Conditions of Cartage

  1. Definitions. In these conditions:
    • "Charges" mean the Company's quoted charges for Transport calculated under its rates schedule or other agreed rates, the charges in 6, and any tax including a goods and services tax ("GST") levied directly on a transaction or supply under these conditions.
    • "Company" means Bandit Accessories (Vic.) Pty. Ltd. ABN 28 074 698 561 and its related bodies corporate within the meaning of that expression in Section 9 of the Corporations Act carrying on business in their own names and under any business names and their officers, servants, agents and Sub-Contractors.
    • "Goods" mean the goods accepted from the sender with any container, packaging or pallets supplied by or for the Sender.
    • "Person" includes any person, firm, corporation, governmental authority or state or federal government.
    • "Sub-Contractors" means :
      • (i) any Person the Company arranges to Transport the Goods; and
      • (ii) any Person who is a servant, agent, employee or sub-contractor of the Company or any person in (i).
        "Transport" means the whole of the operations and services undertaken by the Company for the Goods.
  2. Transport Basis
    • 2.1 The Company IS NOT A COMMON CARRIER and does not accept any liability as a common carrier AND MAY REFUSE TO TRANSPORT GOODS OR ANY CLASS OF GOODS FOR ANY PERSON.
    • 2.2 The Company relies on the details supplied to it but the Company cannot verify and does not admit their accuracy or completeness and a signature by the Company is only an acknowledgement for the number of items received.
    • 2.3 The Company will deliver goods to other than the Receiver's address only by special arrangement in writing and provided suitable delivery facilities are available at all hours.
    • 2.4 Unless otherwise agreed the Company will not exchange any pallets with any Person and the Sender must not transfer any pallets to any account the Company may have with a pallet hirer.
  3. Sender's Obligations - The Sender must:
    • 3.1 not tender for Transport any volatile or explosive Goods or Goods which are or may become dangerous, inflammable or offensive (including radioactive materials) or which are or may become liable to damage any person or property without first presenting to the Company a full written description disclosing the nature of those Goods.
    • 3.2 make the Goods conform to the Receiver's requirements and must pay any expense incurred by the Company if the Sender fails so to do.
  4. Sender's Warranties and Indemnities. The Sender warrants:
    • 4.1 it has fully and adequately described the Goods, their nature, weight and measurements and complied with all applicable laws and regulations (including the Australian Code for the Transport of Dangerous Goods by Road and Rail, Civil Aviation Regulations and the International Maritime Dangerous Goods Code) about the notification, classification, description, labelling, transport and packaging of the Goods and that, given their nature, the Goods are packed in a proper way to withstand the ordinary risks of Transport;
    • 4.2 the Person delivering the Goods to the Company for Transport is authorised to do so and to sign this contract;
    • 4.3 it is either the owner or the authorised agent of the owner of the Goods and it accepts these conditions for itself and the Receiver as well as for any other Person for whom the Sender is acting; and
    • 4.4 neither it nor any other Person will make an allegation or claim against the Company or any other person about the Transport. AND the Sender indemnifies the Company from any loss, damage, expense, penalty, fine or liability arising from a breach of these warranties, the Sender's obligations or these conditions.
  5. The Company's Rights.
    • 5.1 If in the Company's opinion the Goods are or are liable to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, the Company may at any time and at the Sender's cost destroy, dispose of, abandon or render them harmless without compensation to the Sender, Receiver or Third Party and without prejudice to the Company's right to any Charges.
    • 5.2 If the Sender instructs the Company to use a particular method of Transport or to use sea, rail, road or air, the Company will give priority to that method but if the Company cannot conveniently adopt it, the Company may Transport the Goods by another method.
    • 5.3 The Company is authorised to deliver the Goods at the address given to the Company by the Sender or any other address directed by the Receiver and the Company will be taken to have delivered the Goods if at either address the Company obtains from any person an acknowledgement of delivery.
    • 5.4 If the address is unattended or the Receiver fails to take delivery of the Goods, the Company may:
      • 5.4.1 deposit the Goods at the Receiver's address;
      • 5.4.2 store the Goods; or
      • 5.4.3 return the Goods to the Sender
        and its action under 5.4.1, 5.4.2 or 5.4.3 will constitute delivery.
    • 5.5 If the Transport method is rail and the Receiver's address is a town or place where the Company does not have a receiving depot, the Company will be taken to have delivered the Goods if they are delivered to the nearest railhead
    • 5.6 If any identifying document or mark is lost, damaged, destroyed or defaced the Company may open any document, wrapping, package or other container in which the goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership or destination.
    • 5.7 The Company may consolidate the Goods with others and as principal or agent may arrange for Transport of the Goods by any Sub-Contractor on any terms.
    • 5.8 The Company may lease, hire or use any container, pallet or rail wagon in which or on which the Goods may be placed or packed and subject to the terms of any bill of lading, hire lease agreement, equipment hand-over agreement, interchange receipt or other contract for transport whether by sea, rail, road or air and to give any receipt for any container or pallet or rail wagon.
    • 5.9 If the Company believes it is necessary or desirable, the company may deviate from the usual route or method of Transport.
  6. Charges
    • 6.1 The Sender must:
      • 6.1.1 unless otherwise agreed, pay the Company the Charges in Australian dollars within 7 days of the date of the Company's invoice;
      • 6.1.2 pay freight by weight or measurement as the Company selects;
      • 6.1.3 if the Goods are at any time re-weighed or re-measured, pay any proportional freight;
      • 6.1.4 pay any charge for demurrage at the rate charged to the Company directly or indirectly by any railway or shipping authority or other Person;
      • 6.1.5 pay the Company's expenses and charges to comply with any law or regulation or any order or requirement made under them or with the requirement of any market, harbour, dock, railway, shipping, customs, excise, or warehouse authority or other Person;
      • 6.1.6 if any of the Goods are under Customs control, pay all Customs duty, excise duty and costs (including any fine or penalty) which the Company becomes liable to pay or pays;
      • 6.1.7 supply or pay for labour or machinery or both to load or unload the Goods;
      • 6.1.8 if the Company requires, pay an additional charge at industry rates if the Receiver is not present during normal trading hours or the time specified, or if there is any delay outside the Company's control in loading or unloading greater than 30 minutes;
      • 6.1.9 pay the cost, expense or loss to the Company of destruction or disposal under 5.1, storage and return under 5.4 or of opening or inspecting under 5.6.
      • 6.1.10 compensate the Company for any cost, expense or loss to the Company's property or any Person caused by the Goods;
      • 6.1.11 if any charges are not paid on the date for payment, pay interest on the unpaid Charges at a rate of 4% higher than the prevailing rate under the Penalty Interest Rates Act 1983 and pay any charge or amount owing to the Company under any other contract;
      • 6.1.12 if a copy of a contract or any part is required, pay the Company a charge of $5.00; and
      • 6.1.13 pay the Company's costs not recouped out of the proceeds of sale of the Goods under 7.2
    • 6.2 The Company's Charges are earned as soon as the goods are picked up and whether they are delivered to the Receiver or not and whether damaged or not.
    • 6.3 The Company will not refund any payment for Charges under any circumstances.
    • 6.4 The Company's quoted charges represent the exclusive value of the supply for GST purposes.
  7. Lien
    • 7.1 The Company has a general lien on the goods and on any other goods of the Sender for all Charges due or which become due on any account whether for Transport of the Goods or any other goods or any other Company service.
    • 7.2 If the Charges are not paid or the Sender or Receiver fails to take delivery or return of the Goods, the Company may without notice and, in the case of perishable Goods immediately:
      • 7.2.1 store the Goods as the Company thinks fit at the Sender's risk and expense; or
      • 7.2.2 open any package and sell all or any of the Goods as the Company thinks fit and apply the proceeds to discharge the lien and costs of sale.
    • 7.3 The Company may deduct or set-off from any moneys due from the Company to the Sender under any contract, debts and moneys due from the Sender to the Company under these conditions or any contract.
  8. Claims
    • 8.1 If the Company is liable for damage to or loss of the Goods or any part of the Goods, no claim for the loss or damage may be made unless notice of the claim is lodged in writing within 2 days of the date of delivery or for non-delivery, within 7 days of the anticipated date of delivery.
    • 8.2 The failure to notify a claim within a time under 8.1 is evidence of satisfactory performance by the Company of its obligations.
    • 8.3 Despite any other condition except 10, the Company will be discharged from all liability for loss or damage or the Transport of the Goods unless an action is brought within 6 months of delivery or the anticipated date of delivery.
    • 8.4 Where the Sender recovers under any policy of insurance in respect to the Goods for any loss or damage to the Goods, the Sender shall not make any claim against the Company in respect to loss or damage of the Goods and the Company will be discharged from all liability for any such loss or damage to the Goods.
  9. Exclusions and Limitations
    • 9.1 Subject to 10, the Company excludes from these conditions all conditions, warranties and terms implied by statute, general law or custom.
    • 9.2 Subject to 10 the Company excludes all liability to any Person, including the Sender for acts or omissions of the Company in tort (including negligence), contract, bailment or otherwise for loss of, damage to or deterioration or contamination of the Goods, or any delay, non-delivery or other failure to supply the Transport or arising out of the Goods, the Transport or these conditions.
    • 9.3 Subject to 10, the Company excludes all liability for, and the Sender and Receiver release and indemnify the Company against all loss, damage, cost and expense from any claim by any Person in tort (including negligence), contract, bailment or otherwise for loss or damage to any property, injury to, or death of any Person arising out of any acts or omissions of the Company or any or all of the Goods, the Transport, any delay, non-delivery or other failure to supply the Transport or these conditions.
    • 9.4 The exclusions, releases and indemnities in 9.2 and 9.3 extend to loss of profits, business or anticipated savings or any other indirect or consequential damage and to economic loss and even if the Company knows they are possible or otherwise foreseeable.
    • 9.5 These conditions apply in all circumstances arising from a fundamental breach of contract or breach of a fundamental term.
    • 9.6 The Company, in addition to acting for itself, also acts as agent for and trustee for each of its servants, agents and Sub-Contractors so they are entitled to the full benefit of these conditions including any exclusions or limitations or liability, to the same extent as the Company.
    • 9.7 Even if the Company breaches any of these conditions, all the rights, immunities and limitations of liability in these conditions continue to have their full force and effect in all circumstances.
    • 9.8 Despite the Transport, the Company is not liable for, nor bound by, any instructions to collect cash on delivery or any other payments for any Person.
  10. Trade Practices Act
    These conditions are subject to any applicable implied warranty in the Trade Practices Act 1974 which cannot be excluded, restricted or modified.
  11. Insurance of Goods
    The Sender shall have the Goods insured at all times prior to the delivery and acceptance of the Goods by the Receiver. The Company shall not be required to insure the Goods unless the Company receives express written instructions from the Sender to do so and confirmation that the insurance will be a Charge recoverable from the Sender. The Company will insure the Goods to a value as requested in writing by the Sender or such other value as the Company deems fit.
  12. Law
    These conditions are governed and must be construed under the laws of the State of Victoria and the parties submit to the exclusive jurisdiction of the courts of that State.
  13. Severability
    If a condition or part is unenforceable the unenforceability does not affect any other part of the condition or any other condition.
  14. Variations and Waiver
    • 14.1 The Company is not bound by any waiver, discharge or release of a condition or any agreement which varies these conditions unless it is in writing and signed for the Company by an authorised officer.
    • 14.2 If the Company waives a breach of a condition the waiver does not operate as a waiver of another breach of the same or any other condition or as a continuing waiver.