C.T. FREIGHT PTY LTD
STANDARD TRADING CONDITIONS OF CONTRACT
Effective MAY 2016
These Trading Conditions apply to all services (Services) provided by C.T. Freight Pty Ltd (ACN 002 489 705) (the Company).
You should read these Trading Conditions carefully.
We draw your particular attentions to a number of Conditions which give the Company material rights and liberties and/or reduce or exclude rights that you (the Customer) might otherwise have, but for the these Conditions. Such Conditions include the following:
Clause 20: The default interest rate on charges, payable by the Customer, is 2 per cent per month.
Clause 22: The Company’s right to sell the Customer’s Assets and Goods in the event of non-payment of amounts due.
Clause 31: Discharge of the Company’s liabilities if legal proceedings are not commenced and served on the Company within 6 months from delivery of the Goods (or within 12 months from when the Goods should have been delivered).
Clause 32: The Company’s exclusion of liability for loss or damage arising out of the provision of the Services to the Customer (whether caused by negligence or wilful default by the Company its servants, agents or any third party).
Clause 33: The Company’s exclusion of liability for any consequential damages, whether or not the Company had knowledge that such damage might be incurred.
Clause 34: The Company’s limitation of liability for loss or damage occurring during air carriage.
Clause 35: The Company’s limitation of liability for loss or damage occurring during sea carriage.
Clause 37: The Company’s limitation of liability for breach of any guarantees under the Competition and Consumer Act 2010 and the Australian Consumer Law.
STANDARD TRADING CONDITIONS OF CONTRACT
1. In these Conditions:
“Australian Consumer Law” means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of state or territory fair trading legislation or the Australian Securities and Investments Commission Act (2001) (Cth).
“Australian Consumer Law Guarantee” means a guarantee applying in respect of a supply of goods or services by virtue of Division 1 of Part 3-2 of the Australian Consumer Law.
“Carrier” means any operator who transports the Goods by road, rail, sea or air.
“Company” means CT Freight Pty Ltd (ACN 002 489 705) and the nominees, agents, sub-agents, assigns and employees of the Company.
“Conditions” means these Standard Trading Conditions of Contract. “Customer” means the person with whom this Contract is made.
“Dangerous Goods” means cargo which is volatile or explosive or which is or may become dangerous, inflammable or offensive (including radioactive materials) or which may become liable to damage any person or property whatsoever, or which is defined as dangerous goods by the Carrier
“Goods” means the cargo accepted by the Company together with any container, packaging or pallet(s) supplied by or on behalf of the Customer.
“GST” means the goods and services tax imposed by or under a GST Law.
“GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999.
”GST Rate” means the rate of GST under the GST Law.
”Insolvency Event” means any circumstance in which the Customer is unable to pay any amounts that have become due and payable and includes liquidation , official management, administration, compromise arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or a similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.
“Invoice” means the tax invoice under the GST Law.
“Personal Property Securities Act or PPSA” means the Personal Property Securities Act 2009 (Cth). “Services” mean the whole of the operations undertaken by the Company in respect of the Goods. “Subcontractor” includes any other person who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
“Supply” means the same as in the GST Law.
“Taxable Supply” means any Supply under these Conditions in respect of which the Company is or may become liable to pay GST.
B. NATURE OF SERVICES
2. The Company is not a common carrier and accepts no liability as such. The Company reserves the right to accept or refuse the provision of Services in respect of the Goods at its sole discretion. All Services are provided by the Company subject only to these Conditions which prevail at all times over the conditions of contract of the Customer. In the event of and to the extent of any inconsistency between these Conditions and the conditions which are incorporated into the bill of lading, waybill, consignment note or other transport document issued by the Company, these Conditions prevail.
3. The Customer warrants that it is either the owner or the authorized agent of the person or persons owning or having any interest in the Goods or any part of the Goods and enters into this Contract on its own behalf or as authorized agent of that person or those persons. Further the Customer undertakes to indemnify the Company in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or willful act or default of the Company or others) in connection with the provision of the Services and/or the Goods to any person (other than the Customer) who claims to have, who has or may hereafter have any interest in the Goods or any part of the Goods.
4. The Customer warrants that it has complied with all laws and regulations relating to the nature, condition, packaging, handling, storage, documentation and carriage of the Goods and that the Goods are packed to withstand the ordinary risks of handling, storage and carriage, having regard to their nature and indemnifies the Company for all liability and for all costs incurred as a result of or arising out of a breach of this warranty. Further the Customer must provide to the Company all such assistance, information and documentation that may be necessary to enable the Company to comply with such laws and regulations.
5. All customs and/or excise duties, costs, fines or penalties which the Company becomes liable to pay for any reason whatsoever in respect of the Goods and any documentation relating to the Goods pursuant to any applicable laws or regulations (whether or not resulting from or arising out of the negligence of the Company) shall be paid by the Customer.
C. ACCEPTANCE OF CONDITIONS
6. Any instructions received by the Company from the Customer for the supply of services shall constitute acknowledgement by the Customer that it has received, understands and agrees to be bound by these Conditions and will be bound by these Conditions. Such instructions received by the Company from the Customer for the supply of services and/or any supply of goods shall also constitute authorisation for the Company to act on behalf of the Customer in accordance with these Conditions.
7. Any other party receiving delivery of goods or other services from the Company, including but not limited to receivers of goods, acknowledges and agrees to be bound by these Conditions and will be bound by these Conditions from the time it has received delivery of goods or other services from the Company. Such party shall be deemed a “Customer” for the purposes of these Conditions and shall have the same obligations as the Customer as set out in these Conditions.
8. The Company shall not be bound by any agreement purporting to waive or vary these Conditions unless such agreement to so waive or vary shall be in writing and signed by an executive officer of the Company.
D. CUSTOMER WARRANTIES AND INDEMNITY
9. The Customer (on behalf of itself, any shipper, consignor and any consignee) warrants to the Company that:
(a) it will provide all documents, information and assistance required by the Company to comply with the requirements of any government authorities in an accurate and timely fashion as required by those government authorities;
(b) it will observe all provisions of any government authority;
(c) it has complied with all laws and regulations of any government authority relating to the nature, condition, packaging, handling, storage and carriage of the Goods;
(d) the Goods are packed to withstand ordinary risks of handling storage and carriage, having regard to their nature;
(e) the Goods will not damage or cause loss to any shipping containers, other goods, or other equipment;
(f) the Goods and their carriage do not contravene any laws;
(g) the Customer is the legal owner of the Goods or legally entitled to authorise their carriage; and
(h)the Customer has complied with all requirements of AMSA Marine Order 42 (Carriage, stowage and securing of cargoes and containers) 2016 (MO 42), in particular in relation to verification of gross mass of cargo units and cargo carried in certain containers, and have provided all necessary information to the Company in compliance with MO 42 as requested from time to time by the Company.
10. Without limiting the effect of these Conditions, the Customer agrees to indemnify and keep indemnified the Company for any liabilities, losses, damages and costs incurred as a result of any breach by the Customr of any of the warranties set out in these Conditions.
E. DANGEROUS GOODS
11. (i) The Customer shall not tender for the provision of Services by the Company any Dangerous Goods without presenting to the Company a full description disclosing their nature and any information required by the Carrier and in any event the Customer shall be liable for all death, bodily injury, loss and/or damage thereby caused and shall indemnify the Company for such liability.
(ii) If, in the opinion of the Company or the Carrier, the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or a damaging nature, they may at any time be returned, destroyed, disposed of or abandoned or rendered harmless by the Company or the Carrier on the Company’s behalf without compensation to and at the cost of the Customer.
F. COMPANY LIABILITY
12. The Goods are at the risk of the Customer and not of the Company save for liability imposed upon the Carrier or the Company by any legislation or treaty, the Company shall not be responsible in tort, bailment, conversion, contract or any otherwise available action for any loss or damage however caused, arising from the Services, any consequential loss arising from the Services, or any failure to provide or delay in the provision of the Services, or for any loss arising from the actions of its servants or agents whether unintentional or deliberate. Any liability imposed upon the Company or Carrier by the customer shall be limited to the cost of services or the amount prescribed by such legislation or treaty. This Clause shall apply to all, and the consequences of all, such loss of or damage to or deterioration of the Goods or misdelivery or failure to deliver or delay in delivery of the Goods or failure to provide or delay in providing the Services whether or not the same occurs in the course of performance by or on behalf of the Company of the Contract or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them or either of them or in events which could constitute a fundamental breach or a breach of a fundamental term of the Contract.
13. Where any handling, installation, removal, assembly or erection of any kind whatsoever is required to be undertaken by the Company, the Company shall not be liable for any death, injury, loss or damage which may result from or arise out of what the Company undertakes. Further the Customer shall indemnify the Company in respect of any such liability whether or not that liability arises from negligence or breach of contract or willful act or default of the Company or the Company’s servants, agents or Subcontractors.
14. (i) The Customer authorizes the Company to contract with the Carrier and any Subcontractor to subcontract on any terms the whole or part of the provision of the Services.
(ii) The Customer undertakes:
(a) that no claim or allegation shall be made, whether by the Customer or any other person who is or who may subsequently be interested in the provision of the Services and/or in the Goods, against any person (other than the Company) by whom (whether it is a Subcontractor, principal, employer, servant, agent or otherwise) the Services or any part of the Services are or is provided which imposes or attempts to impose upon such person any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or wilful act or default of the Company or others) in connection with the provision of the Services and/or the Goods and if such claim or allegation should nevertheless be made to indemnify the Company and the person against whom such claim or allegation is made against the consequences of such claim or allegation. For the purpose of this Clause 12(ii), the Company is or shall 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 shall to this extent be or be deemed to be parties to this Contract; and
(b) to indemnify the Company against any claim or allegation made against it by any person in connection with any liability, arising out of or relating to the provision of the Services and/or the Goods.
15. Every exemption, limitation, condition and liberty in these Conditions and every right, exemption from liability, defense and immunity of whatsoever nature applicable to the Company or to which the Company is entitled in accordance with these Conditions shall also be available and shall extend to protect:
(i) all Subcontractors;
(ii) every servant or agent of the Company or of a Subcontractor;
(iii) every other person (other than the Company) by whom the Services or any part of the Services are or is provided; and
(iv) all persons who are or may be vicariously liable for the acts or omissions of any persons falling within paragraphs (i), (ii) or (iii) of this Clause 13:
and, for the purpose of this Clause 13, the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
H. SERVICE PROVISION DISCRETION
16. (i) The Customer authorizes any deviation from the usual manner in which the Services are provided which may in the absolute discretion of the Company be deemed reasonable or necessary in the circumstances.
(ii) If the Customer expressly or impliedly instructs the Company to use or it is expressly or impliedly agreed that the Company will use a particular method of providing the Services the Company will give priority to that method but its adoption remains at the sole discretion of the Company and the Customer authorizes the Company to provide the Services by another method.
17. Insurance will not be arranged by the Company except with the express written instructions of the Customer and then only at the Customer’s expense and on lodgement of a declaration as to value prior to acceptance of the Goods by the Company. The Company may recover any expenses incurred from the Customer for arranging such insurance.
18. The charges of the Company shall be considered earned as soon as the Goods are delivered to the Company and, except as required by law, none of those charges will be refunded. The Company may charge by weight, measurement or value and may at any time reweigh, re-measure or revalue or require the Goods to be reweighed, re-measured or revalued and charge proportional additional charges accordingly. Except as required by law, the Customer is and remains responsible to the Company for all its proper charges whether or not the Goods are delivered and/or the Services are provided as instructed and whether or not they are damaged.
19. The Customer will indemnify the Company for all charges and liabilities arising in connection with the use of any container or containers including repair costs, cleaning costs and/or detention charges. The Customer’s indemnity will include any reasonable costs, either administrative or legal, incurred by the Company in recovering from the Customer any amounts owing, pursuant to this s indemnity.
20. If any amounts payable under any agreement between the Company and the Customer (including, without limitation, charges payable for Services provided by the Company) are not paid within seven days of the due date, all amounts due to the Company by the Customer shall immediately and without further notice become due and payable. Furthermore in that event, the Customer will be in default and without limiting any other rights of the Company, the Customer shall pay to the Company, by way of liquidated damages, interest at the rate of 2 per cent per month on the amount outstanding calculated from the due date until payment is made in full. The Company may take any legal proceedings or take any action permitted under these Conditions to recover amounts owing pursuant to these Conditions and the Company may recover all legal costs incurred in doing so.
21. Every special instruction to the effect that charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that nominated person does not pay those charges within seven (7) days of delivery or attempted delivery of the Goods, then the Customer shall pay those charges to the Company within seven (7) days of being notified of that person’s failure to pay.
K. LIEN ON GOODS
22. The Customer hereby grants to the Company, its servants and agents a general lien on any Goods and any documents relating to those Goods, and a right to sell the Goods and documents whether by public or private sale or auction without notice, for all sums payable by the Customer to the Company including freight, demurrage, container detention charges, container repair costs, container cleaning costs, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any and all debts, charges, expenses or other sums due and owing by the Customer or its servants or agents. In addition, the lien shall cover the costs and expenses of exercising the lien and of such a sale including reasonable legal fees. The lien and rights granted by this clause shall survive delivery of the Goods and the Company shall be entitled to retain the proceeds of sale of the Goods in respect of any outstanding amounts referred to in this clause. Where the proceeds of sale are not sufficient to cover all amounts payable to the Company, the Company is entitled to recover any deficit from the Customer. The Company sells or otherwise disposes of such Goods and any other documents as principal and not as agent and is not the trustee of the power of sale.
23. The Company’s right to a lien shall persist independently notwithstanding the existence of any other security interest in the Goods pursuant to the PPSA or any other legislation.
24. From the time the Company, or its servants or agents, receive the Goods into its custody, the Goods and all of the Customer’s present and future rights in relation to the Goods and any documents relating to those Goods, are subject to a continuing security interest in favour of the Company for the payment of all the amounts owed for freight, demurrage, container detention charges, duty, fines, penalties, salvage, average of any kind whatsoever and without limitation and for any at all debts, charges, expenses or any other sums due and owing by the Customer or the Customer’s principals, servants or agents. Further, the continuing security interest shall cover all the costs and expenses of exercising the lien, including the costs of a public or private sale or auction, including legal and administration costs.
25. For the purpose of these trading conditions the Company shall be deemed to have custody and possession of the Goods whether the Goods are in the actual physical custody and possession of the Company or any subcontractors, servants or agents, and whether or not the Company is in possession of any documents of title relating to the Goods. The Customer and the Company agree that the Company has possession of the Goods within the meaning of section 24 of the Personal Properties Securities Act 2009 even if the Goods are in possession of the Company’s subcontractor’s servants or agents.
26. The Customer acknowledges that the Company may, at the Customer’s cost, register its security interests granted by the Customer under these trading conditions, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA.
27. The Customer will immediately inform the Company if an Insolvency Event occurs with respect to the Customer. The Customer shall not change its name or other details without first notifying the Company in writing with at least 14 days notice before such change takes effect.
28. The Customer will not:
(a) permit to subsist any other security interest in relation to the Goods which would rank ahead of the Company’s interests or;
(b) except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of the Goods.
29. In addition to any rights that the Company has under the PPSA the Company shall have the right, as the Customer’s agent, at any time while any amount owing by the Customer to the Company under the Contract remains outstanding, to enter into the premises where the Goods are stored and remove them without being responsible for any damage caused in exercising this right. The Customer shall indemnify the Company for all such monies and all such costs, charges and expenses in repossessing the Goods.
30. The Customer and Company agree pursuant to section 115 of the PPSA to contract out of sections 95, 96, 120, 121, 123 and 125 and, to the extent permitted by law, Divisions 3 and 4 of the PPSA.
31. (i) Any claim for loss or damage must be notified in writing to the Company within seven (7) days of Delivery of the Goods or of the date upon which the Goods should have been delivered.
(ii) The Company shall be discharged from all liability whatsoever in connection with the services and/or the Goods if the Customer does not give written notice of damage or loss within seven (7) days of the delivery of the Goods or of the date upon which the Goods should have been delivered .
(iii) In any event the Company shall be discharged from all liability whatsoever in connection with the provision of the Services and/or the Goods unless suit is brought and notice given within twelve (12) months of the provision of the Services or delivery of the Goods or when the Services should have been provided or the Goods should have been delivered.
32. To the full extent permitted by law, the Company its subcontractors, servants and agents shall not be responsible for loss or damage of any kind whatsoever or howsoever arising out of the provision of its Services to the Customer (whether caused by negligence or wilful default by the Company its servants, agents or any third party). The Customer further agrees to indemnify the Company in respect of any claims made by any party, including but not limited to any sub-contractor or third party concerning the provision of Services by the Company.
33. The Company shall not be liable in any event for any special, incidental, or consequential damages, including, but not limited to, loss of profits, income, utility, interest, or loss of market, whether or not the Company had knowledge that such damage might be incurred.
34. The Company and Customer acknowledge that Goods moving by airfreight are subject to the applicable international treaties including the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed in Montreal in 1999 (Montreal Convention). If Goods are lost or damaged while in the possession of the airline carrier, the airline carrier’s liability is limited to the maximum amounts of liability applicable at any time, as set out in the Montreal Convention with subsequent increases.. However, if any mandatory applicable laws provide for different limits of liability, those different limits will apply. The Customer’s recovery of any loss or damage is against the airline carrier and is limited in accordance with these or any other conventions that may be applicable. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of the airline carrier, the Company will seek to recover on behalf of the Customer from the principal airline carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold the Company harmless against any claims for loss or damage to their Goods incurred whilst they were in the possession of the airline carrier.
35. The Company and Customer acknowledge that Goods moving by seafreight are subject to the applicable international treaties including the International Convention for the Unification of Certain Rules relating to Bill of Lading signed at Brussels on August 25, 1924 (the Hague Rules), or those rules as amended by the Protocol signed at Brussels on February 23, 1968 (the Hague Visby Rules) and the SDR Protocol (1979). However, if any mandatory applicable laws provide compulsorily for different limits of liability, those different limits will apply. The Customer’s recovery of any loss or damage is against the seafreight carrier and is limited in accordance with these or any other conventions that may be applicable. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of the seafreight carrier, the Company will seek to recover on behalf of the Customer from the carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold the Company harmless against any claims for loss or damage to their goods incurred whilst they were in the possession of the seafreight carrier.
36. (i) All the rights, immunities and limitations of liability in these Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this Contract or of these Conditions by the Company or any other person entitled to the benefit of such provisions.
(ii) It is agreed that if any provision or any part of any provision of these Conditions is unenforceable such unenforceability shall not affect any other provision or any other part of such provision.
37. The liability of the Company arising out of any one incident not occurring during, and is not ancillary to, transport or storage for breach of any guarantees under the Competition and Consumer Act 2010 and the Australian Consumer Law, or comparable legislation in each of the States and Territories of Australia, or howsoever arising, is limited to any of the following as determined by the Company:
a) the supplying of the Services again; or
b) the payment of the cost of having the Services supplied again; or
c) or the value of the Goods the subject of these Trading Conditions at the time the Goods were received by the Company.
N. GUARANTEE BY DIRECTORS
38. If the Customer is a company, the directors of that company will guarantee the payment of all charges payable to the Company under these Conditions and indemnify and keep indemnified the Company against such charges. The Customer will ensure that its directors sign any other documents required by the Company to evidence and confirm such guarantee and indemnity.
O. GOVERNING LAW
39. These Conditions shall be governed by and construed in accordance with the laws of New South Wales and any dispute between the parties shall be referred to the exclusive jurisdiction of the courts of New South Wales or the Federal Court of Australia.
|40.||(i)||This Clause 40 applies if the Company is or may become liable to pay GST in relation to any Supply under these Conditions.|
|(ii)||Unless otherwise stated, all charges quoted are exclusive of GST. In addition to such charges, the Customer must pay GST on the Taxable Supply to the Company of an amount equal to the GST|
|exclusive consideration multiplied by the GST Rate. GST shall be payable by the Customer without|
|any deduction or set off for any other amount at the same time as the GST exclusive consideration is payable. In all other respects, GST shall be payable by the Customer to the Company upon the same basis as the GST exclusive consideration is payable by the Customer under these Conditions.|
|(iii)||The Company must issue an Invoice or Invoices to the Customer for the amount of GST referable to|
|the Taxable Supply. The Company must include in any such Invoice such particulars as are required by the GST Law in order that the Customer may obtain an input tax credit for the amount of GST payable on the Taxable Supply.|
|(iv)||If any part of the consideration is referable to both a Taxable Supply and anything that is not a|
|Taxable Supply, the amount of GST payable by the Customer shall be determined by the Company and shall be the same amount of GST that would be payable if the Taxable Supply were the only Supply made to the Customer.|
|(v)||If the Customer makes default in the payment on the due date of any amount payable pursuant to|
|Clause 40 (ii) then without prejudice to any other remedies of the Company, the Customer shall pay|
|to the Company upon demand an amount equal to the amount of any damages or interest or|
|additional GST that may become payable by the Company arising out of the default of the Customer.|