By instructing the Company to supply the Services, the Customer agrees to accept and be bound by the Company’s trading terms and conditions. All and any business undertaken by the Company shall be subject to the Company’s trading terms and conditions of contract which are as follows:
Definitions
1. “Company” shall mean Transdirect Pty Ltd (ACN 50 111 218 627), its employees, servants, agents, subsidiaries, associated entities, successor and/or assigns.
“Customer” shall mean the 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.
“Goods” shall mean the chattels, articles or things tendered for 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.
"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).
“Services” shall mean the carriage, transport, movement, packing, handling, storage/warehousing, and/or any other service arranged or performed by the Company, pursuant to, or ancillary to, this contract with the Customer.
“Dangerous goods” shall mean 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 any thing including that in which the Goods are carried, handled or stored.
“Valuables” shall mean bullion, coins, precious stones, jewellery, antiques, or works of art.
“Perishable goods” shall mean 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.
“Subcontractor” shall mean and include any person, firm or company (other than the Company) that arranges or performs the Services (or a part thereof).
“Carriage by Air Convention” – shall mean 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).
“ACL” means the Australian Consumer Law (“ACL”) being Schedule 2 of the Australian Competition & Consumer Act 2010 (“CCA”)
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.
Not a Common Carrier/Entire Agreement
2. The Company is not a common carrier and accepts no liability as such. Services are arranged, undertaken and/or performed 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 to open and/or inspect all Goods at its discretion and at the Customer’s expense.
Contracts with Third Parties
3. The Customer hereby employs and authorises the Company to contract either in its own name or in the Customer’s name with any Subcontractor, and authorises any Subcontractor to contract the services of any other Subcontractor, 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 Subcontractor with whom the Company or Subcontractor may contract for such Service(s) including in every case terms which may limit or exclude liability in respect of the Service. In any event, the Company shall be entitled to the full benefits of all privileges, right and immunities available to any Subcontractor under such contract or compulsorily applicable law in respect of the Services provided. Any Subcontractor’s terms are available from the Company on request.
Prevention of Suit/Circular Indemnity and Himalaya
4. The Customer undertakes that no claim or allegation shall be made against the Company’s employees, servants, agents, Subcontractors (including the Subcontractors’ employees and agents) or other person who may be vicariously liable for the acts or omissions of such parties which imposes or attempts to impose upon any such party any liability whatsoever in connection with the Goods whether or not arising out of negligence on the part of such party. If any such claim or allegation should nevertheless be made, the Customer will indemnify the Company against all consequences thereof. Without prejudice to the foregoing, every such party shall have the benefit of all provisions herein benefiting the Company as if such provisions were expressly for its benefit, and in entering into this contract, the Company, to the extent of these provisions, does so not only on its own behalf, but also as agent and trustee for such parties.
Warranties by the Customer
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 sign the Company’s Letter of Instruction, other contractual document or otherwise 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 sign the Company’s Letter of Instruction, other contractual document and/or otherwise 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.
Exclusion and Limitation of Liability
6 (a) Subject to the terms and conditions in this contract and mandatory applicable statute, convention or law, the Company shall not be liable for any loss or damage suffered by the Customer or any other person, howsoever caused or arising, whether:
- arising from an authorised or unauthorised act OR contemplated or uncontemplated act under this contract;
- caused by the negligence of the Company’s servants, employees, agents and/or Subcontractors;
- caused by a breach or fundamental breach of contract and/or breach of bailment;
- resulting from, or attributable to, any quotation, statement, representation or information, oral or written, made or given on behalf of the Company 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;
- occasioned by the Company complying with any requirement or directive of any Government Authority in relation to the Goods;
- occasioned by examination of the Goods by any Government Authority;
- 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 making compulsorily applicable to the Company and/or a Subcontractor carrier 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. For the purpose of determining the extent of the Company’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 any one or more of the following:
- the supplying of the Services again; or
- 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 or Subcontractor to collect or receive C.O.D. payments from any consignees or their agents whether caused by the negligence of the Company’s servants, agents, employees, Subcontractors 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 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 their right to compensation for any claim for loss or damage will only be maintained provided the following is strictly adhered to:
- Any claim by the Customer for loss or damage must be lodged in writing to the Company within 7 business days of delivery of the Goods or the date Services are completed, whichever date occurs first;
- Any claim by the Customer for loss/non-delivery of Goods must be notified in writing to the Company within 7 business 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.
Negotiation of Extension of Responsibility/Liability/Warranty/Insurance
7 (a) Upon negotiation with the Customer in writing, the Company may agree to greater responsibility and liability than set out in the sub-paragraphs (a) to (i) of the above provision upon payment of additional charges by the Customer as required. Applicable rates for greater responsibility and liability are subject of discussion and negotiation between the parties.
(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 Customer may choose two different types of cover options in respect of loss or damage to the Goods:
- a conditional warranty provided directly by Subcontractors Aramex and Couriers Please in respect of shipments using their services and subject to their terms; or,
- a conditional warranty provided by the Company and subject to the Company’s warranty terms and conditions (“WTC”) which if applicable are supplementary terms to this agreement; and
- where the cover in (i) above is arranged by the Company solely as agent on behalf of the Customer with one or other of the above mentioned Subcontractors subject to the Subcontractor’s terms and conditions.
(d) Depending on the level of responsibility and liability or warranty cover agreed or arranged as between the Customer and the Company pursuant to sub-paragraphs (a) and/or (c) 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 or warranties pursuant to subparagraphs (a) and/or (c) above. No insurance will be arranged or effected by the Company on the Customer’s behalf.
Loading and Unloading on and from Transportation Vehicle/Warehousing
8 (a) The Customer shall be responsible for the cost of, and arranging for, the loading and unloading of the Goods on and from the relevant transportation vehicle.
(b) In the event that there is a delay in the loading or unloading of the Goods by reason other than the default of the Company or Subcontractor, the Customer shall be liable for the Company’s expenses incurred by reason of the delay, including demurrage costs as notified by the Company orally or in writing from time to time or available upon request.
(c) The Customer shall provide adequate and suitable facilities and equipment for loading and unloading the Goods from the relevant transportation vehicle. The Customer also warrants that the Goods will be suitable for carriage in such vehicle.
(d) The Customer has the right to inspect the transportation vehicle before the loading of the Goods. Absent any inspection and complaint, the transportation vehicle will be deemed to be in adequate and suitable condition for the carriage of the Goods. Thereafter, the Customer shall have no rights against the Company with respect to the condition of the vehicle and the Company will have no liability in respect of any loss or damage caused by the inadequate or unsound condition of the vehicle.
(e) The Goods may at any time be stored or otherwise held at any place or at any time be removed from any place at which they may be stored or otherwise held to any other place to be stored or otherwise held at the sole discretion of the Company. In every case, whether storage is incidental or the primary Service provided by the Company, it will be provided at the Customer’s risk and expense as a primary charge(s) or a charge(s) incidental to or in connection with the carriage of the Goods or any Service hereunder.
Customer’s Indemnity
9. (a) The Customer shall indemnify the Company in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, outlay, cost or other liability reasonably incurred by the Company:
- whether arising directly or indirectly from any Service arranged or performed by the Company and/or
- 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.
Quotations
10. 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 Company’s website 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.
Authority for Payment of Expenses/Duties/Inspection and/or Release of Goods/Information
11. 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 and releases the Company from any liability in connection therewith.