Terms and Conditions

Conditions of Carriage

1. Definition

1.1 ‘Agreement’ means this document.
1.2 Carriage’ means the whole of the operations and services undertaken by the Carrier as specified in this Agreement including storage packaging or handling or other related services. The term includes the towing of a trailer.

1.3 Carrier’ means Werncorp trading as On Time Freight Management Pty Ltd on whose behalf this Agreement has been signed.
1.4 Container’ includes any container, trailer, tilt, igloo, and wagon, transportable tank, flat pallet or any other Unit load device used to
consolidate Goods.
1.5 Customer’ includes the sender, shipper, Consignor, Consignee, receiver of the Goods, any person owning or entitled to the possession of the Goods and anyone acting on behalf of such persons.
1.6 Freight’ includes all charges payable to the Carrier. Goods’ means the Goods accepted from the Customer and includes any container not supplied by or on behalf of the carrier.
1.7 Place of Receipt’ means the place designated by this Agreement.
1.8 Place of Delivery’ means the place designated by this Agreement.
1.9 Storage’ means the whole of the operations and services undertaken by the Carrier in respect of the Goods in receiving, storing and subsequently making the Goods available for collection.
1.10 Storage Period’ means the period of storage (if any) designated by this Agreement.
1.11 Sub-contractor’ means any sub-contractor of the Carrier and the sub-contractor’s servants, agents or sub-contractors, indirect and direct sub-contractors.
1.12 The term includes railways operated by the Commonwealth, any State or private railway operator, any airline or sea carrier.

2. Severability, Entire Understanding and Governing Law

2.1 The parties acknowledge and agree that:
2.1.1 All the provisions of this Agreement are reasonable in all the circumstances and that each provision is and will be deemed to be severable and independent.
2.1.2 This Agreement is subject to all compulsory rules and requirements of law to the intent and effect that if any provision in this Agreement is to any extent inconsistent with any such rules or requirements, such provision will to that extent, but no further, be deemed not to form part of this Agreement and will not affect the validity or enforceability of the remaining provisions.
2.1.3 Regardless of any other term of this Agreement, the Carrier will continue to be subject to any condition or warranty implied by the Trade Practices Act 1974 (Cth) and if applicable that Act will prevent the exclusion, restriction or modification of any such condition or warranty.

2.2 This Agreement contains the entire understanding of the parties as to its subject matter. There is no other understanding, agreement, warranty or representation whether express or implied that in any way defines, extends, relates or binds the parties with respect to this Agreement.
2.3 This Agreement is governed by and is to be construed in accordance with the laws of the State of NSW, QLD, VIC, SA, WA,

3. Carriages and Demise

4. Customer’s Warranties Acknowledgments and Indemnities4.1 The Customer warrants that:

4.2 The Customer acknowledges that:
4.2.1 No agent or employee of the Carrier is permitted to alter or vary this Agreement.
4.2.2 No representations have been made by any employee or agent of the Carrier to the Customer.
4.2.3 The Carrier enters into this Agreement for and on behalf of itself and its servants, agents and sub-contractors, all of whom will be entitled to the benefit of this Agreement and will be under no liability whatsoever to the Customer or anyone claiming through the Customer in respect of the Goods.

4.3 The Customer will indemnify the Carrier against:
4.3.1 All claims and demands whatsoever by whomsoever made in respect of any loss, damage or injury however caused, whether or not by the negligence, breach of contract or wilful act of the Carrier, its servants, agents or sub-contractors.
4.3.2 Any loss or damage which may be suffered by the Carrier as a result of any breach by the Customer of this Agreement.
4.3.3 Any loss, damage or injury to the Carrier’s Container/s or other equipment which occurs while in the possession or control of the Customer or which occurs due to the nature or condition of the Goods in such Container/s, including loss resulting from the Customer’s detention of any containers or any other equipment.
4.3.4 Any loss, damage or injury arising from any defective condition of the Goods or Storage of the Goods.
4.3.5 All demands, claims, fines or expenses whatsoever and by whomsoever made arising as a result of the Customer making an incorrect description or advising of incorrect weight of the Goods.

5. Himalaya Clause

5.1 Every servant, agent, and sub-contractor of the Carrier will have the benefit of all provisions of this Agreement benefiting the Carrier as if such provisions were expressly for their benefit.
5.2 The Customer undertakes that no claim or allegation will be made against any servant, agent or sub-contractor of the Carrier which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods, whether or not arising out of negligence or a wilful act of them and if any such claim or allegation should nevertheless be made the Customer agrees to indemnify the Carrier against all claims made.

6. Route Deviations and Delay

6.1 The Customer authorises any deviation from the Carrier’s usual route or manner of carriage which may in the Carrier’s discretion be necessary.
6.2 The Consignee will take delivery of the Goods as soon as the Carrier is ready to deliver them. If the Consignee fails to take delivery of the Goods, the Carrier will be deemed to have delivered the Goods in accordance with this Agreement if the Goods are delivered to the person, entity, place or address specified for delivery by the Customer. The Carrier may without notice unload the Goods and/or store them in the open or under cover.
6.3 If the Carrier is for any reason unable to deliver the Goods, the Carrier may without notice return the Goods to the Customer at the Customer’s expense or store the Goods at any place and such return or Storage of Goods will be deemed to constitute delivery and any responsibility that the Carrier has in respect of the Goods will cease. The Customer will be liable to reimburse the Carrier for any additional carriage and/or Storage costs incurred.

6.4 The Customer agrees and authorises the Carrier at its discretion and at any time without notice to the Customer to:
6.4.1 Use any means of transport or storage whatsoever. The Customer authorises the Carrier to adopt such specialist Carriage which may require the use of the services of other organisations or bodies necessary to ensure the safety of others (such as other road users) and to comply with all government requirements.
6.4.2 Proceed by any route whether or not it is the nearest or most direct or customary route.

6.5 If the Carrier effects arrangements for storage or preservation of the Goods after delivery it does so as agent of the Customer and solely at the Customer’s risk and expense.

7. Liabilities

7.1 At all times and in all circumstances and for all purposes the Goods will be and remain at the sole risk of the Customer and the Carrier will be under no liability whatsoever for any delay, misdeliver, damage to Goods or consequential loss occasioned during Carriage and/or Storage arising from any reason whatsoever, including without limiting the foregoing, any negligence, breach of contract or wilful act of the Carrier, its servants, agents or subcontractors.
7.2 The defences and exclusions of liability provided for in this Agreement will apply in any action against the Carrier for loss arising from the Carriage of the Goods whether the action is founded in tort contract or otherwise.
7.3 The Carrier will be entitled to the benefit of the exclusions of liability provided for in this Agreement even if it is proved that the loss or damage resulted from an act or omission of the Carrier done with intent to cause damage or recklessly and with knowledge that damage would probably result.
7.4 No conduct by the Carrier in breach of this Agreement whether lawful or unlawful, will under any circumstances constitute a breach going to the root of this Agreement, or a repudiation so as to have the effect of disentitling the Carrier from obtaining the benefit of and enforcing all rights, defences, exceptions, immunities, limitations of liability and other like protections of the Carrier contained in this Agreement and all such rights, defences, exceptions, immunities, limitations of liability and like protections will continue to have full force and effect in any event.

8. Trade Practices Liability

8.1 If the Carrier is liable for a breach of a condition or warranty implied by the Trade Practices Act 1974 (Cth) in respect of any transport of Goods, the Carrier’s liability to the Customer will be limited to:
(a) the resupplying of the service of transporting the Goods; or
(b) the costs of having the service of transporting the Goods resupplied.
8.2 This clause applies only insofar as the service to be provided by the Carrier under this agreement is a Service of a kind not ordinarily acquired for personal, domestic or household use.

9. Storage

9.1 Where the Customer requires the Carrier to store the Goods the Customer will provide an inventory of the Goods to the Carrier prior to storage. The Carrier will be entitled to check the inventory and provide its own inventory of the Goods received at the time of receipt. The Carrier will provide the Customer with a copy of the inventory. Should the Customer sign the inventory, the inventory will be conclusive evidence of the Goods received by the Carrier. Such inventory will disclose any visible items but not any contents unless the Customer requires in which case the Carrier will be entitled to make a reasonable charge for preparation of such further inventory. Inspection of the Goods will be at the Customer’s risk.

10. Loading requirements

10.1 If the Carrier accepts pallets or other packing devices from the Customer the Carrier will do so on the basis that all charges pertaining to the pallets, packing devices or other material will be paid by the Customer.
10.2 If a crane lift or forklift is required for the loading or unloading of the Goods, the Customer will provide the crane lift or forklift at the cost of the Customer, unless otherwise agreed by the Carrier.

11. Carrier’s charges

11.1 Freight is payable by the Customer without prejudice to the Carrier’s rights against any other person. Responsibility for payment of Goods sent ‘freight on delivery’ will remain with the Customer at all times whether or not the Customer is Consignor or Consignee. Where the Consignee fails to pay within 30 days the freight will be paid by the Consignor.
11.2 Freight will be deemed fully earned on receipt of the Goods by the Carrier and is non-refundable in any event.
11.3 Freight is due and payable by the Customer 14 days after receipt of the Carrier’s invoice unless otherwise agreed by the Carrier. The Carrier will be entitled to claim interest from the Customer at the weighted average interest rate on credit outstanding as published by the Reserve Bank of Australia from time to time in respect of unpaid Freight or any other charge incurred by the Carrier pursuant to this Agreement.

11.4 The Customer will be liable for and will pay for (in addition to Freight and Storage charges):
11.4.1 any fuel levy imposed by the Carrier;
11.4.2 demurrage charges for loading or unloading goods for more than 1 hour or any other delay;
11.4.3 any fee imposed by a governing road authority for the provision of escorts, pilots or supervisors for heavy or over-dimensional transport;
11.4.4 any additional costs arising from heavy or over-dimensional transport including those associated with permits, escorts, equipment, bridge/road works, detours and/or otherwise complying with legal requirements.
11.4.5 all other charges in relation to the Carriage of the Goods whether payable to the Carrier and/or third parties including excise and customs duties, shipping, customs, railway, port fees and any other like charges;
11.4.6 all taxes including sales tax and any tax in the nature of goods and services tax levied on all or any part of the Goods and/or the Carriage of any other services.

11.5 Unless otherwise specified, sales tax, goods and services tax and any other applicable tax, duties or charges imposed by any government or statutory authority are additional to the price quoted and invoiced. Where sales tax or goods and services tax (including any other tax, duties or charges) are included in a quote, it is based on the rate applicable at the time of the quote and any subsequent variation is to the Customer’s account.

12. Insurance

12.1 The Carrier will not affect any insurance of the Goods for the benefit of the Customer or otherwise.