1. “Company” shall mean Motoxpress Pty Ltd ABN 23 617 155 085, its employees, servants, agents, subsidiaries and/or associated entities.
“Customer” shall mean the shipper (consignor), the receiver (consignee), the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are performed.
“Goods” shall mean the chattels, articles or things tendered for carriage or bailment or other services by the Customer and shall include the container(s), unit load device(s) or other packaging containing the same and any other pallet(s) delivered with the same to the Company or Subcontractor.
“Services” shall mean the carriage, transport, movement, packing, handling, storage/warehousing, customs clearance and/or any other service performed or arranged by the Company pursuant to, or ancillary to, this contract with the Customer.
“Dangerous goods” shall mean such of the Goods as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods, persons, plants or animals or to any thing including that in which the Goods are carried, handled or stored.
“Valuables” shall mean bullion, coins, precious stones, jewellery, antiques, or works of art.
“Perishable goods” shall mean Goods that shall be in fact or law liable to deteriorate in quality and/or value and shall include, but not be limited to, fruits, vegetables, dairy products, meat, etc.
“Subcontractor” shall mean and include any person, firm or company (other than the Company) by whom the Services or any part thereof are arranged, performed or undertaken.
“Owner’s Risk” means the Carrier shall not be liable for the loss of or damage to any Goods, except where the loss or damage is intentionally caused by the Carrier.
Words importing the singular include the plural and vice versa and words importing any gender include all genders and words importing a person include firm, corporation or other entity where appropriate.
Warranties by the Customer
2. The Customer warrants:
(a) that it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods or any part thereof to sign the Company’s Letter of Instruction or other contractual document and consign the goods upon and subject to these conditions. Without prejudice to the foregoing warranty, the Customer undertakes to indemnify the Company in respect of any liability whatsoever or howsoever caused in respect of the Goods to any person who claims to have, has or may acquire an interest in the Goods or any part thereof.
(b) that the person releasing or delivering the Goods to the Company is authorised to sign the Company’s Letter of Instruction or other contractual document and accept these conditions on the Customer’s behalf.
(c) the adequacy of packing and suitability of the Goods for the Services contracted and accuracy of all markings and brandings of the Goods, descriptions, values and other particulars furnished to the Company for the carriage, customs, consular and any other purposes and undertakes to indemnify the Company against all loss, damage, expenses and fines arising from any inadequacy, unsuitability, inaccuracy or omission in this respect.
(d) that the performance of any Service provided or arranged by the Company to effect the instructions of the Customer in respect of the Goods shall not be in breach of any law.
Courier Liability and Exclusions
3. The goods shall at all times be at the risk of the Customer and the Carrier shall not be liable in tort (including negligence), contract (including a fundamental breach of contract) or for any act or omission of the Carrier that is outside the authorised scope of its activities under this contract, for breach of duty as bailee, for contravention of any statute or breach of statutory duty or otherwise for any loss of, or damage to, failure to deliver, delay in delivery of, or misdelivery of the goods whatsoever, howsoever caused.
The exclusion of liability in the above Clause extends to include not only loss of or damage to the goods themselves, but loss, damage or injury to any person, property or thing damaged arising from the Carrier providing the Services under this contract and to any indirect or consequential loss or damage whatsoever arising from such loss, damage or injury or from failure to deliver, delay in delivery or mis-delivery, howsoever caused including but not limited to loss of income, profits, markets, customers, use, opportunity, reputation or goodwill.
Notwithstanding any other provision in these conditions of carriage, but subject always to the above clauses, if any liability whatsoever, howsoever arising, is found to attach to the Carrier or any subcontractor, the Carrier’s liability shall be limited in the case of Services supplied under this contract to the lesser of:
supplying the Services again;payment of the cost of supplying the Services again; or
the amount of A$100.00.
The Customer acknowledges that loss or damage are insurable risks and that obtaining insurance is the responsibility of the Customer and if they fail or choose not to do so it is at their risk. Where insurance is arranged by the Carrier at the request of the Customer it is done so by the Carrier as an authorised representative of licensed brokers and the contract of insurance so arranged will be between an insurer and the Customer, subject to the insurer’s terms and conditions. Customers acknowledge that they have read the Product Disclosure Statement and Financial Services Guide which can be obtained from the Carrier’s website and/or the insurer prior to arranging such insurance.
4. (a) The Customer shall indemnify the Company in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost, cost or other outlay whatsoever or howsoever caused or incurred, whether arising directly or indirectly from any Service arranged or performed by the Company and/or in respect of any such damage, cost or liability incurred as a result of any breach of the terms, conditions or warranties in this contract by the Customer AND includes the cost of recovering same from you by way of recovery agents or lawyers.
(b) Without limiting the generality of the foregoing, the Customer shall remain responsible to the Company for all charges (C.O.D. or otherwise) paid by the Company to any of its agents, Subcontractors or any other party or authority.
(c) The Customer shall indemnify the Company in respect of any loss or damage arising from any inherent defect, quality or vice of the Goods.
5. The Customer should seek its own insurance cover. No insurance will be arranged by the Company on the customer’s behalf except on express instructions in writing by the Customer and only if the Company is licensed to do so pursuant to applicable Australian regulations. Any such insurance so arranged will be subject to the usual exceptions and conditions of policies of the insurance company or underwriters taking the risk. The Company shall not be under any obligation to effect separate insurance on each consignment but may declare it on any general policy. Should such insurers dispute liability for any reason, the Customer as the insured shall have no recourse against the Company whatsoever and any recourse by the Customer shall be against the insurer.
6. Quotations for the Services are made on an immediate acceptance basis and are subject to withdrawal or revision without notice at the Company’s discretion.
Routes and Procedures
7. If the Company is instructed by the Customer and agrees to use a particular method or type of Service, the Company shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed. The Customer hereby authorises the Company to substitute alternate carriers or Service providers without notice to the Customer. Invoices sent to customer will be according to the service provided by the Company.
Payment of Expenses/Duties & Release of Information
8. The Customer authorises the Company in effecting the Services, but with no obligation on the part of the Company, to:
(a) pay any duties, taxes, imposts, outlays, costs or charges in respect of the Goods and/or Services
(b) release or allow inspection of the Goods or any information and/or documents of the Customer, the Goods, the Services or relating thereto as required by authorities,
and the Customer shall indemnity the Company in respect of any disbursement, expense, cost, loss, fine or damage incurred by the Company in doing so and releases the Company from any liability in connection therewith.
Responsibility for Fees/Charges
9. (a) The Customer shall pay the Company for all fees rendered and any charges it incurs for any reason in respect of the Services performed. This includes the payment of fees/charges which the Company is advised or agrees will be paid by a third party which then fails to so pay. Such fees/charges shall be deemed fully earned as soon as the Goods are loaded and dispatched from the Customer’s premises, otherwise delivered by the Customer to the Company or Subcontractor or on receipt of the Company’s invoice whichever occurs first and shall be immediately payable and non-refundable.
(b) The Customer agrees that it shall not defer or withhold payment or deduct any amount from the account of the Company by reason of any claim it alleges against the Company.
(c) The Customer agreed to the following incidental additional costs being charged pursuant to the applicable payment method (via either credit card, paypal or credit account) from the time the event which gives rise to the costs referred below occurs:
(i) Redelivery Charges of up to $30 plus $0.40 per kg, or cubic kg (based on 250 kg=m3) whichever is greater will apply where an attempt to deliver fails due to the receiver being unavailable to sign for the item(s) if required.
(ii) Futile Collection charges of $30.00 per pick will apply for futile collection attempts where freight either unavailable, unpackaged or unlabeled.
(iii) Incorrect Item Declaration charges will apply if the carrier declares the item specifics to be greater than stated in the booking. These charges will be based on the corrected details being used in a new quote calculation and the balance calculated.
(iv) An additional fee to the Company in respect of any delays in excess of 10 minutes for couriers and 30 minutes for taxi trucks in loading or unloading occurring other than from default of the Company or Subcontractor.
(v) Late Payment Fee: If your Credit Account has an unpaid invoice for more than 30 days from the date of invoice, a late payment fee of $5.00 will be applied for each week that the invoice remains unpaid.
(d) Provision of Credit by the Company to the Customer may be suspended by the Company at its own discretion if fees and charges invoiced are overdue or otherwise. The Customers shall pay the Company interest as liquidated damages at the Westpac Trading Bank overdraft rate plus 5% on overdue fees or charges invoiced.
Valuables, Dangerous goods, Perishable goods, Livestock, etc.
10. (a) (i) Except as agreed in writing, the Company will not accept Valuables, Dangerous goods, Perishable goods, livestock or plants for Services arranged or performed by the Company. Should the Customer nevertheless deliver any such goods to the Company or cause the Company to handle or deal with any such goods otherwise than as agreed in writing, the Customer (not the Company) shall be liable for any loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused and the Customer shall indemnify the Company from and against all penalties, taxes, duties, claims, demands, damages, costs and expenses arising in connection therewith.
(ii) Any such goods may be destroyed in the sole and absolute discretion of the Company or any other person in whose custody they may be at the relevant time. In the event that the goods are destroyed or otherwise dealt with as aforesaid, the Company shall bear no liability and the Customer shall indemnify the Company from and against all costs and expenses with respect thereto.
(b) The Customer undertakes that any of the goods referred to in (a) above (including their covering, packaging, containers and other carriage devices) shall be distinctly marked having regard to their nature. The Customer further undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of any Service having regard to their nature and in compliance with all laws and regulations which may be applicable with respect to any Service. The Customer shall indemnify the Company against all claims, losses, damages or expenses arising in consequence of any breach of this provision.
(c) The Customer’s compliance with (b) above in no way reduces or limits those rights afforded to the Company under (a) of this clause.
11. (a) The company is authorised to deliver the Goods to the consignee or its agent at the address nominated to the Company by either the Customer, the consignor, the consignee or their agents and it is expressly agreed that the Carrier shall be deemed to have delivered the Goods in accordance with this contract if it obtains a receipt, signed delivery docket for the Goods or signature on its consignment note from any person at that address.
(b) If the nominated place of delivery shall be unattended or if delivery cannot otherwise be effected, the Company in its sole discretion may at its option either deposit the Goods at the nominated place or store the Goods at the risk and expense of the Customer, both of which will be deemed to be delivery of the Goods under this Contract.
(c) Dates specified for completion of carriage or any other Service are estimates only and the Company shall not be liable for failure to complete carriage or any other Service on such date or dates.
Sale and Disposal of Goods
12. The Company and its Subcontractors shall be entitled at the cost and expense of the Customer, subject to any compliance with any applicable law, to sell or dispose of:
(a) Goods which in the opinion of the Company or Subcontractor cannot be delivered by reason of the Goods being insufficiently or incorrectly addressed or by reason of the Goods not being collected or accepted by the Consignee or for any other reason, and
(b) any Perishable goods which in the opinion of the Company or the Subcontractor appear to be deteriorating, if the Customer fails to adequately instruct the Company with respect thereto or fails to pay any costs and expenses necessary to implement the Customer’s instructions.
13. The Customer shall exercise all reasonable care and comply with all applicable laws, Government regulations/directions and industry standards including those relating to the packing, carriage, storage, customs clearance, delivery, inspection or other Services in respect of the Goods, and shall provide such information and documents as may be necessary to exercise such care and comply with such laws, regulations and standards. The Company shall not be liable to the Customer or any other party for loss or expense due to the Customer’s failure to comply with this provision and the Customer will indemnify the Company for any expense, damage or liability incurred by the Company in so complying.
Law and Jurisdiction
14. Any dispute arising under this Contract shall be governed by the laws of New South Wales and shall be determined exclusively by the courts of New South Wales or by the court of the Company’s choice
15. By signing the letter of instruction or otherwise accepting these conditions, the Customer agrees that it did not rely on any representation, promise, warranty or condition of the Company or its Subcontractor not expressly made (in writing) part of this contract.
Severance & Waiver
16. It is hereby agreed that if any provision or part of any provision of this contract is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision hereof. Further, should the Company elect not to exercise any of its rights under this contract, under any other contract/agreement or under law, such election shall not constitute a waiver of any rights relating to any other or subsequent breach by the Customer.
Customer’s Own Form
17. The use of the Customer’s own form is no derogation to these conditions of contract.
18. (a) Any relief from liability contained in this agreement is to be read subject to any restriction on contracting out of liability provided in any legislation binding on the Company so that the provisions for relief contained in this agreement are limited or rendered ineffective only to the extent required to give effect to that legislation but are otherwise fully effective and all the provisions hereof are severable and effective independently of any provisions which are null and void or ineffective by reason of any legislation.
(b) Unless written notification to the contrary is given by the Customer to the Company at or prior to entering into this agreement, the Customer expressly warrants and represents that all or any Services to be supplied by the Company and acquired by the Customer pursuant to this agreement are so supplied and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the Customer.
(c) If the carriage of Goods involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention (1929), the Warsaw Convention as Amended at the Hague (1955) and Warsaw supplementary protocols such as the “Guadalajara Convention”, Protocol of Montreal No. 4 or the Montreal Convention may be applicable and may govern and in most cases limit the liability of the Carrier in respect of loss, damage or delay to cargo, unless a higher value is declared in advance by the Customer and a supplementary charge paid if required.
Reasonable Care/Force Majeure
19. Where the Company is unable to carry out any obligation under the contract or any loss or damage is caused to the Goods or otherwise due to any circumstance, matter or thing beyond its reasonable control (“force majeure”) or its exercise of reasonable care, the Company shall be excused and released from such obligations or liability to the extent of such prevention, restriction or interference so caused.
Nature of Goods
20. The Consignor shall not tender for carriage or storage any parcel with a deadweight or cubic weight of more than 25kg or parcel sizes of no more than 50cm x 50cm x 50cm as specified in our website and apps prior booking the service.