Terms & Conditions
The Customer and Carrier in using the Company’s Platform for the purpose of seeking and providing Carriage of Goods respectively agree to accept and be bound by the Company’s trading terms and conditions. All and any business undertaken by the Company shall be subject to the Company’s trading terms and conditions of contract which are as follows:
Definitions
1.
“ACL” means the Australian Co (“ACL”) being Schedule 2 of the
Australian Competition & Consumer Act 2010 (“CCA”).
“Booking” means the confirmation by the Customer to deliver the Services.
“Carriage” means the transport of the Goods and all services performed or arranged by the Carrier incidental to the transport.
“Carriage by Air Convention” – means applicable legislation incorporating 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 (1999).
“Carrier” means a Transport Company or Third Party offering Carriage via the Platform.
“Company” means Freight Exchange Pty Limited (53602517251), its employees, servants, agents, subsidiaries, associated entities, successors and/or assigns.
“Customer” means a User seeking Services via the Platform including but not limited to a 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 arranged and/or performed.
“Dangerous Goods” means 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 anything including that in which the Goods are carried, handled or stored.
“Force Majeure” means an unforeseeable, external occurrence affecting the rights and obligations of a party and beyond the control of and not due to the fault, omission or negligence of the affected party, such events including any act of god, earthquake, flood, terrorist attack, war or other event beyond the reasonable control of the party claiming Force Majeure. Force Majeure does not include any strike, labour dispute or industrial action which could reasonably have been prevented by the Company.
“Goods” means the chattels, articles or things tendered by the Customer for the Services 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 by the Customer or for or on its behalf. Goods include goods either in transit or in storage.
“Government Authority” means, without limitation, all Government Departments with responsibility for the import and export of goods, the collection of revenue on the import and export of goods and the transport of those goods to include, without limitation, Australian Customs Service (ACS), Australian Quarantine Inspection Service (AQIS) and Australian Taxation Office (ATO).
“Perishable goods” means such of the Goods as 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.
“Platform” means the website that the Company operates and the Carriers or third parties that enable Users to book or provide Carriage of the Goods.
“Restricted goods” are items considered restricted or perishable by any authority where they generally do not pose a danger to the health, safety, or property while being transported but where their transport is regulated or banned for public policy reasons.
“Services” means the provision of the Platform and/or Carriage (or a part thereof).
“Subcontractor” means and include any person, firm or company (other than the Company) that arranges or performs the Services (or a part thereof).
“Valuables” means bullion, coins, securities and valuable works of art.
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.
“Booking” means the confirmation by the Customer to deliver the Services.
“Carriage” means the transport of the Goods and all services performed or arranged by the Carrier incidental to the transport.
“Carriage by Air Convention” – means applicable legislation incorporating 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 (1999).
“Carrier” means a Transport Company or Third Party offering Carriage via the Platform.
“Company” means Freight Exchange Pty Limited (53602517251), its employees, servants, agents, subsidiaries, associated entities, successors and/or assigns.
“Customer” means a User seeking Services via the Platform including but not limited to a 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 arranged and/or performed.
“Dangerous Goods” means 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 anything including that in which the Goods are carried, handled or stored.
“Force Majeure” means an unforeseeable, external occurrence affecting the rights and obligations of a party and beyond the control of and not due to the fault, omission or negligence of the affected party, such events including any act of god, earthquake, flood, terrorist attack, war or other event beyond the reasonable control of the party claiming Force Majeure. Force Majeure does not include any strike, labour dispute or industrial action which could reasonably have been prevented by the Company.
“Goods” means the chattels, articles or things tendered by the Customer for the Services 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 by the Customer or for or on its behalf. Goods include goods either in transit or in storage.
“Government Authority” means, without limitation, all Government Departments with responsibility for the import and export of goods, the collection of revenue on the import and export of goods and the transport of those goods to include, without limitation, Australian Customs Service (ACS), Australian Quarantine Inspection Service (AQIS) and Australian Taxation Office (ATO).
“Perishable goods” means such of the Goods as 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.
“Platform” means the website that the Company operates and the Carriers or third parties that enable Users to book or provide Carriage of the Goods.
“Restricted goods” are items considered restricted or perishable by any authority where they generally do not pose a danger to the health, safety, or property while being transported but where their transport is regulated or banned for public policy reasons.
“Services” means the provision of the Platform and/or Carriage (or a part thereof).
“Subcontractor” means and include any person, firm or company (other than the Company) that arranges or performs the Services (or a part thereof).
“Valuables” means bullion, coins, securities and valuable works of art.
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.
Company’s Capacity
2.
The Company, Customer and Carrier agree that:
(a)
the Company acts as agent only in arranging the Services (or a part
thereof) except in circumstances where:
(i)
it performs the Services (or a part thereof),
(ii)
it expressly agrees/undertakes in writing to act as principal or
(iii)
where a Court holds it to be principal.
Not a Carrier/Entire Agreement
3.
The Company is not a common carrier or carrier of any type and accepts
no liability as such. Services in relation to transportation of Goods
are provided and/or arranged by the Company subject only to these
conditions of contract which constitute the entire agreement between the
Company and the Customer. No person has the authority of the Company to
waive or vary these conditions and the Company reserves the right to
refuse at its sole discretion the arranging, undertaking or performing
of any of the Services for any customer whether before, during or after
the Service has commenced and further reserves the right of the Carrier
or Subcontractor to open and/or inspect all Goods at its discretion and
at the Customer’s expense.
Contracts with Carrier/Third Parties
4.
As agent or principal pursuant to clause 2(a) herein, the Customer hereby employs and authorises the Company to provide and/or arrange the Services with a Carrier or other third party either in its own name or in the Customer’s name with any Carrier or third party for the performance of any of the Services agreed to be arranged or performed pursuant to, or ancillary to, this contract. Any such contract may be made on any terms of contract whatsoever used by the Carrier or third party with whom the Company may contract for such Service(s) including in every case terms which may limit or exclude liability in respect of the Service. Any Carrier’s or third party’s terms are available from the Company on request.
Warranties by the Customer
5.
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 accept and consign the goods upon and subject to these conditions.
(b)
that the person releasing or delivering the Goods to the Company is authorised to accept and agree to these conditions on the Customer’s behalf.
(c)
the adequacy of packing, stowing 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.
Exclusion and Limitation of Liability
6.
(a)
Subject to the terms and conditions in this contract and mandatory
applicable statute, convention or law, the Company shall not be liable
for any loss or damage suffered by the Customer or any other person,
howsoever caused or arising, whether:
(i)
arising from an authorised or unauthorised act OR contemplated or
uncontemplated act under this contract;
(ii)
caused by the negligence of the Company’s servants, employees, agents,
Carriers or Subcontractors;
(iii)
caused by a breach or fundamental breach of contract and/or breach of
bailment by the Company’s servants, employees, agents, Carriers or
Subcontractor;
(iv)
occasioned by the Company complying with any requirement or directive
of any Government Authority in relation to the Goods;
(v)
occasioned by examination of the Goods by any Government
Authority;
(vi)
occasioned by treatment of the Goods by any Government Authority
(including without limitation, any fumigation or decontamination or
other treatment by AQIS).
(b)
In all cases where liability cannot be excluded by this agreement
because of mandatory applicable statute, convention or law, the
liability of the Company is limited to the lesser of AUD$100.00 or the
value of the Goods the subject of the agreement at the time the Goods
were received by the Company.
(c)
In all cases where liability cannot be limited or excluded by this
agreement because of mandatory applicable statute, convention or law
including any legislation compulsorily applicable to the Company,
Carrier and/or a Subcontractor such as a Carriage by Air Convention, the
Hague Rules, the Hague-Visby Rules, or the Hamburg Rules, or adaptations
thereof, such as the Australian Carriage of Goods by Sea Act (1991), the
New Zealand Maritime Transport Act (1994), or the Carriage of Goods by
Sea Act of the United States (1936) – all as amended from time to time],
the provisions of the applicable statute, convention or law shall be
deemed incorporated herein and any rights, immunities and/or defences
therein shall be available to the Company, Carrier or Subcontractor. For
the purpose of determining the extent of the
Company/Carrier/Subcontractor’s liability for loss of or damage to the
Goods under this agreement or any mandatory applicable legislation, the
value of the Goods lost or damaged is agreed to be the invoice cost
value.
(d)
In all cases where liability cannot be excluded or limited by this
agreement for breach of any condition or warranty in respect of the
Services pursuant to statute or otherwise, the liability of the Company
is limited to anyone or more of the following:
(i)
the supplying of the Services again; or
(ii)
the payment of the cost of having the Services supplied again.
(e)
Without limiting the generality of the foregoing, the parties shall in
no circumstances be liable for loss or damage other than directly to or
from the Goods, including indirect or consequential loss or damage
arising from the Services performed in respect of the Goods including
loss of market, loss of profit or loss of contracts howsoever
caused.
(f)
Further without limiting the generality of the foregoing, the Company
shall not be liable for any loss or damage suffered by the Customer or
any other person as a result of a failure or inability of the Company,
Carrier or Subcontractor to collect or receive C.O.D. payments from any
consignees or their agents whether caused by the negligence of the
Company, Carrier or Subcontractor.
(g)
No declaration of value will be made for the purpose of extending
liability and the Goods will be forwarded or dealt with at the
Customer’s or owner’s risk unless express written instructions to the
contrary are given by the Customer and accepted in writing by the
Company and extra charge paid if required by the Company.
(h)
It is hereby agreed between the Customer and the Company that the
Customer’s right to compensation for any claim for loss or damage will
only be maintained provided the following is strictly adhered to:
(i)
Any claim by the Customer for loss or damage must be lodged in writing
to the Company within 7 days of delivery of the Goods or the date
Services are completed, whichever date occurs first;
(ii)
Any claim by the Customer for loss/non-delivery of Goods must be
notified in writing to the Company within 7 days from the date the Goods
should have been delivered or the Services should have been completed,
whichever date occurs first.
(i)
Any right to any legal remedy of the Company or the Customer against
the other shall be extinguished unless legal proceedings are brought
against the other within 12 months from the date of this contract or the
date the Services were completed or Goods delivered, or the date the
Services should have been completed or the Goods should have been
delivered, whichever date occurs first.
Negotiation of Extension of Responsibility/Liability/Warranty/Insurance
7.
(a)
Upon negotiation with the Customer in writing, the Company may agree
to greater responsibility and liability than set out in the
sub-paragraphs (a) to (i) of the above provision upon payment of
additional charges by the Customer as required. Applicable rates for
greater responsibility and liability are subject of discussion and
negotiation between the parties.
(b)
Should the Customer not choose nor the parties agree to the Company
taking greater responsibility and liability for the Services for
additional charge pursuant to subparagraph (a) above, the parties
agree that the Company provides a lower cost service on the premise
that it has the right to exclude or limit liability and/or seek
indemnity as provided for in this Agreement.
(c)
Additionally or alternatively, the Company provides the following two
conditional warranties with warranty limit:
(i)
a complimentary Standard Warranty Cover (“SWC”) which large volume
Customers can opt out of as agreed; or
(ii)
an Enhanced Warranty Cover (“EWC”) which the Customer can choose at
extra cost
in respect of loss or damage to Goods subject to the Company’s
warranty terms and conditions
(“WTCs”) and which if applicable are supplementary terms to this
agreement and incorporated herein.
(d)
The Customer may choose a Carrier on our Platform that may provide or
arrange warranties or insurance. The Company will have no
responsibility or liability with respect to either arranging or
providing the warranty or insurance as aforesaid which are strictly
subject to the terms and agreements between the Customer and the
Carrier.
(e)
Depending on the level of responsibility and liability or warranty
cover agreed or arranged as between the Customer and the Company
pursuant to sub-clause (a) to (c) above or the warranties or insurance
provided or arranged by certain Carriers on the Platform pursuant to
sub-clause (d) above, the Customer may need to consider seeking its
own insurance cover for loss or damage it may incur that is not fully
indemnified by the Company’s warranties or the Carrier’s warranties or
insurance as agreed. No insurance will be arranged or effected by the
Company on the Customer’s behalf.
Customer’s Indemnity
8.
(a)
The Customer as appropriate shall indemnify the Company in respect of
any claim, loss, damage, payment, fine, expense, duty, tax, impost,
outlay, cost or other liability reasonably incurred by the
Company:
(i)
whether arising directly or indirectly from any Service arranged or
performed by the Company and/or
(ii)
as a result of any breach of the terms, conditions or warranties in
this contract by the Customer.
(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.
Quotations
9.
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. Charges may be referred and prices quoted or
displayed on the Platform for information. These are estimates only.
These may change depending on any additional service or charges/fees
incurred as will be advised by the Company to the Customer and will be
payable by the Customer. Goods will be reweighed/remeasured to determine
the chargeable weight. If this weight is more than that amount
originally charged to the Customer, the Customer will be recharged based
on the correct weight for which the Customer will be liable.
Authority for Payment of Expenses/Duties/Inspection and/or Release of Goods/Information
10.
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 and
(b)
allow inspection and/or release of the Goods or any information and/or
documents of the Customer, the Goods, the Services or relating thereto
as required by government authorities,
and the Customer shall indemnity the Company in respect of any
disbursement, expense, cost, loss, fine or damage reasonably incurred by
the Company in doing so and releases the Company from any liability in
connection therewith.
Responsibility for Fees/Charges
11.
(a)
The Customer shall pay the Company for all fees incurred and any charges or costs, such as redelivery fees, manual handling fees, demurrage fees, and repackaging fees, that it reasonably incurs in respect of the provision of the Services. 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 Carrier or Subcontractor or
on receipt of the Company’s invoice whichever occurs first. Fees and
charges shall be payable in accordance with the term stated in the
Company’s invoice or if not stated, will be payable on delivery. All fees and charges will be applied to the credit card or account used for the Booking and are 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 Customers shall pay the Company interest as liquidated damages at
the Commbank overdraft rate plus 5% on overdue fees or charges
invoiced. 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.
Routes/Procedures/Method
12.
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.
Valuables, Dangerous and Restricted goods
13.
(a)
(i)
Except as agreed in writing, the Company will not accept Valuables,
Dangerous or Restricted goods for Services arranged or performed by
the Company. Should the Customer nevertheless deliver any such goods
to the Carrier or Subcontractor or cause the Company, Carrier or
Subcontractor to arrange, handle or deal with any such goods whether
agreed in writing or not, 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.
Delivery/Completion
14.
(a)
The Company is authorised to arrange delivery of 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 the Carrier or
Subcontractor obtains a receipt, signed delivery docket for the Goods,
signature on its consignment note or contemporaneous record verifying
the identity 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 and time specified or requested 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(s) or
time(s).
Sale and Disposal of Goods
15.
(a)
The Company, Carrier and 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:
(i)
Goods which in the opinion of the Company, Carrier 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
(ii)
any Perishable goods which in the opinion of the Company, Carrier 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.
(iii)
Goods considered abandoned pursuant to this agreement.
(b)
If the Goods are sold pursuant to Clause (a) above, the Company can use
the proceeds of sale to discharge any fees and charges owed by the
Customer, including the costs of sale. Any balance of any proceeds
remaining following such discharge will be remitted to the
Customer.
Regulation Compliance
16.
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.
Carriers
17.
(a)
It is the sole obligation of the Carrier to ensure that it complies
will all laws, statute, rules and regulations with respect of the
Carriage of the Goods.
(b)
The Carrier must set out and provide all terms and conditions on which
it provides the Carriage in its quote submittal form on the Platform,
including all charges, taxes and fees payable.
(c)
The Carrier may refuse Carriage of the Goods without liability to the
Customer if the Goods are not as described by the Customer when booking
the Carriage and to transport the Goods would contravene applicable laws
or cause significant issue to the Carrier.
(d)
The Carrier may requote for the Carriage if the Goods are not the
weight, dimensions or description described by the Customer when booking
the Carriage.
Information
18.
(a)
Subject to applicable law, the Company reserves the right to keep all
records of Users using the Platform, including any and all
transactions and communication between Users.
(b)
Users are solely responsible for information provided to the Company or
other Users in registering to use the Platform or communicating during
provision of the Services.
(c)
The Users must not provide contact information to Users or other
parties for the purpose by bypassing the Company’s booking fees.
(d)
Users authorise the Company to use the information provided so the
Company can arrange and the Users can use the Company’s platform to book
and/or perform Carriage.
(e)
The Platform provides a passive conduit for any and all communication
and/or distribution of information between the Company and Users and
between Users. The company has no control, editorial or otherwise, over
any communication, information and specifically, over the content of
such communications from and between Users. The Company does not and
will not ensure the accuracy or reliability of such communication or
information from or between Users nor will it act as a monitor over the
content of such communication or information.
(f)
The Company can remove or restrict any communication or information at
its discretion.
(g)
The User expressly represents and warrants that it is the owner, with
all appurtenant rights thereto, of any and all communication, content
and/or information that it posts on the Platform. To that extent, the
User allows the Company to use its communication, content and/or
information without violation of the User’s rights.
(h)
The User grants the Company a royalty free, perpetual, irrevocable,
sub-licensable, non-exclusive license to exercise the copyright,
publicity and database rights that the User has in its communication,
content and/or information.
(i)
The user further represents and warrants that any and all of its online
communication, content and/or information:
(i)
will not violate any international, federal or state law, regulation,
rule or statute;
(ii)
will not violate these terms and conditions;
(iii)
will not infringe any third party’s intellectual property rights
including but not limited to copyright, patent or trade mark
rights;
(iv)
will not be libellous, threatening, harassing or defamatory. This
specifically includes making legal claims of any sort about the Company
or other Users on the Platform;
(v)
will not scan or test the vulnerability or security of the Platform or
the system within which it operates;
(vi)
will not be used for commercial or public purposes outside of a
requirement of these terms and conditions;
(vii)
will not create liability for the Company in any manner
whatsoever;
(viii)
will not frame or link to the Platform without our written
permission;
(ix)
will not involve the upload, or insertion of, any programming language
or code into or onto, the Platform.
(j)
The User will use common sense and good judgement when conducting or
posting any online communication or distribution of information. The
User assumes all legal responsibility for all communication or
distribution of information on the Platform and will indemnify the
Company in respect of all claims, demands, liabilities, loss and/or
damage (direct or indirect), costs, expenses and/or penalties of any
kind incurred as a result of any of its online communication or
distribution of information.
Right to Reject or Remove Users
19.
The Company can reject any User’s use of the Platform or remove any
User from the Platform at any time for any or no reason without notice
to the User.
Confidentiality/Non-Disclosure
20.
(a)
The Company may disclose to the User or the User may otherwise learn
of or discover, the Company’s documents, business practices, object
code, source code, management styles, day-to-day business operations,
capabilities, systems, current and future strategies, marketing
information, financial information, software, technologies, processes,
procedures, methods and applications, or other aspects of the
Company’s business (“Company’s Information”).
(b)
The User agrees and acknowledges that any and all of the Company’s
Information is confidential and shall be the Company’s sole and
exclusive intellectual property and proprietary information. The User
agrees to use the Company’s Information only for the specific purposes
as allowed by these terms and conditions. Any disclosure of the
Company’s Information to a third party specifically including a direct
competitor is strictly prohibited and will be vigorously challenged in a
court of law.
(c)
All the User’s obligations contained herein shall survive the
performance of these terms and conditions.
(d)
The User agrees and acknowledges that the Company’s Information is
proprietary, confidential and extremely valuable to the Company, and
that the Company would be materially damaged by the User’s disclosure of
the Company’s Information. The User acknowledges and agrees that
monetary damages provide an insufficient remedy for the breach of this
confidentiality obligation, and that the Company shall be entitled to
injunctive relief.
No Warranty for Platform
21.
(a)
To the maximum extent permitted by law, the Company does not
represent or warrant that the content on the Platform is accurate,
reliable, suitable, or complete.
(b)
Although the Company uses reasonable care and skill in providing the
Platform for use, it does no warrant that the Platform will be
continuously available or virus or fault free.
(c)
These terms and conditions exclude all warranties and guarantees with
regard to participation in and use of the Platform by the Users,
including all implied warranties and guarantees, except as may be
expressly set out in these terms and any warranties that cannot be
excluded at law (including under the ACL).
Legal Compliance Using Platform
22.
The User shall comply with all domestic and international law,
statutes, rules and regulations regarding use of the Platform.
Law and Jurisdiction
23.
(a)
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.
(b)
A reference to any law includes a statutory modification, substitution
or re-enactment of it.
Severance & Waiver
24.
It is hereby agreed that if any provision or part of any provision of
this contract is unenforceable, such unenforceability shall not affect
the application of 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 or
Carrier.
Inconsistency & Priority
25.
(a)
To the extent of any inconsistency of enforceable terms or a part
thereof herein, these terms will prevail over any other terms issued
by the Company, Customer or Carrier.
(b)
The use of the Customer’s or Carrier’s own form is no derogation to
these terms and conditions.
Trade Practices
26.
(a)
These terms and conditions of contract do not affect the Customer’s
rights pursuant to the ACL if the Customer is a “Consumer” or “Small
Business” and this agreement with the Customer is a “Consumer
Contract” or “Small Business Contract” – all quoted terms as defined
under the ACL. To the extent that any term or a part thereof is
contrary to or rendered inapplicable or void by application of the ACL
or any other legislation, it shall be rendered inapplicable or void
only to the extent required to give effect to that legislation but not
further.
(b)
If the Customer is a “Consumer” or “Small Business” and this agreement
is a “Consumer Contract” or “Small Business Contract” as defined under
the ACL, the parties agree that:
(i)
the time-bars in Clauses 6(h)(i) and (ii) will not apply.
(ii)
the Company’s right to limit or exclude liability in this Agreement is
reasonable and not “unfair” in circumstances where prior to the
provision of the Services, the parties agree on the allocation of costs,
risks and liability where:
(a)
the Company has given the Customer a reasonable opportunity to request
that the Company take a higher level of risk and liability at a higher
cost;
(b)
the Customer chooses and agrees to a lower cost for a lower level of
risk and liability level from the Company; and
(c)
such practice is not otherwise “unfair” as defined under the ACL.
(iii)
the Customer’s indemnity referred under Clause 8(a)(i) above will not
apply to the extent that the claim, loss, damage, payment, fine,
expense, duty, tax, impost, outlay, cost or other liability incurred by
the Company resulted from the negligence, recklessness or wilful act of
the Company, its servants, agents, Carrier or Subcontractors or is
otherwise unreasonable or unreasonably incurred.
(iv)
Clause (c) below will not apply.
(c)
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.
(d)
If the carriage of Goods involves an ultimate destination or stop in a
country other than the country of departure, a Carriage by Air
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
27.
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 Force Majeure or any circumstance, matter or thing beyond the
Company’s 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.
Intellectual Property Notice
28.
(a)
All copyright and other intellectual property rights subsisting in
the Platform and the material on the Platform (including, without
limitation, the software, design, text and graphics comprised in or
website and the selection and layout of our website) is owned or
licensed by the Company and protected by the laws of Australia and
other countries.
(b)
The User is authorised to use the Platform and its contents using its
web browser and sharing its information to book or provide
Carriage.
(c)
The User must not otherwise reproduce, transmit (including broadcast),
communicate, adapt, distribute, sell, modify or publish or otherwise use
any of the material on the Platform, including audio and video excerpts,
except as permitted by statute or with the Company’s prior written
consent.
Our services are provided in a competitive environment where costs are a
function of risk and liability to us and our customers.
Accordingly, we offer our customers the following three alternative
services which reflect different levels of risk, liability and cost to us
and our customers.
1
No Liability Service – provided at lowest cost but greatest risk to you
the Customer where we can exclude and/or limit our liability to you
howsoever loss or damage is caused.
2
Standard Warranty Service – provided at increased cost but lesser risk
to you the Customer in 1 but where we conditionally warrant strict
limited liability only for loss of, and or damage to, Goods received to
the lesser of the cost of repair or replacement of the Goods received
not exceeding the limits of A$1,000 or A$5,000 depending on which
warranty you choose subject to WTCs.
3
Enhanced Warranty Service – provided at increased cost where we
conditionally warrant strict limited liability only for loss of, and or
damage to, Goods received to the lesser of the cost of repair or
replacement of the Goods received not exceeding the limits of A$5,000 or
A$50,000 depending on which warranty you choose subject to WTCs.
If none of our service alternatives suit your business objectives, please contact us to negotiate a different service that might better suit our respective businesses.
When completing a booking on the FreightExchange platform, you will be required to select the warranty service you wish to choose. At this time, you will be prompted to confirm your choice.
We do not provide or arrange insurance for our customers, so irrespective of which service you agree we provide, you should consider obtaining your own insurance as your loss and/or damage may exceed our liability.
Our services are provided subject to our trading terms and conditions which can be found at (insert link to page on website with TTCs) in addition to our warranty terms and conditions should you choose our Conditional Warranty Service which can be found at (insert link to page on website with WTCs).
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Press & Partners
Here are some of the associations, partnerships and mentions we've acquired over the last 7+ years of being in business.
