THESE CONTRACTUAL CONDITIONS APPLY TO ALL SERVICES PROVIDED BY PIVOT FREIGHT SOLUTIONS PTY LTD ABN: 74 602 480 517
(hereafter referred to as PFS)
(1) 'Customer or client’ means the person or company for whom any business is done by PFS or with whom any contract for the rendering of services by PFS is made. All business undertaken by PFS is subject to the terms & conditions set by PFS all Customers shall be deemed/bound to these conditions. Except as specifically provided in these Terms and Conditions, no partner/agent of PFS has any authority to add or to vary the conditions, unless signed by a duly authorised representative on behalf of PFS. The use of Customers’ own forms shall be no derogation to these conditions.
(2) PFS is a freight-forwarding agent and acts solely as an agent in performing and securing services for the Customer and entering into contracts on the Customer's behalf with other persons. PFS is not a carrier or Common Carrier and does not make or purport to make any contract for the carriage, storage, packing and handling of goods with the Customer. Whenever PFS is instructed to undertake or arrange transport, storage, packing, handling or any other services, it is hereby authorised to entrust the goods or arrangements to third parties subject to the third parties' contractual conditions and the Customer shall be bound by such conditions and shall indemnify PFS against any claims arising out of their acceptance.
(3) Where PFS is, or is deemed to be a carrier under a contract subject to legislation compulsorily, PFS shall be entitled to all rights immunities exceptions and limitations conferred on the carrier by virtue of such legislation and these conditions shall be void to the extent that they are inconsistent with such rights immunities exceptions and limitations but no further.
(4) Customers entering into transactions of any kind with PFS warrant that they are either the owners of goods or property or that they are the authorised agents of the owners of the goods or property. The Customer shall indemnify PFS in respect of any breach of the warranties contained herein.
(5) PFS shall be entitled to enter into contracts
(a) for the carriage of goods by any route or by any means and
(b) for the storage, package or handling of the goods by any person at any place(s) and for any length of time and to do such acts as may be necessary or incidental thereto at the absolute discretion of PFS and to depart from the Customer's instructions in any respect if in the opinion of PFS it is necessary or desirable to do so.
(6) PFS reserves to itself complete freedom in respect of means, route and procedure to be followed in the handling, packaging, storing and transportation of goods expressed or implied and whether oral or written shall be deemed to be for guidance by way of suggestions only.
(7) The Customer authorises PFS to enter into such or any contracts hereof on behalf of the Customer so as to bind the Customer by such acts and contracts in all respects. The Customer hereby indemnities PFS for any fees, costs or claims arising out of any contracts.
(8) Quotes are given on the basis of immediate acceptance and subject to the right of withdrawal or revision. If any changes occur in freight rates, insurance premium or other charges applicable to the goods or property, whether before or after the transaction is entered into, quotes and charges shall be subject to revision to amounts determined by PFS in its discretion and with or without notice. PFS may charge freight by weight, measurement or value, and may at any time re-weight or re- value or re-measure or require the goods to be re-weighed, re-valued or re-measured and charge proportional additional freight.
(9) The Customers and consignees shall be liable for and shall indemnify PFS against all duties, taxes, payments, fines, expenses, losses, damages (including physical damage) and liabilities whether or not arising out of the negligence of PFS its employees/Partners/Agents, suffered or incurred by PFS in the performance of its obligations, including any liability to indemnify any other person against claims made against such other person by the Customer or owner or consignee.
(10) Customers and consignees of any goods and their agents shall be deemed to be bound by and to warrant the accuracy of all descriptions, values and other particulars furnished to PFS for customs, consular and other purposes and they undertake to indemnify PFS against all losses, damages, expenses and fines arising from any inaccuracy or omission, even if such inaccuracy or omission is due or not due to negligence.
(11) Freight shall be considered earned whether the goods are delivered to the Customer or consignee or not, whether damaged or otherwise, under no circumstances will any payment for freight be refunded.
(12) Where goods are consigned
(a) on terms that they shall be paid for on delivery and, if for any reason payment is not made in full,
(b) on terms that PFS shall only deliver the goods to the consignee on production of a Forwarders Certificate of Transport, House Bill of lading, Air Waybill, delivery order or similar document, and owing to the failure in demand such a document the goods are delivered to the consignee before it has paid for them in full, then PFS may at it absolute discretion, reimburse the Customer with the amount of payment not so made, whereupon the Customer shall, on request, assign to PFS by an instrument in writing the whole of the Customer’s title to or interest in the goods and the right to receive payment therefore, and shall co-operate fully with PFS in informing all rights so assigned.
(13) Notwithstanding any agreement or arrangement between the Customer and a consignee, the Customer shall remain liable to PFS for any charges in respect of any transaction until such charges have been satisfied or the balance of any charges which shall remain at any time unpaid. PFS shall not be liable to recognise any agreement between any Customer and a consignee in respect of the payment of PFS charges.
(14) Insurance Coverage by PFS will be affected upon written instructions by the Customer and ail insurances effected by PFS are subject to the usual exceptions and conditions of the policies of the insurance company. Should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only, and PFS shall not be under any responsibility or liability notwithstanding that the premium upon the policy may not be at the same rate as that charged by PFS or paid to PFS by its Customer. PFS invoice or debit note must be paid in full prior to any claims being lodged against the nominated insurance company(s) of PFS choice. Furthermore, the Customer understands and acknowledges that's PFS is not the insurance company and therefore does not take any responsibility in the event of any claims.
(15) PFS shall not be obliged (but not limited to) to make any declaration unless required by law or expressly instructed by the Customer in writing.
(16) PFS shall not be obliged to arrange for goods to be carried, stored or handled separately from the goods of other Customers.
(a) In the case of goods having a value exceeding the units of account contained in aide 4 rule 5 of Schedule 1 of the Carriage of Goods by Sea Act 1991 the value will not be declared or inserted in the Bill of Lading for the purpose of extending the carders liability 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 Carriage of Air Act 1935. Article 22(2) of the first schedule will be made except upon instructions given in writing by the Customer.
(c) In all other cases where there is a choice of tariff rates according to the extent of the liability assumed by carriers warehousemen or others no declaration of value (where optional) will be made for the purpose of extending liability and the goods will be forwarded or dealt with at the Customers risk or other charges unless instructions in writing to the contrary are given by the Customer.
(17) Pending forwarding & delivery, goods may be warehoused or otherwise held at any place(s) at the sole discretion of PFS at the Customer's risk and expense.
(18) PFS shall not be liable to the Customer or consignee for loss or damage caused by any failure to carry out or negligence in carrying out the Customers instructions or by any failure to perform or negligence in performing PFS obligations under the contract to which these conditions apply whether or not the same occurs in the course of performance by or on behalf of the customer of the contract or in the events which are in the contemplation of PFS and/or the Customer or in events which are foreseeable by either of them or in events which could constitute a fundamental breach of the contract or a breach of a fundamental term, unless such loss or damage is due to the willful neglect or default of PFS or its wants, provided that any liability of PFS shall in every case be limited in amount to the sum of AUD $25.00 in respect of all goods entrusted to PFS care in any one consignment whether or not there has been any declaration of value of the goods or of any of them by the Customer for the purpose of carriage or otherwise. PFS shall not be liable for any injury or sickness (including fatal injury or sickness) to any animal, or for any loss sustained by the sender of the animal or any other person, including from any defect in any vehicles (including an airplane) in which the animal is carried, or caused in the loading or unloading of any animal into or out of any such vehicle or in handling any animal.
(19) Freight shall be considered earned whether the goods are delivered to the Customer or consignee or not, whether damaged or otherwise, under no circumstances will any payment for freight be refunded.
(19.a) The Customer and/or consignees and their agents shall be liable for any duty, tax, impost, excise or outlays of whatsoever nature levied by the authorities at any port or place for or in connection with the goods and for any payments, fines, expenses, loss or damage made, incurred or sustained by PFS The Customer undertakes to indemnify PFS in respect of any of the aforementioned matters, even if any such payments, fines, expenses, loss or damage arise by reason of the negligence of PFS its servants or agents.
(20) PFS shall not be liable under any circumstances for any loss, damage or expense arising from of in any way connected with marks, weight, numbers, brands, contents, quality or description of any goods.
(21) PFS shall not in any circumstances be liable for indirect or consequential loss and/or damages arising from wastage, spoilage, deterioration of any goods or of the loss of market for any goods or for any other damages arising from or attributable to delay in forwarding or in transit or failure (not amounting to willful negligence) to carry out the instructions given to it.
(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 or consignees of the goods and payment or lender of the net proceeds of any sale after deduction of charges shall be equivalent to delivery.
(23) PFS may charge additional amounts for each call it makes until delivery is accomplished in circumstances in which the Customer or consignee is not in attendance at the address provided for delivery of the goods during normal trading hours.
(24) Except under special arrangements previously made in writing PFS will not accept transactions relating to valuables, noxious, dangerous, hazardous or inflammable or explosive goods or any goods likely to cause damage. Any person delivering such goods to PFS or causing PFS to handle or deal with such goods shall be liable for all loss or damage caused thereby indemnity PFS against all penalties, claims, damages, costs and expenses. If such goods are accepted under arrangements previously made in writing, they may nevertheless be 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 harbor or encourage vermin or other pests.
(25) Inherent characteristics of certain commodities make it impossible for them to be carried by air without endangering the safety of aircraft, passengers or crew. Some dangerous good can be accepted for carriage provided the quantity is restricted to within given limits and packing conforms to specifications laid down in the current edition of the IATA Dangerous Goods Regulations. A Customers declaration for dangerous goods as required by the current IATA Dangerous Goods Regulations, must accompany every consignment of dangerous cargo, worded as follows: 'I hereby declare that the contents of this consignment are fully and accurately described above by proper shipping name and classified, packed, marked and labelled, and are in all respects in the proper condition for transport by air according to the applicable International and National Government Regulations.
(26) PFS shall not be liable in any circumstances for acts of negligence or the consequences irrespective of whether those acts are performed by PFS, its employees, agents or sub-contractors and irrespective of whether those acts are of commission or omission on the part of PFS, its employees, agents, or sub-contractor.
(27) PFS shall not be liable in any circumstances for loss of life or personal injury or loss or damage to any person or persons where such loss of life or personal injury or loss or damage is caused or contributed to by any goods owned or controlled by the Customer.
(28) Any claim by the Customer against PFS shall be made in writing and notified to PFS:
(a) damage to goods within 21 working days of delivery thereof,
(b) delay in delivery or non-delivery within 7 working days of the date when the goods should have been delivered,
(c) in any other case within seven working days of the event giving rise to the claim. Any claim not made and notified as aforesaid shall be deemed to be waived & absolutely barred relating to PFS or against subsidiary or associated company, or against any forwarding agent employed/contracted or to servants/agents of PFS on any grounds whatsoever. 'Claim' shall include, but not be limited to, any action proceedings or resort to arbitration or a Court of law.
(29) (a) The goods the Customer warrants that all goods have been properly and sufficiently packed and prepared for transit and shall indemnify PFS against any loss or damage which occurs by reason of the insufficiency of the packaging or preparation.
(b) In circumstances in which PFS has been requested by the Customer to pack goods PFS shall not be liable for any loss or damage whatsoever which occurs to the goods even it any such loss or damage occurs when PFS is required to load or unload any liquids, substances or any commodities or products into bulk tanks, vessels, dams or containers whether or not any such packaging, loading or unloading takes place in transit, whilst the goods are held in store or at any other time whilst the goods are in the custody or possession of PFS or agents or servants.
(c) It is the responsibility of the Customer to ensure that any container, packaging or pallet which is delivered with the goods and which is required to be returned is returned within the time stipulated and no later than five working days from the date of receipt by the Customer, its servants or agents. The Customer hereby indemnities PFS for any loss or damage occurring to, or occasioned by, any container, packaging or pallet for which PFS may be liable.
(30) PFS shall have a general lien, and a particular lien on any and all goods or documents relating to any and all goods in their possession for any and all sums due at any time from the Customer, and shall be entitled to sell or dispose of such goods or documents at the expense of the Customer and apply the proceeds in or towards the payment 28-days’ notice in writing to the Customer.
(31) PFS shall be entitled at the expense of the Customer to sell or dispose of:
(a) on 21 days’ notice in writing to the Customer or, where despite reasonable efforts the Customer cannot be traced, after the goods have been held by PFS for 90 days: all goods which in the opinion of the company cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee or for any other reason.
(b) without notice: perishable goods (including animals) which are not taken up immediately on arrival or which are insufficiently or incorrectly addressed or marked or which in the opinion of the company would be likely to perish in the course of the carriage, storage or handling.
(32) Every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, deference and immunity of whatsoever nature applicable to PFS or to which PFS is entitled hereunder shall also be available and shall extend to prospect PFS parent, subsidiary, or associated companies, PFS sub-contractor, or every servant/agent of PFS and of persons or organisation. Every other person by whom the carriage or any part thereof is performed or undertaken and all persons who are or might be vicariously liable for the acts or omissions of any person failing, and for the purpose of this clause PFS is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons be deemed to be parties to this contract. The Customer undertakes that no claim or allegation shall be made, whether by the Customer or any other person who is or may hereafter be interested in the goods, against any person by whom (whether as sub-contractor, principal, employer, servant, agent or undertaken) the carriage or any part thereof is performed or undertaken which imposes or attempts to impose upon such person any liability out of negligence on the part of such person and if such claim or allegation should nevertheless be made to indemnity PFS and the person against whom such claim or allegation is made against the consequences thereof. Without prejudice to the foregoing and for the purpose of this clause PFS be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them, and all such persons shall to this extent be or be deemed to be parties to this contract.
(33) It shall be the responsibility of both the Customer and of the consignee at all times and in all circumstances to ensure that any container(s) or other packaging of the goods and any pallet(s) which are delivered with the goods and which are required to be returned to the owner within the time required for such return by the owner or nominee and no later than five working days from the date of receipt. PFS accepts no liability for the loss, damage or delayed return of any containers, packaging or pallets whatsoever, which may come into or pass through the possession of PFS, where PFS, the Customer or the consignee hold the containers, packaging or pallets as lessee, bailee, licensee or by any other means whatsoever and the Customer and the consignee shall fully indemnify PFS for any damage occurring to any container, packaging or pallet for which PFS may be liable.
(34) All agreements between PFS and the Customer shall be governed by Queensland Law and all disputes referred to the exclusive jurisdiction of the Queensland Courts. These conditions shall not apply to the extent that they are inconsistent with the provisions of the Competition and Consumer Act 2010 (Cth).
(35) The customer and consignee agree to comply strictly with the terms and conditions, and the agreed or approved credit limit. PFS reserves the right to charge the customer interest at the rate prescribed from time to time by section 58 of the Civil Proceedings Act 2011 (QLD) which shall be calculated daily from overdue date until payment is received in full (this refers to any invoices or debit notes that falls outside the specified credit policy).
(36) These terms and conditions may be unilaterally amended by PFS from time to time in its absolute discretion by written notice in writing to the Customer and such amendments shall be deemed to be binding 2 business days after PFS sends written notice to the Customer at the Customer’s most recent address according to the records of PFS. It is the Customer’s responsibility to ensure that it notifies PFS of any change of address or contact details.
(37) (a) In this clause, terms used have the same meaning as in the Personal Property Securities Act 2009 unless specifically provided otherwise.
(b) In consideration of PFS agreeing to provide agency and other services to the Customer, the Customer grants to PFS:
(i) a Security Interest over all of the Customer’s present and after-acquired property in which the Customer can be a grantor of a Security Interest under the Personal Property Securities Act 2009 including without limitation property which the Customer has, or may in the future have, rights or power to transfer rights, any proceeds and any PPSA retention of title property (as that term is defined in the Corporations Act 2001), and
(ii) a fixed mortgage and charge over all of the Customer’s property other than the property described in paragraph (i) above, including any real property of the Customer.
(c) the security given in this clause is to secure payment of all money owing or payable from time to time by the Customer to PFS and to secure all of the Customer’s obligations to PFS.
(d) the Customer agrees that PFS may, in addition to any other rights, register or lodge the security given in this clause on the Personal Property Securities Register and the land title register (by way of forewarning).
