Terms and Conditions

TERMS AND CONDITIONS OF CARRIAGE

Freight Management Australia Pty Ltd (ACN 113 064 887) (“FMA”) is not a common carrier and will accept goods for carriage only upon and subject to these terms and conditions and the terms of the credit application form to which they are attached:
1. “Charges” includes all fees, costs and charges payable to FMA by the Customer as varied by FMA from time to time.
2. “Contract” means any agreement for the supply of Services between FMA and the Customer incorporating or constituted by these terms and conditions and the provision of any accompanying or corresponding Credit Application.
3. “Customer” means the sender, shipper, consignee, consignor, customer, client, receiver of the goods, any person owning or entitled to possession of the goods or any person or entity named in the Credit Application form annexed to these terms and conditions or anyone acting on behalf of such person.
4. “Delivery address” means the place designated as such on the face of any delivery documentation in connection with the Services.
5. “FMA” means Freight Management Australia Pty Ltd (ACN 113 064 887), its employees, servants, agents and sub-contractors, successors and assigns.
6. “Goods” means goods consigned to FMA for transport, carriage, storage or in connection with the Services.
7. “Services” means and includes the transport, freight, forwarding or logistics service obtained by the Customer from FMA from time to time pursuant to the Application for Credit form and these terms and conditions.
8. Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
All articles are carried by FMA subject only to these conditions and FMA reserves the right to refuse to carry any goods.
The Customer authorises FMA to sub-contract the carriage of goods undertaken by FMA on behalf of the Customer (hereinafter referred to as “the sub-contracts”). FMA as agent of the Customer is authorised to arrange for such sub-contract carriage only on the same conditions of liability and exclusion of liability of the sub-contractor with whom such arrangements are made as are contained in these terms and conditions. FMA will indemnify the Customer against the payment of charges for carriage as arranged and must pay such charges to the sub-contractor on behalf of the Customer whether or not they exceed the amount of the freight charges pursuant to these terms and conditions and FMA will be entitled to retain for its own benefit any difference between the subcontractor’s charges and the freight charges pursuant to these terms and conditions payable by the Customer.
Unless otherwise expressly agreed in writing and subject to Clause 21 no responsibility or liability in tort, contract or otherwise:
1. will be accepted by FMA for any loss of or damage to or misdelivery or failure to deliver in respect of goods consigned to FMA under these terms and conditions during transit or storage for any reason whatsoever. FMA is authorised by the Customer or its agent whose signature appears on any delivery documentation and it is expressly agreed that FMA will be taken to have delivered the goods in accordance with the contract constituted in accordance with these terms and conditions if either at the delivery address he obtains from any person a receipt or signed delivery docket for the goods, or he complies with any special instructions of the Customer as to delivery as provided in writing to FMA;
2. will be accepted by FMA for any loss and/or damage caused by carriage of any goods, including without limitation, any explosive, inflammable or otherwise dangerous or damaging goods, articles, liquids or substances of the Customer and the Customer hereby agrees to indemnify and keep indemnified FMA against all loss and/or damage caused, not only to FMA, its servants, agents, employees and sub-contractors but also to any third party or parties suffering loss and/or damage directly or indirectly occasioned including any claim arising therefrom for latent damage to property or person caused by any carriage of goods by FMA on behalf of the Customer pursuant to these terms and conditions;
3. will be accepted by FMA in respect of loss of, damage to, misdelivery, delay in delivery, concealed damage, deterioration, contamination, evaporation or non-delivery of goods held in the care, custody or control of FMA or in respect of any consequential loss arising therefrom howsoever caused.
The Customer expressly agrees that it will not hire any of FMA’s drivers or sub-contractors, nor solicit, interfere with or endeavour to entice or procure such drivers/sub-contractors to terminate their contractual relations with FMA either whilst the drivers/sub-contractors are engaged by FMA or within 6 months of the termination of their engagement with FMA. The parties further agree that in the event that this condition is breached the sum of $10,000.00 represents a fair and reasonable pre-estimate of compensation to FMA for its loss and damage including without limitation the cost of hiring, training and equipping a replacement driver, sustained as a result of such breach.
Goods will be considered carried and the charges will become payable by the Customer as soon as the goods are loaded and despatched.
The Customer will be and remain responsible to FMA for all its proper charges incurred for any reason. A charge may be made by FMA in respect of any delay in loading or unloading occurring other than from the default of the FMA. Such delay period will commence upon FMA reporting for loading or unloading and the labour to load or unload the vehicle will be the responsibility of and to the expense of the Customer or any consignee of the Customer.
Any list of freight charges or indications as to amounts to be charged given by FMA to the Customer are estimates only and the charge to the Customer will, where possible, be determined by FMA prior to the performance of the Services. FMA may increase its charge where FMA’s costs of providing the Services increase for any reason. All charges payable to FMA are exclusive of Goods and Services Tax (“GST”) and any GST, charges, taxes or levies will be charged to the Customer’s account in addition to the Charges.
The Customer agrees and acknowledges that no credit requests will be made by the Customer, nor will FMA accept, any credit requests beyond the date which is seven (7) days after the date of invoice received by the Customer.
All invoices and accounts to the Customer must be paid in full within fourteen (14) days from the date of invoice unless otherwise agreed in writing by FMA. A late payment fee of $15.00 per month will be charged and payable in arrears on all accounts outside such terms as compensation in lieu of interest until such account is paid in full.
FMA also reserves the right to report any breach of its payment terms (at such time as FMA deems that there has been ample time for payment of any account outside the trading terms of fourteen days of invoice), to any credit reporting agency, if an agreement for payment cannot be reached in which event the Customer will be deemed to be in default under these terms and conditions. If debt recovery action is initiated, which will be entirely at the discretion of FMA, all collection fees and commission, administrative costs, out of pocket expenses and legal costs (calculated on a solicitor/own client basis) incurred by FMA as a direct or indirect consequence of the default will be payable by the Customer and will be debited to the Customer’s account.
In the event of a default in payment of the Charges due to FMA in respect of the Services and upon demand being made for payment by or on behalf of FMA, and not met, the Customer irrevocably grants a lien over any and all Goods consigned to FMA from time to time by the Customer and authorises FMA to detain and sell all or any of the Goods which are in its possession and out of the moneys arising from the sale retain all charges payable together with all charges and expenses of the detention and sale and to pay or deliver the surplus, if any, of the moneys arising from the sale of and/or such of the Customer’s Goods as remain unsold to the person entitled to them. Such sale will not prejudice or affect FMA’s right to take such further action as FMA may deem necessary to recover the charges due or payable in respect of the Services or the said detention or sale.
It is acknowledged and agreed by the Customer that the person delivering Goods to FMA for carriage or forwarding is authorised to sign all necessary documents in connection with such carriage including, without limitation, any consignment note for and on behalf of the Customer.
The Customer expressly warrants that the Customer is either the owner or the authorised agent of the owner of any Goods or other property the subject matter of these terms and conditions and that by entering into a contract in accordance with these terms and conditions the Customer accepts these terms and conditions for the Customer and any and all other persons on whose behalf the Customer is acting.
The Goods are accepted by FMA subject to the following conditions:
1. that they comply with the requirements of any applicable law relating to the nature, condition and packaging of the Goods;
2. the expenses and charges of FMA in complying with the provisions of any such law or with any order or requirement thereunder or with the requirement of any harbour, dock, railway, shipping, customs, warehouse or other authority or company will be paid by the Customer in addition to FMA’s charges;
3. if any of the Goods are subject to the control of any Customs Authority, all customs duty, excise duty and costs which FMA becomes liable to pay and pays in respect of such goods pursuant to any law relating to customs or excise must be paid by the Customer in addition to the Charges;
4. that the Goods are fully described in writing in the documentation completed by the Customer in connection with the Services including, without limitation, by reference to details and description of name, nature and value of all goods, goods subject to special rates of carriage, or of a noxious, dangerous, hazardous or inflammable nature or capable of causing damage or injury to any other goods, or to any persons or animals with which, or to any store, vessel, wagon, van, aircraft or other conveyance of any kind whatsoever in which they may be loaded, carried, packed or stored or which are liquid or partly liquid and that additional Charges must be paid on such goods if deemed necessary by FMA in its absolute discretion.
FMA will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of FMA by an authorised officer of FMA.
Should the consignee of any Goods transported or carried by FMA in accordance with these terms and conditions and described in the documentation provided by the Customer not be in attendance during normal trading hours or at the time specified or if FMA arrives to effect delivery at the premises of the consignee’s identified premises or at the Delivery Address and is delayed in effecting prompt delivery at the said premises for any reason whatsoever outside the control of FMA then FMA may in its absolute discretion make an additional charge in respect of every attempted delivery made or alternatively for the amount of time of any delay until delivery is effected.
In respect of any clause herein which excludes or in any way limits the liability of FMA in respect of the carriage or storage of goods FMA in addition to acting in its own capacity is also acting as agent of or trustee for each of its servants, agents or sub-contractors and the servants and agents of any sub-contractors so that such persons are deemed parties to these terms and conditions insofar as the said clause or clauses containing exclusions or limitations of liability are concerned, and insofar as may be necessary to give effect to this clause FMA will hold the benefit of these conditions for its servants, agents or sub-contractors or their servants or agents.
All rights, immunities and limitations of liability in the above terms and conditions will continue to have full force and effect in circumstances and notwithstanding any breach of any contract constituted by them or of any of the terms and conditions themselves by FMA.
These terms and conditions must be read subject to any implied terms, conditions or warranties imposed by any Commonwealth or State legislation including without limitation the Trade Practices Act 1974 (Cmth) insofar as same may be applicable and prevent, either expressly or impliedly, the exclusion or modification of any such term, condition or warranty.
For the purposes of assessing the credit worthiness of the Customer from time to time and the collection of payments, the Customer hereby irrevocably authorises FMA, its servants and agents to make such enquiries as it deems necessary, including, but not limited to making enquiries and obtaining reports (as may be allowed by law) from persons nominated by the Customer as trade referees, the Customer’s creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies thereinafter called “the information sources” and the Customer agrees and consents to the information sources providing to FMA such information disclosing the contents of any credit report or personal information to a credit reporting agency for the purpose of the credit reporting agency creating or adding to any credit information file in relation to the Customer.
The Customer acknowledges:
1. that if it changes the entity under which it trades, or if ownership or control of such entity shall change, it will be the Customer’s responsibility to notify FMA of such change and to separately negotiate conditions of sale or credit under which the new or changed entity may commence trading with FMA;
2. that until a new trading arrangement with the new or changed entity has been negotiated and accepted by FMA in writing:
  1. the Customer shall remain liable for payment to FMA for all Services ordered or purchased by such new or changed entity;
  2. it shall not be open for the Customer to raise as a defence in any proceeding commenced by FMA for the recovery of such sums owing to FMA under these terms and conditions that the debt was incurred by a person or entity other than the Customer.
Any signatory for a proprietary company Customer will be and remain personally responsible for the due performance of the Customer’s obligations as if the signatory was the Customer. If required by FMA, the signatory will procure the execution by all the Customer’s company directors of a guarantee to be prepared by or on behalf of FMA.
The failure of FMA, at any time, to require strict performance by the Customer of any matter shall not be deemed to be a waiver of FMA’s rights unless it is agreed to by FMA in writing, and FMA will have the right to insist upon such performance at any time in the future.
If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable, the provision will so far as is possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down, the provision or part of it will be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of FMA, including but not limited to strikes, lockouts or other trade disputes, inability to obtain any necessary materials, equipment or services, power failure, accident, or breakdown of plant, machinery, software or hardware, FMA is unable to perform in whole or part any obligation under the Contract, FMA will be relieved of that obligation under the Contract to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such liability.
This Contract will be deemed to have been made in the State of Victoria and will be governed by the laws of that State and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that State.