1.1 In these conditions:
Authority includes any legal or administrative authority exercising any jurisdiction within an Australian state or territory.
CFSM means Cargo Freight Services Melbourne Pty Ltd (ACN 129 343 657) and its officers, employees, agents and Subcontractors.
Chain of Responsibility Law means the Heavy Vehicle National Law as enacted in any Australian state, the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and any other Commonwealth, state or territory Law dealing with the obligations of parties involved in the transport of goods by road.
Consequential Loss means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; punitive or exemplary damages; in each case arising from or in connection with the performance of Services and whether or not foreseeable at the time of entering into any agreement incorporating these conditions.
Container includes any container, trailer, wagon, transportable tank, pallet, flat rack or any other unit or device used to consolidate Goods.
Crane includes any machine used for lifting Goods, including a sideloader.
Customer means the person who engages CFSM to provide Services.
Damage means physical damage and includes deterioration, evaporation and contamination.
Dangerous Goods means Goods that are or may become noxious, dangerous, flammable or damaging or that may harbour or encourage vermin or other pests, or that are or may become liable to harm any property or person.
Force Majeure means any cause whatsoever beyond CFSM's control including acts of God, lightning, earthquakes, cyclones, floods, landslides, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, epidemics, pandemics, malicious damage, vandalism, sabotage, explosions, nuclear accidents, strikes, labour disputes and other industrial disturbances, any border closure, road closure or congestion of roads, any quarantine or customs restriction, any interruption of power supply or scarcity of fuel or any accident, collision or breakdown of a vehicle, Crane, machinery or equipment.
Goods means the property accepted by CFSM from, or at the request of, the Customer, for the provision of Services and includes any Container or packaging supplied by or on behalf of the Customer.
Law includes principles of law or equity established by binding court decisions and applicable statutes, regulations, proclamations, orders, bylaws, requirements and approvals.
Misdelivery includes incorrectly selecting or picking Goods.
PPSA means Personal Property Securities Act 2009 (Cth).
Services means any operations or services undertaken by or on behalf of CFSM (whether gratuitously or not), in any way connected with Goods including loading, unloading, packing, unpacking, handling, transporting and storage of Goods, steam cleaning/washing and fumigation services, quarantine services, completing documents and the provision of any advice.
Subcontractor includes any person who pursuant to a contract or arrangement with any other person (whether or not CFSM) performs or agrees to perform the Services or any part of them.
(a) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(b) headings are included for convenience only and do not affect the interpretation of these conditions;
(c) words importing the singular include the plural and vice versa and words importing a gender include other genders;
(d) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) wherever 'include' or any form of that word is used, it will be construed as if it were followed by '(without being limited to)';
(f) terms used have the same meaning as under the PPSA; and
(g) all indemnities survive the termination or expiration of any agreement incorporating these conditions.
CFSM is not a common carrier and will accept no liability as such. All Goods are carried and all Services are performed by CFSM subject only to these conditions and CFSM reserves the right to refuse, in its discretion, to provide Services in respect of any goods.
(a) take reasonable care to protect and safeguard the Goods;
(b) provide the Services exercising the degree of skill, care and efficiency that would be expected from a competent provider of Services;
(c) at its own expense, hold all licences as may be required by Law in connection with the Services;
(d) use reasonable endeavours to deliver the Goods to the address nominated by the Customer and to effect delivery at the date and time requested by the Customer (subject to compliance with all Law, including Chain of Responsibility Law); and
(e) use reasonable endeavours to comply with the Customer's reasonable and lawful directions.
4.1 The Customer will:
(a) ensure that the loading of the Goods onto CFSM's vehicle will not cause the vehicle to exceed any dimension or mass limits under Chain of Responsibility Law;
(b) where the Goods require special treatment, provide written notice to CFSM of the special treatment required;
(c) where required by Law, provide an accurate container weight declaration; and
(d) provide all documents, information and assistance necessary to allow CFSM to comply with the requirements of any Authority.
4.2 The Customer warrants that:
(a) the Goods are in a fit state to allow the Services to be performed and are packed in a manner adequate to withstand the ordinary risks associated with the Services;
(b) the Goods within any Container are adequately restrained in accordance with the Load Restraint Guide published by the National Transport Commission;
(c) the Customer has effected and will maintain a policy of insurance that covers any loss of or Damage to Goods during provision of the Services and which provides that the insurer waives any possible rights of subrogation against the Carrier;
(d) it is authorised by all persons owning or having any interest in the Goods (including the consignee) to accept these conditions on their behalf;
(e) all details supplied with respect to the Goods, including the details of description, items, pallet space, quantity, weight, volume, quality, value and measurements, are correct;
(f) there is a suitable and safe road and approach for CFSM's vehicles to the place from which the Goods are to be collected and the place to which the Goods are to be delivered;
(g) safe and adequate loading facilities and equipment will be available at any place from which any Goods are to be collected and to which any Goods are to be delivered; and
(h) Services are supplied for the purpose of a business, trade, profession or occupation carried on or engaged in by the Customer.
4.3 CFSM relies on the details of description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Customer but does not admit their accuracy.
5.1 CFSM, at its discretion, may subcontract on any terms the whole or any part of the Services.
5.2 The Customer agrees that no claim or allegation may be made against any employee, agent, or Subcontractor
that imposes or attempts to impose upon such person any liability whatsoever arising out of or in any way connected with the Goods or the Services, whether or not arising out of negligence or a wilful act or omission on the part of any of them and if such claim or allegation should nevertheless be made, to indemnify CFSM against all consequences of any such claim or allegation.
5.3 Every exemption, limitation, condition and liberty contained in these conditions and every right, exemption from liability, limitation, defence and immunity applicable to CFSM or to which CFSM is entitled under these conditions will also be available to and will extend to protect:
(a) all Subcontractors;
(b) every employee or agent of CFSM or of a Subcontractor;
(c) every other person (other than CFSM) by whom the Services or any part of them is undertaken; and
(d) all persons who are or are found to be vicariously liable for the acts or omissions of any person falling within clauses 5.3(a), 5.3(b) or 5.3(c).
5.4 For the purposes of clause 5.3 CFSM is or will 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 will to this extent be, or be deemed to be, parties to any agreement incorporating these conditions.
6.1 The Goods are at the risk of the Customer. The Customer agrees that neither CFSM nor any Subcontractor nor any other person who undertakes the Services will, under any circumstances, (except where any legislation otherwise requires) be under any liability whatsoever (whether in contract, tort, bailment or otherwise) for any:
(a) loss of the Goods;
(b) Damage to the Goods; or
(c) Misdelivery, delay in delivery or non-delivery of the Goods,
whether in the course of Services or otherwise, unless the Customer proves that such loss, Damage, Misdelivery, delay in delivery or non-delivery was caused by the negligence of CFSM.
6.2 Any liability of CFSM under clause 6.1 will be reduced proportionately to represent the extent to which the Customer (or any other person)'s negligent or wrongful act or omission caused the loss, Damage, Misdelivery, delay in delivery or non-delivery of the Goods.
6.3 Notwithstanding any other provision of these conditions, CFSM will not be liable for any loss of or Damage to Goods:
(a) caused by:
(i) Force Majeure;
(ii) CFSM following the Customer's instructions;
(iii) the Goods becoming infected or contaminated with any virus, bacteria, fungi, pathogen, disease, mould, vermin
or like condition;
(iv) vibration, road conditions, weather or weather events of any kind whatsoever;
(v) the Goods being inherently defective or in such a condition that they cannot be loaded, unloaded or transported by road without Damage;
(vi) inherent vice or the nature of the Goods;
(vii) a decline in value, or loss of value as a result of the Goods becoming past their 'use by' or expiry date;
(viii) insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary risks associated with the Services;
(b) comprising electrical or mechanical derangement, shrinkage or ordinary wear and tear;
(c) where such loss becomes apparent as the result of a stock count or stocktake; or
(d) where the loss of or Damage to the Goods occurs while the Goods are not in the possession or control of CFSM.
6.4 Notwithstanding any other provision of these conditions, CFSM will not be liable, under any circumstances, for any claim for Consequential Loss.
6.5 The maximum aggregate financial liability of CFSM in relation to or in any way connected with any loss of Goods or Damage to Goods, or Misdelivery, delay in delivery or non-delivery of Goods is limited to $10,000 or the cost of repairing or replacing the lost or Damaged Goods (whichever is less) for each incident. For the purposes of this subclause, 'incident' means any event which results in loss of Goods or Damage to Goods and all claims that result from the one original cause will be considered, for the purpose of this subclause, to have arisen from the same incident.
Notwithstanding any other provision of these conditions, the Customer acknowledges that CFSM has no liability or responsibility in relation to any hire charge or demurrage charge associated with any Container.
8.1 The Customer authorises any deviation from the usual route for transportation or manner of provision of Services that may, in the absolute discretion of CFSM, be considered desirable or necessary in the circumstances.
8.2 If the Customer expressly or impliedly instructs CFSM to use, or it is expressly or impliedly agreed that CFSM will use a particular method of providing or performing the Services, CFSM will give priority to that method but if it cannot conveniently be adopted by CFSM, the Customer authorises CFSM to provide the Services using another method.
9.1 CFSM may (but is not obliged to) inspect the Goods (including opening any Container) to determine the nature or condition of the Goods or for any other purpose which CFSM considers reasonably necessary.
9.2 If, under Law, a Container must be opened, CFSM will not be liable for any loss, Damage or delay incurred as a result of any opening, unpacking, inspection or repacking and the Customer agrees to pay CFSM's charge for the cost of any such opening, unpacking, inspection or repacking.
10.1 CFSM is authorised to deliver the Goods at the address nominated by or on behalf of the Customer for that purpose. CFSM will be deemed to have delivered the Goods if, at that address, it obtains from any person a receipt or signed delivery docket for the Goods.
10.2 If the nominated place of delivery is unattended or if delivery cannot otherwise be effected by CFSM, CFSM may, at its option, deposit the Goods at that place (which will be conclusively presumed to be due delivery under these conditions), store the Goods or redeliver the Goods to the Customer at the Customer's expense.
10.3 If the Goods are stored by CFSM pursuant to clause 10.2:
(a) the Customer will pay or indemnify CFSM for all costs and expenses incurred with respect to such storage; and
(b) CFSM may, at any time, redeliver the Goods to the Customer at the Customer's expense.
11.1 Where CFSM provides Crane services, the Customer warrants that:
(a) the road surfaces, access and egress to the site and the site itself are stable, adequate to support the Crane, clear of obstacles and of a gradient to allow the Crane to be operated safely;
(b) sufficient clearance will be afforded in respect of all overhead wires; and
(c) the specifications and size of the Crane are suitable for the site and for the Customer's purpose.
11.2 CFSM will supply a standard selection of slings, lugs and chains but accepts no responsibility for loss or delay if any slings, lugs or chains are found to be unsuitable for the Customer's purpose.
11.3 The Customer warrants that the weight of the Goods to be lifted in any one lift and the radius of the proposed lift, measured from the radial point of the Crane, will not exceed the limits of the Crane.
12.1 Where Goods are stored by CFSM at the request of the Customer, the Customer will provide:
(a) an address to which notices will be sent; and
(b) an inventory of the Goods to be stored.
12.2 CFSM may remove the Goods from a place of storage to another place of storage at its discretion.
12.3 Storage charges do not include removing, packing, unpacking, inspecting, stowing, re-storing or delivering.
12.4 The Customer must give 48 hours' notice to CFSM of its intention to remove Goods from storage.
12.5 CFSM will not be obliged to allow an inspection of the Goods or to deliver up any Goods in storage:
(a) to any person other than the Customer or a person authorised in writing by the Customer; or
(b) in circumstances where any amount is due by the Customer to CFSM on any account whatsoever.
12.6 The Customer will remove its Goods from storage within seven days of receipt of written notice from CFSM.
13.1 The Goods are accepted subject to a general lien for all charges due or that may become due to CFSM by the Customer on any account whatsoever, whether in respect of the Goods or in respect of any other goods in respect of which CFSM provides or has provided Services.
13.2 Without prejudice to any other rights CFSM may have under Law, if charges are not paid when due, or the Goods are not collected when required or designated, CFSM may:
(a) remove all or any of the Goods and store them as CFSM thinks fit, at the Customer's risk and expense; or
(b) without notice and immediately in the case of perishable Goods, or otherwise on the provision of 14 days' notice, open and sell all or any of the Goods as CFSM thinks fit (whether by private treaty or public auction, including auction on an internet based platform) and apply the proceeds to discharge the lien and costs of sale without being liable to any person for any loss caused.
13.3 The parties agree that the lien arising under these conditions:
(a) attaches to the Goods when the Goods are accepted by CFSM; and
(b) is a security interest.
13.4 On request by CFSM, the Customer must promptly do anything for the purposes of ensuring that any security interest created under, or provided for by, these conditions is enforceable, perfected (including perfection by registration), maintained and is otherwise effective. Anything that is required to be done under this clause will be done at the Customer's expense. The Customer agrees to reimburse CFSM's costs in connection with any action taken by CFSM under or in connection with this clause.
13.5 The parties agree that, to the extent permitted by the PPSA:
(a) sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply (unless the Customer is otherwise notified in writing by CFSM); and
(b) any right to receive a notice, statement or verification statement under sections 129, 130, 132, 134,135 or 157 of the PPSA is waived.
14.1 CFSM's charges will be deemed fully earned on receipt of the Goods by CFSM and are non-refundable in any event. The Customer agrees to pay all sums due to CFSM without any deduction, counterclaim or set-off.
14.2 In addition to any other charges contemplated under these conditions, the Customer is liable to pay:
(a) all storage, handling, stocktaking and reporting charges and any costs associated with loading or unloading Goods;
(b) any fuel levy imposed, which may be adjusted by CFSM at any time on reasonable grounds to reflect fuel price movements;
(c) any additional costs arising from heavy or over-dimensional transport including costs associated with permits, escorts, pilots, equipment, bridge/road works and detours; and
(d) all charges imposed by Law including customs charges and excises and associated fines and penalties.
14.3 CFSM may charge the Customer, in accordance with its schedule of rates, in respect of any delay in loading or unloading occurring other than from the default of CFSM. Such permissible delay period will commence upon CFSM reporting for loading or unloading. Labour to load or unload is the responsibility and expense of the Customer or consignee.
14.4 If the Customer instructs CFSM that CFSM's charges will be paid by the consignee or any other third party and the consignee or third party does not pay CFSM's charges within seven days of the date of delivery or attempted delivery of the Goods, the Customer must pay such charges.
14.5 Where CFSM stores Goods for the Customer, the Customer must:
(a) pay CFSM's expenses and charges to comply with any Law including any customs, excise or warehouse charges;
(b) supply or pay for labour or machinery, or both, to load or unload the Goods;
(c) compensate CFSM for any cost, expense or loss to any property caused by the nature of the Goods; and
(d) if the Goods are at any time re-quantified, re-weighed or re-measured, pay any proportional additional charges.
15.1 If CFSM agrees to provide Services with respect to Dangerous Goods:
(a) such Goods must be accompanied by a written declaration disclosing the nature of such Goods; and
(b) the Customer must comply with all Law with respect to Dangerous Goods, including the Australian Code for the Transport of Dangerous Goods by Road & Rail.
15.2 The Customer will indemnify CFSM against all loss, harm or injury howsoever caused arising out of the provision of Services with respect to any Dangerous Goods whether declared as such or not and whether or not the Customer was aware of the nature of the Goods.
15.3 The indemnity in clause 15.2 extends to Consequential Loss.
15.4 If, in the opinion of CFSM, acting reasonably, the Goods are or are liable to become of a dangerous or flammable or damaging nature and pose a threat of property damage or personal injury, the Goods may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Customer and without prejudice to CFSM's right to charge for any Services.
16.1 If, because of Force Majeure, CFSM is unable to carry out an obligation under this agreement, the relevant obligations of CFSM and the Customer (other than obligations to pay money) so far as they are affected by Force Majeure, will be suspended during the continuance of Force Majeure.
16.2 CFSM will not be liable for any failure or delay in performance of the Services, if such failure or delay is due, in whole or in part, to Force Majeure.
17.1 Notwithstanding any other provision of these conditions (other than clause 18), CFSM will, in any event, be discharged from all liability whatsoever in respect of the Goods unless written notice of a claim or an intended claim (together with particulars of the circumstances on which the claim is based) is given to CFSM:
(a) in the case of Goods allegedly lost or Damaged in the course of loading, unloading or transit within fourteen (14) days from the delivery of the Goods or from the date on which in the ordinary course of business, delivery would have been effected; or
(b) in the case of Goods allegedly lost or Damaged during storage, within fourteen (14) days of the date of removal or attempted removal of the Goods from storage.
17.2 CFSM will, in any event, be discharged from all liability whatsoever in respect of the Goods unless legal proceedings are commenced:
(a) in the case of Goods allegedly lost or Damaged in the course of loading, unloading or transit within twelve months of their delivery or of the date on which, in the ordinary course of business, they should have been delivered; or
(b) in the case of Goods allegedly lost or Damaged during storage, within twelve months of the date of removal or attempted removal of the Goods from storage.
18.1 Notwithstanding anything contained in these conditions, CFSM will continue to be subject to any implied terms, conditions, guarantees or warranties imposed by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or state legislation but only in so far as such legislation applies and prevents the exclusion or modification of any such term, condition, guarantee or warranty.
18.2 CFSM, the Customer and the consignee must comply with all Law, including Chain of Responsibility Law.
18.3 The Customer must not impose any requirement on CFSM that would directly or indirectly encourage or require CFSM or any person on behalf of CFSM to speed, drive while fatigued or otherwise perform the Services in an unsafe manner or in breach of Law.
19.1 The entire agreement between the parties is contained in these conditions and there are no other understandings, representations or agreements between the parties that are not set out in these conditions.
19.2 CFSM will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of CFSM by an authorised officer of CFSM.
20.1 This agreement will be construed in accordance with the Law in force in Victoria and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from those courts.
20.2 The failure of a party to take action to enforce its rights under any agreement incorporating these conditions or the granting of any time or indulgence will not be construed as a waiver of the provision nor as a waiver of the right of the party at a later time to enforce its rights under any agreement incorporating these conditions.
20.3 Where the Customer or consignee comprise two or more persons, an agreement or obligation to be performed or observed by the Customer or consignee binds those persons jointly and severally.
20.4 If any provision of these conditions is invalid, illegal or unenforceable, that provision will, to the extent that it is invalid, illegal or unenforceable, be treated as severed from this agreement, without affecting the validity and enforceability of the remaining provisions.