AST Services Pty Ltd – Terms & Conditions of Cartage

1. Definitions

1.1  “AST Services” shall mean AST Services Pty Ltd and its successors and assigns or any person acting on behalf of and with the authority of AST Services Pty Ltd.

1.2  “Sub-Contractor” shall mean and include;
(a) Railways or Airways operated by the Commonwealth or any State or any other country or by any corporation; or (b) Any other person, firm or AST Services with whom AST Services may arrange for the carriage or storage of any

Goods the subject of the contract; or
(c) And any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons

referred to in clause 1.2(a) and 1.2(b).

1.3  “Client” shall mean the Client or any person or persons acting on behalf of and with the authority of the Client. Where

more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments

of the Price.

1.4  “Consignee” shall mean the person to whom the Goods are to be delivered by way of AST Services’ Services.

1.5  “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a

principal debtor basis.

1.6  “Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to

another by way of AST Services’ Services, or for storage by AST Services.

1.7  “Services” shall mean all services supplied by AST Services to the Client and are as described on the quotations,

invoices, consignment note, airway bills, manifests, sales order or any other forms as provided by AST Services to

the Client and includes any advice or recommendations.

1.8  “Price” shall mean the cost of the Services as agreed between AST Services and the Client subject to clause 3 of

this contract.

2. Acceptance

2.1  Any instructions received by AST Services from the Client for the supply of Services shall constitute acceptance of the terms and conditions contained herein.

2.2  Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of AST Services.

2.3  These terms and conditions are to be read in conjunction with AST Services’ quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by AST Services to the Client. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.

2.4  The Client shall give AST Services not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by AST Services as a result of the Client’s failure to comply with this clause.

3. Price And Payment

3.1  At AST Services’ sole discretion the Price shall be either;
(a) as indicated on invoices provided by AST Services to the Client in respect of Services supplied; or
(b) AST Services’ quoted Price (subject to clause 3.2 & 3.3) which shall be binding upon AST Services provided that

the Client shall accept in writing AST Services’ quotation within thirty (30) days.

3.2  AST Services may by giving notice to the Client increase the Price of the Services to reflect any increase in the cost

to AST Services beyond the reasonable control of AST Services (including, without limitation, foreign exchange

fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).

3.3  The Carrier may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re- measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional

freight accordingly.

3.4  Time for payment for the Services shall be of the essence and will be stated on the on the invoice, consignment

note, airway bills, manifests or any other forms. If no time is stated then payment shall be due seven (7) days

following the date of the invoice.

3.5  At AST Services’ sole discretion;

(a) payment shall be due on delivery of the Goods, or

(b) payment for approved Client’s shall be due on forty five (45) days end of month.

3.6  Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to 2.5%

of the Price), or by direct credit, or by any other method as agreed to between the Client and AST Services.

3.7  GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly

included in the Price.

4. AST Services Not Common Carrier

4.1 AST Services is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by AST Services subject only to these conditions and AST Services reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.

5. Client-Packed Containers

5.1 If a container has not been stowed by or on behalf of AST Services AST Services shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.

6. Nomination Of Sub-Contractor

6.1 The Client hereby authorises AST Services (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Client upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as AST Services. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled AST Services shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.

7. AST Services’ Servants or Agents

7.1 The Client undertakes that no claim or allegation shall be made against any servant or agent of AST Services which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify AST Services and any such servant or agent against all consequences thereof.

8. Method Of Transport

8.1 If the Client instructs AST Services to use a particular method of carriage whether by road, rail, sea or air AST Services will give priority to the method designated but if that method cannot conveniently be adopted by AST Services the Client shall be deemed to authorise AST Services to carry or have the Goods carried by another method or methods.

9. Route Deviation

9.1 The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of AST Services be deemed reasonable or necessary in the circumstances.

10. Charges Earned

10.1 AST Services’ charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and despatched from the Client’s premises.

11. Demurrage

11.1 The Client will be and shall remain responsible to AST Services for all its proper charges incurred for any reason. A charge may be made by AST Services in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of AST Services. Such permissible delay period shall commence upon AST Services reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Client or Consignee.

12. Dangerous Goods

12.1 Unless otherwise agreed in advance in writing with AST Services the Client or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Client shall be liable for and hereby indemnifies AST Services for all loss or damage whatsoever caused by any Dangerous Goods.

13. Consignment Note

13.1 It is agreed that the person delivering any Goods to AST Services for carriage or forwarding is authorised to sign the consignment note for the Client.

14. Client’s Responsibility

14.1 The Client expressly warrants to AST Services that the Client is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Client accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Client is acting.

15. Delivery

15.1  AST Services is authorised to deliver the Goods at the address given to AST Services by the Client for that purpose and it is expressly agreed that AST Services shall be taken to have delivered the Goods in accordance with this contract if at that address AST Services obtains from any person a receipt or a signed delivery docket for the Goods.

15.2  AST Services may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.

15.3  Delivery of the Goods to a third party nominated by the Client is deemed to be delivery for the purposes of this agreement.

15.4  It is the Client’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.

15.5  The failure of AST Services to deliver shall not entitle either party to treat this contract as repudiated.

16. Loss Or Damage

16.1  This contract is “at limited carrier’s risk”.

16.2  Subject to statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not

limited to chilled, frozen, refrigerated or perishable Goods):
(a) AST Services shall not be under any liability, howsoever caused or arising and (without limiting the generality of the foregoing) whether caused or arising as a result of the negligence of AST Services or otherwise, for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of AST Services or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and

(b) The Client will indemnify AST Services against all claims of any kind whatsoever, howsoever caused or arising and, (without limiting the generality of the foregoing) whether caused or arising as a result of the negligence of AST Services or otherwise, brought by any person in connection with any matter or thing done, said or omitted by AST Services in connection with the Goods.

17. Insurance

17.1 The Client acknowledges that;
(a) the Goods are carried and stored at the Client’s sole risk and not at the risk of AST Services; and

(b)  AST Services is under no obligation to arrange insurance of the Goods and it remains the Client’s responsibility

to ensure that the Goods are insured adequately or at all; and

(c)  under no circumstances will AST Services be under any liability with respect to the arranging of any such

insurance and no claim will be made against AST Services for failure to arrange or ensure that the Goods are insured adequately or at all.

18. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

18.1  Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

18.2  Liability of AST Services arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by AST Services;
(a) the supplying of the Services again; or

(b) the payment of the cost of having the Services supplied again; or
(c) where the Client is a consumer as defined in the Trade Practices Act 1974 then the client shall also be entitled to a refund.

18.3  AST Services shall be under no liability whatsoever for loss or damage to Goods unless;

(a) the Client provides written notice to AST Services detailing the alleged damage, and that such written notice shall received by AST Services within seven (7) days after the delivery of the Goods; or

(b) in the case where the Goods have been lost in transit then the Client shall be required to provide written notice detailing the alleged loss within fourteen (14) days of the date of dispatch of the Goods.

19. Default & Consequences Of Default

19.1  Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

19.2  If the Client defaults in payment of any invoice when due, the Client shall indemnify AST Services from and against all costs and disbursements incurred by AST Services in pursuing the debt including legal costs on a solicitor and own client basis and AST Services’ collection agency costs.

19.3  Without prejudice to any other remedies AST Services may have, if at any time the Client is in breach of any obligation (including those relating to payment), AST Services may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. AST Services will not be liable to the Client for any loss or damage the Client suffers because AST Services exercised its rights under this clause.

19.4  If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

19.5  Without prejudice to AST Services’ other remedies at law AST Services shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to AST Services shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to AST Services becomes overdue, or in AST Services’ opinion the Client will be unable to meet its payments as they fall due; or

(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

20. Unpaid AST Services’ Rights to Dispose of Goods

20.1 AST Services shall have a lien on any Goods (and any documents relating to those Goods) in the possession or control of AST Services for all sums payable by the Client to AST Services, and AST Services shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Client. AST Services shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.

21. Security And Charge

21.1 Despite anything to the contrary contained herein or any other rights which AST Services may have howsoever:

(a)  where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to AST Services or AST Services’ nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that AST Services (or AST Services’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b)  should AST Services elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify AST Services from and against all AST Services’ costs and disbursements including legal costs on a solicitor and own client basis.

(c)  the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint AST Services or AST Services’ nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 21.1.

22. Privacy Act 1988

22.1  The Client and/or the Guarantor/s agree for AST Services to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by AST Services.

22.2  The Client and/or the Guarantor/s agree that AST Services may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or

(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in

default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.

22.3  The Client consents to AST Services being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

22.4  The Client agrees that personal credit information provided may be used and retained by AST Services for the following purposes and for other purposes as shall be agreed between the Client and AST Services or required by law from time to time:
(a) provision of Services; and/or

(b) marketing of Services by AST Services, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services;

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or (e)enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.

22.5  AST Services may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the client.

23. Cancellation

23.1  AST Services may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice AST Services shall repay to the Client any sums paid in respect of the Price. AST Services shall not be liable for any loss or damage whatever arising from such cancellation.

23.2  In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by AST Services (including, but not limited to, any loss of profits) up to the time of cancellation.

24. General

24.1  If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

24.2  These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.

24.3  The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by AST Services.

24.4  AST Services reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which AST Services notifies the Client of such change.

24.5  Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

24.6  The terms and conditions set out herein shall prevail over the terms and conditions set out in any document used by the Client, the owner or any other person having an interest in the Goods and purporting to have a contractual effect.

ABN 23 389 053 923

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