Conditions of Carriage (effective 1 November 2023)
Please read all the following conditions carefully. You will be bound by these conditions if we provide services at your request or on your behalf, unless you have a signed Distribution agreement with us that is yet to expire. Please note that:
- Our services are priced based on the exclusions and limitations set out in these conditions;
- To the extent permitted by law, we will not be liable for any loss of or damage to goods, unless the loss or damage was caused by our proven negligence or wilful misconduct;
- The conditions provide for various exclusions of liability and limits on our liability for loss of or damage to goods. These exclusions and limits are set out in clause 9;
- The general effect of these provisions is that, even if we have been negligent, you may not be able to recover the full value of any lost or damaged goods. If you want to negotiate for us to have a higher limit of liability with respect to your goods, you should contact us; and
- Because of these considerations, we recommend that any goods are covered by an appropriate insurance policy taken out by you, or by the owner of the goods.
1. Definitions and Interpretation
In these conditions:
(a) terms used have the following meanings:
“Chain of Responsibility Law” means the Heavy Vehicle National Law as enacted in any Australian state, the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and any other Commonwealth, state or territory Law dealing with the obligations of parties involved in the transport of goods by road;
“Company” means the entity engaged by the Customer which may include AirRoad Pty Limited (ABN 81 002 955 419), AirRoad Logistics Pty Limited (ABN 87 071 577 485), M&M Thorpe Transport Services Pty Ltd (ABN 99 089 681 498) and AirRoad Specialised Pty Ltd (ABN 17 117 585 565);
“Consequential Loss” means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; liquidated damages; punitive or exemplary damages; in each case arising from or in connection with the performance of Services and whether or not foreseeable at the time of entering into any agreement incorporating these conditions;
“Consignment” means the consignment of Goods at any one time from a single Consignor in a single load from one address in Australia to another address in Australia;
“Consignment Note” means a Company branded document (whether electronic or hard copy) that includes provision to nominate the consignor, consignee and a description of the nature and quantity of goods to be collected, transported and delivered;
“Consignor” means the person (who may or may not be the Customer) who supplies the Goods to the Company for carriage and/or storage;
“Container” includes any container, trailer, wagon, transportable tank, pallet, flat rack or any other unit or device used to consolidate Goods;
“Customer” means the person engaging the Company to provide services of carriage or storage or both;
“Damage” includes deterioration, evaporation and contamination;
“Dangerous Goods” means Goods (including explosives, gases and chemicals) that have been classified as dangerous in the Australian Code for the Transport of Dangerous Goods by Road and Rail, as in force from time to time;
“Force Majeure Event” means any event beyond the reasonable control of the Company, including acts of God, lightning, meteorites, earthquakes, cyclones, floods, landslides, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, malicious Damage, vandalism, sabotage, explosions, nuclear accidents, blockages strikes, labour disputes and other industrial disturbances, any road closure or congestion of roads, any quarantine or customs restriction, epidemic or pandemic, cyber warfare, cyberattacks, ransomware attacks, cyber sabotage, any interruption of power supply or scarcity of fuel or any accident, collision or breakdown of a vehicle, machinery or equipment;
“Goods” means the cargo accepted by the Company from the Consignor together with any Container, packaging, pallets or handling equipment supplied by or on behalf of the Consignor;
“Law” means all applicable statutes and associated regulations, proclamations, rules, bylaws, requirements and approvals;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“Services” means the whole of the operations and services undertaken by the Company (whether gratuitously or not) in connection with the Goods including carriage and/or storage; and
“Subcontractor” means any person who pursuant to a contract or arrangement (other than a contract of employment) with the Company or any other person performs or agrees to perform all or any part of the Services;
(b) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(c) headings are included for convenience only and do not affect the interpretation of these conditions;
(d) words importing the singular include the plural and vice versa and words importing one of more genders include other genders;
(e) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(f) wherever ‘include’ or any form of that word is used, it will be construed as if it were followed by ‘(without being limited to)’; and
(g) all indemnities survive the termination or expiration of any agreement incorporating these conditions.
2. Not a Common Carrier
THE COMPANY IS NOT A COMMON CARRIER AND ACCEPTS NO LIABILITY AS SUCH. The Company reserves the right to refuse the carriage of goods for any particular person and the carriage of any goods or classes of goods at its discretion.
3. Warranties by the Customer
The Customer warrants that:
(a) the Consignor has complied with all applicable Law relating to the nature, condition, packaging, carriage or storage of the Goods and that the Goods are packed in a manner, having regard to their nature, adequate to withstand the ordinary risks associated with the Services;
(b) the Goods have been fully and accurately described in writing in the space provided on the Consignment Note;
(c) the Goods do not include any Dangerous Goods or goods which are or may be liable to damage other goods or property whatsoever other than as are specifically and fully described and disclosed as such on the Consignment Note;
(d) the Consignor has complied, and will comply, with the Australian Code for the Transport of Dangerous Goods by Road and Rail;
(e) the Goods within any Container are adequately restrained in accordance with the Load Restraint Guide published by the National Transport Commission;
(f) it is authorised by all persons owning or having any interest in the Goods to accept these conditions on their behalf;
(g) all details supplied with respect to the Goods, including the details of description, items, pallet space, quantity, weight, volume, quality, value and measurements, are correct;
(h) there is a suitable and safe road and approach for the Company’s vehicles to the place from which the Goods are to be collected and the place to which the Goods are to be delivered; and
(i) safe and adequate loading facilities and equipment will be available at any place from which any Goods are to be collected and to which any Goods are to be delivered.
4. Consignor’s Obligations
The Customer must ensure that the Consignor:
(a) prepares the Goods for despatch and has them available for collection at the agreed pickup time;
(b) securely packages all Goods according to accepted industry standards or as otherwise agreed with the Company;
(c) packages, prepares and presents the Goods to the Company in a way that allows the Goods to be safely restrained in accordance with the Load Restraint Guide published by the National Transport Commission;
(d) prepares the necessary documentation associated with the despatch of Consignments in the format agreed between the parties from time to time;
(e) at its own cost, supplies and attaches a label produced by the Company’s online despatch system referred to in clause 5(i), or an agreed equivalent bar-coded label, which clearly and accurately states the address to which the Goods are to be delivered; and
(f) either exchanges the equivalent number of pallets at the time of pickup/delivery or provides a completed transfer docket.
5. Company’s Obligations
The Company must:
(a) take reasonable care to protect and safeguard the Goods;
(b) provide the Services exercising the degree of skill, care and efficiency that would be expected from a competent provider of such services;
(c) at its own expense, hold all licences as may be required by Law in connection with the Services;
(d) collect the Goods from the collection point within Australia nominated by the Consignor;
(e) deliver the Goods to the consignee at an Australian address clearly displayed on the Goods and use its best endeavours to do so within any agreed delivery times;
(f) monitor the location of the Goods from collection until delivery through the Company’s freight tracking system;
(g) obtain signed proof of delivery for each Consignment and secure access to the signed proof of delivery to the Consignor as and when required for a period of twelve months from the date of the delivery of each Consignment;
(h) deliver time-slot Consignments, and where necessary, re-book them into new timeslots, with storage up to 72 hours at no extra charge. After the 72-hour period, storage charges will apply; and
(i) provide the Customer with access to the Company’s online despatch system which will enable the Customer to print bar-coded labels which are compatible with the Company’s bar-coding system for each Consignment.
6. Authority and Agency
Any person delivering all or any part of the Goods to the Company for the performance of Services is authorised to sign the Consignment Note for the Customer.
7. Method of Carriage and Deviation
(a) The Customer authorises any deviation from the usual route for transportation or manner of carriage of Goods that may, in the discretion of the Company (acting reasonably) be considered desirable or necessary in the circumstances.
(b) If the Customer expressly or impliedly instructs the Company to use, or it is expressly or impliedly agreed that the Company will use, a particular method of providing or performing the Services, the Company will give priority to that method but if it cannot conveniently be adopted by the Company, the Customer authorises the Company, acting reasonably, to provide the Services using another method.
(a) The Company is authorised to deliver the Goods at any address nominated by the Customer to the Company for that purpose.
(b) If, without prior written notice to the Company, the nominated place of delivery is unattended when delivery is attempted, or if for any other reason the Company is unable to effect delivery of the Goods, the Company may handle and store the Goods in such manner as it may in its discretion, acting reasonably, determine, and is entitled to make a reasonable charge in respect of such handling and/or storage and subsequent delivery of the Goods, and the Customer will meet such reasonable charge as the Company may make and indemnify the Company for any other costs or expenses incurred as a result.
(c) The Company is entitled to make a reasonable charge in accordance with its schedule of rates in respect of any delay in loading or unloading occurring otherwise than from fault on the part of the Company.
9. Loss or Damage
(a) To the extent permitted by Law, the Company will not be liable (whether in tort, contract, bailment or otherwise) for any loss of, Damage to, misdelivery, delay in delivery or nondelivery of the Goods, unless it is proved that such loss, Damage, misdelivery, delay in delivery or nondelivery was caused by the negligence of the Company.
(b) Any liability of the Company under clause 9(a) will be reduced proportionately to represent the extent to which the negligent or wrongful act or omission of the Customer or Consignor (or any other person) caused the loss, Damage, misdelivery, delay in delivery or nondelivery of the Goods.
(c) To the extent permitted by Law, notwithstanding any other provision of these conditions, the Company will not be liable for:
(i) any loss of or Damage to Goods:
(A) which consist of gold, jewellery, negotiable instruments, bullion of any type, cigarettes, precious metals or stones, bank notes, antiques and works of art, stamp collections, pottery, crockery or glassware;
(B) which are used or second-hand;
(C) caused by a Force Majeure Event;
(D) caused by the Company following the Customer’s instructions;
(E) caused by loading or unloading of, or packing, protecting or labelling of, the Goods which is performed by a person other than the Company or its Subcontractor;
(F) in the case of Goods that are lost, where the Customer does or did not label the goods with a transport label which incorporates a barcode which is compatible with the Company’s freight tracking system;
(G) caused by the Goods becoming infected or contaminated with any virus, bacteria, fungi, pathogen, disease, mould, vermin or like condition;
(H) caused by vibration, road conditions, weather or weather events of any kind whatsoever;
(I) caused by the Goods being inherently defective or in such a condition that they cannot be loaded, unloaded or transported by road without Damage;
(J) comprising shrinkage or ordinary wear and tear;
(K) caused by inherent vice or the nature of the Goods;
(L) where the outer package of the Goods shows no sign of Damage;
(M) where such loss or Damage comprises mechanical, electrical or electronic breakdown, derangement, or malfunction of the Goods; or
(N) caused by insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary risks associated with the Services;
(ii) the cost of software installed on any Goods; or
(iii) loss or damage suffered in connection with any delay in the delivery or collection of Goods.
(d) Notwithstanding any other provision of these conditions, to the extent permitted by Law, the Company will not be liable for Consequential Loss.
(e) Notwithstanding any other provision of these conditions, to the extent permitted by Law, the maximum aggregate financial liability of the Company in relation to any loss of Goods, Damage to Goods, misdelivery, delay in delivery or non-delivery of Goods is limited to:
(i) the replacement cost of the Goods, as calculated at the time they were collected or received by the Company; or
(ii) $500 per Consignment where Goods are lost or Damaged in the course of carriage, or $500 per incident where Goods are lost or Damaged while otherwise in the custody of the Company or its Subcontractor;
whichever amount is less.
(f) If the Company is liable to pay compensation pursuant to clause 9(e), the Customer will not be liable to pay the Company’s freight charges in respect of any lost or Damaged Good(s), calculated on a pro rata basis having regard to the charges for the Consignment.
(g) The limitations of liability set out in clause 9(e) do not apply to the extent that any loss of or Damage to Goods is caused by the Company engaging in malicious conduct, deliberate or wilful misconduct, fraud or criminal misconduct.
(h) The Goods will be deemed to be lost if the Company does not have the signed document presented at delivery (as proof of delivery) and the Goods remain both undelivered and unaccounted for, for a period of four (4) Business Days after the day on which the Goods were due to be delivered or such other delivery time agreed between the Company and the Customer.
If the Customer claims that the Goods have been lost or Damaged and seeks compensation from the Company:
(a) any claim must be notified in writing to the AirRoad Claims Department at the address for service of notices (which may include an email address) last notified to the Customer by the Company. Each claim that Goods have been Damaged must be accompanied by photographs taken at the time of delivery showing full details of the Damage and documentary evidence of proof of the value of the Goods at the date of collection or receipt of the Goods by the Company; and
(b) if the Customer has an account with the Company, the Company reserves the right to set off any claim payment against any outstanding amounts owed to the Company by the Customer.
The Customer may insure the Goods by arranging their own insurance policy. The Company does not insure the Goods, nor can the Company arrange insurance for the Goods on behalf the Customer.
12. Subcontracts and Subcontractors
(a) The Company is authorised to subcontract the whole or any part of the Services and such authorisation extends to any Subcontractor.
(b) If the Company subcontracts any Services, the Company:
(i) will not be relieved of any of its liabilities or obligations under any agreement incorporating these conditions; and
(ii) will be liable to the Customer for any act or omission of the Subcontractor as if such act or omission were the act or omission of the Company.
(c) Any clause in these conditions excluding or limiting the liability of the Company or providing any right or exemption from liability to the Company is also available and extends to protect all Subcontractors and every servant or agent of the Company and of any Subcontractor.
(d) Without limiting the effect of any other clause of these conditions, the Customer or any other person or persons owing or having any interest in all or any part of the Goods will not be entitled to make any claim against any person other than the Company by whom all or any part of the Services is undertaken, or any servant or agent of any such person or of the Company, in relation to the Goods or arising out of the Services.
(e) For the purposes of subclauses 12(c) and 12(d) , the Company is, or is deemed to be, acting as agent or trustee on behalf of each of the persons to whom the benefits of those subclauses are extended and each of those persons will to this extent be or be deemed to be parties to any agreement incorporating these conditions.
(a) The Goods are accepted subject to a general lien for all charges due or that may become due to the Company by the Customer on any account whatsoever, whether in respect of the Goods or in respect of any other goods in respect of which the Company provides or has provided Services.
(b) Without prejudice to any other rights the Company may have under Law, if charges are not paid when due, or the Goods are not collected when required or designated, the Company may:
(i) remove all or any of the Goods and store them as the Company, acting reasonably, thinks fit, at the Customer’s risk and expense; or
(ii) without notice and immediately in the case of perishable Goods, or otherwise on the provision of 30 days’ notice, open and sell all or any of the Goods as the Company thinks fit (whether by private treaty or public auction, including auction on an internet based platform) and apply the proceeds to discharge the lien and costs of sale and pay any balance to the Customer.
(c) The parties agree that the lien arising under these conditions:
(i) attaches to the Goods when the Goods are accepted by the Company; and
(ii) is a security interest.
(d) On request by the Company, the Customer must promptly do anything for the purposes of ensuring that any security interest created under, or provided for by, these conditions is enforceable, perfected (including perfection by registration), maintained and is otherwise effective.
(e) The parties agree that, to the extent permitted by the PPSA:
(i) sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply (unless the Customer is otherwise notified in writing by the Company); and
(ii) any right to receive a notice, statement or verification statement under sections 129, 130, 132, 134,135 or 157 of the PPSA is waived.
(f) The choice of law and jurisdiction provisions in clause 22, or in any other agreement pursuant to which the Company provides the Services to the Customer, do not affect any rights the Company may otherwise have under a lien arising under the general law or the Law of any other State or Territory.
(g) Terms used in this clause have the same meaning as under the PPSA.
14. Charges and Payments
(a) Where the Company’s freight or storage charge is based in whole or in part on weight or measurement of the Goods, the Company may at any time weigh or measure the Goods and charge a proportional additional amount if any original or stated weight or measurement is found to be incorrect.
(b) If any charge is based on weight, Goods weighing less than 250 kgs per cubic metre or part thereof will be charged at the rate of 250 kgs per cubic metre.
(c) The Company’s freight charges will be deemed fully earned as soon as the Goods are loaded and despatched.
(d) Every arrangement or instruction to the effect that charges will be paid by any person other than the Customer is deemed to include a stipulation that if that other person does not pay the charges within 7 days of the date set for payment or if no date is set for payment, within 7 days of the date of invoice, the Customer will pay the charges.
15. Inspection of the Goods
The Company is entitled to open any document or any Container (of whatever description) in which the Goods are placed or carried to determine the nature or condition of the Goods or their ownership or destination.
16. Amendments and Variations
The Company is not bound by any agreement or waiver purporting to vary these conditions unless the agreement or waiver is in writing and signed on behalf of the Company by an executive officer of the Company.
17. Provisions Severable
If any provision or part of any provision of these conditions is unenforceable, illegal or void then it is severed and the rest of these conditions remain in force.
18. Australian Consumer Law Applicable
(a) To the extent permitted by Law, any conditions, guarantees, terms and warranties which would otherwise be imposed or implied into these conditions are excluded. Without limitation, this exclusion applies to any conditions, guarantees, terms or warranties of merchantability or of satisfactory quality applying to the Services.
(b) Nothing in these conditions excludes any implied conditions, guarantees, terms or warranties that cannot be excluded under the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
19. Claims Against the Company
(a) To the extent permitted by Law, if, notwithstanding clause 9, the Company is liable for loss or damage suffered by the Customer or any other person as a result of loss of or Damage to the Goods, or delay in the delivery of the Goods, no claim in respect of any such loss or Damage may be made unless written notice providing details of that claim is given to the AirRoad Claims Department at the address for service of notices (which may include an email address or fax number) last notified to the Customer by the Company:
(i) in the case of a claim for Damage to the Goods, within 14 days of the date of delivery of the Goods; and
(ii) in the case of a claim for loss of the Goods, within 30 days after the date on which the Goods were required to be delivered to, or collected by, the Customer, or another person in accordance with the Customer’s directions.
(b) The Customer acknowledges that the purpose of clause 19(a) is to allow the Company an opportunity to promptly investigate the cause of any loss or Damage. Clause 19(a) will not apply if the Customer has a reasonable excuse for its failure to give written notice.
20. Force Majeure Events
(a) Subject to clause 20(b), if either party is unable, wholly or in part, to perform its obligations under any agreement incorporating these conditions due to a Force Majeure Event, and the affected party notifies the other party by written notice of such event within ten (10) days after the initial occurrence of the event, then the obligations of both parties (other than obligations to pay money to the other party) will be suspended to the extent prevented by the Force Majeure Event. Nothing in this clause obliges the Customer to pay the Company for Services that have not been provided.
(b) If a party gives notice under clause 20(a), the parties must meet promptly (and in any event within fourteen (14) days) and each use reasonable endeavours to reach a mutually acceptable solution to alleviate any hardship or unfairness caused to either party as a result of the Force Majeure Event.
(a) The failure of a party to take action to enforce its rights under any agreement incorporating these conditions or the granting of any time or indulgence will not be construed as a waiver of the provision nor as a waiver of the right of the party at a later time to enforce its rights under any agreement incorporating these conditions.
(b) Where the Customer comprises two or more persons, an agreement or obligation to be performed or observed by the Customer binds those persons jointly and severally.
22. Governing Law and Jurisdiction
These conditions will be governed by and construed in accordance with the Laws of New South Wales. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals from those courts.