Terms of Service

1. DEFINITIONS

In these Terms and Conditions, unless the context or subject matter otherwise require:

Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;

Commercial Credit Conditions means the terms and conditions of any commercial credit agreement between you and ECFD;

Contract means this legally binding agreement entered between you and ECFD for the supply of Services comprising these Terms and Conditions and any Quotation delivered by ECFD to you for the supply of those Services;

Consignment means any goods provided by you together with any containers, packaging or pallets supplied by or on behalf of you and use in the carriage, transportation and/or storage of those goods;

Credit Account means a credit system maintained in any form that ECFD desires from time to time to record and allow you to receive Services before full payment is made;

Debt means any and all moneys owing to ECFD from you at any time whether in relation to one or more transactions, including without limitation any Overdue Amounts;

Delivery means delivery of the Consignment to the location/s agreed between ECFD and You, or to such other place as the parties may agree or as ECFD may at its sole discretion consider reasonable in the circumstances;

Intellectual Property means and includes all copyright and related Rights, all Rights in relation to inventions (including patents and patent Rights), all registered and unregistered trade marks Rights, all Rights relating to registered designs, all circuit layout Rights, and all other Rights resulting from intellectual activity in the artistic, literary or scientific fields excluding any moral attribution Rights;

Invoice means a valid tax invoice from ECFD to you for the supply of Services to you;

Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;

Originating Location means the location of the relevant Consignment at the time an act of acceptance is performed by you in accordance with clause 4 of these Terms and Conditions;

Overdue Amount means any amount of money that remains unpaid seven days after the date of the invoice for that amount or for a sum including that amount;

Parties means you and ECFD;

Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth);

POD means proof from ECFD that the recipient received the Consignment sent by you, in the form of a delivery docket or other document accepting delivery that has been signed by the recipient;

Quotation means a verbal or written offer from ECFD to you for the supply of Services to you;

Right means any legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;

ECFD means East Coast Freight Management Pty. Ltd. ACN 092 789109 and its servants and agents;

Services means the whole of the operations and services undertaken by ECFD from time to time in connection with the Consignment including but not limited to the collection, carriage, transportation, delivery and/or storage of the Consignment;

Subcontractor shall include any person who pursuant to a contract or arrangement with any other person (whether or not ECFD) performs or agrees to perform the Services or any part thereof;

Terms and Conditions means the terms and conditions set out in this document and any Commercial Credit Conditions; and

You/your means the person or entity who has requested the Services and/or the person or entity on behalf of whom the request for Services is made.

• GENERAL
• When you enter into a Contract, agreement or transaction with ECFD, whether conditional or unconditional, you acknowledge and accept that:
  • you have read and understood these Terms and Conditions and you agree to be bound by them;
  • these Terms and Conditions apply to every transaction for the supply of Services from ECFD and ECFD is expressly relying on your acknowledgement that these Terms and Conditions will apply in full to the transaction in agreeing to enter into a Contract with you; and
  • any variation to these Terms and Conditions must be made with the consent of both Parties and must be in writing and signed by both Parties;
  • these Terms and Conditions or any Contract arising from them will not be interpreted, construed or applied adversely to ECFD by reason of their having been drafted by or on behalf of ECFD;
  • ECFD is not a common carrier and accepts no liability as such;
  • ECFD reserves the right to refuse carriage, transportation and/or storage of goods for any person or corporation and the carriage, transportation and/or storage of any class of goods at its sole discretion;
  • ECFD and any subcontractor shall be entitled to subcontract on any terms the Services or any part thereof.
• You warrant that in agreeing to these terms and conditions you are, or have the authority of, the person owning or having any interest in the Consignment or any part thereof.

• ENTIRE AGREEMENT
• These Terms and Conditions and the details contained in a Quotation are the only terms that apply to the Contract.
• No other terms or conditions apply to a transaction or agreement between the Parties.
• You fully indemnify and hold ECFD harmless from any Claim based on terms and conditions outside of these Terms and Conditions.
• ORDERING SERVICES
• When you request services from ECFD, you should specify whether you require:

• assistance with unloading the Consignment at the delivery address, by either forklift truck, tailgate truck or hand unloads;
  • ECFD to undergo induction or training at the delivery address before completing delivery; and

• POD.

• Upon your requesting Services, ECFD will communicate a response to you in accordance with your request and this Quotation will constitute an offer from ECFD to you.
• ECFD’s Quotation may be provided to you in any form including, without limitation, ordinary post, facsimile, email, verbally or by hand delivery.
• A Quotation will lapse if thirty days after the Quotation has been delivered to you, the Quotation has not been accepted by you.
• You may accept a Quotation from ECFD by any of the following:
  • written acceptance;
  • verbal acceptance;
  • part or full payment; or
  • continuing to communicate with ECFD after the offer has been made in a manner that would reasonably imply acceptance of the offer.
• Once you perform an act of acceptance under clause 4(e) of these Terms and Conditions, ECFD is entitled to:
  • rely on this acceptance as forming a contract to provide Services on the basis set out in these Terms and Conditions; and
  • receive from you full payment for the Services regardless of whether or not you wish to complete the transaction at a later time.
• PAYMENT/NON-PAYMENT
• ECFD reserves the right to request payment of an upfront cash deposit before providing Services. If ECFD does not request a cash deposit, payment for the Services must be made within 7 days of Invoice by cheque, direct deposit, cash or credit card. Payments by credit card incur an additional 2.5% processing fee.
• A failure by you to make payment in accordance with clause 5(a) does not:
  • prevent you from accepting the offer in any manner provided for in clause 4(e); or
  • limit or derogate from any of your Obligations under these Terms and Conditions.
• Payment of an Invoice issued by ECFD must be made within seven days of the date of that invoice and only by the methods stipulated on the invoice.
• If payment in full is not received within seven days of the invoice, this constitutes an event of default and the invoiced amount or any unpaid portion of it becomes an Overdue Amount.
• Upon an event of default under clause 5(d), ECFD may:
  • institute legal proceedings to recover the Overdue Amount and all legal costs (on a solicitor and own client basis) incurred by ECFD in the course of those proceedings; and/or
  • seek indemnity for:
    • any and all costs incurred by ECFD in taking any action under this clause; and
    • any Claims against ECFD arising out of ECFD taking any action under this clause.
• You acknowledge that in addition to any price agreed in exchange for the Services you are also liable to pay ECFD the following costs (which you consent to ECFD incurring on your behalf as ECFD considers necessary and which will form part of the Debt immediately upon being incurred by ECFD:
  • POD costs;
  • costs of labour to unload the Consignment;
  • costs of any induction or training at the delivery address;
  • all packaging costs;
  • a futile fee of $35.00 for failed delivery in accordance with clause 6(h);
  • all taxes, duties and charges whatsoever imposed by any government or other government-related authority and payable in respect or by reason of the performance of the Services whether or not the same were payable at the date of the order or offer;
  • the amount of any increase in the costs of ECFD supplying or delivering the Services or any part thereof occurring after the date of order or offer for any reason;
  • any excess over the amount estimated by ECFD in respect of freight, insurance, port dues or handling changes incurred during the performance of the Services; and
  • any excess incurred over the amount estimated by ECFD to be incurred for supplying or delivering Services, even where such excess results from an error or omission on the part of ECFD or its employees.
• You agree that ECFD shall have a lien on the Consignment and any documents relating thereto in ECFD’s possession for any Overdue Amount payable by you to ECFD and for that purpose shall have the right to sell any such Consignment by public auction or private treaty without notice to you.
• DELIVERY
• You warrant that ECFD are authorised to deliver the Consignment to the address nominated by you during the business trading hours specified by you.

• If ECFD are required to complete any training or induction before being authorised to access to the delivery address you will be responsible for any associated costs.

• You hereby authorises any deviation from the usual method or route of carriage or place or storage of the Consignment which may in the absolute discretion ECFD be deemed desirable or necessary in the circumstances.

• ECFD will make all reasonable efforts to deliver the Consignment within a reasonable time. However, time will not be of the essence of the Contract and no

penalty or damages will be incurred or caused by ECFD for:

• late Delivery;
  • failure to provide the Services; or
  • any actions or Obligations conducted or incurred by you in reliance on any expected Delivery date.
• It is agreed that ECFD shall be deemed to have delivered the Consignment in accordance with this Contract if at the nominated address ECFD obtains from any person a receipt or signed delivery docket for the Consignment.

• A further charge may be made to you in respect of any delay in excess of (30) thirty minutes in loading or unloading incurred other than from the default of ECFD. Such permissible delay period shall commence upon ECFD reporting for loading or unloading. Unless requested in accordance with 4(a), labour to unload the Consignment shall be the responsibility of and at the expense of the Consignor.
• If the nominated place of delivery should be unattended or if delivery cannot be effected to any person at that place, ECFD may at its option deposit the Consignment at that place (which shall be deemed to be delivery in accordance with this contract) or store the Consignment and if the Consignment is stored by ECFD the Consignor shall pay or indemnify ECFD for all costs and expenses incurring in or about such storage. In the event that the Consignment is stored by ECFD, ECFD shall be at liberty to redeliver it to the Consignor from the place of storage at the Consignor’s expense.
• If the nominated place of delivery should be unattended or if delivery cannot be effected to any person at that place, you will be liable for a futile fee of $35.00 payable to ECFD for costs and damages incurred by ECFD on account of the failed Delivery.
• The risk and all attached liability for damage of the Consignment remains with you at the point of departure of the Consignment from the Originating Location until Delivery, even if ECFD premises are the Originating Location.
• LIMITATION OF LIABILITY
• If you have a genuine grievance with any Goods or Services provided by ECFD you should notify ECFD in writing by registered post within 21 days from the date of the Invoice for those Services. ECFD will then consider the merits of your claim and at its sole discretion either:
  • re-supply the Services;
  • provide a partial refund, being 50% of the cost of the Services; or
  • decline to provide any remedy contained in this clause.
• ECFD expressly disclaims, to the fullest extent permitted by law, all express, implied and statutory warranties. Where any statutory terms may not be excluded, liability in respect of them is limited to no greater than the cost of re-supply of the Services subject to the statutory warranty.
• ECFD will not be liable for any damage, loss, expense, charge or cost incurred by you as a consequence of:
  • any delay by ECFD to supply the Services to you;
  • termination of a Contract by you or ECFD;
  • cancellation of Delivery by you or ECFD; and
  • any injury or death to you or any other person; and/or any damage to property.
• Every exemption, limitation, condition and liberty herein contained and every Right, exemption from liability, defence and immunity of whatsoever nature applicable to ECFD or to which ECFD is entitled hereunder shall also be available and shall extend to protect every employee or subcontractor of ECFD and every other person by whom the Services or any part thereof are provided.

• CREDIT
• You may apply to ECFD for a Credit Account by means of a specific credit application form (Credit Application), available upon request.
• ECFD has complete discretion to consider, accept or reject an application for a Credit Account and is not obliged to provide reasons for rejection of any application.
• If you provide ECFD with a Credit Application, you consent to and authorise ECFD:

• to obtain any information about any of your consumer or commercial credit or business history or your commercial activities or commercial credit worthiness from your bank or any trade referee disclosed in the Credit Application and any other credit provider or credit reporting agency for the purposes of assessing the application for credit, and to disclose such information to a credit reporting agency;

• unless otherwise prevented by law to collect from, store, use, disclose to or exchange with any of the parties named in clause 8(c)(i) above or any other credit providers named in the Credit Application or named in a consumer credit report issued by a credit reporting agency, third party providers, solicitors, mercantile agents, insolvency administrators, insurers and insurance brokers, persons involved with the collection of trade bills or the factoring of trade debt, information about your personal or commercial credit worthiness or business history in order to assess the Credit Application, monitor the credit worthiness or withdraw credit facilities, notify of your default, issue trade bills, insure risk, process any payment instructions, direct debit facilities and or credit facilities requested by you to enable the daily operation of your Credit Account and collect overdue accounts; and

• to the extent permitted by law, to disclose the contents of a credit report by a credit reporting agency to ECFD’s solicitors or mercantile agents.
• If you provide ECFD with a Credit Application, you consent to the use and storing of any Personal Information provided for the following purposes and any other purposes as shall be agreed between ECFD and you from time to time:
  • to manage ECFD’s business relationship with you;

• to administer and manage ECFD’s services and systems;

• to enforce ECFD’s Rights;

• to enter into contracts with you or third parties, and

• to market to and maintain a relationship with you.
• ECFD agree that, in dealing with information disclosed to ECFD by you pursuant to clause 8(c) and 8(d), ECFD will deal with that information in accordance with the ECFD Standard Terms and Conditions, Privacy Policy and the Privacy Act 1988. A copy of the ECFD Privacy Policy is available upon request, or at http://www.ecfd.com.au/privacy-policy.html
• Any application for credit completed on behalf of a corporation, must also bind its Directors personally for all Obligations contained within the Commercial Credit Conditions and these Terms and Conditions. A failure by you to ensure this occurs will result in a retrospective revocation of credit terms and each invoice issued under the Commercial Credit Conditions will become an Overdue Amount if not paid within seven days of the revocation.
• ECFD is entitled to pursue the corporation’s Directors personally for any Debt without any requirement to pursue the corporation first.
• You acknowledge that:
• ECFD has absolute discretion in deciding whether or not to grant you a Credit Account or to terminate or revoke an existing Credit Account;
• there is no appeal process upon rejection of an application for a Credit Account or termination of an existing Credit Account;
• ECFD is not liable for any consequences arising from denying you a Credit Account or terminating an existing Credit Account; and
• any Credit Account can be terminated at any time upon notice from ECFD to you in any form at which time all money payable under the Credit Account:

A            becomes immediately payable and forms part of the Debt; and

B            may be treated as an Overdue Amount if not paid within seven days of termination of the Credit Account or other request for payment.

• GOODS FIT FOR CARRIAGE
• You shall not tender for carriage or storage any volatile or explosive goods, or goods which are or may become dangerous, inflammable or offensive (including radioactive materials) or which are or may become liable to damage any property whatsoever without presenting a full description disclosing the nature of such goods, and in the event shall be liable for all loss and damage caused thereby.

• If in the sole opinion of ECFD the Consignment becomes or is liable to become of a dangerous, inflammable, explosive, volatile or damaging nature the same may at any time be retained, destroyed, disposed of, abandoned or rendered harmless by ECFD without compensation to you and without prejudice to ECFD’s Rights to any charges hereunder and at your expense.
• You warrant that you have complied with all laws and regulations relating to the nature, packaging, labelling, storage or carriage of the Consignment and that the Consignment is packed in manner adequate to withstand the ordinary risks of storage and/or carriage having regard to its nature and hereby indemnify ECFD for any liability whatsoever and for all costs and expenses as a result of or arising out of your failure to comply with each of these warranties.

• You shall be responsible for the conformity of any containers, packaging or pallets with any requirements of the recipient and for any expense incurred by ECFD arising from any failure to so conform.

• Goods are accepted by ECFD subject to the condition that ECFD accepts no responsibility for the collection of cash on delivery or any other payments on your behalf or on behalf of any other person. When goods are tendered by any person with instructions for ECFD to collect any such payments ECFD shall not be bound by such instructions notwithstanding that ECFD may accept those goods as tendered and perform other services of carriage, forwarding or storage in relation to those goods.

1. LICENCES
2. If it is necessary for the lawful fulfilment of any transaction under these Terms and Conditions:
   1. for you to hold or obtain any license, consent or authority (Licence), you will fully indemnify ECFD from any Claims or losses arising out of your failure to hold or obtain any Licence;
   1. for ECFD to hold or obtain any Licence, ECFD may take any reasonable steps to comply with its legal requirements in this regard. However, you acknowledge that ECFD has made no representation that ECFD holds any relevant Licence and you fully indemnify ECFD for any Claim or loss arising out of your reliance on any presumption that ECFD does hold any relevant Licence.
3. TERMINATION

Termination by ECFD

• ECFD may terminate any transaction arising out of the provision of its Goods or Services to you immediately upon notice to you in any form at any time.
• ECFD’s only liability to you upon termination by ECFD is limited to a refund of the amount of payments made in advance of the Services which ECFD has yet to deliver or provide, after deduction of any Debt owing to ECFD.

Termination by you

• You may terminate any agreement arising out of the provision of the Services to you upon written notice to ECFD sent by registered post to PO Box 446, Buderim, QLD 4556 or to any other address that ECFD may nominate in writing for that purpose.
• Even if you terminate a transaction with ECFD in accordance with clause 11(c), you are still liable to pay the full amount that would have been payable upon completion of the Delivery provided that ECFD has commenced any part of the process involved in completing the transaction agreed, including, without limitation, any administrative function.
• Upon receipt of your written termination, ECFD will issue an invoice for any amounts payable that have not

yet been paid. The amount of this invoice will become an Overdue Amount if not paid within seven days after the date of the invoice.

Following Termination

• Following termination, you must immediately return any of ECFD’s property in your possession or control including but not limited to ECFD’s connote books.
• INTELLECTUAL PROPERTY/CONFIDENTIAL INFORMATION

(a)                All documents, information systems and know how provided to or disclosed to you by ECFD must be treated as confidential by you and you warrant not to lend, copy, use, dispose of or sell such documents, information systems or know-how without the prior written consent of ECFD.

1. PRIVACY

(a)                Without limiting any other clause in these Terms and Conditions, ECFD will not, without your consent, use your Personal Information in a way that breaches the Australian Privacy Principles set out in the Privacy Act 1988 (Cth). A copy of the ECFD Privacy Policy is available upon request, or at http://www.ecfd.com.au/privacy-policy.html.

1. DISPUTE RESOLUTION
2. If you consider there is a legitimate dispute between ECFD and you (the Parties) as to any part of a transaction governed by these Terms and Conditions, you must first go through the following dispute resolution process before the commencement of any arbitration or other legal proceedings.
3. You must give ECFD notice in writing setting out full details of the dispute (Dispute Notice).
4. To resolve the dispute:
   1. for a period of 14 days after a Dispute Notice is given (or a longer period if the Parties agree in writing), the Parties will engage in negotiations and discussions in order to seek to resolve the dispute.
   1. the Parties must participate in the negotiations and discussions referred to in clause 14(c)(i) in good faith and will use all reasonable endeavours to resolve the dispute. The Parties may also appoint third party consultants to assist in the resolution of the dispute.
   1. if the Parties cannot resolve the dispute within the period set out in clause 14(c)(i), you may request that the dispute be referred to mediation upon providing a written undertaking to bear all costs involved in the mediation.
   1. if you do not undertake to pay all costs involved in the mediation, then ECFD Pty Ltd is not obliged to attend any mediation.
5. If the Parties to the dispute cannot agree on a mediator within seven days after a request under clause 14(c)(iii), upon the request of either Party the president of the Queensland Law Society Inc or that president’s nominee may appoint a mediator.
6. Unless agreed by the mediator and Parties, the mediation must be held within 15 days of a request for the dispute to be referred to mediation being made under clause 14(c)(iii) and must occur on the Sunshine Coast unless otherwise agreed.
7. If a Party to a dispute fails to comply with any aspect of clause 14(c), the other Party does not have to comply with that clause in relation to the dispute.
8. Nothing in these Terms and Conditions obliges ECFD to attempt the dispute resolution process outlined in clause 14 before it can take action against you.
9. ILLEGALITY AND SEVERABILITY
10. The provisions of these Terms and Conditions will so far as possible be construed so as not to be invalid, illegal or unenforceable in any respect but if any provision on its true interpretation is illegal, invalid or unenforceable:
    1. that provision will so far as possible be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation of a partial character; or
    1. if the provision or part of it cannot be read down the provision or part will be deemed to be void and severable and the remaining provisions of this instrument will not in any way be affected or impaired.
11. JURISDICTION
12. You irrevocably acknowledge that despite:
    1. your business or residential location;
    1. the delivery place of the Consignment or the location of the provision of the Services; or
    1. any other geographical indicia,

any transaction entered into between you and ECFD is entered into under the laws of Queensland.

• Any dispute that is not resolved in accordance with the process outlined in clause 14 must be resolved in a court of competent jurisdiction in Queensland.