TERMS & CONDITIONS OF CONTRACT

Interpretation

1.      In these conditions of carriage:

a)     “Accessorial Charges” refer to any miscellaneous or additional expenses or delay caused by no fault of the Carrier outside the specified transport service chosen by the Consignor or the agreed terms of Carriage. This includes but is not limited to demurrage, the supply of packaging, additional labour, equipment, service or re-deployment of equipment if a customer is not available at the Collection Address or Delivery Address during normal business hours when the return or delivery is attempted or subject to product disposition.

b)     “Carrier” shall mean DOT Express Pty Ltd ABN 41 151 125 683 trading as DOT Express and shall include any employees or servants, officers, agents and subcontractors and any subcontractors of any subcontractors or agent of the Carrier.

c)      “Carriage” means the services or operations undertaken by the Carrier in respect of the Goods in whole or in part, including but not limited to the transportation and storage of Goods.

d)     “Collection Address” means the address on the Consignment Note from which the Goods must be collected by the Carrier for the Consignor.

e)     “Consignment Note” describes the detail of the Goods under Carriage and can be nominated to the Carrier either in data transfer or by writing in the space provided on a paper hardcopy from the Consignor to the Carrier. Each Consignment Note is unique to the Consignor and includes a number that may consist of an alpha-numeric prefix, Consignor account number, Collection Address and Delivery Address, dead weight in kilograms, cubic displacement in metres, item description, number of items, any special instructions and the name, nature, value of the Goods and whether they be Dangerous Goods or flammable, hazardous, infectious or noxious nature or capable of causing harm, injury or damage to other Goods, or to any other person or environment or to any property, vehicle, aircraft or vessel or any other means of storage and  transport of any kind whatsoever in which the Goods are stored and transported.

f)       “Consignor” shall mean the Party entering into the contract of carriage with the Carrier, being either the owner of the goods, the person, organisation, business, customer or their authorised agent who consigns Goods to the Carrier for the Carriage of those Goods from the Collection Address to the Delivery Address.

g)     “Consignee” means the receiver at the Delivery Address.

h)     “Dangerous Goods” are those Goods as determined to be dangerous under the 7th edition of the Australian Code for the Transport of Dangerous Goods by Road and Rail Regulation and scheduled through legislation under the National Transport Commission Act 2003 and IATA Dangerous Goods Regulations governed by Civil Aviation Regulations.

i)       “Delivery Address” means the address on the Consignment Note to which the Goods must be delivered by the Carrier for the Consignor to the Consignee.

j)       “EFT” means electronic fund transfer payment by the Consignor to the Carrier for Carriage provided.

k)      “Goods” means the freight accepted from the Consignor together with the packaging or pallet supplied by or on behalf of the Consignor for Carriage.

l)       "GST" shall mean the goods and services tax imposed by or under a GST Law.

m)    "GST Law" shall mean the same as in the A New Tax System (Goods and Services Tax) Act (Cth) 1999.

n)     "GST Rate" shall mean the rate of GST under the GST Law.

o)     “Party” means the Consignor or Consignee and any person, organisation, business, customer or their authorised agent who consigns Goods to the Carrier for Carriage on behalf of the Consignor.

p)     “Subcontractor” shall include any person or transport company who pursuant to a contract or arrangement with any other person (whether or not the Carrier) performs or agrees to perform the Carriage or any part thereof.

q)     "Taxable Supply" has the meaning given to it in Clause 40 of these terms and conditions.

Carriage of Goods

2.      THE CARRIER IS NOT A COMMON CARRIER and will accept no liability as such. 

3.      The Carrier reserves the right and may refuse the Carriage of goods for any Party and the Carriage of any class of Goods is at the Carrier’s sole discretion.

4.      The Consignor authorises the Carrier to handle, store, transport and onforward the Goods by any means or method at its absolute discretion and allows the Carrier to make any alteration deemed appropriate by the Carrier at its discretion other than that which may have been instructed or agreed.

5.      The Carrier shall not be bound to deliver the goods except to the Consignee nominated on the Consignment Note or to such other persons as may be authorised in writing by the Consignor to receive the Goods.

6.      The Carrier reserves the right to validate the authenticity of the Consignee and if in doubt may return the Goods to depot and not deliver the Goods subject to clarification from the Consignor.

7.      If for any reason the Carrier has engaged any of its employees or servants, officers, agents, subcontractors and or any subcontractors of any subcontractors or agent and is unable to collect or deliver the goods including but not exclusive of

a)     the Consignor is not available to supply Goods for despatch after a booking has been arranged

b)     the Consignee is not available to take receipt

c)      the address is not a physical street address. No collections will be made from and no deliveries will be to a Post Office Box.

d)     failure on the part of the Consignee to take delivery on the due date of delivery

e)     failure of the Consignee to provide appropriate identification

the Carrier will be entitled to handle and store the goods at its discretion and will be entitled to make a reasonable charge in respect of such Accessorial Charges for each call until delivery in full is accomplished or charge appropriately for the return of the Goods to their place of origin.

8.      The Carrier may in its absolute discretion open any Goods to inspect and determine the ownership or destination of the Goods where any Consignment Note detail is lost, damaged or destroyed in transit.

9.      The Carrier may in its absolute discretion open any Goods to inspect and determine the nature of the Goods when the Carrier considers the Goods to be unlawful and be bound to notify the appropriate authority.

10.      The Carrier does not have a pallet account and cannot accept responsibility for the same. The Consignor accepts full responsibility for pallets including the purchase or hire and de-hire from pallet suppliers.

11.   These terms and conditions of contract cover the whole of, or any part of, Carriage performed by the Carrier for the Consignor from time to time.

Warranties

12.      The Consignor warrants that:

a)     all applicable laws and regulations relating to the nature, condition, packaging or Carriage of the Goods including the Australian Code for the Transport of Dangerous Goods, Civil Aviation Regulations and the International Maritime Dangerous Goods Code have been complied with

b)     given their nature, the Goods are packed in a manner adequate to withstand the ordinary risks of Carriage

c)      the Goods are accurately described on the Consignment Note supplied to the Carrier and do not exclude quantity, weights and measures

d)     the Consignor in agreeing to the terms herein, warrants that he or she has the authority, owning or having interest in the Goods or any part thereof and has done everything possible not to breach clause 12a), 12b) and 12c).

e)     the Carrier is indemnified and that the Consignor keeps the Carrier indemnified against any penalty breach, charge, expense, damage, loss (total, partial or consequential), liability or injury sustained by the Carrier in complying with the requirements of any law or otherwise incurred

2.      The Consignor warrants that

a)     no claim will be made against the Carrier, its employees, servants, officers, agents and subcontractors and any subcontractors of any subcontractors or agent of the Carrier which imposes any liability whatsoever in connection with the Goods under this contract.

b)     if any such claim should be made, the Consignor shall indemnify the Carrier against any and all such consequences.

Goods and Packaging

14.      The Consignor must not tender any Dangerous Goods to the Carrier for Carriage without providing the appropriate Dangerous Goods declaration that complies with the current Australian Code for the Transport of Dangerous Goods by Road and Rail Regulation and the IATA Dangerous Goods Regulation for aviation transport. The Consignor understands that the Carrier may decline the Carriage of volatile, explosive or goods that may become dangerous, poisonous, flammable, radioactive or offensive at its discretion.

15.      The Consignor hereby indemnifies the Carrier and accepts total responsibility for any and all penalty breach, charge, expense, damage, loss, liability or bodily injury sustained wholly or partially from the tender of Dangerous Goods to the Carrier for Carriage

16.      The Goods may be disposed of or destroyed by the Carrier at the Consignor’s cost without any compensation and without any loss of rights to collect any charges payable to the Carrier including any Carriage costs if the Carrier considers that the Goods tendered for Carriage to be

a)     Dangerous Goods and not appropriately declared or packaged or

b)     flammable, hazardous, infectious or noxious nature that may cause harm, injury or damage to other Goods, or to any other person or environment or to any property, vehicle, aircraft or vessel or

c)      if the Dangerous Goods tendered may be capable of causing harm, injury or damage to other Goods, or to any other person or environment or to any property, vehicle, aircraft or vessel.

17.      All Goods tendered will be processed by electronic data transfer with data emanating from the Consignor to the Carrier. The data and items collected or despatched must match the Consignment Note information on the same day. 

18.      If a Consignor uses any electronic data transfer process other than that platform supplied by the Carrier, then the electronic data transfer process or the warehouse management system of the Consignor must first be approved by the Carrier before trade commences.

19.      The Consignor must use its best endeavours to ensure the integrity and accuracy of the electronic data transfer on a daily basis. After hours Consignor contact detail must be provided and be authorised for use by the Carrier in event that action is required after normal business hours.

Carrier's liability

20.      The Goods shall at all times be at the sole risk of the Consignor and the Carrier shall not be liable in tort (including negligence), contract (including a fundamental breach of contract) or any act or otherwise omission of the Carrier that is outside the authorised scope of its activities under this contract, for breach of statutory duty or statute, for any loss of, damage (visible or concealed) to, contamination, evaporation, deterioration, failure to deliver, delay in delivery of, or non-delivery of the Goods held in the care or control of the Carrier whatsoever, howsoever caused

21.      The exclusion of liability in Clause 20 extends to include the loss, damage or injury to any person, property, thing or the environment arising from the Carrier providing the operations and services under this contract and to any indirect or consequential loss or damage or otherwise whatsoever arising from such loss, damage or injury or from failure to deliver, delay in delivery or non-delivery, howsoever caused.

22.      The Consignor shall be responsible for packaging of the Goods and ensure packaging conforms with the Consignee.

a)     if the Carrier incurs any expense, penalty or liability from the Consignee due to incorrect or inappropriate packaging, the Consignor must immediately indemnify and reimburse the Carrier for any or all expense, penalty or liability incurred.

b)     subject to pre-agreed packaging charges, if the Carrier supplies packaging on behalf of the Consignor to or for the Consignee, the Consignor will accept the charge and reimburse the Carrier as the packaging is invoiced

23.      In the event the Carrier is required to provide additional service to the standard terms of Carriage including but not limited handling, assembly, erection, installation or removal of any kind whatsoever, the Consignor indemnifies the Carrier from any

a)     penalty breach, charge, expense, damage, loss (total, partial or consequential) or liability for the Goods and equipment used during any part of the Carriage

b)     loss, damage or injury to any person, property, thing or the environment arising or occurring during any part of the Carriage.

24.      The Consignor must compensate the Carrier for any cost, expense or loss to the Carrier’s property or any person caused by the Goods.

Carriage Charges

25.      Carriage charges will be determined by the quoted rates supplied by the Carrier to the Consignor. The Carrier will charge the account of the Consignor in accordance with the electronic data supplied by the Consignor or validated from the Consignee. If for any reason the Carrier fails to receive data for the Goods, the Carrier reserves the right to apply whatever means it has to physically check the weight, cubic displacement and value of the Goods to its best ability.

26.      The Carrier will charge the greater of the declared dead weight, cubic displacement or value of Goods declared by the Consignor as the Carriage charge to the Consignment Note. When calculating the Carriage charges, the Carrier will round up to the next whole kilogram the deadweight in kilograms or cubic displacement converted to displacement kilograms.

27.      The Carrier will apply Carriage charges to the Consignment Note by reference to the declared dead weight, cubic displacement or value of Goods declared by the Consignor. The Carrier may use the Consignor’s declared dead weight, cubic displacement or value of Goods to determine the Carriage charges but reserves the right, at its discretion, to re-weigh, re-cube or re-value the Goods to determine the Carriage charges for the Goods.

28.      If the Consignor does not provide a declared dead weight, cubic displacement or value of Goods, the Carrier at its discretion may determine the total dead weight, total cubic displacement or total value of Goods to be used in determining the Carriage charges or the Carrier may communicate with the Collection Address to determine an estimate for the dead weight, cubic displacement or value of Goods. These Goods in turn will be subject to review and re-weigh, re-cube or re-value the Goods by the Carrier before the Goods are presented to the Delivery Address.

29.      Accessorial Charges will apply to Carriage requirements outside the quoted rates for the services provided and any rates not quoted will be charged at the national rate code schedule. In case of demurrage delays, the Carrier will apply Accessorial Charges to the Consignor for delays caused by no fault of the Carrier in excess of thirty (30) minutes in unloading or loading the Goods.

30.      Carriage charges will be paid by the Consignor to the Carrier by EFT, credit card or cheque, or as agreed, all sums immediately when due without any reduction or time delay on payment due to any unresolved claim or counterclaim. 

31.      Carriage charges are earned by the Carrier as soon as Goods are collected and loaded from the Collection Address or accepted for storage and the Consignor must within 7 (seven) days from the date of the invoice issued by the Carrier pay all charges, irrespective of whether the goods are delivered or not and whether damaged or not. Carriage charges paid shall be absolutely non-refundable.

32.      The Carrier is not liable or bound by any instructions to collect cash or any other payment on delivery.

33.      The Carrier will not refund any payment for freight and charges under any circumstances. 

34.   When the Carrier is instructed to collect Goods, duties, charges or other expenses from any third Party or person other than the Consignor and in the event that the third Party or person does not pay the Carriage amounts to the Carrier within seven (7) days, the Consignor shall remain responsible for the amounts and shall pay these amounts to the Carrier within seven (7) days after the invoice has been issued by the Carrier to the Consignor.

35.   If the Carrier becomes liable to pay any duties, excises and or costs charged by any governmental, non-governmental or administrative authority for the Goods, then the Consignor must reimburse the Carrier by demand for any duties, excises and or costs paid by the Carrier.

36.   On all accounts overdue by the Consignor within seven (7) days from the date of invoice issued by the Carrier, the Carrier shall be entitled to charge interest calculated at a rate that is four percent (4%) above the highest overdraft rate as at the due date of payment charged by the Carriers Financial Institution for commercial loans in excess of one hundred and fifty thousand dollars ($150,000).

37.   If on demand any Consignor fails to pay Carriage charges due to the Carrier in respect of any service rendered by the Carrier for a period of fourteen (14) days from the date of invoice by the Carrier to the Consignor, the Carrier shall have a lien over the Goods in possession of the Consignor, and without notice to the Consignor, may sell all or any part of the Goods by public auction or private treaty without notice to the Consignor.

38.   If the Consignor should for any reason

a)     as a company pass resolution for winding up or have a summons to wind up issued against it; or

b)become subject to any form of external administration; or

c) enter into an arrangement regarding external payment with any of its creditors;

all monies outstanding to the Carrier shall become payable immediately.

39.   Quoted rates presented by the Carrier to the Consignor are undertaken based on an agreed minimum monthly expenditure. The quotation tendered may be withdrawn or re-negotiated if the invoiced monthly amount is less than the agreed minimum monthly expenditure.

GST

40.      In relation to GST:

a)     Unless otherwise stated, all charges quoted by the Carrier are exclusive of GST.

b)     The Carrier must issue an Invoice to the Consignor for the amount of GST referrable to a Taxable Supply.  The Carrier must include in such Invoice such particulars as are required by the GST Law in order that the Consignor may obtain an input tax credit for the amount of GST payable on the Taxable Supply.

c)      The Consignor must pay to the Carrier GST on a Taxable Supply of an amount equal to the Carrier’s GST exclusive charge for the Taxable Supply multiplied by the GST Rate. 

d)     GST shall be payable by the Consignor without any deduction or set off for any other amount at the same time as the Carrier’s GST exclusive charge is payable.

Subcontractors

41.      The Carrier is authorised to subcontract the whole or any part of the Carriage of Goods to any Subcontractor of the Carrier.

42.      Any arrangement made by the Carrier to subcontract shall be deemed to be authorised by the Consignor and the Carrier acts as an agent on behalf of the Consignor.

43.      Any right or exemption from liability to the Carrier herein shall also be available and shall extend to protect all Subcontractors, employees, servants or agents of the Carrier and of any Subcontractor.

Law and Jurisdiction

44.      These terms and conditions of contract shall be governed by and construed in accordance with the laws of the State of New South Wales. The Carrier shall be discharged from any and all liability whatsoever unless any proceedings against the Carrier is brought in New South Wales and not elsewhere within three (3) months of the delivery of the Goods to the Delivery Address, or when the Goods should have been delivered.

45.      No proceedings can be brought against the Carrier without notice of the claim in writing within three (3) days after the Goods have been delivered or were due to have been delivered and failing receipt of which notice the Carrier shall be forever discharged from any and all liability to the Consignor in respect of the Goods.

46.      The Consignor understands that loss or damage is an insurable risk and that failure to take insurance on the Goods is their risk and total responsibility for the same lies with the Consignor. The Carrier is not liable for any delay, loss or damage arising from the supply of or failure to supply services including consequential loss of profit or total or partial loss of, deterioration in, non-delivery of, or failure to deliver the Goods for any reason whatsoever including breach of contract, negligence, breach of duty as bailee, or wilful act or default.

47.      No warranty is given to the Consignor by the Carrier in relation, in part or in full, of Carriage of the Goods and the Consignor can make no reliance upon any representation of warranty made by or on behalf of the Carrier in relation to the Carriage of the Goods.

48.      It is the responsibility of the Consignor to ensure Carriage of the Goods is sufficient and suitable for the purpose of the Carrier

49.      The liability, if any, arising from any such breach of warranty is limited to only the value of Carriage by the Carrier or to the re-supply of Carriage by the Carrier.

50.      A proof of delivery signed by the Consignee is evidence that the Goods were received in good order and condition.

51.      The conditions of this contract shall be subject to any implied conditions and warranties in the Trade Practices Act 1974 and certain State and Territory legislation and prevents the exclusion, restriction or modification of such warranty.

52.      It is hereby agreed that if any provision or part of any provision of this contract is unenforceable such unenforceability shall not affect any other part of such provision or any part of any other provision thereof.

Conditions and Interpretation

53.      In relation to these terms and conditions:

a)     unless an agreement purporting to vary these terms and conditions is in writing and signed on behalf of the Carrier by an authorised officer, the Carrier shall not be bound by any variation to these terms and conditions.

b)     notwithstanding any breach, whether fundamental or otherwise, of this contract or of these terms and conditions by the Carrier or any other person entitled to the benefit of such provisions, all and any rights, immunities and exclusions from or limitations of liability in these terms and conditions shall continue to have their full force and effect in all circumstances.

c)      the provisions of these terms and condition shall be severable and it is agreed that if any provision or any part of any provision of these terms and conditions is held to be invalid, void or unenforceable, such holding shall not affect any other provision or any other part of such provision of these terms and conditions.

d)     headings of the clauses of these terms and conditions are for convenience of reference only and shall not modify, define or limit any of the terms or provisions of these terms and conditions.

e)     The singular includes the plural and vice versa and words importing one gender include every gender. 

f)       A reference to a person includes a corporation and vice versa.

Privacy

54.      The Consignor agrees that the Carrier may use the Consignor’s information for legitimate functions or purposes to grow the business of the Carrier and the Carrier will not disclose any Consignor identifiable detailed information.

55.      The Carrier will not disclose or use any Consignor information as would be reasonably expected except as required to perform our functions or if required to do so by any Commonwealth, State or Territory law.

56.      The Carrier will use information for the purpose of delivering a Consignment Note and this information will be stored as part of our record and information process.

57.      Any quotations provided by the Carrier constitute confidential information of the Carrier and may not be disclosed without its consent.

58.      During the period of this agreement and for six (6) months after any service is provided by the Carrier, the Consignor agrees not to approach, deal with or use the Carrier’s transport service providers, their agents and subcontractors and any subcontractors of any subcontractors or agent of the Carrier for the purposes of the Consignor’s transport logistics. For the purposes of this clause the Carrier’s transport service providers means and includes any service provider that the Carrier has engaged to transport the Consignor’s goods in the previous twelve (12) months.