Part A: General conditions (apply to all Services)
1. Application and acceptance
1.1 These Conditions apply to all Services provided by Fastrak Logistics Pty Ltd ACN 665 965 613 in its capacity as trustee for the Fastrak Trust, ABN 90 897 269 851 (the Company), whether or not a charge is made.
1.2 The Customer accepts these Conditions by requesting a quote, giving Instructions, delivering Goods to the Company or its agents, accepting any Service or paying any Charge, whether or not the Customer has signed them.
1.3 Part A applies to all Services. Part B also applies where the Company acts as agent. Part C also applies where the Company acts as principal.
1.4 If the Company issues a bill of lading, sea waybill or air waybill under which it contracts as carrier, the terms of that document prevail over these Conditions to the extent of any inconsistency, but no further.
1.5 These Conditions prevail over any terms in the Customer’s purchase order, booking form, email or other document, unless a Director of the Company agrees otherwise in writing.
1.6 No employee or agent of the Company other than a Director may vary or waive these Conditions, and only in writing.
1.7 The Company may update these Conditions by publishing a new version on its website. For account Customers it will give at least 30 days’ written notice. An update applies only to Services requested after it takes effect.
2. Definitions
In these Conditions:
- Authority means any government department, agency, port, airport, terminal or other body with legal power over the Goods or Services, including the Australian Border Force and the Department of Agriculture, Fisheries and Forestry.
- Charges means all amounts payable to the Company for the Services, including freight, fees, disbursements, duties, taxes, GST, surcharges and third-party costs.
- Chargeable Weight has the meaning in clause 4.5.
- Container includes any container, flexitank, trailer, transportable tank, flat rack, pallet or other article used to carry or consolidate Goods, and its equipment.
- Customer means any person who requests, accepts or benefits from the Services, or on whose behalf they are provided, and includes its agents.
- Dangerous Goods means goods that are or may become dangerous, flammable, explosive, radioactive, corrosive, toxic, infectious or damaging, goods classed as dangerous under any law or the IMDG Code or IATA Dangerous Goods Regulations, and goods likely to harbour pests or vermin.
- Goods means the cargo for which the Company provides Services, including any Container, packaging or pallet not supplied by the Company.
- Instructions means the Customer’s specific requirements, given in writing or through the Company’s website or booking forms.
- Owner includes the owner, shipper, consignor, consignee and receiver of the Goods, and anyone with an interest in them.
- PPSA means the Personal Property Securities Act 2009 (Cth).
- SDR means the Special Drawing Right as defined by the International Monetary Fund.
- Services means all services provided by the Company, including freight forwarding, arranging customs clearance, transport, storage, warehousing, fulfilment, packing and advice, and anything incidental to them.
3. Agent or principal
3.1 The Company acts as agent only, except where:
- it performs carriage, handling or storage itself, with its own employees, while the Goods are in its actual custody and control;
- it issues its own bill of lading, sea waybill or air waybill as carrier;
- it expressly agrees in writing to act as principal; or
- a court decides it acted as principal.
3.2 Charging a fixed or all-in price, or supplying its own or leased equipment, does not by itself make the Company a principal.
3.3 The Company always acts as agent only when it arranges customs clearance, arranges insurance, obtains permits, licences, certificates or inspections, or gives advice.
3.4 The Company is not a common carrier. It may refuse any Goods or Instructions at its discretion.
4. Quotes and chargeable weight
4.1 Quotes are valid for 7 days, or until the carrier’s rate expires if earlier, unless the quote states otherwise.
4.2 Quotes are based on the information the Customer provides, including in the Company’s online quote forms, and exclude duty, GST, Authority charges, inspections, fumigation, demurrage, detention, storage and waiting time unless the quote expressly includes them.
4.3 If the actual weight, dimensions, volume (CBM), number of pieces, nature of the Goods, Incoterms, pickup or delivery addresses, site access or timing differ from what the Customer provided, the Company may charge on the actual details and recover any extra costs.
4.4 Quotes are subject to carrier and third-party rates, surcharges and currency exchange rates, which may change after the quote is given. Examples include fuel and currency adjustment factors, general rate increases, peak season, security and war risk surcharges. The Company may pass on these changes at cost.
4.5 The Company charges on the greater of actual weight and Chargeable Weight, calculated as:
- air freight: length × width × height in cm ÷ 6,000 per piece;
- sea freight (LCL): 1 cubic metre = 1,000 kg (weight or measure, whichever is greater);
- road freight: 250 kg per cubic metre, or the carrier’s conversion if higher.
4.6 Charges in foreign currency are converted to Australian dollars at the rate applying on the invoice date.
5. Charges and payment
5.1 The Customer must pay all Charges:
- for cash Customers, before the Services are performed or the Goods are released, as the Company directs; or
- for approved account Customers, within 7 days of the invoice date.
5.2 Duty, GST and other amounts payable to an Authority must be paid to the Company in cleared funds before the Company lodges the relevant entry or makes the payment, unless agreed in writing. The Company is not obliged to pay any amount on the Customer’s behalf.
5.3 Charges are earned and payable whether or not the Goods are lost, damaged, delayed, seized or not delivered.
5.4 The Customer must pay all Charges without set-off, deduction or counterclaim. The Company may set off any amount it owes the Customer against amounts the Customer owes it.
5.5 If the Company is instructed to collect Charges from another person, the Customer remains liable for them and must pay on demand if they are not paid when due.
5.6 Overdue amounts attract interest at 10% per year above the Reserve Bank of Australia cash rate target, calculated daily from the due date until payment.
5.7 The Customer must pay the Company’s reasonable costs of recovering overdue amounts, including debt collection agency fees and legal costs.
5.8 Card payments may attract a surcharge not exceeding the Company’s cost of acceptance.
5.9 If any amount is overdue, the Company may, without liability, suspend or stop any Services, hold any Goods or documents under clause 15, withdraw credit, and require immediate payment of all amounts owing, whether or not due.
5.10 The Customer must notify the Company in writing of any dispute about an invoice within 7 days of the invoice date and pay any undisputed amount by the due date.
5.11 Charges exclude GST unless stated. Where GST applies, the Customer must pay it in addition.
6. Credit accounts
6.1 Credit is available only to Customers whose credit application the Company has approved. The Company may require a personal guarantee from the Customer’s directors, trade references or security.
6.2 The Company may set, vary, suspend or withdraw a credit limit or credit account at any time by written notice, and immediately if the Customer breaches these Conditions or an insolvency event occurs.
6.3 If the Customer becomes insolvent, enters administration, liquidation, receivership or bankruptcy, or makes an arrangement with its creditors, all amounts owing become immediately due.
7. Customer’s obligations and warranties
7.1 The Customer warrants that it is the Owner or the authorised agent of the Owner, and accepts these Conditions for itself and for every Owner.
7.2 The Customer warrants that:
- all information it gives about the Goods is complete, accurate and not misleading, including description, tariff classification, value, origin, weight, dimensions, quantity and Incoterms;
- the Goods are properly packed, marked and labelled for the intended carriage and handling, unless the Company has agreed in writing to pack them;
- the Goods and the Services comply with all laws, including customs, biosecurity, export control, sanctions, intellectual property and product safety laws;
- it holds all permits, licences and approvals needed for the Goods; and
- it will give clear, complete and timely Instructions.
7.3 Verified gross mass: For sea freight, the Customer must give the verified gross mass of each packed Container as required by the SOLAS Convention. The Company may rely on it without checking.
7.4 Chain of Responsibility: For road transport, the Customer warrants that weights, dimensions, load restraint and packing information are accurate and that its own conduct complies with the Heavy Vehicle National Law. The Customer must not pressure the Company or its carriers to breach driving hours, mass, dimension or loading limits.
7.5 The Customer is liable for all extra costs, fines and losses the Company incurs because of inaccurate, incomplete or late information, or illegal, incorrect or insufficient marking or addressing of the Goods.
8. Customs and biosecurity
8.1 The Company is not a licensed customs broker. It arranges customs clearance through licensed customs brokers, acting as the Customer’s agent, and the Company and the broker rely on the information and documents the Customer provides. The Customer remains the owner of the Goods for the purposes of the Customs Act 1901 (Cth) and is responsible for the accuracy of every declaration made on its information.
8.2 The Customer must pay, and indemnify the Company against, all duty, GST, levies, penalties, infringement notices, fines and costs imposed by any Authority in connection with the Goods, except to the extent caused by the Company’s negligence.
8.3 Advice on tariff classification, valuation, origin, concessions, duty drawback or biosecurity is based on the information supplied and is given for the Customer’s use only. It is not a guarantee of how an Authority will treat the Goods.
8.4 The Customer must comply with the Biosecurity Act 2015 (Cth), provide accurate packing declarations and treatment certificates, and pay all inspection, treatment, fumigation, re-export and destruction costs ordered by an Authority.
8.5 The Customer must keep its own commercial records for the Goods for the period required by law. The Company may keep copies of documents it handles.
8.6 The Company is not liable for delay, storage, demurrage or detention caused by an Authority holding, inspecting or examining the Goods.
8.7 The licensed customs broker engaged for the Customer’s Goods may apply its own terms of engagement, which the Customer agrees to accept. The Company is not liable for the acts or omissions of the customs broker, except to the extent caused by the Company’s negligence.
9. Dangerous, perishable and special goods
9.1 The Customer must not deliver Dangerous Goods, or ask the Company to handle them, without the Company’s prior written agreement and a full written declaration of their nature and classification.
9.2 If the Customer breaches clause 9.1, it is liable for all resulting loss and damage, and the Company, or anyone holding the Goods, may destroy, unload or otherwise deal with them at the Customer’s cost and without liability. The Company will give notice where reasonably possible.
9.3 If the Company accepts Dangerous Goods and they later become a danger to people, property or other goods, the Company may deal with them as in clause 9.2.
9.4 The Customer must not tender Goods that need temperature control without prior written notice of the required temperature range. For Containers the Customer packs, the Customer must make sure the Container is properly pre-cooled or pre-heated, the Goods are properly stowed and the controls are correctly set. The Company is not liable for loss caused by a failure to do so.
9.5 Unless agreed in writing before receipt, the Company will not accept bullion, cash, precious stones, jewellery, art, antiques, firearms, live animals, personal effects or other valuable or special Goods. If the Customer delivers them anyway, the Company is not liable for them in any way.
9.6 Unless agreed in writing, the Company is not responsible for any departure or arrival date, transit time or connection.
10. Insurance
10.1 The Company does not insure the Goods unless the Customer gives express written Instructions to do so and agrees to pay the premium. The Customer is strongly advised to arrange marine or transit insurance for the full value of the Goods.
10.2 When the Company arranges insurance, it acts only as the Customer’s agent, not as an insurer or insurance broker, and the cover is subject to the insurer’s policy terms and exclusions.
10.3 The Company may place cover under an open or general policy. If the insurer disputes or declines a claim, the Customer’s only recourse is against the insurer.
11. Indemnities
11.1 The Customer and the Owner jointly and severally indemnify the Company, and its employees, subcontractors and agents, against all liability, loss, damage, costs (including reasonable legal costs), fines and expenses arising from:
- the nature, condition or packing of the Goods;
- the Company acting on the Customer’s or Owner’s Instructions;
- any breach of these Conditions, warranty or law by the Customer or Owner;
- any claim by an Owner or third party relating to the Goods that exceeds the Company’s liability under these Conditions; or
- any person other than the Customer relying on the Company’s advice or information,
except to the extent caused by the negligence or wilful misconduct of the Company.
11.2 The Customer is liable for loss of, damage to, contamination of and detention or demurrage of Containers, vehicles, vessels and other property of the Company, its subcontractors or any other person, caused by the Customer, the Owner or anyone acting for them.
12. Subcontractors and third parties
12.1 The Company may subcontract any part of the Services on any terms, including terms that limit or exclude the subcontractor’s liability.
12.2 The Customer must not make any claim against the Company’s employees, subcontractors or agents that imposes liability on them in connection with the Goods. If it does, it indemnifies the Company against the consequences.
12.3 Every employee, subcontractor and agent of the Company has the benefit of every exclusion, limitation and defence in these Conditions. The Company accepts these Conditions as agent and trustee for them.
13. Company’s rights and liberties
13.1 Unless agreed otherwise in writing, the Company may, without notice to the Customer, arrange carriage by any route, mode or carrier, carry Goods on or under deck, consolidate them with other goods, and store, tranship, load, unload or handle them anywhere.
13.2 The Company may depart from the Customer’s Instructions if it reasonably considers this necessary in the Customer’s interest or for safety or legal compliance. It will tell the Customer as soon as practicable.
13.3 The Company may comply with any order or recommendation of an Authority. Its responsibility for the Goods ends on delivery or disposal in accordance with that order.
13.4 The Company may open and inspect any Goods or Container at any time.
13.5 If the Company reasonably considers that performance is or is likely to be affected by any hindrance, risk, delay or difficulty it cannot avoid by reasonable efforts, it may, after giving written notice where reasonably possible:
- take extra steps and incur extra costs, which the Customer must reimburse; or
- end its obligations and place the Goods at the Customer’s disposal at any place it considers safe, at the Customer’s cost, after which its responsibility for the Goods ends.
13.6 If the Customer or Owner does not take delivery when and where required, the Company may store the Goods in the open or under cover at the Customer’s sole risk and cost.
13.7 The Company may sell or dispose of Goods, at the Customer’s cost and without liability:
- that cannot be delivered as instructed, or are not collected, after 21 days’ written notice to the Customer; or
- that have perished, deteriorated or become dangerous, or are about to, after such notice as is reasonably possible in the circumstances.
13.8 The Company may keep all brokerage, commissions, rebates and allowances customarily retained by freight forwarders.
14. Storage, warehousing and fulfilment
14.1 Goods are stored at the Customer’s sole risk. The Company does not insure stored Goods unless agreed in writing under clause 10.
14.2 Storage is charged from the day Goods arrive, with any minimum charge in the Company’s rate schedule. Storage charges continue until the Goods are collected and all Charges paid.
14.3 For fulfilment and inventory services, the Customer must give accurate stock, order and product data. Stock is counted on receipt by carton unless agreed otherwise. The Company is not liable for a stock variance of up to 0.5% of the value of stock handled in any 12-month period.
14.4 The Company may refuse to release Goods to any person other than the Customer, or a person the Customer nominates in writing, and may require identification and proof of authority.
14.5 Either party may end storage or fulfilment Services by 30 days’ written notice. The Customer must remove all Goods and pay all Charges by the end of the notice period. Goods not removed may be dealt with under clause 13.7.
15. Lien and security interest
15.1 The Company has a particular and general lien over all Goods and documents in its possession or control, for all amounts owed by the Customer or Owner on any account, not only for those Goods.
15.2 If any amount remains unpaid for 28 days after written notice to the Customer, the Company may sell or dispose of the Goods or documents by public auction or private sale, at the Customer’s risk and cost, and apply the proceeds to the amounts owed and the costs of sale.
15.3 The Customer grants the Company a security interest under the PPSA in all Goods and documents in the Company’s possession or control, and their proceeds, to secure all amounts owed to the Company now or in future.
15.4 The Customer consents to the Company registering a financing statement on the Personal Property Securities Register, and must sign any document and give any information the Company reasonably requires for this purpose.
15.5 To the extent the law allows, the Customer waives its right to receive any notice under the PPSA, including a verification statement, and the parties contract out of the sections of the PPSA listed in section 115(1) that the law permits.
16. Containers
16.1 If a Container was not packed by the Company, the Company is not liable for loss or damage caused by how it was packed, the unsuitability of the Goods for Container carriage, a defect in a Container not supplied by the Company or apparent on reasonable inspection, or the Container not being sealed at the start of carriage.
16.2 Unless requested in writing, the Company is not obliged to supply a Container of any particular type or quality.
16.3 The Customer must return Containers empty, clean and undamaged within the carrier’s free time, and pays all detention, demurrage, cleaning and repair charges.
17. Exclusions of liability
17.1 Except as otherwise provided in these Conditions, the Company is not liable for any loss, damage, delay or cost arising from:
- any act or omission of the Customer, Owner or anyone acting for them;
- complying with Instructions given by the Customer, Owner or anyone entitled to give them;
- insufficient packing, labelling or marking, unless the Company provided that service;
- handling, loading, stowage or unloading by the Customer, Owner or anyone acting for them;
- inherent vice or the nature of the Goods, including shrinkage, leakage, evaporation, mould, rust or perishability;
- any act or order of an Authority, including seizure, inspection, quarantine or detention;
- strikes, lockouts, labour disputes or industrial action;
- fire, flood, storm, explosion, theft, or any event under clause 21; or
- any cause the Company could not avoid by exercising reasonable diligence.
17.2 The Company is not liable for any indirect or consequential loss, loss of profit, revenue, market, contract or opportunity, or any loss caused by delay, however arising, including through negligence.
18. Limits of liability
18.1 Subject to clauses 18.4 and 18.5 and Part C, the Company’s total liability for any claim, however arising, including negligence, is limited to the lowest of:
- the value of the Goods lost or damaged;
- 2 SDR per kilogram of the gross weight of the Goods lost or damaged; and
- for claims not involving physical loss or damage to Goods, including delay, misdelivery or errors in documents, the Charges paid for the Service concerned.
18.2 Value is the invoice value of the Goods plus freight and insurance if paid or, if there is no invoice, their market value at the place and time they were, or should have been, delivered.
18.3 These limits apply even if the cause of the loss is unexplained.
18.4 The Company may agree in writing, before it receives the Goods, to accept higher liability if the Customer declares a value and pays the Company’s additional charge.
18.5 Nothing in these Conditions excludes, restricts or modifies any right or remedy under the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) that cannot lawfully be excluded. Where the Services are not of a kind ordinarily acquired for personal, domestic or household use, the Company’s liability for breach of a consumer guarantee is limited, at its option, to supplying the Services again or paying the cost of having them supplied again.
19. Claims and time limits
19.1 The Company is discharged from all liability unless:
- written notice of the claim, with reasonable details, is received by the Company within 14 days after the relevant date in clause 19.2, or within a reasonable time if the Customer proves it was impossible to give notice earlier; and
- legal proceedings are started, and written notice of them received by the Company, within 9 months after that date.
19.2 The relevant date is the date of delivery for loss or damage, the date delivery should have occurred for delay or non-delivery, and the date of the event giving rise to the claim in all other cases.
19.3 The Customer must pay all Charges in full before any claim is considered. A claim does not entitle the Customer to withhold payment.
20. General average
20.1 The Customer indemnifies the Company against any general average or salvage claim, and must provide any general average security required, immediately on request.
20.2 The BIMCO Both-to-Blame Collision Clause, current at the time the Services are provided, forms part of these Conditions.
21. Force majeure
The Company is not liable for failure or delay in performing the Services caused by events beyond its reasonable control, including natural disasters, epidemics, war, terrorism, sanctions, government action, port or terminal congestion, carrier schedule changes, blank sailings, equipment shortages, cyber attacks, power or system failures, and industrial action.
22. Electronic communications and payment security
22.1 Notices may be given by email to the address last provided by the other party. An email is received when it enters the recipient’s mail server, unless the sender receives a delivery failure message.
22.2 The Company will never change its bank account details by email alone. Before paying to new or changed account details, the Customer must confirm them by phone on 1300 816 433. The Company is not liable for, and the Customer’s debt is not reduced by, any payment made to a fraudulent account.
22.3 The Company may rely on any Instruction it reasonably believes was given by the Customer, including by email or online form.
23. Privacy
The Company collects and handles personal information in accordance with the Privacy Act 1988 (Cth) and its Privacy Policy. Personal information may be disclosed to carriers, agents, Authorities and service providers in Australia and overseas as needed to provide the Services.
24. General
24.1 If any provision is void, unenforceable or unfair, it is severed and the rest of these Conditions continue to apply.
24.2 A failure or delay by the Company in exercising a right is not a waiver of it.
24.3 The Customer may not assign its rights without the Company’s written consent.
24.4 All exclusions, limits, indemnities and the lien and security interest survive the end of the Services.
24.5 If any law applies compulsorily to the Services, these Conditions are read subject to it, without increasing the Company’s liability beyond what that law requires.
24.6 The defences and limits in these Conditions apply to any claim, whether in contract, tort (including negligence), under statute or otherwise.
25. Governing law
These Conditions are governed by the law of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth courts sitting there.
Part B: When the Company acts as agent
26. Agency services
26.1 When acting as agent, the Company does not contract with the Customer for carriage, storage or handling. It arranges these services with third parties on the Customer’s behalf, so that the Customer contracts directly with them.
26.2 The Company is not liable for the acts or omissions of those third parties.
26.3 The Company has authority to enter into contracts on the Customer’s behalf on the third parties’ usual terms, which bind the Customer, even if those terms limit or exclude their liability.
26.4 The Company will not declare a value to any carrier, or choose a rate based on higher liability, unless agreed in writing beforehand.
Part C: When the Company acts as principal
27. Liability as principal
27.1 When acting as principal, the Company is liable, subject to these Conditions, for loss of or damage to the Goods from when it takes them into its charge until delivery.
27.2 If the Company subcontracts and the loss or damage happened while the Goods were with a subcontractor, the Company has the benefit of every right, limit and exclusion available to that subcontractor, and its liability will not exceed the amount it recovers from the subcontractor.
27.3 If it can be proved where the loss or damage happened, and an international convention or national law that cannot be contracted out of would have applied to a direct contract with the carrier for that stage, the Company’s liability is determined by that convention or law.
28. Sea carriage
28.1 If the loss or damage happened at sea or on inland waterways and clause 27.3 does not apply, the Company’s liability is determined by the Hague-Visby Rules as applied by the Carriage of Goods by Sea Act 1991 (Cth).
28.2 If the vessel owner or operator limits its liability and establishes a limitation fund, the Company’s liability is limited to the share of that fund allocated to the Goods.
29. Air carriage
29.1 For international carriage by air, the Montreal Convention 1999 or the Warsaw Convention, as applicable and as given effect by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), may apply and in most cases limits the carrier’s liability for loss of, damage to or delay of Goods.
29.2 Where the Company acts as principal for air carriage, its liability is determined in accordance with the applicable convention.
30. Carriage in other countries
For carriage within another country, including the United States and Canada, the Company’s responsibility is to arrange carriage by carriers on their usual contracts and tariffs, subject to any law compulsorily applicable in that country.
