1. Definitions In these terms and conditions, unless the context requires otherwise: “ACL” means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended from time to time. “Carrier” means L. Arthur Proprietary Limited of 660 Footscray Road, West Melbourne VIC 3003 and includes its employees, servants and agents. “Consignee” means the person or entity to whom or to whose order the Goods are to be delivered. “Consignor” means the person or entity who contracts with the Carrier for Services and includes any person or entity who delivers Goods to the Carrier or on whose behalf Goods are delivered to the Carrier. “Customer” means any person at whose request or on whose behalf the Carrier provides Services. “Force Majeure event” means any event beyond the reasonable control of the Carrier, including but not limited to act of God, war, strike, lockout, fire, flood, storm or government action. “Goods” means any cargo, containers, equipment, plant, machinery, chattels or property of any kind accepted by the Carrier for Services. “Services” means all services provided by the Carrier including transport, carriage, storage, loading, unloading, packing, unpacking and any related or ancillary services. “Subcontractor” means any person, company or entity engaged by the Carrier (whether directly or indirectly through another Subcontractor), and includes their respective employees, servants and agents.
2. Carrier Definition The Carrier is not a common carrier and will accept no liability as such. The Carrier reserves the right to accept or refuse to carry, store, or perform any other service at its discretion.
3. Subcontracting (a) The Carrier may engage Subcontractors to perform all or any part of the Services. (b) By entering into these conditions, the Customer authorises the Carrier to contract with any servant, Subcontractor or agent on the Customer’s behalf as the Customer’s agent and trustee, on terms no less favourable to the Carrier than those set out in these conditions. (c) Every Subcontractor, servant or agent of the Carrier shall have the benefit of all provisions of these conditions that are available to the Carrier, as if such provisions were expressly made for their benefit. In entering into these conditions, the Carrier, to the extent of these provisions, does so not only on its own behalf but also as agent and trustee for such servants, Subcontractors and agents. (d) The Customer undertakes that no claim shall be made against any servant, Subcontractor or agent of the Carrier which imposes, or attempts to impose, upon any of them any liability whatsoever in connection with the Goods. (e) If any such claim is nevertheless made, the Customer agrees to indemnify the Carrier against all consequences of such claim. (f) If any Subcontractor, servant or agent of the Carrier is found liable to any person in connection with the Goods or Services, that person shall be entitled to be indemnified by the Customer to the same extent as the Carrier would have been entitled to be indemnified under these conditions. The Customer shall defend and hold harmless each such person accordingly. (g) The Customer shall defend, indemnify and hold harmless the Carrier and each servant, Subcontractor and agent of the Carrier from and against all claims, costs, losses and demands whatsoever and by whomsoever made, to the extent that they exceed or fall outside the Carrier’s liability under these conditions. This indemnity does not apply to Customers to whom clause 14(b) applies to the extent the relevant claim arises directly from the negligence or wilful misconduct of the Carrier, servant, agent or any Subcontractor.
4. Method of carrying Goods The Carrier is authorised to carry Goods by any method and/or by any route and to retain at any place or places which the Carrier in its absolute discretion deems fit.
5. Dangerous Goods (a) No person shall tender for carriage or storage any explosive, inflammable or otherwise dangerous or damaging goods without: (i) presenting a full description of the Goods in writing to the Carrier; (ii) ensuring proper packaging and labelling in accordance with the Australian Dangerous Goods Code; and (iii) obtaining the Carrier’s written acceptance of the Dangerous Goods. (b) To the maximum extent permitted by law, the Carrier shall not be liable for any loss, damage, liability or expenses arising out of or in connection with such Goods.
6. Consignor warranties The Consignor warrants that: (a) it has complied with all laws and regulations relating to the nature of packaging, labelling and carriage of the Goods; (b) the Goods are packaged to withstand the ordinary risks of carriage; The Consignor hereby indemnifies the Carrier against any liability whatsoever arising out of the Consignor’s failure to comply with either of these warranties.
7. Compliance with request of Authority All Goods accepted for carriage or storage by the Carrier are accepted on the condition that they comply in every respect with all terms, conditions or requirements which may be imposed by any highway, customs, port, harbour, dock, railway, shipping, airways, warehouse or any other public authority or government department or officer thereof and any additional expenses or charges arising by reason of such terms, conditions or requirements shall be paid by the Consignor.
8. Freight (a) Freight shall be considered earned upon: (i) delivery of Goods to the Consignee or nominated address; or (ii) attempted delivery where delivery cannot be completed due to the Consignor’s or Consignee’s act, omission, or default (including incorrect address, refusal to accept, premises closed, or no authorised person available to accept delivery). (b) Freight shall not be refundable except where required by applicable law.
9. Charges (a) The Carrier’s charges shall be paid by the Consignor without prejudice to the Carrier’s rights against the Consignee or any other person provided that if any special instruction states that charges are payable by the Consignee, the Consignor shall not be required to pay such charges unless the Consignee fails to pay after a reasonable demand has been made by the Carrier for payment. (b) The Carrier’s charge shall be deemed fully earned as soon as the Goods are loaded and dispatched from the Consignor’s premises and shall be payable and non-refundable in any event.
10. Delay in delivery A charge will be made for any delay in excess of 30 minutes, or such period as otherwise specified in the relevant quote, unless such delay is through the fault of the Carrier. The period commences after the Carrier has reported for loading or unloading. Labour for the purposes of loading or unloading is the sole responsibility and expense of the Consignor or Consignee.
11. Delivery (a) The Carrier is authorised to deliver the Goods at the address nominated to the Carrier by the Consignor for that purpose. Subject to clause 11(b), the Carrier shall be conclusively presumed to have delivered the Goods in accordance with these conditions if the Carrier obtains from any person at the address a receipt or signed delivery docket for the Goods. (b) The conclusive presumption in clause 11(a) does not apply where the Consignee is a consumer within the meaning of the ACL. (c) If the nominated place of delivery is unattended or if delivery cannot otherwise be effected by the Carrier, the Carrier may at its option: (i) deposit the Goods at that place (which shall constitute delivery for the purposes of these conditions); or (ii) return or store the Goods, in which case the Consignor shall indemnify the Carrier for all reasonable costs and expenses incurred in storage and re-delivery.
12. Quarantine Services Where the Carrier carries out wash services, whether under directions from the Department of Agriculture, Fisheries and Forestry or from a client directly, the Carrier continues to act as "the Carrier" within the meaning of clause 1 and all terms and conditions apply accordingly.
13. Waste The Carrier will not handle, transport, or store any industrial waste as prescribed under the Environment Protection Act and the Environment Protection Regulations. It is the responsibility of the Customer to ensure that any prescribed industrial waste is not included in any consignment agreed to by the Carrier.
14. Limitation of liability (a) The Carrier is liable for loss of or damage to the Goods only where, and to the extent that, such loss or damage is caused by the Carrier’s negligence or wilful misconduct. Subject to these conditions and to the maximum extent permitted by law, the Carrier’s liability arising out of or in connection with the Services is limited as set out in this clause 14. (b) Where the Carrier is liable under clause 14(a) and the agreement is a consumer contract within the meaning of section 23(3) of the ACL or a small business contract within the meaning of section 23(4) of the ACL, the Carrier’s liability for loss of or damage to Goods shall be limited to the lesser of: (i) the actual value of the Goods lost or damaged; or (ii) USD $3.00 per gross kilogram of the Goods lost or damaged. (c) Where the Carrier is liable under clause 14(a) and clause 14(b) does not apply, the Carrier’s liability for loss or damage to Goods shall be limited to the lesser of: (i) the actual value of the Goods lost or damaged; or (ii) USD $2.00 per gross kilogram of the Goods lost or damaged. (d) Notwithstanding clauses 14(b) and 14(c), the maximum total liability of the Carrier arising out of any one incident, or series of incidents, shall not exceed AUD $200,000, inclusive of any associated interest or costs, unless such limitation is contrary to an applicable law. (e) Notwithstanding clause 14(a), the Carrier shall not be liable for loss or damage whatsoever caused by or arising from: (i) acts or omissions of the Customer or Consignor or any person acting on their behalf; (ii) Dangerous Goods not properly declared under clause 5; (iii) insufficient or improper packing or labelling of the Goods by the Customer, except where such service has been provided by the Carrier; (iv) handling, loading, stowage or unloading of the Goods by the Customer or any person acting on their behalf; (v) inherent vice of the Goods; (vi) a Force Majeure event; (vii) compliance with any order or recommendation of any government authority, customs, port or other public authority; (viii) any other cause which the Carrier could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence. (f) The exclusions in clause 14(e) shall not apply to Customers to whom clause 14(b) applies, to the extent that the loss or damage arises from the negligence or wilful misconduct of the Carrier or any Subcontractor, servant or agent of the Carrier. (g) Unless otherwise agreed in writing, the Carrier does not warrant and shall not be liable for any failure to meet any particular departure or arrival date(s) of the Goods. (h) To the maximum extent permitted by law, the Carrier shall not be liable for any indirect or consequential losses however caused, including but not limited to loss of profits, economic loss, or business interruption. (i) The defences and limits of liability provided in this clause apply whether the claim is brought in contract, tort, or otherwise, and whether or not the loss or damage is explained.
15. Insurance (a) The Carrier will not arrange insurance on behalf of any person over any Goods entrusted to it except upon express instructions in writing and then only at the expense of such person so instructing and without any liability to the Carrier. (b) In any other case it is the responsibility of the Consignor to ensure that adequate insurance cover is arranged.
16. ACL Nothing in these conditions excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Competition and Consumer Act 2010 (Cth) including the ACL or any other applicable law that cannot be excluded, restricted or modified. To the extent permitted by the ACL, the Carrier’s liability for breach of any guarantee is limited, at the Carrier’s option, to: (a) the resupply of Services; or (b) the payment of the cost of having the Services supplied again.
17. Indemnity from Principal Contractor For the purpose of this clause, “Principal Contractor” means any person who engages the Carrier to perform Services as part of, or ancillary to, a head contract or project between that person and a third party. (a) The Principal Contractor shall indemnify and keep indemnified the Carrier from and against any and all: (i) liability, loss, damage, cost, claim or proceeding suffered or incurred by the Carrier; and (ii) claims brought or threatened against the Carrier by any third party, arising out of or in connection with the head contract or the Services performed under these conditions, including (without limitation) any damage to property and personal injury, howsoever arising. (b) The indemnity in this clause does not apply to the extent that the relevant loss or liability arises from the gross negligence or wilful misconduct of the Carrier.
18. Notice of Loss, Time Bar (a) Notice of any claims must be given in writing to the Carrier within 14 days of: (i) the date of delivery of the Goods, where the claim relates to loss of or damage to the Goods; (ii) the date on which delivery was due, where the claim relates to delay or non-delivery; or (iii) the date of the event giving rise to the claim, in all other cases. (b) Where the claimant proves that it was not possible to give notice within the applicable period under clause 18(a), notice may be given within a reasonable time thereafter. (c) Any claim not notified in accordance with this clause shall be deemed waived and the Carrier shall be discharged from all liability in respect thereof. (d) Any legal proceedings in respect of any claim or dispute arising under or in connection with these conditions must be commenced in the proper forum and written notice of such proceedings must be given to the Carrier within 9 months of: (i) the date of delivery of the Goods where the claim relates to loss of or damage to the Goods, (ii) the date on which the Goods should have been delivered, where the claim relates to delay or non-delivery; or (iii) the date of the event giving rise to the claim, in all other cases. (e) Any claim not commenced within the period specified in clause 18(d) shall be absolutely time-barred and the Carrier shall bear no liability whatsoever in respect of such claim, whether arising in contract, tort or otherwise.
19. Lien (a) The Carrier shall have a lien over the Goods and any related documents for all sums payable. If payment is not made within 14 days of written demand, the Carrier may, upon giving not less than 7 days’ written notice to the Consignor, sell the Goods by public auction or private sale. (b) The sale shall be conducted in a commercially reasonable manner, and the Carrier may apply the proceeds towards the outstanding debt and costs of sale.
20. Severability If any provision of these conditions is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed from these conditions without affecting the validity or enforceability of the remaining provisions of these conditions.
21. Governing Law and Jurisdiction These conditions are governed by the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia and any courts that may hear appeals from those courts about any proceedings in connection with these conditions.
22. Acceptance (a) These conditions may be accepted by the Customer by: (i) signing and returning a quotation or agreement (whether in physical or electronic form); (ii) confirming acceptance by email or other electronic communication; (iii) applying an electronic signature; (iv) instructing the Carrier to provide Services after these conditions have been provided to, or made available to, the Customer; or (v) continuing to request or accept Services from the Carrier after these conditions have been provided or made available. (b) The Customer acknowledges and agrees that: (i) these conditions are provided prior to the provision of Services; (ii) any instruction to provide Services constitutes acceptance of these conditions; and (iii) these conditions apply to all Services supplied by the Carrier unless otherwise agreed in writing. (c) The person accepting these conditions or instructing the Carrier to provide Services on behalf of the Customer: (i) warrants that they are duly authorised to bind the Customer; and (ii) indemnifies the Carrier against any loss, cost or liability arising from any breach of that warrant of authority. (d) These conditions and any related document may be executed electronically and in counterparts. Electronic signatures, scanned copies of signatures, or signatures transmitted by email or other electronic means are valid and binding.
