TERMS AND CONDITIONS OF CARRIAGE AND STORAGE
1- DEFINITIONS AND INTERPRETATION
1.1 Definitions
In these Terms and Conditions, unless the context otherwise requires:
(i) Carrier means Central West Freight ABN 32 624 371 681 and includes its officers, employees, servants, agents and subcontractors.
(ii) Charges means all charges payable for carriage and Storage calculated under the Carrier’s Standard Rate Schedule or any other agreed rates, together with any applicable tax, including GST.
(iii) Customer or Consignor means any person, organisation, company, government authority, statutory body or other entity with whom this contract is made or to whom the Carrier provides services.
(iv) Goods means all goods received or to be received by the Carrier from the Customer for carriage or Storage, including all containers, pallets and packaging.
(v) Storage means all storage operations undertaken by the Carrier in relation to the Goods.
(vi) Sub-Contractor includes:
(a) any related body corporate of the Carrier;
(b) any railway operated by the Commonwealth or a State or Territory;
(c) any person or entity with whom the Carrier arranges carriage or Storage;
(d) any employee, servant, agent or subcontractor of any person referred to in this definition; and
(e) any person with whom the Carrier arranges Storage of the Goods.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
2- EXCLUSIONS AND LIMITATION OF LIABILITY
2.1
The Carrier is not a common carrier and accepts no liability as such.
2.2
Subject to clauses 2.9, 2.10 and 2.11, and to the maximum extent permitted by law, the Carrier excludes all conditions, warranties and terms implied by statute, common law, equity or custom.
2.3
Subject to clauses 2.9, 2.10 and 2.11, and to the maximum extent permitted by law, the Carrier excludes all liability for loss, damage, deterioration, contamination, delay, misdelivery or non-delivery of Goods.
2.4
Subject to clauses 2.9, 2.10 and 2.11, and to the maximum extent permitted by law, the Carrier excludes all liability for, and the Customer releases and indemnifies the Carrier against, all loss, damage, costs and expenses arising from any claim in tort (including negligence), contract, bailment or otherwise relating to:
(a) loss of or damage to property;
(b) injury to or death of any person;
(c) delay, misdelivery, non-delivery or failure to supply Goods;
(d) deterioration, contamination or loss of Goods; or
(e) any failure arising from, or delay in, the carriage, transportation or Storage of the Goods.
2.5
The exclusions, releases and indemnities in this clause extend to loss of profits, loss of business, loss of anticipated savings, indirect loss, consequential loss and economic loss.
2.6
These Terms and Conditions apply despite any alleged fundamental breach of contract.
2.7
The Carrier enters into these Terms and Conditions on its own behalf and as agent and trustee for its officers, employees, servants, agents and Sub-Contractors, each of whom shall have the benefit of all protections contained in these Terms and Conditions.
2.8
The Carrier is not bound by instructions to collect cash on delivery or any other payment on behalf of the Customer.
2.9 Australian Consumer Law
Nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy implied by the Australian Consumer Law or any other law where such exclusion would be unlawful.
2.10 Force Majeure
(a) Neither party shall be liable for delay or failure to perform any obligation (other than payment obligations) where such delay or failure arises from a Force Majeure Event.
(b) A Force Majeure Event includes:
(i) acts of God;
(ii) flood, storm, cyclone, lightning, bushfire, earthquake, epidemic or pandemic;
(iii) war, terrorism, sabotage, civil disturbance or riot;
(iv) strikes, lockouts or industrial action;
(v) government restrictions or directions;
(vi) transport network interruptions;
(vii) shortage of fuel, labour, vehicles or equipment;
(viii) cyber attacks or telecommunications failures; or
(ix) any event beyond the reasonable control of the affected party.
(c) The affected party must take reasonable steps to mitigate the effects of the Force Majeure Event.
(d) During a Force Majeure Event, the Carrier may suspend, delay, divert, store, warehouse, return or refuse carriage of Goods as reasonably necessary.
(e) Additional costs incurred by the Carrier due to a Force Majeure Event shall be payable by the Customer.
(f) The Carrier shall not be liable for any loss arising directly or indirectly from a Force Majeure Event.
(g) If a Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate the affected services upon written notice.
2.11 Limitation of Liability
Where liability cannot lawfully be excluded, the Carrier’s liability shall be limited to the lesser of:
(a) the freight charges paid in respect of the relevant consignment;
(b) $250.00; or
(c) the cost of re-supplying the services.
3- CLAIMS
3.1
Subject to clause 3.2, the Carrier shall not be liable for loss of or damage to Goods.
3.2
The Customer must notify the Carrier in writing of any claim within thirty (30) days of delivery or anticipated delivery.
3.3
Failure to notify within that period constitutes evidence of satisfactory performance by the Carrier.
4- QUOTATIONS AND CHARGES
4.1
Any quotation remains valid for thirty (30) days.
4.2
Acceptance is effective only upon receipt by the Carrier of a signed quotation.
4.3
Charges commence on receipt of the signed quotation.
4.4
The Carrier may amend rates and quotations from time to time.
4.5
Forwarding Charges apply to non-local deliveries.
4.6
Invoices are payable within fourteen (14) days.
4.7
Interest may be charged on overdue accounts.
4.8
The Standard Rate Schedule forms part of these Terms and Conditions.
4.9
Charges are non-refundable except where required by law.
4.10
Applicable surcharges, including residential, CBD, tailgate and similar surcharges, may be applied at the Carrier’s discretion.
4.11 Debt Recovery Costs
(a) The Customer indemnifies the Carrier against all costs incurred in recovering overdue amounts including:
(i) solicitor and client legal costs;
(ii) debt collection fees;
(iii) mercantile agent fees;
(iv) court filing fees;
(v) enforcement costs;
(vi) process server fees; and
(vii) any other reasonable recovery expenses.
(b) Such costs shall be recoverable as a debt due and payable upon demand.
(c) The Carrier may allocate payments received against any Charges, interest, fees, costs or debts in any order it determines.
4.12 Personal Property Securities Act 2009 (Cth)
4.12.1 Definitions
Terms defined in the PPSA have the same meaning in this clause.
4.12.2 Security Interest
The Customer acknowledges that these Terms create a security interest in favour of the Carrier over all Goods and proceeds in the possession, custody or control of the Carrier.
The security interest secures all monies owing by the Customer.
The Carrier may register its security interest on the PPSR.
4.12.3 Customer Obligations
The Customer must:
(a) execute all documents necessary for registration;
(b) provide all information reasonably required by the Carrier; and
(c) not grant any competing security interest having priority over the Carrier’s security interest.
4.12.4 Verification Statement
To the extent permitted by law, the Customer waives the right to receive notices and verification statements under the PPSA.
4.12.5 Contracting Out
To the maximum extent permitted by law, the parties contract out of those provisions of the PPSA that may lawfully be excluded.
4.12.6 Enforcement
The Carrier may exercise all rights available to a secured party under the PPSA.
4.12.7 Costs
The Customer must reimburse the Carrier for costs incurred in registering, maintaining or enforcing any security interest.
5- DELIVERY
5.1
Delivery is deemed completed when the Carrier obtains a signed receipt, delivery docket or other acknowledgment at the nominated address.
5.2
If delivery cannot be effected, the Carrier may store, return or redeliver the Goods at the Customer’s expense.
5.2A Authority to Leave
Where delivery is to an unattended address, or where the Customer has provided authority to leave the Goods, the Carrier may leave the Goods at the delivery address in its discretion.
The Customer acknowledges that such delivery constitutes effective delivery and complete performance of the Carrier’s obligations.
The Carrier shall not be liable for any loss, theft, damage or deterioration occurring after the Goods have been left at the nominated address.
5.3
Any person tendering Goods for carriage shall be deemed authorised to bind the Customer.
6- STORAGE BASIS
6.1
The Carrier may refuse Storage of Goods.
6.2
Subject to clauses 2.9 and 2.11, the Goods are stored at the Customer’s risk and, to the maximum extent permitted by law, the Carrier excludes all liability in respect of the Goods.
6.3
The Carrier relies upon descriptions supplied by the Customer and does not verify their accuracy.
6.4
The Carrier may use any storage method it considers appropriate.
7- CARRIER’S LIEN
7.1
The Goods are accepted subject to a general lien for all monies owing to the Carrier.
7.2
The Carrier may sell Goods subject to the lien after reasonable notice and apply the proceeds towards any debt owed by the Customer.
7.3
The Carrier may set off any debt owing by the Customer against any monies payable by the Carrier.
8- SERVICE OF NOTICES
Any notice may be served by post, email or other electronic means to the Customer’s last known address.
9- SEVERABILITY
If any provision is unenforceable, the remaining provisions remain in force.
10- VARIATIONS AND WAIVER
No variation or waiver is binding unless made in writing and signed by an authorised representative of the Carrier.
11- JURISDICTION
These Terms and Conditions are governed by the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales.