Terms & Conditions

All business undertaken by the Company is subject to these General Terms and Conditions (“General Terms & Conditions“)

1. DEFINITIONS

In these conditions:

“Agreement” means these General Terms & Conditions and Rates Card, as amended from time to time, regardless of whether the Customer is given notice of any amendment.

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“COD” means Cash on Delivery where the Customer pays for the Goods at the time of delivery, rather than using credit.

“Competition and Consumer Act” means the Competition and Consumer Act 2010 (Cth).

“Customer” means the consignor (sender or shipper), the consignee (receiver) and the owner of any goods and any person for whom Services are performed.

“Customs Duty” has the same meaning as “Duty” in the Customs Act.

“Customs Act” means the Customs Act 1901 (Cth).

“Company”  means Tyson Freight Pty. Ltd (ACN 154 508 719) carrying on business in its own name and under any other business name, together with its employees and agents.

“Consequential Loss” means any loss or damage arising from a breach of contract or agreement (including breach of these General Terms & Conditions), tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of bargain, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, wasted expenditure, any loss or gain for which restitution damages is capable of being awarded, or any similar loss which was not contemplated by the parties at the time of entering these General Terms & Conditions

“Dangerous Goods” means any goods that are or may become noxious, dangerous, hazardous, flammable, explosive, radioactive or likely to cause damage to any property or person.

“Fees” means the total amount charged by the Company for the delivery of Goods and/or the provision of the Services as outlined in the Rates Card and specified in the Company’s Invoice to the Customer.

“FOB” means Free on Board as defined in the International Commercial Terms (Incoterms) terms of trade.

“Goods” means the chattels, articles or things tendered for carriage, storage or other Services provided by the Company to the Customer and includes the packages containing those goods and shipping or other transport containers.

“Government Authorities” means, without limitation, all government departments and agencies in Australia or in any other country, with responsibility for

a)the import and export of goods;

b)the collection of revenue on the import and export of the goods; and

c)the transport and movement of those goods;

including without limitation:

a)the Australian Border Force;

b)the Department of Home Affairs;

c)the Department of Agriculture, Water and Environment;

d)the Australian Maritime Safety Authority;

e)the Department of Infrastructure, Transport, Regional Development and Communications;

f)Regional Development and Cities, and

g)The Australian Taxation Office

“GST” has the meaning given to that term in the GST Act.

“GST Act” means the Act known as A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Invoice” means the tax invoice issued by the Company to the Customer for the delivery of Goods and/or provision of Services by the Company to the Customer.

“Licence” means any licence issued by a Government Authority;

“Oceanfreight Charges” means all charges associated with transportation of Goods to Australia, including charges in relation to transport of Goods within Australia.

“Original T&Cs” means the initial General Terms and Conditions signed by the Customer and Company, which both parties acknowledge, may be updated from time to time.

“Payment Terms” means the period by which the Customer must pay to the Company the Fees owed to the Company.

“Person” means any natural person, firm, company, statutory body or other organisation.

“Rates” means the price payable by the Customer to the Company for delivery of Goods and/or Services.

“Rates Card” means the document outlining specific trading conditions between the Customer and the Company by which the Customer will be charged by the Company.

“Services” means the carriage, storage or other services which the Customer request the Company to provide or arrange to be provided, including but without limitation:

1. carriage of Goods;
2. advice or information provided in connection with the services which the Customer requests of the Company to provide;
3. customs clearance;
4. delivery services
5. warehousing or storage services;
6. making any reports, entries and declarations required by any Government Authorities;
7. quoting the Australian Business Number (ABN) as may be required under the GST Act;
8. providing all necessary information and complete all necessary documentation and reports for the purposes of any Government Authorities; and
9. entering into contracts with Sub-contractors on behalf of the Customer to enable the carriage, import, export, storage or transportation of the Goods.

“Shipper” means a legal entity or person named on the bill of lading or sea waybill or equivalent multimodal transport document as shipper and/or who (or in whose name or on whose behalf) a contract of carriage has been concluded with a shipping company or any other definition of ‘shipper’ at law or as determined by any Government Authorities.

“Sub-contractor” means any other person, firm, company or statutory body or other organisation with whom the Company may arrange for the performance of any part of the Services to be carried out.

2. NOT A COMMON CARRIER                                                                                  The Company carries on business as a forwarding agent.

The Company is not a common carrier and reserves the right at all times to refuse to carry any Goods or perform Services without assigning a reason.

The Company is not a customs broker under Part XI of the Customs Act.

3. WARRANTIES BY THE CUSTOMER

• Where the person delivering the Goods to the Company for carriage is not the Customer, that person warrants his authority to deliver the Goods on behalf of the Customer and to accept these conditions;
• Where the Customer is not the owner of the Goods, the Customer warrants his authority to act as agent of the owner for all purposes in connection with the carriage of Goods or the performance of Services by the Company and indemnifies the Company against all liability in respect of the Goods to the owner or to any person having a legal interest in the Goods.

4. COMPANY’S CHARGES

The Company shall be entitled to payment for the transport of the Goods and provision of Services.

The Customer agrees that the Fees will be paid within 14 days of the date of an invoice issued to the Customer by the Company, unless otherwise specified in the Rates Card.

The Customer agrees that FOB Oceanfreight Charges are payable within 7 days of the Goods arriving in Australia, unless otherwise specified in the Rates Card.

For other charges, please see clause 9.

If payment for any invoice issued to the Customer by the Company is not received by the due date, the Company reserves the right to (but is not limited to) and may do any or all of the following:

5. detain the Customer’s goods for auction without notice to the Customer, to recover the amount owed by the Customer to the Company;
6. place the Goods into storage at the Customer’s own expense. Such storage costs are payable by the Customer to the Company in full. The Customer must pay the storage costs and any amounts owed to the Company, prior to the Goods being released from storage and delivered to the Customer.
7. demand that the Customer pay on COD terms;
8. take steps to enforce any debt or amounts owed to the Company against the Customer;
9. take legal action against the Customer\

5. INDEMNITIES BY THE CUSTOMER

Without limiting the effect of these General Terms & Conditions or Agreement, the Customer agrees to indemnify the Company for, including but not limited to, the following:

• any loss or damage directly or indirectly caused by the Goods or by breach of

these General Terms & Conditions or Agreement by the Customer;

• amounts of customs duty, GST and other payments made to Government

Authorities by the Company on behalf of the Customer;

• any penalties payable by the Company (whether pursuant to a court order or

pursuant to an Infringement Notice) due to the Customer:

• providing information that is incorrect or misleading;
• omitting to provide material information required to the Government Authorities;
• providing information in a manner which does not enable the Company to comply with the requirements of the Government Authorities for reporting in prescribed periods; and/or
• failing to provide information or documentation requested by the Company;
• penalties associated with the failure by the Customer to maintain or provide its documents or records in the manner and at the time contemplated by the Government Authorities;
• penalties associated with any omission of information required to be provided to any Government Authorities;
• penalties associated with making or causing to be made, statements which are false or misleading to Government Authorities, except to the extent that such statements were made by the Company in the knowledge that such statements were false or misleading;
• penalties associated with providing misleading or deceptive information regarding the status of Goods, whether pursuant to the Competition and Consumer Act or other legislation;
• damages payable by the Company arising from or contributed to by errors or misrepresentations by the Customer;
• losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in this clause 5;
• all expenses directly or indirectly incurred arising out of or in connection with the entry of an officer of any Government Authorities or other authorised person on the premises of the Company for the purpose of exercising any powers pursuant to the requirements of any Government Authorities and/or inspecting, examining, making copies of, taking extracts of documents on the premises to the extent that the exercise of the powers is related to the Services;
• any customs duty, GST or other charge assessed against the Company in relation to the Goods or Services;
• any charges levied by Government Authorities or other costs incurred by the Company for examination and treatment of the Goods;
• any costs, charges or fees, including legal fees, incurred in obtaining any customs advices whether or not the Company directed or requested the Customer to obtain the customs advices;
• any costs, charges or fees, including legal fees reasonably incurred by the Company in obtaining any customs advices on behalf of the Customer if, at its sole discretion, the Company considers it reasonably necessary to do so;
• any costs or charges incurred by the Company as a result of or in connection with a direction or request from any Government Authority in relation to the Goods or Services;
• any costs or charges incurred by the Company as a result of or in connection with a suspension or cancellation by any Government Authority in relation to the Goods or Services;
• any costs or charges incurred by the Company as a result of or in connection with any variation by any Government Authority of conditions of Licences or the addition by any Government Authority of new conditions on Licences in relation to the Goods or Services;
• any costs, charges or penalties incurred by the Company as a result of or in connection with any breaches of any Licences in relation to the Goods or Services;
• any costs or charges incurred by the Company as a result of or in connection with any suspension or cancellation of Licences by any Government Authority in relation to the Goods or Services;
• any costs or charges incurred by the Company as a result of or in connection with the Company complying with any conditions or Laws in respect of any Licences in relation to the Goods or Services;
• any costs or charges incurred by the Company pursuant to clause 7;
• any costs, charges or penalties associated with the Shipper in any arrangements for the transport or movement of the Goods for the Customer whether payable to a Government Authority or otherwise;
• any costs, charges or penalties associated with the Company being deemed to be the Owner of the Goods; and
• any costs or charges incurred in recovering any amounts payable to the Company (including, without limitation, costs of legal proceedings).

The Customer agrees to pay any amounts claimed pursuant to the indemnity in this clause 5 within 7 days of demand by the Company.

The nature of the indemnity in this clause 5 will include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) and damages assessed against the Company and its officers and employees, together with all legal costs incurred by the Company (calculated on a solicitor/client basis).

The indemnity shall continue in force and effect whether or not the Goods have been pillaged, stolen, lost, damaged or destroyed.

For the purposes of this clause 5, the Customer agrees that the Company may take whatever actions as are necessary for the Company to comply with the terms of its Licenses, without limitation, complying with its obligations to report under the Customs Act.

For the purposes of this clause 5, the Customer agrees that the Company may take such actions as are necessary to comply with the terms of its Licences whether or not any breach or suspected breach exists in relation to or connection with the Goods or Services provided by the Company.

Without limiting anything in this clause 5, the Customer indemnifies the Company against any penalties, interest, tax or additional duty that is payable as a result of the Company providing information or making statements to any Government Authority as are necessary for the Company to comply with the terms of its Licences or laws.

The Company may execute all or any of its rights pursuant to clause 4 to recover any amounts owing pursuant to this clause 5.

There is no need for the Company to suffer any losses, costs, damages, judgments, penalties or expenses requiring payment from the Customer.

6. INSURANCE

The Company shall not effect insurance on the Goods or Services except upon receipt of express instructions given in writing by the Customer and the Customer’s written declaration as to the value of the Goods.

All such insurances effected by the Company are subject to the usual exceptions and conditions of the policies of the insurer or underwriter taking the risk.

At the discretion of the Company such insurance may name the Customer or owner as insured.

In the event of any dispute in regard to liability under any such insurance policy for any reason whatsoever the Customer or other insured shall have recourse against the insurer or underwriter only and the Company shall have no liability or responsibility in relation to any such insurance policy.

7. LIABILITY

• Unless otherwise agreed in writing between the Company and the Customer, or the Australian Consumer Lawas scheduled to the Competition and Consumer Act 2010 (Cth) is applicable, no responsibility in tort or contract or otherwise will be accepted by the Company and the Customer will not hold the Company or any employee or agent of the Company liable in tort or contract or otherwise for loss of or damage to or misdelivery or failure to deliver or delay in delivery of the Goods either in transit or in storage for any reason whatsoever including but not limited to the negligence and wilful misconduct of the Company, its employees, agents or Sub-contractors.
• If the said Australian Consumer Law is applicable, the liability, if any, of the Company will be limited to the cost of supplying the Services again.
• The Company shall not be liable to the Customer for any breach or failure to perform its obligations under these General Terms & Conditions (or Agreement) or any damage or loss to the Goods or resulting loss due to one of the following:

1. acts of God, epidemics, cyclones, tidal waves, perils, dangers, accidents of the sea or other navigable waters or adverse weather conditions;
2. strikes, lockouts, work bans, stoppage, retraint of labour or other industrial disturbances from whatever cause, whether partial or general;

• impacts of any changes in law;

8. actions or inactions of Government Authorities in connection with the Goods or Services;
9. acts of public enemy or sabotage;
10. any other cause arising beyond the reasonable control of the Company, without the actual fault or privity of the Company and without the actual fault or privity of the agents or servants of the Company.

8. NOTICE OF CLAIM AND TIME BAR

• A claim by the Customer for any loss sustained in connection with the carriage of the Goods shall not be enforceable against the Company unless notice setting out the full details of the claim is lodged in writing at an office of the Company within three (3) days after the date of delivery of the Goods or in the case of non-delivery, within fourteen (14) days after the Goods ought in the ordinary course of carriage have been delivered.
• In all circumstances any legal proceedings brought by the Customer against the Company in relation to the carriage or storage of Goods or the provision of Services will be time barred if not brought against the Company within 6 months from the date or which the Goods were delivered or, in the event of non-delivery, ought in the ordinary course of carriage have been delivered, or the date on which the Services were provided.

9. FREIGHT AND OTHER CHARGES

• The Customer shall pay the freight or other charges for the provision of the Services at the rate agreed between the Company and the Customer but the Company nevertheless reserves the right to charge freight at rates current from time to time by weight, measurement or value and may at any time and from time to time re-weigh, re-measure or revalue the Goods and charge extra accordingly.
• Should any additional costs be incurred throughout the transport process which include but are not limited to Customs charges, quarantine charges, packing, fumigation, documentation, additional labour, transportation, charges for waiting times or any other costs, these costs will be payable by the Customer immediately upon receiving the invoice for those charges and must be paid in full prior to the delivery of Goods.

10. CARRIAGE OF GOODS

• The Company reserves the right to use any vehicle or mode of transport, to substitute one vehicle or mode of transport for another and to tranship Goods. The Company may at any time deviate from the usual route or manner of carriage of the Goods where the Company considers the deviation necessary or expedient in the circumstances. The Company does not guarantee the times of departure or arrival of any vehicle by which the Goods are carried.

• The Goods shall be deemed to be in transit notwithstanding that the carriage of the Goods may have been interrupted or the Company may have diverted from the usual route for such carriage.

11. RIGHT TO INSPECT

The Company shall be entitled without liability, to open any document, envelope, package or other container in which the Goods are placed to inspect the Goods (including but not limited to):

1. for the purpose of determining the nature of the contents, ownership or destination of the Goods;
2. where a consignment note or other identifying document or mark is lost, missing destroyed or defaced; or
3. where the Company has reason to believe the Goods are Dangerous Goods.

12. DELIVERY METHODS AND SUB-CONTRACTING

The Company may carry the Goods, have the Goods carried, have the Goods on-forwarded or provide the Services:

• By any method which the Company in its absolute discretion deems fit and notwithstanding any instructions (written or oral) that the Goods be carried by any particular method or in any particular way and;
• By any Sub-contractor or agent and the Company is authorised by the Customer to contract either in its own name or in the Customer’s name with any Sub-contractor and any such contract may be made on any terms, including terms which exclude or limit the Sub-contractor’s liability in respect of the Goods and the Services.
• Each Sub-contractor and agent engaged by the Company to carry the Goods shall be entitled to the benefit of these conditions as if the Customer had directly entered into an agreement containing these terms and conditions with the Sub-contractor or agent in place of the Company. In contracting with the Customer the Company does so not only on its own behalf but also as agent and trustee of its Sub-contractors and agents.
• The Customer undertakes that no claim or allegation shall be made against the Company’s employees, agents or Sub-contractors (including their employees and agents) which imposes or attempts to impose upon any such party any liability whatsoever in connection with the Goods or the provision of Services whether or not arising out of negligence or wilful misconduct of such party. If any such claim or allegation should nevertheless be made, the Customer will indemnify the Company against all consequences thereof.

13. DELIVERY, COLLECTION AND DELAY IN LOADING AND UNLOADING

• Where the Company is authorised to deliver the Goods at an address nominated to the Company by the Customer for that purpose the Company shall be conclusively presumed to have delivered the Goods in accordance with these conditions if the Company or its employee or agent obtains from any person at the nominated address a receipt or signed delivery docket for the Goods. If the nominated place for delivery is unattended or if delivery cannot be effected, the Company may leave the Goods at that place or may withdraw the Goods. If the Goods are stored by the Company, the Customer shall pay the Company such storage and re-delivery costs as the Company shall specify;
• Where the Customer is responsible for unloading the Goods and fails to unload within the time specified by the Company, the Company may at its option unload the Goods at the risk of the Customer and the Customer shall pay to the Company all costs incurred in unloading the Goods and/or such storage charges as the Company may specify;
• Where the Customer is responsible for collection of Goods at a nominated destination and fails to do so within the time specified by the Company, the Customer shall pay to the Company such storage costs as the Company may specify;
• Notwithstanding any other condition contained herein where the Goods are stored by the Company due to the Customer’s failure to unload, to collect or to accept the Goods such storage shall be at the risk of the Customer and the Company shall have no liability in tort or contract or otherwise for loss or damage to the Goods for any reason whatsoever, including but not limited to the negligence of the Company, its employees or agents;
• In respect of Dangerous Goods, the Company may at its discretion either store or dispose of such Goods pursuant to these conditions.

14. LIEN and PERSONAL PROPERTY SECURITIES ACT

• Subject to the law including the provisions of the Personal Property Securities Act 2009 (Cth) (“PPSA“), the Company shall have a lien on the Goods (and any documents relating to the Goods) and on any other Goods (and any documents relating to them) of the Customer in the possession of the Company, for any monies owing by the Customer to the Company whether in connection with the carriage of Goods or the provision of Services or otherwise.
• If any moneys due to the Company are not paid within one calendar month after notice has been given to the person from whom moneys 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 the amount owed.
• In addition to and without limitation of any lien over Goods that the Company might have under these conditions, or under statute, the Customer hereby grants a security interest in the Goods and any documents relating to them and also in the proceeds of sale of such Goods and documents to the Company to secure payment of all sums payable by the Customer to the Company.

15. UNCOLLECTED GOODS

Where:

• The Company is unable to deliver the Goods and the Customer does not accept the re-delivery of the Goods;
• Goods to be collected by the Customer are not collected; or
• Goods held pursuant to these conditions are not released because of non-payment of monies owing by the Customer to the Company;

the Company may:

• forthwith in relation to the Goods which are perishable; or
• after giving the Customer one calendar months’ notice
  sell or otherwise dispose of the Goods on any terms the Company in its absolute discretion considers appropriate and may apply any monies received from the sale or disposal towards monies owed to the Company by the Customer.

16. NATURE OF GOODS

• The Customer shall not tender for carriage, storage or the provision of Services any liquids, perishable Goods, volatile spirits or explosive Goods which are or may become dangerous, inflammable or offensive (including radio-active materials) or which are or may become Dangerous Goods without presenting a full description disclosing the nature of such Goods and in any event shall be liable for all loss and damage caused by them and if in the opinion of the Company the Goods are Dangerous Goods the same may at any time be destroyed, disposed of abandoned or rendered harmless by the Company without compensation to the Customer and without prejudice to the Company’s right to any charges under these conditions;
• The Customer warrants that it has complied with all laws, regulations, Codes and Standards relating to the nature, packaging, labelling or carriage of Goods and that the Goods are packed in a manner adequate to withstand the ordinary risks of carriage having regard to their nature and indemnifies the Company for any liability whatsoever as a result of or arising out of the Customer’s failure to comply with each of these warranties.
• The Customer acknowledges that Dangerous Goods will only be accepted subject to the Australian Dangerous Goods Code.

17. WAIVER OF CONDITIONS AND SEVERANCE

No Person has the authority of the Company to waive or vary these conditions. If a provision or part provision of these conditions is or become unenforceable, the provision or part provision shall not affect any other provision or part provision of these conditions and shall be severed from them.

18. APPLICATION OF AUSTRALIAN CONSUMER LAW

Notwithstanding anything contained in these conditions, the Company shall continue to be subject to any statutory guarantee provided by any law of the Commonwealth of Australia, including the Australian Consumer Law as scheduled to the Competition and Consumer Act 2010 (Cth) if and only to the extent that any such Act is applicable to this contract and prevents the exclusion, restriction or modification of any such guarantee.

19. LAW AND JURISDICTION

These conditions shall be governed and construed in accordance with the laws of Queensland and any proceedings for loss of, or damage to the Goods shall be brought in Queensland.