Terms And Conditions

TERMS AND CONDITIONS OF SERVICE

DEFINITIONS

1. In these Terms, the following definitions apply:
   1. “ACL” means the Australian Consumer Law as located in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
   2. “Carrier” shall mean On Time Group Of Companies Pty Ltd ACN 065 865 376 ATF The Express Parts Trust ABN 54 320 125 065; and
   3. “Claim” means a claim notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a party to this Agreement or third party;
   4. “Client” means any person or corporation to whom or to which Services are sold or provided by the Carrier and shall include its successors, assignees, trustees, administrators or liquidators, officers, agents, employees or sub-contractors;
   5. “Drivers” means the drivers employed, contracted or otherwise engaged by the Carrier and assigned to drive the Vehicles for provision of the Services;
   6. “Force Majeure Event” means an event of strike, industrial dispute, raw material shortage, supplier issue, COVID-19 related government-imposed restrictions, pandemic, epidemic, natural disaster, collision, accident, contamination or radiation, crime, civil unrest, act of terrorism, embargo, government sanction, war or event outside the control of the Carrier;
   7. “Fuel Levy” means the fuel levy payable by the Client in accordance with any written agreement between the Carrier and the Client or otherwise in accordance with the Scale Rates;
   8. “Goods” means any goods, products, supplies, materials or other items, including packaging, pallets or containers in or on which other items are packed, loaded or stored, that are provided to the Carrier or its officers, agents, employees or sub-contractors by the Client for the purposes of transport or delivery;
   9. “Price” means the price payable by the Client to the Carrier for the Services in accordance with any written agreement between the Carrier and the Client or otherwise calculated in accordance with the Scale Rates;
   10. “Scale Rates” means the Scale Rates for Ad Hoc Services provided to the Client by the Carrier, as updated in writing by the Carrier from time to time;
   11. “Services” means the services of transportation and delivery of the Goods by the Carrier for the Client;
   12. “Terms” means these terms and conditions of service;
   13. “Vehicles” means the vehicles procured and allocated by the Carrier from time to time to provide the Services to the Client.

APPLICATION OF TERMS

2. Until such time as the Carrier notifies the Client of replacement terms, these Terms shall form part of any contract or agreement for the sale of Services by the Carrier to the Client, except as varied by written agreement between the Carrier and the Client. Any direction by the Client, either written or by action to procure Services from the Carrier, shall be deemed acceptance of these Terms by the Client.

THE SERVICES

3. The Goods will be accepted by the Carrier for transport or delivery subject to the following conditions:
   1. The Goods must comply with the requirement of any applicable law related to the nature, condition and packaging of goods transported by road; and
   2. The Client must provide the Carrier with full written details of any Goods liquid items or Goods of a volatile, noxious, dangerous, hazardous, flammable or inflammable nature or capable of causing damage or injury to any other goods, persons or animals, or to any store, vessel or vehicle in which the Goods may be loaded, carried, packed or stored, prior to collection of such Goods for transport.
4. The Carrier and the Drivers shall handle and transport all Goods by methods that are in accordance with any laws in the State that the Services are being carried out and in accordance with the Client’s reasonable requirements.
5. The Client acknowledges and agrees that unless otherwise agreed in writing by the Carrier, the Services provided shall not include the installation, assembly or erection of Goods of any kind by the Carrier or the Driver.
6. The Carrier reserves the right to refuse to provide the Services or any part of the Services to the Client in respect of any particular Goods or class of Goods in its absolute discretion.

DELIVERY

7. The Carrier shall deliver all Goods within a single load to the delivery point nominated by the Client. The Carrier will deliver Goods to multiple locations and at intermediate points only by special arrangement agreed to in writing by the Carrier.
8. If no persons authorised to accept delivery of the Goods be in attendance at the delivery point nominated by the Client during usual trading hours or at a time nominated by the Client for delivery on arrival of the Driver with the Goods or the Carrier is otherwise delayed in effecting delivery at the nominated delivery point other than due to the fault of the Carrier and/or Driver, then the Carrier reserves the right to charge the Client the Price for the time of the delay or for any further attempts to deliver the Goods.

VEHICLES

9. The Carrier shall ensure that all Vehicles are:
   1. maintained in good, presentable order and condition; and
   2. equipped with mobile phone to service communication and GPS facilities.

DRIVERS

10. The Carrier warrants and represents that all Drivers are suitably trained to operate the Vehicles to a standard suitable for the purpose of performing their duties for the carrying out of the Services.

STORAGE OF GOODS

11. Where the Goods are not able to be delivered on the same date as collection for any reason, the Client agrees that the Goods may be stored by the Carrier at the Client’s risk.
12. If the Carrier is required to pay rent, storage or any other fees in respect of the storage of the Goods, the Client acknowledges and agrees that such fees will be payable in full by the Client.

PAYMENT TERMS

13. The Client acknowledges and agrees that it shall pay the Price and Fuel Levy for the Services in accordance with any written, signed agreement between the Carrier and the Client or otherwise in accordance with the Scale Rates. The Carrier reserves the right to adjust the Price and Fuel Levy noted in the Scale Rates before or after pickup of the Goods to meet any adjustment in charges imposed by an instrumentality outside the control of the Carrier.
14. Unless otherwise stated the Price and Fuel Levy are exclusive of GST, duty, taxes or any other statutory charges or fees payable in connection with the provision of Services.
15. The Carrier shall issue tax invoices to the Client on a weekly basis for Services carried out in the week prior. In calculating the amount payable by the Client, the Client agrees that the billable hours for the Services are deemed to have:
    1. Commenced on arrival of the Driver/s to the first point of pick up if the Vehicle has not already been loaded or on departure by the Driver from the location of the Vehicle if the Vehicle has already been loaded with the Goods for delivery; and
    2. Completed on arrival by the Driver at the address at which the Vehicle is kept overnight.
16. Unless other payment terms are agreed to by the Carrier in writing, all tax invoices shall be due and payable within seven (7) days of the date of issue. The due date for payment of an invoice shall not be postponed on account of damage to or non-delivery of the Goods.
17. Payments must be made without any setoffs, counter-claim or deduction and will not be refunded in any circumstances.
18. If the Client fails to make payment on or before the due date for payment, the Carrier may in its discretion charge interest on all overdue amount at a rate of interest 2% higher than the rate ste from time to time under the Penalty Interest Rates Act 1983 (VIC). Interest shall be calculated daily from the due date for payment until the date all overdue monies are received by the Carrier.

LIMITATION OF LIABILITY AND INDEMNITY

19. The Carrier is not a common carrier and will accept no liability as such. All Services are provided by the Carrier subject only to these Terms and any written agreement signed by or on behalf of the Carrier.
20. The Carrier shall not be under any liability, whether in tort or in contract, for any loss of or damage to, or misdelivery, delay in delivery, concealed damage, deterioration, contamination, evaporation or non-delivery of Goods held in the Carrier’s care, custody or control, or any consequential loss arising from same and the Client shall keep the Carrier indemnified of such liability.
21. The Carrier accepts no liability for any loss, damage or injury of any kind whatsoever, however arising caused or incurred or incurring as a result of the loading or offloading of the Goods at the pickup or delivery points by the Carrier, the Driver or any other person, including but not limited to the Client or the Client’s employees, agents or contractors. Such loss, damage or injury includes to itemised equipment, to any person, property or thing, and any loss consequentially or otherwise arising from such loss, damage or injury.
22. The Client indemnifies the Carrier for any liability or loss suffered or incurred as a direct or indirect result of any breach of this Agreement by the Client, any wilful, unlawful or negligent act or omission by the Client or its personnel, the failure of the Client to notify the Carrier of any dangerous goods within a load for transport and any infringement of intellectual property rights of any other person as a result of the display or use of the Client’s signage.
23. The Client acknowledges and agrees that the Carrier may arrange for the carriage of the Goods by any independent contractor or sub-contractor of the Carrier.
24. The Carrier acts for itself and as agent of and trustee for each of its contractors or other persons or companies with whom the Carrier may arrange for the Services to be carried out by (“Agents”). In respect of any clause that seeks to limit or exclude any liability of the Carrier, such Agents are deemed to be parties to these Terms so far as necessary to give effect to such clause.
25. All the rights, immunities of liability in the above conditions of carriage shall continue to have their full force and effort in all circumstances and notwithstanding any breach of the contract or of any conditions hereof by the Carrier.

LIEN

26. The Client acknowledges and agrees that the Carrier has a lien (under general law or equity) over all Goods belonging to the Client that are in the Carrier’s possession, to secure payment of any and all amounts outstanding to the Carrier by the Client from time to time. The Carrier, in its absolute discretion, may exercise the lien in respect of any due and unpaid amounts outstanding from the Client to the Carrier and may retain the Goods and serve notice on the Client requiring immediate payment of the amounts outstanding.
27. If the lien is not satisfied and the outstanding amounts are not paid within 24 hours in the case of perishable Goods or otherwise within 30 days of the notice, the Carrier shall be entitled to sell the Goods or any part thereof in or toward discharge of the lien without being liable to any person for any loss or damage thereby caused.
28. The Client acknowledges that it is responsible for payment of any costs of storing the Goods subject to the lien and that such costs will be deducted from any proceeds of the sale of the Goods in priority of the amounts outstanding to the Carrier.

RISK, TITLE AND INSURANCE

29. The Client acknowledges and agrees that the Carrier shall not be responsible for insuring any of the Goods and it is solely the responsibility of the Client to ensure that adequate and appropriate insurance cover is arranged for the transportation of the Goods by the Carrier or its agents or assigns.
30. The Client acknowledges and agrees that the Goods shall remain at the Client’s risk from the time of collection of the Goods by the Driver to the time of delivery of the Goods by the Driver.

FORCE MAJEURE

31. The Carrier shall not be considered in default or liable in any way if there is any failure to perform or delay in performing any of its obligations under these Terms, to the extent that such failure or delay is due to an event of Force Majeure Event.

GENERAL TERMS

32. These conditions shall be governed and construed in accordance with the laws of the State in which the Services are provided by the Carrier and the Client and the Carrier submit to the non-exclusive jurisdiction of that State and otherwise within Australia.
33. To the extent that the provisions of the ACL cannot be expressly excluded or modified, these Terms shall be read subject to any implied terms, conditions and warranties imposed by the ACL or any other legislative act applicable to the Services.