One Express (hereinafter referred to as the “Contractor” which expression shall be deemed to include One Express Global Pty Ltd as trustee for M&H Family Trust ABN:72 719 029 194 and their servants, agents, employees and sub‐contractors), offers to supply the carriage of goods and/or the storage of goods detailed on the reverse side of these conditions or as otherwise agreed or requested ("Services") for the charges determined hereunder and subject to the conditions hereunder ("Conditions") and the person, company or firm so named on the reverse side of these conditions (hereinafter referred to as the "Customer" which expression shall be deemed to include its servants, agents, employees and sub‐contractors) accepts the provision of the Services by the Contractor subject to the Conditions (“Contract”).
2. The Contractor is NOT A COMMON CARRIER and will accept no liability as such.
3. THE CONTRACTOR RESERVES THE RIGHT AT ITS DISCRETION TO REFUSE THE CARRIAGE, TRANSPORTATION OR STORAGE OF ARTICLES FOR ANY PERSON WHATSOEVER OR ANY CLASS OF ARTICLES.
4. The Customer authorises the Contractor to sub‐contract with any other person, firm or company (“Sub‐Contractor”) to perform the Services or part thereof (“Sub‐Contract”) on the same conditions (including all conditions as to exclusion of liability of the Sub‐Contractor) as apply to the Contractor under these Conditions
5. The Contractor shall be entitled to retain for its own benefit, without accounting to the Customer, any difference between charges and surcharges payable to the Sub‐Contractor under the Sub‐Contract and charges and surcharges payable under the Contract by the Customer
6. The Customer’s goods are deemed to be carried when such goods are loaded onto the Contractor’s vehicles and despatched from the place of loading.
7. The Contractor shall be deemed to have delivered the goods in accordance with this Contract if the goods are delivered at: (a) the delivery address so detailed on the reverse side of these Conditions and the Contractor obtains from any person at that address a receipt, signed delivery docket or electronic signature for the goods; or (b) any other place at the express instructions of the Customer.
8.1 The Charges shall be considered fully earned as soon as the Goods are loaded and despatched from the Sender’s premises and you must comply with the provisions of clause 8.2 irrespective of whether the Goods have been delivered to the Receiver or whether Goods which have been delivered are damaged or otherwise, and in all circumstances the Charges paid by you to us shall be absolutely non-refundable.
8.2 You must (a) pay us, within 7 days of the date of our tax invoice/statement all Charges and if any Charges are not paid on the date for payment, pay interest on the unpaid Charges at the rate 2% higher than the prevailing rate under the Penalty Interest Rates Act 1983 (Vic); and (b) pay Charges determined by the higher of the weight declared on the CN, the Dead Weight or Cubic Weight or cubic size or value of the Goods, by reference to our current rates schedule and/or the current special quoted rates offered by us to you, which may include additional charges for other services performed by us as specified in our current rates schedule. (i) You agree that where you have provided information about the weight, cubic size or value of the Goods that we may use such information to determine the Charges or we may in our absolute discretion and at any time weigh, measure or value the Goods to determine the Charges whether or not you have provided such information and whether or not there is a discrepancy between the information which you have provided and the physical properties of the Goods that have been dispatched to us. For the avoidance of doubt, uncrated machinery will be measured to a minimum height of 2.7 metres. (ii) You agree that we may determine the total weight and/or total cubic size and/or value of all Goods that are consigned (whether on pallets or as mixed loose freight or a combination of both) on the same day (whether in one or more locations and regardless of the destination of individual consignments), and use whatever method (whether by automatic cubing technology or the Bulk Cube Method) that we regard as the most practical at that time to attribute a weight, cubic size or value to the particular Goods for the purpose of calculating the Charges. For example, for dispatch of a small number of cartons, we may use the actual measurements of each item consigned or for large bulk dispatch which includes palletised consignments, we may employ the Bulk Cube Method. (iii) We may charge an additional charge to you for the cost of any labour charges incurred by us as a result of any delay (where such delay has occurred other than from our default) in excess of thirty (30) minutes in loading or unloading the Goods or in the event that the Receiver is not in attendance at the Delivery Address during normal hours when delivery is attempted.
8.3 If upon our receipt of Goods for which our Charges have been pre-paid: (a) in the case of prepaid CNs and prepaid satchels, we determine that you have understated the Cubic Weight or Dead Weight, you must pay us the difference between the pre-paid amount and the amount that we determine, plus an additional administration charge for the understatement; or (b) in the case of prepaid CNs only, the Cubic Weight is higher than the Dead Weight, then we may charge you the Charges applicable to the Cubic Weight.
8.4 You agree that we are not bound by any instructions by you to collect any Charges from any other party (a "Third Party"), notwithstanding that we may accept the Goods as tendered for the Services. In the event that we agree in our absolute discretion that the Third Party may pay the Charges and the Third Party does not pay the Charges within seven (7) days from the date of the invoice issued by us to the Third Party, you must pay the Charges as specified in the original invoice issued to the Third Party within (seven) 7 days after an invoice has been issued by us to you. We advise that all Charges billed to parties who do not have an account with us will be calculated using our non-account schedule rates. Where the Third Party does not pay and you become liable for the Charges, in no case will the Charges be reduced.
8.5 We may change our Charges at any time and, after notice to you, charge you accordingly.
8.6 If GST is imposed on any supply made by us to you pursuant to these conditions, you must pay to us, as part of the Charges, an amount equal to the GST payable by us in connection with that supply (as determined by us in good faith and not in contravention of the law).
9. Other than as stated on the reverse side of these Conditions, any list of charges or indications as to amount to be charged given by the Contractor to the Customer in respect of the provision of the Services are estimates only and the charge to the Customer shall be determined by the Contractor prior to the performance of the Services.
10. A Fuel Surcharge is applicable to all invoices.
11. Unless already included in the charge of any Services, the Contractor may increase its charge where: (a) the Contractor’s cost of providing the Services increases due to increases in the cost of labour, materials and other delivery costs and overheads such as road toll charges, mobile phone charges or Administrative costs; (b) additional costs are incurred by the Contractor as a result of a variation to the Services specified by the Customer; (c) the Contractor is required to pay any amount on account of any duties (including excise duty, customs duty or stamp duty) or other taxes or charges or minimum statutory obligations which may be levied or required by any government or authority (whether Commonwealth, State or local), including Goods and Services Tax (GST) payable on Taxable Supplies (as defined in A New Tax System (Goods and Services Tax) Act 1999 and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup GST); and (d) the Contractor agrees to provide Services at the Contractor's special rates in respect of goods which are potentially hazardous and/or fragile as disclosed by the Customer under clause 21(b) and which require special treatment or conditions of carriage and/or storage.
12. The Contractor reserves the right to require the Customer to pay all or part of the charge for the Services upon placing an order.
13. Unless otherwise agreed in writing between the Contractor and the Customer, the Contractor will invoice the Customer for the charge for the Services and the Customer must pay the charge within 7 days of the date of the invoice.
14. In the event that the Customer fails to make any payment when due ("Default"), then, without prejudice to any other rights which the Contractor may have in accordance with these Conditions or otherwise: (a) any and all payments to the Contractor which are not yet due shall immediately become due and payable by the Customer; and (b) the Customer shall be liable to the Contractor for any costs or damage incurred by the Contractor as a result of the Customer's default, including any legal and other costs associated with recovering any moneys owed by the Customer to the Contractor. (c) Interest shall accrue on the amount of the overdue payment at a rate equal to 2.5% of the overdue balance (a minimum of $15 applies) per invoice period. Interest will continue to be added each invoice period until the overdue debt has been paid in full.
15. The Contractor is at liberty to use the payments made by the Customer (in satisfaction of the charges described in the Invoice/Statement) as it sees fit and in its absolute discretion; and the Customer hereby acknowledges that the description of the charges appearing on the Invoice/Statement does not require the Contractor to use the payment made for any particular purpose nor constitute a representation that it will do so.
16. The Contractor shall have a general lien on goods deposited with the Contractor for storage and/or provided to the Contractor for carriage. The lien shall secure all amounts owing (whether in respect of the goods or otherwise) including: (a) all charges for storage and preservation of goods; (b) all charges for pick up, carriage and delivery of goods; (c) all claims for insurance, transportation, labour, weighing, packing and other expenses in relation to goods; (d) all reasonable expenses incurred by the Contractor in relation to the Contractor exercising its rights under its lien ("Lien Charges").
17. Without prejudice to any of the Contractor's other rights, if the Customer is in Default the Contractor may without further notice to the Customer detain, open any package and sell all or any of the goods of the Customer as the Contractor thinks fit to apply the proceeds to discharge the lien and the Lien Charges.
18. Unless otherwise expressly agreed in writing, and except as expressly provided in clause 24, no liability or responsibility in tort or contract or otherwise will be accepted by the Contractor for any loss and/or damage suffered by any person arising out of or in relation to the carriage and/or storage of any explosive, hazardous, poisonous, inflammable, corrosive or otherwise dangerous or damaging goods, articles, liquids or substances or foodstuffs that are likely to attract vermin or other pests (“Dangerous Goods”). The Customer will indemnify and keep indemnified the Contractor against all losses, liabilities, claims, demands, actions, suits, proceedings, costs, damages and expenses, including consequential loss or damage (“Loss”) suffered or incurred by the Contractor arising out of or in relation to the carriage and/or storage of Dangerous Goods however caused (except to the extent such Loss is caused by the breach of a Non‐Excludable Condition, as defined in clause 24).
19. The person delivering any goods to the Contractor for carriage and/or storage represents and warrants that he or she is authorised to sign this Contract for and on behalf of the Customer.
20. The Customer expressly warrants that the Customer is either the owner or the authorised agent of the owner of any goods or property the subject matter of this Contract and by signing this Contract the Customer accepts these Conditions for all other persons on whose behalf the Customer is acting.
21. Dangerous Goods will not be accepted for carriage and/or storage by the Contractor unless the Customer has made full disclosure to the Contractor of such goods and the Contractor has in writing agreed to carry and/or store such goods. The goods are accepted by the Contractor for carriage and/or storage subject to the following conditions‐ (a) The goods are compliant in all respects with the requirement of any applicable law relating to the transportation, storage, condition and packaging of such goods and that any expenses incurred by the Contractor in complying with the provisions of any such law or with any order or requirement of any government or authority in relation to such law (including any harbour, dock, railway, shipping, customs, warehouse or other authority) shall be at the cost of the Customer. The Customer fully discloses to the Contractor in writing in the space provided hereon: the name, nature, description and the value of all goods of carriage and/or storage; (ii) details of goods of a noxious, dangerous, hazardous, poisonous, corrosive or inflammable nature; (iii) goods which are capable of causing damage or injury to any other property, persons or animals or to any store, warehouse, vessel, wagon, van, aircraft or other store or conveyance of any kind whatsoever in which they may be loaded, carried, packed or stored; and goods which are liquid or partly liquid.
22. If Dangerous Goods not previously disclosed by the Customer are discovered by the Contractor in carriage or storage, the Contractor may, at its discretion, remove, sell destroy or otherwise dispose of the same, and shall not be responsible or accountable for the value thereof.
23. The Contractor shall not be bound by any agreement purporting to vary these Conditions unless such agreement shall be in writing and signed on behalf of the Contractor by an officer of the Contractor.
24. Where any applicable legislation: (a) implies any term, condition or warranty into the relationship between the Contractor and the Customer or into these Conditions; (b) imposes a consumer guarantee in respect of the Services; or (c) otherwise gives the Customer a particular remedy against the Contractor, and that legislation or any legislation avoids or prohibits provisions excluding or modifying the application of, or exercise of, or liability under, such term, condition, warranty, consumer guarantee or remedy, (a “Non‐Excludable Condition”) then: (d) that Non‐Excludable Condition shall be deemed to be included in these Conditions or apply to that relationship; or (e) in the case of a consumer guarantee imposed on the Services, that Non‐Excludable Condition shall apply in respect of those Services. However, the Contractor's liability for any breach of such Non‐Excludable Condition shall be limited, at the Contractor's option, in any one or more of the ways permitted by that legislation including, where so permitted if the breach relates to any Services which are not supplied for personal, domestic or household use or consumption, to the supplying of those Services again or the payment of the cost of having those Services supplied again.
25. Except as expressly provided in clause 24, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise, relating in any way to any Services performed by the Contractor are excluded. Without limiting the generality of the preceding clause: (a) the Contractor will not be under any other liability in respect of any Loss however caused (other than by breach of a Non‐Excludable Condition) which may be suffered or incurred or which may arise directly or indirectly in respect of the Services supplied by the Contractor and the Customer will indemnify the Contractor and keep indemnified the Contractor against all Loss arising out of or in relation to the Services supplied by the Contractor however caused (other than by breach of a Non‐Excludable Condition). (b) the Contractor shall not be under any liability for any loss of, damage to or: misdelivery, delay in delivery or non‐delivery; or (ii) concealed damage, deterioration, contamination or evaporation, of goods held in its care, custody or control, or any consequential loss arising therefrom however caused (other than by breach of a Non‐Excludable Condition).
26. Should the consignee of the goods described on the reverse of these Conditions not be in attendance during normal trading hours or at the time specified or if the Contractor arrives to effect delivery at the Customer's consignee’s premises and is delayed in effecting prompt delivery at those premises for any reason whatsoever which is outside the Contractor’s control then the Contractor reserves the right to make an additional charge to every call made or for the amount of time of any delay until delivery is effected.
27. In respect of any clause herein which excludes or in any way limits the liability of the Contractor in respect of the carriage and/or storage of goods, the Contractor in its own capacity and as trustee for each of its servants and Sub‐Contractors and the servants of such Sub‐Contractors shall hold the benefit of such exclusions and limitations of liability for itself, its employees, its Sub‐Contractors and the employees of its Sub‐Contractors.
28. Subject to clause 24, all the rights, immunities and limitations of liability in these Conditions shall continue to have their full force and effect notwithstanding any breach of these Conditions by the Contractor.
29. The Customer agrees to: (a) Any credit reporting agency in possession or control of personal information in respect of the Customer, disclosing such personal information in a credit report given to the Contractor for the purposes of the Contractor assessing an application for commercial credit made by the Customer or to collect payments that are overdue; and (b) For the purposes of assessing the credit worthiness of the Customer from time to time and the collection of payments, the Customer hereby irrevocably authorises the Contractor to making such enquiries with third parties as it deems necessary to assess an application for commercial credit made by the Customer or to collect payments that are overdue, including, but not limited to such enquiries as are necessary for the Contractor to obtain personal information and making enquiries for obtaining reports (as may be allowed by law) from persons nominated by the Customer as the Customer’s trade referees, the Customer’s creditors, bankers, and financiers, credit providers, mortgage insurers and trade insurers and to such third parties credit reporting agencies (thereinafter called “the Information Sources”) and the Customer agrees and consents to the Information Sources providing to the Contractor such personal information and reports, and to the Contractor disclosing the contents of any credit report or personal information to a credit reporting agency for the purpose of the credit reporting agency creating or adding to any credit information file in relation to the Customer.
30. The Customer expressly agrees that it will not: hire any of the Contractor’s drivers; or (b) let, solicit, interfere with or endeavour to entice such drivers from the Contractor; either whilst the drivers are engaged by the Contractor or within 6 months of the termination of their engagement by the Contractor. The Customer further agrees with the Contractor that in the event that this clause is breached by the Customer that the sum of $10,000 represents fair and reasonable compensation to the Contractor for the Contractor’s loss and damage sustained as a result of the breach.
31. Pallets on which goods or Customer's goods are delivered, carried or stored are not the responsibility of the Contractor and the Customer shall indemnify and keep indemnified the Contractor from any Loss however caused (other than by breach of a Non‐Excludable Condition) arising out of or in relation to lost or damaged pallets.
32. The Customer at its own cost and expense will effect and maintain such policies of insurance as are necessary to ensure full cover for any damage to or loss of all the Customer’s goods carried and/or stored by the Contractor.
33. The Customer acknowledges that the Contractor may from time to time, at its discretion, use electronic communications for transactions made under this Agreement. Electronic communications include, but are not limited to, signature capture. The Customer expressly consents to this practice and agrees that where the Customer provides a signature it is confirming its agreement to that transaction.
34. The Customer expressly warrants that its acquisition of the Services is for business purposes only and that the acquisition is not wholly or predominantly for personal, domestic or household use or consumption. These Conditions shall be governed by and construed in accordance with the laws in force in the State or Territory where the Contractors Services were engaged.