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Apex Freight Terms & Conditions

Apex Freight Solutions Pty Ltd - Terms & Conditions of Cartage

  1. Definition
    1. “Contractor” shall mean Apex Freight Solutions Pty Ltd ACN 134 494 590 and its successors and assigns or any person acting on behalf of and with the authority of Apex Freight Solutions Pty Ltd.
    2. “Client” shall mean the Client or any person or persons acting on behalf of and with the authority of the Client. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
    3. “Consignee” shall mean the person to whom the Goods are to be delivered by way of the Contractor’s Services.
    4. “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
    5. “Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of the Contractor’s Services, or for storage by the Contractor.
    6. “PPSA” means the Personal Property Securities Act 2009.
    7. “Price” shall mean the cost of the Services as agreed between the Contractor and the Client subject to clause 4 of this contract.
    8. “Services” shall mean all services supplied by the Contractor to the Client and are as described on the quotations, invoices, consignment note, airway bills, manifests, sales order or any other forms as provided by the Contractor to the Client and includes any advice or recommendations.
    9. “Sub-Contractor” shall mean and include:
      1. railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
      2. any other person, firm or Contractor with whom the Contractor may arrange for the carriage or storage of any Goods the subject of the contract; or
      3. any person who is now or hereafter a servant, Contractor, employee or sub-contractor of any of the persons referred to in clause 1.2(a) and 1.2(b).
  2. Acceptance
    1. Any instructions received by the Contractor from the Client for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
    2. Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Contractor.
    3. These terms and conditions are to be read in conjunction with the Contractor’s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by the Contractor to the Client. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
    4. The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
  3. Warranty
    1. All express or implied terms, guarantees, conditions, warranties and representations are hereby expressly negated and excluded except to the extent that any implied guarantee, condition or warranty may not be excluded by law.
    2. In the event of any breach of an implied guarantee, warranty or condition which is not expressly excluded from these terms and conditions, the Contractor’s liability shall be limited as set out in clause 23.
  4. Freight Forwarding
    1. Except to the extent that any of the Services shall be actually performed by the Contractor, the Contractor shall act as a forwarding Contractor only. The Contractor shall be entitled to enter into contracts on behalf of and as Contractor for the Client and without notice to the Client, for the carriage of the Goods by any route, means and Contractor, for the storage, packing, trans-shipment, unloading, loading or handling of Goods by any person at any place and for any length of time, and for such other matters as in the opinion of the Contractor may be necessary or desirable to the performance of the Services. The Client hereby appoints the Contractor the Contractor of the Client for the purpose of entering into any contract, upon such terms and conditions, as the Contractor may in its absolute discretion think fit. The Client shall be bound by the terms of any consignment note, air waybill or other contractual document which the Contractor may receive for the Goods, or for any package, unit or container in which the Goods may be packed, whether by the Client, the Contractor, or any other person.
    2. The Client and any Consignee shall be jointly and severally liable for any duty, tax, impost, excise, levy, penalty, deposit, or outlay of whatsoever nature levied by any government, or the authorities at any port or place in connection with the Goods, and for any payments, fines, expenses, loss or damage incurred or sustained by the Contractor in connection therewith and shall indemnify the Contractor, its servants and Contractors from all claims by third parties howsoever arising in connection with the Goods.
    3. When the Goods are accepted or dealt with upon instructions to collect freight, duties, charges or other expenses from the Consignee or any other person the Client shall remain responsible for those charges and expenses if they are not paid by the Consignee or other person.
    4. The Contractor’s Price (including all charges) shall be deemed fully earned on delivery of the Goods (in accordance with Clause 8) and shall be paid in any event including, but not limited to, cargo lost, or a voyage or flights broken up or abandoned. If there is a forced interruption or abandonment of a voyage or flight at the port or airport of shipment or elsewhere, any forwarding of the Goods or any part thereof shall be at the risk and expense of the Client and Consignee.
    5. All unpaid charges shall be paid in full and without offset, counterclaim, or deduction, in the currency of the place of receipt of the Goods or at the Contractor’s sole discretion, in the currency of the place of delivery at the TT selling rate in effect on the day of payment. If the date falls on a day which banks are closed for business, the rate ruling on the next succeeding business day shall govern.
  5. Contractor Not A Common Carrier
    1. The Contractor is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other Services are performed by the Contractor subject only to these conditions and the Contractor reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
  6. Price And Payment
    1. At the Contractor’s sole discretion the Price shall be either;
      1. as indicated on invoices provided by the Contractor to the Client in respect of Services supplied; or
      2. Contractor’s quoted Price (subject to clause 6.2 & 6.3) which shall be binding upon the Contractor provided that the Client shall accept in writing the Contractor’s quotation within thirty (30) days.
    2. The Contractor may by giving notice to the Client increase the Price of the Services to reflect any increase in the cost to the Contractor beyond the reasonable control of the Contractor (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).  An additional charge may be made by the Contractor for the cost of hiring, recovery and replacement (if applicable) of all pallets hired by the Contractor unless exchange pallets are available at the time of delivery.  The Client shall return each Pallet in substantially the same condition as it was provided (fair wear and tear excepted) upon fourteen (14) days written notice or six (6) months after the date of receipt of the Pallets by the Client, whichever date is first to occur.
    3. The Contractor may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
    4. At the Contractor’s sole discretion a deposit may be required.
    5. At the Contractor’s sole discretion;
      1. payment shall be due on delivery of the Goods, or
      2. payment shall be due before delivery of the Goods, or
      3. payment for approved Clients shall be made by installments in accordance with the Contractor’s payment schedule, or
      4. payment for approved Client’s shall be due on thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
    6. Time for payment for the Services shall be of the essence and will be stated on the on the invoice, consignment note, airway bills, manifests or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
    7. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and the Contractor.
    8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
  7. Client-Packed Containers
    1. If a container has not been stowed by or on behalf of the Contractor the Contractor shall not be liable for loss of or damage to the Goods caused by:
      1. the manner in which the container has been stowed; or
      2. the unsuitability of the Goods for carriage or storage in containers; or
      3. the unsuitability or defective condition of the container.
  8. Delivery
    1. It is the Client’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.
    2. Pending forwarding and delivery, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of the Contractor.
    3. At the Contractor’s sole discretion delivery of the Goods shall take place when:
      1. the Client takes possession of the Goods at the Contractor’s address; or
      2. the Client’s nominated Contractor takes possession of the Goods in which event the Contractor shall be deemed to be the Client’s Contractor; or
      3. the Goods are delivered to the Client’s nominated address (as supplied to the Contractor by the Client for that purpose) and it is expressly agreed that the Contractor shall be taken to have delivered the Goods in accordance with this contract if at that address the Contractor obtains from any person a receipt or a signed delivery docket or consignment note for the Goods.
    4. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.
    5. The Client shall inspect the Goods on delivery and shall notify (in writing) the Contractor of any alleged damage or shortage in quantity. If the alleged damage or shortage in quantity is not apparent at the time of delivery then the Client shall within seven (7) days of delivery (time being of the essence) notify (in writing at the Registered Office) the Contractor the alleged damage or shortage in quantity. The Client shall afford the Contractor an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are damaged in any way. The Contractor shall be discharged from all liability whatsoever in connection with the Goods unless suit is brought within three (3) months from their delivery or from the date on which the ordinary course of business delivery would have been effected. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any damage or shortage in quantity.
    6. The Contractor may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.
    7. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery for the purposes of this agreement.
    8. The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
      1. such discrepancy in quantity shall not exceed five percent (5%); and
      2. the Price shall be adjusted pro rata to the discrepancy.
    9. The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
  9.  Nomination Of Sub-Contractor
    1. The Client hereby authorises the Contractor (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Client upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Contractor.  In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Contractor shall be deemed to enter into this contract for its own benefit and also as Contractor for the Sub-Contractor.
  10. Contractor’s Servants or Contractors
    1. The Client undertakes that no claim or allegation shall be made against any servant or Contractor of the Contractor which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify the Contractor and any such servant or Contractor against all consequences thereof.
  11. Method Of Transport
    1. If the Client instructs the Contractor to use a particular method of carriage whether by road, rail, sea or air the Contractor will give priority to the method designated but if that method cannot conveniently be adopted by the Contractor the Client shall be deemed to authorise the Contractor to carry or have the Goods carried by another method or methods.
  12. Route Deviation
    1. The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of the Contractor be deemed reasonable or necessary in the circumstances.
  13. Demurrage
    1. The Client will be and shall remain responsible to the Contractor for all its proper charges incurred for any reason.  A charge may be made by the Contractor in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Contractor.  Such permissible delay period shall commence upon the Contractor reporting for loading or unloading.  Labour to load or unload the vehicle shall be the responsibility and expense of the Client or Consignee.
  14. Dangerous Goods
    1. Unless otherwise agreed in advance in writing with the Contractor the Client or his authorised Contractor shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods.  The Client shall be liable for and hereby indemnifies the Contractor for all loss or damage whatsoever caused by any Dangerous Goods.
  15. Consignment Note
    1. It is agreed that the person delivering any Goods to the Contractor for carriage or forwarding is authorised to sign the consignment note for the Client.
  16. Client’s Responsibility
    1. The Client expressly warrants to the Contractor that the Client is either the owner or the authorised Contractor of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Client accepts these conditions of contract for the for all persons on whose behalf the Client is acting.
    2. The Client warrants it shall fully and accurately disclose the exact nature, weight and measurement of the Goods.
  17. Loss Or Damage
    1. Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):
      1. the Contractor shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of the Contractor or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
      2. the Client will indemnify the Contractor against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by the Contractor in connection with the Goods.
  18. Insurance
    1. The Client acknowledges that:
      1. the Goods are carried and stored at the Client’s sole risk and not at the risk of the Contractor; and
      2. the Contractor is under no obligation to arrange insurance of the Goods and it remains the Client’s responsibility to ensure that the Goods are insured adequately or at all; and
      3. under no circumstances will the Contractor be under any liability with respect to the arranging of any such insurance and no claim will be made against the Contractor for failure to arrange or ensure that the Goods are insured adequately or at all.
  19. Default & Consequences Of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Contractor.
    3. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.
    4. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Contractor may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions.  The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor exercised its rights under this clause.
    5. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
    6. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
      1. any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to meet its payments as they fall due; or
      2. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      3. a receiver, manager, liquidator (provisional or otherwise), administrator or similar person is appointed in respect of the Client or any asset of the Client.
  20. Unpaid Contractor’s Rights to Dispose of Goods
    1. The Contractor shall have a lien on any Goods (and any documents relating to those Goods) in the possession or control of the Contractor for all sums payable by the Client to the Contractor, and the Contractor shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Client.  The Contractor shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
  21. Security And Charge
    1. Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
      1. where the Client and/or the Guarantor (if any) is the owner of land or realty, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land or realty to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Client and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
      2. the Client hereby grants the Contractor a security interest over the whole of its assets and undertaking, present and future, to secure the payment of any amounts payable hereafter by the Client to the Contractor.
      3. should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
      4. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 21.1.
  22. Privacy Act 1988
    1. The Client and/or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Contractor.
    2. The Client and/or the Guarantor/s agree that the Contractor may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
      1. to assess an application by Client; and/or
      2. to notify other credit providers of a default by the Client; and/or
      3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
      4. to assess the credit worthiness of Client and/or Guarantor/s.
    3. The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    4. The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
      1. provision of Services; and/or
      2. marketing of Services by the Contractor, its Contractors or distributors in relation to the Services; and/or
      3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
      4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
      5. enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
    5. The Contractor may give information about the Client to a credit reporting agency for the following purposes:
      1. to obtain a consumer credit report about the Client; and/or
      2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
    6. The Contractor adheres to the National Privacy Principles in respect of any personal information collected from an individual.  In respect of such personal information, the Contractor discloses that:
      1. The identity of the Contractor and how to contact the Contractor are set out above.
      2. The individual is entitled to access to the personal information collected.
      3. The personal information is collected for the purpose of processing the application for credit and the application for the supply of Services.
      4. The only organizations to which the Contractor discloses the personal information are those identified in this clause.
      5. The consequences if the personal information is not provided is that the Contractor will be unable to process the application for credit and/or the application for supply of Services.
  23. Limitation of Liability
    1. Subject to any statutory provisions imposing liability, the Contractor shall not be under any liability for any loss or damage whatsoever or howsoever arising (unless such loss or damage is due to the wilful neglect of the Contractor or its Contractors). This limitation of liability shall include all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Contractor or incurred or become payable by the Contractor.
    2. The Client acknowledges that due to the nature of the Goods, delays can occur due to circumstances beyond the control of the Contractor (including, without limitation, time frames related to regulations, or third party Contractors refusing to transport the Goods), and as such the Contractor shall not be liable for any consequential or indirect loss, including for economic loss, loss of profits or damage to goodwill, or consequences of delay whatsoever, due to the failure by the Contractor to deliver the Services promptly or at all.
    3. Liability of the Contractor arising out of any one incident for breach of these terms and conditions, howsoever arising, is limited to any of the following as determined by the Contractor:
      1. the supplying of the Services again; or
      2. the payment of the cost of having the Services supplied again.
  24. Security interest under the PPSA
      1. The Client acknowledges the right of the Contractor to register a financing statement under the PPSA with respect to any security interest created by these Terms and Conditions;
      2. If the Contractor registers a security interest under the PPSA, the Contractor may exercise any or all remedies afforded to the Contractor as a secured party under it without prejudice to any other rights or remedies arising out of a breach by the Client of any agreement with the Contractor; and
      3. The assets and undertaking of the Client are collateral for the purposes of the PPSA.
    1. The Client waives any right the Client has under the PPSA to receive notice in relation to registration events.
    2. The Client and the Contractor agree that neither will disclose information of the kind specified in Section 275 (1) of the PPSA.
    3. At the election of the Contractor to be exercised at any time in its absolute discretion, any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.
  25. Cancellation
    1. The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatever arising from such cancellation.
    2. In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
  26. General
    1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
    3. The Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions.
    4. In the event of any breach of this contract by the Contractor the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
    5. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
    6. The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    7. The Client agrees that the Contractor may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change.
    8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    9. The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.
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