Terms and Conditions | RTM Logistics

Standard Terms and Conditions

These terms and conditions must be read having regard to the provisions of the Australian Consumer Law (set out in Schedule 2 of the Competition and Consumer Act 2010) to the extent that those provisions are applicable to consumers as defined under Section 3 of that Schedule 2. These terms and conditions do not have the effect of excluding, restricting or modifying rights under the Australian Consumer Law which cannot be excluded, restricted or modified by agreement. In these Standard Terms and Conditions of Contract, the customer is the party entering into the contract of services with the Company, being the shipper, consignor, receiver, consignee, the owner of the goods, or their authorised agent.

1. (a) All and any business undertaken by RTM Logistics Pty Ltd, ACN 689 149 460

and all associated entities, persons and nominees (hereinafter called “the Company”) is

transacted subject to these conditions each of which shall be deemed to be incorporated in

and to be a condition of any agreement between the Company and its customers. The

Company only deals with goods subject to these conditions. The Company is not a

common carrier and shall accept no liability as such;

(b) The Company in its sole and absolute discretion may refuse to deal with any goods without assigning any reason therefore.

2. Any instructions given to the Company may in the absolute discretion of the

Company be complied with by the Company as agent for the customer as disclosed

principal or by the Company as principal contractor by its own servants performing part or

all of the relevant services or by the Company employing or instructing or entrusting the

goods to others on such other conditions as they may stipulate to perform part or all of the

services. Where the Company acts as agent for the customer as disclosed principal, the

customer shall be bound by such other conditions and shall release the Company from

liability and indemnify the Company against any claims arising out of their acceptance.

Where the Company acts as principal contractor, the customer authorises the Company to

subcontract on any terms the whole or any part of the services. Such authorisation extends

to any subcontractor and sub-subcontractor.

3. Customers entering into transactions of any kind with the Company expressly

warrant that they are either the owners or the authorised agents of the owners of any and

all goods or property the subject matter of the transaction. By entering into the transaction

they accept these conditions for themselves and for all other parties on whose behalf they

are acting and they warrant that they have authority so to do.

4. Subject to express instructions in writing given by the customer and by the Company,

the Company reserves to itself complete freedom of choice of means route and procedure

to be followed in the handling and transportation of goods. If in the Company’s opinion it is

necessary or desirable in the customer’s interests to depart from any express instructions,

the Company shall be at liberty to do so.

5. Except where the Company is instructed in writing to pack the goods the customer

warrants that all goods have been properly and sufficiently packed and/or prepared.

6. The Company is entitled to retain and be paid all brokerages, commissions, allowances

and other remunerations retained by or paid to Ship Forwarding Agents (or Freight

Forwarders) and Insurance Brokers.

7. Quotations are given on the basis of immediate acceptance and subject to the right of

withdrawal before acceptance.

8. The customer, and the senders, owners and consignees of any goods and their agents,

if any, shall be bound by and to warrant the accuracy of all descriptions, values, dimensions,

weights and other particulars furnished to the Company for customs, consular, road transport

and other purposes and shall jointly and severally indemnify the Company against all losses,

damages, expenses and fines arising from any inaccuracy or omission accuracy in such

descriptions, values, dimensions, weights and other particulars, save to the extent that such

inaccuracy or omission is due to the gross negligence, fraud, criminal conduct or wilful

misconduct of the Company, its servants, agents or subcontractors. The customer and the

senders, owners and consignees and their agents, if any, 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 Company in

connection therewith and shall indemnify the Company, its servants and agents from all claims

by third parties howsoever arising in connection with the goods.

9. When goods are accepted or dealt with upon instructions to collect freight, duties,

charges or other expenses from the consignee or any other person the customer shall remain

responsible for the same if they are not paid by such consignee or other person.

10. The customer shall be responsible for the timely return of any container to the person

who owns or has a right to possession of the container in a clean and undamaged condition.

The customer agrees to indemnify the Company against any claim, liability or expense,

including detention or demurrage charges, which arise as a result of:

(a) a failure to return the container, or

(b) a delay in the return of the container beyond the customary period allowed for

container returns, or

servants, agents and/or subcontractors, or

(d) the container being returned in a dirty or contaminated condition, regardless of who

failed or delayed in the return of the container or where or by whom the container

was damaged, made dirty or contaminated.

11. The customer shall indemnify the Company against any claim, liability or expense

which arises as a result of delay in loading or unloading of the customer’s goods, or any waiting

time, detention or demurrage for any truck or any other conveyance whatsoever.

12. (1) The Company’s charges to the customer including freight shall be deemed fully

earned on receipt of the goods by the Company and shall be paid and non-returnable in any

event and whether goods are lost or not lost or a voyage or flight is broken up or abandoned.

If there shall be 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 customer and of the sender, owner and consignee.

(2) All unpaid charges shall be paid in full and without any offset, counterclaim or

deduction, in the currency invoice by Company.

(3) The Company’s charges including freight have been calculated on the basis of

particulars furnished by, or on behalf of the customer. The Company may at any time open

any container or any other package or unit in order to re-weigh, re- measure or re-value the

contents and if the particulars furnished by or on behalf of the customer are incorrect, the

customer shall pay the difference between the correct freight and the freight charged to the

Company.

13. No insurance will be effected except upon express instructions as to the risks to be

insured against and the value or values to be declared in writing by the customer and all

insurances effected by the Company subject to the usual exceptions and conditions of the

policies of the insurance company or underwriters accepting the risk. The Company shall not

be under any obligation to effect a separate insurance on each consignment but may declare

it on any open or general policy. Should the insurers dispute their liability for any reason the

insured shall have recourse against the insurers only and the Company shall not be under any

responsibility or liability in relation thereto, notwithstanding that the premium upon the policy

may not be at the same rate as that charged by the Company or paid to the Company by its

customer.

14. The Company shall not be liable for any loss, damage, cost, expense, penalty or fine

suffered whatsoever by the customer or any other person, howsoever caused or arising,

whether:

(a) for loss of or damage to goods unless such loss or damage occurs whilst the goods are in the actual custody of the Company and under its actual control and unless such loss or damage is due to the wilful neglect of the Company or its own servants, agents or subcontractors;

(b) for any delay in delivery, forwarding or transit or failure to deliver goods, any

deterioration, contamination, evaporation or any consequential loss or loss of

market however caused;

such failure is due wilful neglect of the Company or its own servants, agents or

subcontractor;

(d) in any way connected with marks, numbers, brands, contents, quality, value,

weight, dimensions or description of any goods;

(e) for loss or damage resulting from fire, water, explosion or theft whether caused

by negligence of the Company’s servants or otherwise.

(f) The exclusions of liability in clause 14 shall not apply for any loss, damage, cost,

expense, penalty or fine if caused by the gross negligence, fraud, criminal

conduct or wilful misconduct of the Company, its servants, agents or

subcontractors.

15. The Company and the customer are not liable to the other party for any loss suffered

by the other party in connection with the goods or the services that is a consequential or

indirect loss, including losses that are purely financial or economic losses, loss of opportunity,

losses in connection with contracts, agreements or understandings the other party has with

third parties, loss of market, or any other losses whatsoever that do not arise directly from

physical damage to or loss of the goods and are consequential in nature.

16. The exclusion of liability in clauses 14 and 15 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 Company providing the services under this contract and to any

indirect or consequential loss arising from such loss, damage or injury or from failure to deliver,

delay in delivery or misdelivery of goods or documentation.

17. The Company shall not be liable under any circumstances for any claim, cost, expense,

loss or damage, penalty or fine resulting from or attributable to any quotation, statement,

representation or information whether oral or in writing howsoever, wheresoever or to

whomsoever made or given by or on behalf of the Company or by any servant, employee or

agent of the Company as to the classification of, the liability for or the amount, scale or rate of

customs and/or excise duty or other impost, tax or rate applicable to any goods or property

whatsoever, unless such failure is due wilful negligent of the Company or its own servants,

agents or subcontractor.

18. Unless a Convention or law limiting the Company’s liability to a greater amount

compulsorily applies, liability of the Company arising out of any one incident whether or not

there has been any declaration of value of the goods, for breach of warranty implied into these

terms and conditions by the Australian Consumer Law or howsoever arising, is limited to any

of the lesser of following:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again; or

goods, packages or units or A$20.00 per package or unit lost or damaged.

For the purposes of this clause the word “package” shall include the contents within that “package” for the purpose of calculating any limitation of liability, even if separate particulars have been provided or incorporated in any document of the Company.

19. The Company shall be discharged of all liability unless suit is brought in the proper

forum and written notice thereof received by the Company within six months after delivery of

the goods or the date when the goods should have been delivered. In the event that the said

time period shall be found contrary to any Convention or law compulsorily applicable the

period prescribed by such Convention or law shall then apply but in that circumstance only.

20. (a) In the case of carriage by sea, the value will not be declared or inserted in the Bill of Lading for the purpose of extending the Ship owners’ liability under the Carriage of Goods by Sea Act 1991 except upon express instructions given in writing by the customer.

(b) In the case of carriage by air, no optional declaration of value to increase the Air

Carrier’s liability under the Civil Aviation (Carrier’s Liability) Act 1959 will be made except

upon express instructions given in writing by the customer;

liability assumed by carriers, warehousemen or others no declaration of value (where

optional) will be made for the purposes of extending liability and goods will be forwarded or

dealt on the basis of minimum charges unless express instructions in writing to the contrary

are given by the customer.

21. Instructions to collect payment on delivery (COD) in cash or otherwise are accepted

by the Company upon the condition that the customer remains liable for the charges in the

event of non-payment by the party nominated by the customer to pay the charges.

22. Perishable goods, which are not taken up immediately upon arrival or which are

insufficiently addressed or marked or otherwise not identifiable may be sold or otherwise

disposed of without any notice to the customer and payment or tender of the net proceeds of

any sale after deduction of charges shall be equivalent to delivery. All charges and expenses

arising in connection with the sale or disposal of the goods shall be paid by the customer.

23. Non-perishable goods which cannot be delivered either because they are

insufficiently or incorrectly addressed or because they are not collected or accepted by

the consignee may be sold or returned at the Company’s option at any time after the

expiration of 21 days from a notice in writing sent to the address which the customer

gave to the Company on delivery of the goods. All charges and expenses arising in

connection with the sale or return of the goods shall be paid by the customer. A

communication from any agent or correspondent of the Company to the effect that the

goods cannot be delivered for any reason shall be conclusive evidence of that fact.

24. Except under special arrangements previously made in writing the Company will not

accept or deal with any noxious, dangerous, hazardous or inflammable or explosive goods

or any goods likely to cause damage. Any person delivering such goods to the Company or

causing the Company to handle or deal with any such goods shall be liable for all loss or

damage caused thereby and shall indemnify the Company against all penalties, claims,

damages, costs and expenses arising in connection therewith and the goods may be

destroyed or otherwise dealt with at the sole discretion of the Company or any other person

in whose custody they may be at the relevant time. If such goods are accepted under

arrangements previously made in writing they may nevertheless be so destroyed or

otherwise dealt with if they become dangerous to other goods or property. The expression

“goods likely to cause damage” includes goods likely to harbour or encourage vermin or

other pests.

25. Except under special arrangements previously made in writing the Company will not

accept bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or

plants and the Company will accept no liability whatsoever for any such goods.

26. Pending forwarding and delivery goods may be warehoused or otherwise held at

any place or places at the sole discretion of the Company at the customer’s or owner’s risk

and expense.

27. All goods and documents relating to goods shall be subject to a particular and

general lien for monies due either in respect of such goods or any particular or general

balance of other monies due from the customer, the sender, owner or consignee to the

Company. If any monies due to the Company are not paid within one calendar month after

notice has been given to the person from whom the monies are due that such goods are

detained, they may be sold by auction or otherwise at the sole discretion of the Company

and at the expense of such person and the proceeds applied in or towards satisfaction of

such particular and general lien. The customer agrees and acknowledges the Company is

entitled in its discretion to register its particular and general lien as a security interest on the

Company has provided consideration for that security interest, by delivery of its promises

under this agreement.

28. (a) Every servant, Subcontractor, sub-subcontractor or agent of the Company

shall have the benefit of all provisions herein as if such provisions were expressly for

their benefit. In entering into this contract, the Company, does so not only on its

behalf, but as agent and trustee for such servants, Subcontractors, sub

subcontractor and agents and each of them shall to this extent be or be deemed to

be parties to the contract.

(b) The customer undertakes that no claim will be made whether by the

customer or any other person who is or may subsequently be interested in the

services and/or the goods against any servant, sub-contractor or agent of the

Company which imposes or attempts to impose upon any of them any liability

whatsoever and howsoever caused; and that if any such claim should nevertheless

be made, the customer undertakes to indemnify the Company and the subcontractor

against any liability of the Company or subcontractor, expenses, fines, charges or

losses including legal costs sustained or incurred as a result of the breach of the

undertaking.

29. In addition to and without prejudice to the foregoing the customer undertakes that it

shall in any event indemnify the Company against all loss, damage, liability, claim, cost,

expense, penalty or fine suffered or incurred by the Company arising directly or indirectly

from or in connection with the customer’s instructions or their implementation or the goods

including containers.

30. The use of a customer’s own form shall in no way derogate from these conditions the

whole of which shall, notwithstanding anything contained in any such form, constitute terms

of the agreement so entered into. Any provision in any such form which is contrary to any

provision of these conditions shall to the extent of such inconsistency be inapplicable.

31. The goods shall be prima facie delivered in the number, weight and condition as

described unless notice of loss or of damage to the goods indicating the general nature of

such loss or damage shall have been given in writing to the Company or to its

representative at the place of delivery before or at the time of removal of the goods by a

representative of the person entitled to delivery thereof or if the loss or damage be not

apparent within three consecutive days thereafter.

32. No agent or employee of the Company has the Company’s authority to alter or vary

these conditions.

33. All the rights, immunities and exemptions from liability in these terms and conditions

shall continue to have their full force and affect in all circumstances and not withstanding any

breach of this contract or of any of these terms and conditions by the Company or any other

person entitled to the benefit of such provisions.

34. These conditions, the contract, and any claim or dispute arising out of or in

connection with the services of the Company shall be subject to the law of New South

Wales, Australia and the Courts of the State of New South Wales, shall have non-exclusive

jurisdiction to hear and determine any dispute arising from or in connection with these

conditions, the contract, and/or the provision of the services.