Terms & Conditions of Carriage

1.“ACL” means the Australian Co (“ACL”) being Schedule 2 of the Australian Competition & Consumer Act 2010 (“CCA”).

“Booking” means the confirmation by the Customer to deliver the Services.

“Carriage” means the transport of the Goods and all services performed or arranged by the Carrier incidental to the transport.

“Carriage by Air Convention” – means applicable legislation incorporating the Warsaw Convention (1929), the Warsaw Convention as Amended at the Hague (1955) and Warsaw supplementary protocols such as the “Guadalajara Convention”, Protocol of Montreal No. 4 or the Montreal Convention (1999).

“Carrier” means a Transport Company or Third Party offering Carriage via the Platform.

“Company” means Freight Exchange Pty Limited (53602517251), its employees, servants, agents, subsidiaries, associated entities, successors and/or assigns.

“Customer” means a User seeking Services via the Platform including but not limited to a shipper (consignor), the receiver (consignee), the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are arranged and/or performed.

“Dangerous Goods” means such of the Goods as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods, persons, plants or animals or to anything including that in which the Goods are carried, handled or stored.

“Force Majeure” means an unforeseeable, external occurrence affecting the rights and obligations of a party and beyond the control of and not due to the fault, omission or negligence of the affected party, such events including any act of god, earthquake, flood, terrorist attack, war or other event beyond the reasonable control of the party claiming Force Majeure. Force Majeure does not include any strike, labour dispute or industrial action which could reasonably have been prevented by the Company.

“Goods” means the chattels, articles or things tendered by the Customer for the Services and shall include the container(s), unit load device(s) or other packaging containing the same and any other pallet(s) delivered with the same to the Company or Subcontractor by the Customer or for or on its behalf. Goods include goods either in transit or in storage.

“Government Authority” means, without limitation, all Government Departments with responsibility for the import and export of goods, the collection of revenue on the import and export of goods and the transport of those goods to include, without limitation, Australian Customs Service (ACS), Australian Quarantine Inspection Service (AQIS) and Australian Taxation Office (ATO).

“Perishable goods” means such of the Goods as shall be in fact or law liable to deteriorate in quality and/or value and shall include, but not be limited to, fruits, vegetables, dairy products, meat, etc.

“Platform” means the website that the Company operates and the Carriers or third parties that enable Users to book or provide Carriage of the Goods.

“Restricted goods” are items considered restricted or perishable by any authority where they generally do not pose a danger to the health, safety, or property while being transported but where their transport is regulated or banned for public policy reasons.

“Services” means the provision of the Platform and/or Carriage (or a part thereof).
“Subcontractor” means and include any person, firm or company (other than the Company) that arranges or performs the Services (or a part thereof).

“Valuables” means bullion, coins, securities and valuable works of art.

Words importing the singular include the plural and vice versa and words importing any gender include all genders and words importing a person include firm, corporation or other entity where appropriate.

2.The Company, Customer and Carrier agree that:

(a) the Company acts as agent only in arranging the Services (or a part thereof) except in circumstances where:

(i) it performs the Services (or a part thereof),

(ii) it expressly agrees/undertakes in writing to act as principal or

(iii) where a Court holds it to be principal.

3.The Company is not a common carrier or carrier of any type and accepts no liability as such. Services in relation to transportation of Goods are provided and/or arranged by the Company subject only to these conditions of contract which constitute the entire agreement between the Company and the Customer. No person has the authority of the Company to waive or vary these conditions and the Company reserves the right to refuse at its sole discretion the arranging, undertaking or performing of any of the Services for any customer whether before, during or after the Service has commenced and further reserves the right of the Carrier or Subcontractor to open and/or inspect all Goods at its discretion and at the Customer’s expense.

4.As agent or principal pursuant to clause 2(a) herein, the Customer hereby employs and authorises the Company to provide and/or arrange the Services with a Carrier or other third party either in its own name or in the Customer’s name with any Carrier or third party for the performance of any of the Services agreed to be arranged or performed pursuant to, or ancillary to, this contract. Any such contract may be made on any terms of contract whatsoever used by the Carrier or third party with whom the Company may contract for such Service(s) including in every case terms which may limit or exclude liability in respect of the Service. Any Carrier’s or third party’s terms are available from the Company on request.

5.The Customer warrants:

(a) that it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods or any part thereof to accept and consign the goods upon and subject to these conditions.

(b) that the person releasing or delivering the Goods to the Company is authorised to accept and agree to these conditions on the Customer’s behalf.

(c) the adequacy of packing, stowing and suitability of the Goods for the Services contracted and accuracy of all markings and brandings of the Goods, descriptions, values and other particulars furnished to the Company for the carriage, customs, consular and any other purposes and undertakes to indemnify the Company against all loss, damage, expenses and fines arising from any inadequacy, unsuitability, inaccuracy or omission in this respect.

(d) that the performance of any Service provided or arranged by the Company to effect the instructions of the Customer in respect of the Goods shall not be in breach of any law.

6.

(i) arising from an authorised or unauthorised act OR contemplated or uncontemplated act under this contract;

(ii) caused by the negligence of the Company’s servants, employees, agents, Carriers or Subcontractors;

(iii) caused by a breach or fundamental breach of contract and/or breach of bailment by the Company’s servants, employees, agents, Carriers or Subcontractor;

(iv) occasioned by the Company complying with any requirement or directive of any Government Authority in relation to the Goods;

(v) occasioned by examination of the Goods by any Government Authority;

(vi) 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 Company is limited to the lesser of AUD$100.00 or the value of the Goods the subject of the agreement at the time the Goods were received by the Company.

(c) In all cases where liability cannot be limited or excluded by this agreement because of mandatory applicable statute, convention or law including any legislation compulsorily applicable to the Company, Carrier and/or a Subcontractor such as a Carriage by Air Convention, the Hague Rules, the Hague-Visby Rules, or the Hamburg Rules, or adaptations thereof, such as the Australian Carriage of Goods by Sea Act (1991), the New Zealand Maritime Transport Act (1994), or the Carriage of Goods by Sea Act of the United States (1936) – all as amended from time to time], the provisions of the applicable statute, convention or law shall be deemed incorporated herein and any rights, immunities and/or defences therein shall be available to the Company, Carrier or Subcontractor. For the purpose of determining the extent of the Company/Carrier/Subcontractor’s 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 Company is limited to anyone or more of the following:

(i) the supplying of the Services again; or

(ii) the payment of the cost of having the Services supplied again.

(e) Without limiting the generality of the foregoing, the parties shall in no circumstances be liable for loss or damage other than directly to or from the Goods, including indirect or consequential loss or damage arising from the Services performed in respect of the Goods including loss of market, loss of profit or loss of contracts howsoever caused.

(f) Further without limiting the generality of the foregoing, the Company shall not be liable for any loss or damage suffered by the Customer or any other person as a result of a failure or inability of the Company, Carrier or Subcontractor to collect or receive C.O.D. payments from any consignees or their agents whether caused by the negligence of the Company, Carrier or Subcontractor.</span >

(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 Customer’s or owner’s risk unless express written instructions to the contrary are given by the Customer and accepted in writing by the Company and extra charge paid if required by the Company.

(h) It is hereby agreed between the Customer and the Company that the Customer’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 by the Customer for loss or damage must be lodged in writing to the Company within 7 days of delivery of the Goods or the date Services are completed, whichever date occurs first;

(ii) Any claim by the Customer for loss/non-delivery of Goods must be notified in writing to the Company within 7 days from the date the Goods should have been delivered or the Services should have been completed, whichever date occurs first.

(i) Any right to any legal remedy of the Company or the Customer against the other shall be extinguished unless legal proceedings are brought against the other within 12 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.

7.

(b) Should the Customer not choose nor the parties agree to the Company taking greater responsibility and liability for the Services for additional charge pursuant to subparagraph (a) above, the parties agree that the Company provides a lower cost service on the premise that it has the right to exclude or limit liability and/or seek indemnity as provided for in this Agreement.

(c) Additionally or alternatively, the Company provides the following two conditional warranties with warranty limit:

(i) a complimentary Standard Warranty Cover (“SWC”) which large volume Customers can opt out of as agreed; or

(ii) an Enhanced Warranty Cover (“EWC”) which the Customer can choose at extra cost

  in respect of loss or damage to Goods subject to the Company’s warranty terms and conditions (“WTCs”) and which if applicable are supplementary terms to this agreement and incorporated herein.

(d) The Customer may choose a Carrier on our Platform that may provide or arrange warranties or insurance. The Company will have no responsibility or liability with respect to either arranging or providing the warranty or insurance as aforesaid which are strictly subject to the terms and agreements between the Customer and the Carrier.

(e) Depending on the level of responsibility and liability or warranty cover agreed or arranged as between the Customer and the Company pursuant to sub-clause (a) to (c) above or the warranties or insurance provided or arranged by certain Carriers on the Platform pursuant to sub-clause (d) above, the Customer may need to consider seeking its own insurance cover for loss or damage it may incur that is not fully indemnified by the Company’s warranties or the Carrier’s warranties or insurance as agreed. No insurance will be arranged or effected by the Company on the Customer’s behalf.

8.

(i) whether arising directly or indirectly from any Service arranged or performed by the Company and/or

(ii) as a result of any breach of the terms, conditions or warranties in this contract by the Customer.

(b) Without limiting the generality of the foregoing, the Customer shall remain responsible to the Company for all charges (C.O.D. or otherwise) paid by the Company to any of its agents, Subcontractors or any other party or authority;

(c) The Customer shall indemnify the Company in respect of any loss or damage arising from any inherent defect, quality or vice of the Goods.

9.Quotations for the Services are made on an immediate acceptance basis and are subject to withdrawal or revision without notice at the Company’s discretion. Charges may be referred and prices quoted or displayed on the Platform for information. These are estimates only. These may change depending on any additional service or charges/fees incurred as will be advised by the Company to the Customer and will be payable by the Customer. Goods will be reweighed/remeasured to determine the chargeable weight. If this weight is more than that amount originally charged to the Customer, the Customer will be recharged based on the correct weight for which the Customer will be liable.</span >

10.The Customer authorises the Company in effecting the Services, but with no obligation on the part of the Company, to:

(a) pay any duties, taxes, imposts, outlays, costs or charges in respect of the Goods and/or Services and

(b) allow inspection and/or release of the Goods or any information and/or documents of the Customer, the Goods, the Services or relating thereto as required by government authorities,

  and the Customer shall indemnity the Company in respect of any disbursement, expense, cost, loss, fine or damage reasonably incurred by the Company in doing so and releases the Company from any liability in connection therewith.

11.

(b) The Customer agrees that it shall not defer or withhold payment or deduct any amount from the account of the Company by reason of any claim it alleges against the Company.

(c) The Customers shall pay the Company interest as liquidated damages at the Commbank overdraft rate plus 5% on overdue fees or charges invoiced. Provision of Credit by the Company to the Customer may be suspended by the Company at its own discretion if fees and charges invoiced are overdue or otherwise.

12.If the Company is instructed by the Customer and agrees to use a particular method or type of Service, the Company shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed. The Customer hereby authorises the Company to substitute alternate carriers or Service providers without notice to the Customer.

13.

(ii) Any such goods may be destroyed in the sole and absolute discretion of the Company 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 Company shall bear no liability and the Customer shall indemnify the Company from and against all costs and expenses with respect thereto.

(b) The Customer 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 Customer 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 Customer shall indemnify the Company against all claims, losses, damages or expenses arising in consequence of any breach of this provision.

(c) The Customer’s compliance with (b) above in no way reduces or limits those rights afforded to the Company under (a) of this clause.

14.

(b) If the nominated place of delivery shall be unattended or if delivery cannot otherwise be effected, the Company in its sole discretion may at its option either deposit the Goods at the nominated place or store the Goods at the risk and expense of the Customer, both of which will be deemed to be delivery of the Goods under this Contract.

(c) Dates and time specified or requested for completion of Carriage or any other Service are estimates only and the Company shall not be liable for failure to complete Carriage or any other Service on such date(s) or time(s).

15.

(i) Goods which in the opinion of the Company, Carrier or Subcontractor cannot be delivered by reason of the Goods being insufficiently or incorrectly addressed or by reason of the Goods not being collected or accepted by the Consignee or for any other reason, and

(ii) any Perishable goods which in the opinion of the Company, Carrier or the Subcontractor appear to be deteriorating, if the Customer fails to adequately instruct the Company with respect thereto or fails to pay any costs and expenses necessary to implement the Customer’s instructions.

(iii) Goods considered abandoned pursuant to this agreement.

(b) If the Goods are sold pursuant to Clause (a) above, the Company can use the proceeds of sale to discharge any fees and charges owed by the Customer, including the costs of sale. Any balance of any proceeds remaining following such discharge will be remitted to the Customer.

16.The Customer 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 Company shall not be liable to the Customer or any other party for loss or expense due to the Customer’s failure to comply with this provision and the Customer will indemnify the Company for any expense, damage or liability incurred by the Company in so complying.

17.

(b) The Carrier must set out and provide all terms and conditions on which it provides the Carriage in its quote submittal form on the Platform, including all charges, taxes and fees payable.

(c) The Carrier may refuse Carriage of the Goods without liability to the Customer if the Goods are not as described by the Customer when booking the Carriage and to transport the Goods would contravene applicable laws or cause significant issue to the Carrier.

(d) The Carrier may requote for the Carriage if the Goods are not the weight, dimensions or description described by the Customer when booking the Carriage.

18.

(b) Users are solely responsible for information provided to the Company or other Users in registering to use the Platform or communicating during provision of the Services.

(c) The Users must not provide contact information to Users or other parties for the purpose by bypassing the Company’s booking fees.

(d) Users authorise the Company to use the information provided so the Company can arrange and the Users can use the Company’s platform to book and/or perform Carriage.

(e) The Platform provides a passive conduit for any and all communication and/or distribution of information between the Company and Users and between Users. The company has no control, editorial or otherwise, over any communication, information and specifically, over the content of such communications from and between Users. The Company does not and will not ensure the accuracy or reliability of such communication or information from or between Users nor will it act as a monitor over the content of such communication or information.

(f) The Company can remove or restrict any communication or information at its discretion.

(g) The User expressly represents and warrants that it is the owner, with all appurtenant rights thereto, of any and all communication, content and/or information that it posts on the Platform. To that extent, the User allows the Company to use its communication, content and/or information without violation of the User’s rights.

(h) The User grants the Company a royalty free, perpetual, irrevocable, sub-licensable, non-exclusive license to exercise the copyright, publicity and database rights that the User has in its communication, content and/or information.

(i) The user further represents and warrants that any and all of its online communication, content and/or information:

(i) will not violate any international, federal or state law, regulation, rule or statute;

(ii) will not violate these terms and conditions;

(iii) will not infringe any third party’s intellectual property rights including but not limited to copyright, patent or trade mark rights;

(iv) will not be libellous, threatening, harassing or defamatory. This specifically includes making legal claims of any sort about the Company or other Users on the Platform;

(v) will not scan or test the vulnerability or security of the Platform or the system within which it operates;

(vi) will not be used for commercial or public purposes outside of a requirement of these terms and conditions;

(vii) will not create liability for the Company in any manner whatsoever;

(viii) will not frame or link to the Platform without our written permission;

(ix) will not involve the upload, or insertion of, any programming language or code into or onto, the Platform.

(j) The User will use common sense and good judgement when conducting or posting any online communication or distribution of information. The User assumes all legal responsibility for all communication or distribution of information on the Platform and will indemnify the Company in respect of all claims, demands, liabilities, loss and/or damage (direct or indirect), costs, expenses and/or penalties of any kind incurred as a result of any of its online communication or distribution of information.

19.The Company can reject any User’s use of the Platform or remove any User from the Platform at any time for any or no reason without notice to the User.