of extending liability and the Goods will be forwarded or dealt with at the Client’s or owner’s risk unless express written instructions to the contrary are given by the Client and accepted in writing by the Carrier and extra charge paid if required by the Carrier.
(h) It is hereby agreed between the Client and the Carrier that the Client’s right to compensation for any claim for loss or damage will only be maintained provided the following is strictly adhered to:
(i) Any claim for loss or damage must be lodged in writing to the Carrier within 7 days of delivery of the Goods or the date Services are completed, whichever date occurs first;
(ii) Any claim for loss/non-delivery of Goods must be notified in writing to the Carrier within 30 days from the date the Goods should have been delivered or the Services should have been completed, whichever date occurs first;
(iii) Any right to any legal remedy against the Carrier shall be extinguished unless legal proceedings are brought against the Carrier in the state of New South Wales and not otherwise within 3 months from the date of this contract or the date the Services were completed or Goods delivered, or the date the Services should have been completed or the Goods should have been delivered, whichever date occurs first.
9. Sub-contracts and Sub-contractors
9.1 The Carrier (Best Freight Services Pty Ltd.) is authorised (if it should think fit to do so) to sub-contract the whole or any part of the Delivery and such authorisation extends to any Sub-contractor.
9.2 Any clause herein excluding or limiting the liability of the Carrier (Best Freight Services Pty Ltd.) or providing any right or exemption from liability to the Carrier shall also be available and shall extend to protect all Sub-contractors and every servant or agent of the Carrier and of any Sub-contractor.
9.3 Without limiting the effect of any other clause herein, the Client or any other person or persons owning or having any interest in the Goods or any part thereof shall not be entitled to make any claim against any person other than the Carrier (Best Freight Services Pty Ltd.) by whom the Delivery or any part thereof is undertaken, or any servant or agent of any such person or of the Carrier, in relation to the Goods or arising out of the Delivery. Nevertheless, should any such claim be made the Client shall indemnify the Carrier and any such person or servant or agent against the consequences of any such claim as may be made by any party other than the Client.
9.4 For purposes of sub-clauses 9.2 and 9.3 the Carrier is, or shall be deemed to be, acting as agent or trustee on behalf of each of the persons to whom the benefits thereof are extended and each of such persons shall to this extent be or be deemed to be parties to this contract.
The Client acknowledges that;
(a) the Goods are carried and stored at the Client’s sole risk and not at the risk of the Carrier (Best Freight Services Pty Ltd.); and
(b) The Carrier (Best Freight Services Pty Ltd.) 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 the Carrier (Best Freight Services Pty Ltd.) be under any liability with respect to the arranging of any such insurance and no claim will be made against the Carrier for failure to arrange or ensure that the Goods are insured adequately or at all.
11. Provisions Severable
It is hereby agreed that if any provision or part of any provision of these conditions is unenforceable such unenforceability shall not affect any other part of such provision or any other provision thereof
12. Trade Practices Act Applicable
Nevertheless, any condition herein limiting or excluding liability, if and to the extent to which the Delivery involves the transportation of Goods otherwise than for the purposes of a business, trade, profession or occupation carried on or engaged in by the Client, the contract shall be subject to any implied warranty provided by the Trade Practices Act 1974 if and to the extent that the said Act is applicable to this contract and prevents the exclusion, restriction or modification of such warranty.
13. Overdue Invoices
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Carrier from and against all costs and disbursements incurred by the Carrier in pursuing the debt including legal costs on a solicitor and own client basis and the Carrier’s collection agency costs.
13.3 Without prejudice to any other remedies the Carrier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Carrier may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Carrier will not be liable to the Client for any loss or damage the Client suffers because the Carrier exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to the Carrier’s other remedies at law the Carrier shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Carrier shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Carrier becomes overdue, or in the Carrier’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.
14. Valuable and Dangerous Goods
(i) Except as agreed in writing, the Carrier (Best Freight Services Pty Ltd.) will not accept Valuables or Dangerous goods for Services arranged or performed by the Carrier. Should the Clients nevertheless deliver any such goods to the Carrier or cause the Carrier or Subcontractors to handle or deal with any such goods otherwise than as agreed in writing, the Clients (not the Carrier) shall be liable for any loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused and the Clients shall indemnify the Carrier from and against all penalties, taxes, duties, claims, demands, damages, costs and expenses arising in connection therewith.
(ii) Any such goods may be destroyed in the sole and absolute discretion of the Carrier or any other person in whose custody they may be at the relevant time. In the event that the goods are destroyed or otherwise dealt with as aforesaid, the Carrier shall bear no liability and the Clients shall indemnify the Carrier from and against all costs and expenses with respect thereto.
(b) The Client undertakes that any of the goods referred to in (a) above (including their covering, packaging, containers, and other carriage devices) shall be distinctly marked having regard to their nature. The Clients further undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of any Service having regard to their nature and in compliance with all laws and regulations which may be applicable with respect to any Service. The Clients shall indemnify the Carrier against all claims, losses, damages, or expenses arising in consequence of any breach of this provision.
(c) The Client’s compliance with (b) above in no way reduces or limits those rights afforded to the Carrier under (a) of this clause.
15 Statute Compliance
The Client shall exercise all reasonable care and comply with all applicable laws, Government regulations/directions and industry standards including those relating to the packing, carriage, storage, customs clearance, delivery, inspection or other Services in respect of the Goods, and shall provide such information and documents as may be necessary to exercise such care and comply with such laws, regulations and standards. The Carrier shall not be liable to the Client or any other party for loss or expense due to the Client’s failure to comply with this provision and the Client will indemnify the Carrier for any expense, damage or liability incurred by the Carrier in so complying.
(a) Any dispute arising under this Contract shall be governed by the laws of New South Wales and shall be determined exclusively by the courts of New South Wales or by the court of the Company’s choice.
(b) A reference to any law includes a statutory modification, substitution or re-enactment of it.