Agreement has the meaning given to it in clause 3.5.
Australian Road Rules means the National Transport Commission’s Australian Road Rules.
Austroad Registration and Licensing Task Force Requirements means any applicable requirements, codes or other standards or the Austroad Registration and Licensing Taskforce.
Carrier means the carrier detailed on the Transport Order engaged by Ofload to provide the Carrier Transport Services.
Carrier Transport Services means the loading, unloading, Transport, Delivery, and other ancillary services provided by the Carrier with regards to the Goods.
Chain of Responsibility Legislation means the Heavy Vehicle National Law (NSW) and other equivalent State-based legislations applicable to the operation of Heavy Vehicles.
Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:
but does not include information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.
Customer (being the consignor) means the entity that has engaged Ofload to provide certain transport services for the Goods, specified in either the Transport Order or according to Transport Order-related instructions of Ofload.
Delivery means actual and effected delivery of the Goods to the Recipient, evidenced by the completion of the Delivery Documents.
Delivery Documents means a receipt of delivery, a company stamp, an authorised signature of the Recipient (and/or an authorised representative of the Recipient), a date, unloading time, a consignment letter and/or any other documentation required by Ofload, a Customer and/or a Recipient to effect Delivery.
Driver means the driver undertaking the Transport using the Vehicle
Fatigue Laws means any applicable fatigue management laws, regulations, and necessary accreditations and/or licences applicable to fatigue-related Heavy Vehicles.
Food Safety Requirements means the Food Standards Australia New Zealand Act (Cth) 1991; the Food Standards Australia and New Zealand (FSANZ); the Food Regulation 2015; and any other applicable laws, regulations, and/or codes (including State and Federal) that are applicable to the transport of foods and perishable goods, including any such laws, regulations and/or codes that govern the types of vehicles in which foods and perishable goods can be transported, temperature management obligations, and hygiene standards.
Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:
Freight Charge means the fee payable to the Carrier by Ofload for the provision of the Carrier Transport Services
Goods (being the consignment) means the goods, packaging, pallets, containers, etc. of a Customer.
Heavy Vehicles has the meaning given to that term in section 6 of the Heavy Vehicle National Law (NSW)
Substances means any legal (eg prescription medication) and/or illegal drugs, alcohol, and/or other substances that affect or influence driving skills and/or are otherwise prohibited or restricted under any applicable Road Transport Legislation.
Laws means Fatigue Laws, Mass Management Requirements, Load Restraint Requirements, Privacy Laws, Road Transport Legislation, Food Safety Requirements and all other applicable laws, regulations and/or codes, including any laws regarding the use of Substances while driving and undertaking road transport activities.
Load Restraint Requirements means any applicable load restraint laws, regulations, standards, systems, requirements accreditations, and/or licences applicable to Heavy Vehicles and/or other vehicles under any applicable Laws.
Ofload App means the Ofload mobile application.
Mass Management Requirements means any applicable mass management laws, regulations, standards, systems, requirements accreditations, and/or licences applicable to Heavy Vehicles and/or other vehicles under any applicable Laws.
National Heavy Vehicle Regulator or NVHR means the independent regulator for all Heavy Vehicles, established in 2013 as a statutory authority pursuant to the Chain of Responsibility Legislation.
Performance Criteria means the performance criteria and assessment methodology as set out in Schedule 1.
Privacy Laws means the Privacy Act 1988 (Cth) or any other applicable laws relating to the collection of personal information (as that term is commonly defined) as may be applicable in the jurisdiction where such personal information is collected.
Road Transport Legislation means together the Chain of Responsibility Legislation; the Australian Road Rules; the Austroad Registration and Licensing Task Force Requirements; the National Heavy Vehicle Regulator; and any other applicable laws, regulations, and/or codes (including State and Federal) that are applicable to road transport activities and the obligations of those involved in such activities, including drivers, carriers, loaders, transport operators, etc.
Real-time Tracking means continuous reporting of GPS longitude and latitude data for the duration of the Transport plus 30 minutes before Order is picked up, and delivered through the Ofload App or a Telematics provider integrated with Ofload’s system.
Recipient (being the consignee) means the recipient of the Goods specified in either the Transport Order or according to Transport Order-related instructions of Ofload.
Restraint Period means:
Site means the Ofload website located at the URL www.Ofload.com.au.
Subcontractor has the meaning given to it in clause 8.
Terms means these general terms and conditions.
Transport means the Carrier’s actual carriage of the Goods between the pickup and delivery addresses in accordance with a Transport Order.
Transport Order means the order issued by Ofload to the Carrier for the provision of Transport Services.
Transport Documentation means the Transport Order, any applicable consignment bill, consignment note and, if applicable, the CMR consignment, commercial invoices, packing lists or other documentation related to the Transport Order.
Vehicles means the vehicles owned and/or operated by the Carrier and used for the provision of the Carrier Transport Services.
2. Terms and Carrier registration
2.1 These Terms shall apply between Digital Services Australia IV Pty Ltd (ACN 633 652 749) (Ofload, we, us or our) and the Carrier engaged to provide the Transport Services.
2.2 The Carrier must register and set up a profile on the Site to receive and accept Transport Orders. The Carrier is responsible for maintaining the confidentiality of its profile password and registration and is fully responsible for all activities that occur under the Carrier’s profile. The Carrier agrees to immediately notify Ofload of any unauthorised use of the profile or any other breach of security.
2.3 Prior to being considered for engagement to provide the Transport Services and/or having its registration to the Site accepted, the Carrier must satisfy certain minimum requirements and provide certain information. This includes:
2.4 Ofload reserves the right to request additional and/or updated information from the Carrier at any time and the Carrier will promptly provide such information.
2.5 Ofload will verify registrations and reserves the right to prohibit the creation of a Site profile or delete it. Ofload is under no obligation to accept a Carrier’s registration on the Site and/or engage a Carrier to provide the Transport Services and reserves the right, in its sole and absolute discretion, to reject a Carrier’s request for engagement, including where the Carrier does not satisfy the minimum requirements set out above.
2.6 The Carrier acknowledges and agrees that despite any other provision of this agreement:
2.7 The Carrier warrants and represents that any and all information provided by it to Ofload is relevant, accurate, complete and current information.
2.8 In the case of inconsistencies between the:
the order listed above will be the order of precedence.
2.9 We may, on notice to the Carrier, vary these Terms. The Carrier’s continued acceptance of any Transport Orders following any changes indicates the Carrier’s acceptance of the changes.
3. Transport order(s) and formation
3.1 From time to time, Ofload will issue the Carrier with a transport order (Transport Order) requesting the Carrier’s provision of Carrier Transport Services.
3.2 The Transport Order will contain details regarding the collection/loading and delivery timeframe, loading address, delivery address, Goods specification, Freight Charge, and/or any other information necessary in regards to a Transport Order.
3.3 Each Transport Order will be individually agreed on a case-by-case basis between the Carrier and Ofload in writing (including via email or via the Ofload App). The Carrier warrants and represents that, prior to accepting a Transport Order, it has considered its schedule and the application, and the Carrier’s satisfaction, of any applicable Laws.
3.4 A Transport Order issued by Ofload is not binding until:
3.5 Each time a Transport Order is accepted and confirmed in accordance with clause 3.4, an agreement is formed between the Carrier and Ofload consisting of:
3.6 The Carrier may decline a Transport Order. In this case, the Carrier will promptly notify Ofload without delay. If a Transport Order is not accepted within a deadline set by Ofload, the Transport Order will be deemed declined by the Carrier upon expiry of that deadline.
3.7 The Carrier acknowledges and agrees that:
3.8 Ofload is entitled to provide information about the Carrier and/or the Carrier’s Subcontractors to Customers for the purposes of the Carrier performing the Carrier Transport Services.
4. Carrier Transport Services
4.1 The Customer has to pack, load, stow, fasten, and unload the Goods into and out of the Carrier’s Vehicle safely and securely for the Transport.
4.2 The Carrier has to ensure an operationally reliable loading and surveillance. The adequacy of the surveillance is determined by the type and scope of the Transport Order. The Carrier must ensure compliance with work and safety regulations and all applicable Laws (including Load Restraint Requirements and Mass Management Requirements).
4.3 Clause 6 (provision of Vehicles by the Carrier) shall remain unaffected.4.4 In consideration of the Freight Charge, the Carrier will provide the Carrier Transport Services in accordance with the Transport Documentation and deliver it to the Recipient.
4.5 In addition, the Carrier will provide any ancillary services, as required and set out under a Transport Order and/or these Terms.
4.6 The Carrier will comply with any Transport Order-specific instructions of Ofload.
4.7 Prior to commencing Transport, the Carrier must check the safety and completeness of the Vehicle’s equipment. The equipment required or specified in the Transport Order shall remain in place until the applicable Transport has ended.
4.8 Subject to clause 5, the Carrier must use best endeavours (at all times in accordance with all applicable Laws) to effect the Transport in the timeframes specified in the Transport Order.
4.9 After having completed the Transport and Delivery, the Carrier will transmit all Delivery Documents to the Principal, preferably via the Ofload App.
4.10 The Carrier will ensure that the electrical devices used for the Transport Order processing remain functional and that the Transport Data is protected in accordance with clause 26.
4.11 The Carrier will only use warehouse or transhipment premises/areas, as well as technical or other equipment suitable to each applicable Transport Order. The Carrier will ensure that, for such warehouse and/or transhipment premises/areas and equipment, all statutory or other applicable requirements are fulfilled and that the function of safety devices is not interfered.
4.12 The Carrier must ensure that the Services are provided promptly, efficiently and safely as required by Ofload and in accordance with the Performance Criteria.
5. Failed Delivery
5.1 If delivery fails and/or is delayed because:
6. Customer claims
6.1 In the event that Goods are visibly damaged during the Transport, the Carrier acknowledges and agrees that the Customer may submit a claim to Ofload.
6.2 Where, in Ofload’s reasonable discretion, the evidence submitted by a customer in their claim reveals that such damage was a result of the Carrier’s acts or omissions, the Carrier will be liable for any costs and damages associated with such damage. Ofload will assess all claims and will determine the outcomes of a claim in its sole and reasonable discretion.
7. Carrier Vehicles
7.1 The Carrier shall provide the Vehicles and drivers in sufficient numbers and with sufficient load capacity to fulfil the Carrier’s obligations under each Transport Order.
7.2 The Carrier undertakes to provide the Vehicles in accordance with these Terms and each time on the dates specified in each Transport Order on time.
7.3 The Carrier be constantly reachable when a Transport Order is being executed, including when transport is occurring, via a mobile phone.
7.4 The Carrier will ensure:
7.5 The Carrier will ensure the safeguarding of the Vehicle and all related equipment against theft or robbery especially at night, on weekends and during holidays.
7.6 In the event of failure of the intended or used Vehicle, the Carrier shall, after prior notice to Ofload, immediately supply a suitable replacement Vehicle, regardless of whether the Carrier is responsible for the failure. If this is not possible, the Principal is entitled to provide a vehicle as replacement after expiry of a reasonable grace period previously set for the Carrier if and to the extent such setting of a grace period is required by law. In this case, the Principal is entitled to charge the Carrier for the costs arising from the provision of a replacement vehicle and to offset the freight charges with the respective transport fee payable to the Carrier as far as the Carrier is responsible for the vehicle failure.
8. Food Safety and Road Transport Legislation
8.1 The Carrier must at all times comply with all applicable Food Safety Regulations and/or Road Transport Legislation. The cost of compliance will be the sole responsibility of the Carrier.
8.2 Without limiting any other warranty or indemnity under these Terms, the Carrier:
9. Use of subcontractors by the Carrier
9.1 Subject to clause 9.2, the Carrier may use third parties to fulfil his obligations under the Transport Order and these Terms (Subcontractor).
9.2 In the event that the Carrier uses a Subcontractor:
10. Compliance with legal requirements
10.1 The Carrier must:
11. Instruction and information rights of the Principal
11.1 The instructions of the Customer must be followed, as provided by Ofload to the Carrier and/or directly by the Customer during loading or unloading the Goods for Transport. The Carrier shall inform Ofload of any obvious inaccuracy and impracticability such instructions.
12. Accidents or damage
12.1 In the event of an accident or of damage, the Carrier will immediately inform Ofload about any damages to and/or loss of Goods.
12.2 The following information (so far as it is actually relevant) must be immediately submitted to Ofload in writing (and/or in any form required by Ofload) and (if applicable) by means of photographic documentation – preferably via the Ofload App:
12.3 The Carrier shall without undue delay notify any theft, robbery or any traffic accident with possible damage to and/or loss of the Goods to the nearest police station and Ofload.
12.4 Additionally, the Carrier will inform Ofload of any complaints by the Recipient regarding the condition of the Goods and ensure that the Recipient notes such complaints in writing on the applicable Delivery Documentation.
12.5 In case of damages to and/or loss of the Goods during Transport, the Carrier immediately notify Ofload and must take and transmit to Ofload (either via the Ofload App, email or as otherwise instructed by Ofload) pictures of the damage, and to obtain further instructions from Ofload.
13. Transport and Delivery Documents
13.1 Transport Documents and Delivery Documents may not be made available to or handed over to third parties – apart from official or other statutory controls.
13.2 The Goods, unless otherwise directed by Ofload, may only be handed over against receipt of all applicable Delivery Documents.
14. Freight Charge
14.1 The Freight Charge is agreed upon on a case-by-case basis for each Transport Order.
14.2 The Freight Charge is inclusive of all Carrier Transport Services and other applicable ancillary services outlined in the related Transport Order unless they are expressly marked as additionally chargeable or in a similar manner (eg "at cost" or "separately payable").
14.3 The Freight Charge includes all expenses incurred by the Carrier, in particular any road tolls or other road user charges and all foreseeable and normal services of the Carrier, in particular those of the loading and unloading, if agreed upon in the respective Transport Order, as well as the costs of the loading.
14.4 If any special expenses not anticipated at the time of formation of an Agreement, any charges for transport insurance or any other additional costs may be incurred, the Carrier must obtain approval from Ofload before such expenses are incurred. Where such expenses are approved by Ofload prior to being incurred, they will be incorporated into the Freight Charge.
15. Incorrect Transport Order(s)
15.1 In the event that Ofload provides incorrect information in a Transport Order the following applies:
15.2 In the case that the Carrier incorrectly processes or executes a Transport Order, the following applies:
16. Invoicing and due date
16.1 The Carrier will send Ofload proof (eg by fax, scan, or photo, and/or via the Ofload App) of Delivery by a delivery receipt issued by the recipient including a stamp and signature and a valid tax invoice setting out the applicable Freight Charge.
16.2 After Ofload :
16.3 All amounts payable are in Australian dollars and are exclusive of GST unless otherwise indicated. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST. GST and Taxable Supply have the meaning given to them A New Tax System (Goods and Services Tax) Act 1999.
16.4 If Ofload wishes to raise a genuine dispute about an invoice, Ofload will notify the Carrier of the dispute before an applicable due date and pay the undisputed portion by the applicable due date.
16.5 The Carrier agrees that Ofload may receive and retain for its own account fees and commissions from third parties in relation to Ofload’s business and services and that Ofload is not required to disclose the receipt and retention of such amounts to the Carrier in any circumstances.
17. Cancellation of a transport order
17.1 A Customer or Ofload may cancel an order and as a result, Ofload may cancel a Transport.In the case that a Transport Order is cancelled:
18.1 The Carrier represents and warrants that:
19.1 The Carrier indemnifies and keeps indemnified Ofload, its officers, employees and agents (Indemnified Parties) in a damage, loss, cost, expense, liability, fine, penalty, sanction or legal expenses (on a full indemnity basis) incurred or suffered by the Indemnified Parties as a result of the Carrier’s:
20. Liability of the Principal
20.1 To the extent permitted by law, Ofload will not be liable to the Carrier or any other person for any damage, loss, cost, expense, liability, fine, penalty, sanction or legal expenses:
20.2 To the extent permitted by law Ofload is not liable to the Carrier or any other person, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any economic loss, loss of revenue, loss of production, loss of profits, loss of income, loss of markets, loss of reputation, loss or impairment of goodwill, loss of business, loss of customers, loss of an opportunity or chance, loss of value, loss of use, loss of anticipated savings, increased costs of work or materials, or any consequential, indirect, incidental, punitive or special loss of any kind, or the cost of defending and settling any claim or any other form of indirect and/or consequential loss or damage arising from any act or omission of Ofload under this Agreement.
20.3 Ofload’s aggregate liability in connection with this Agreement whether in contract, tort (including negligence), statute or otherwise will not exceed the Freight Charges paid by the Ofload in the 6 months preceding any claim for any such liability.
21. Force majeure
Neither Party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in performance of any of its obligations under this agreement due to a Force Majeure Event.
22.1 The Carrier must take out and maintain the following insurance:
each with an insurance cover that is common industry practice and reasonable with respect to each Transport Order.
22.2 Upon request, the Carrier must provide certificates of currency of an insurance policy. The insurance has to be maintained for each respective Transport Order and for a period of 2 years after.
23.1 During the Restraint Period:
24.1 The Carrier shall prepare and maintain detailed, accurate and up-to-date records sufficient to enable Ofload to verify the Carrier’s compliance with this Agreement, including records of all permits, invoices, other corporate documentation, contracts, and other documents about, and related to, the Carrier Transport Services and the Carrier’s compliance with these Terms (Records).
24.2 Ofload shall have the right, at its sole expense, to examine and audit such Records to verify the Carrier’s performance under, and compliance with, the terms of this Agreement.
24.3 If an audit identifies that the Carrier has failed to perform its obligations under, and/or comply with, this Agreement, without prejudice to the other rights and remedies of Ofload (including any termination rights), the Carrier must take the necessary steps rectify such failure to perform and/or comply with its obligations within 30 days of being notified, at no additional cost to Ofload.
24.4 Where the Carrier does not undertake such rectification within the timeframe set out at clause 24.3, Ofload reserves the right to terminate this agreement, deregister the Carrier from the Site and to cease issuing the Carrier Transport Orders.
25. Credit information
25.1 Ofload reserves the right to perform credit checks on the Carrier to determine its credit worthiness, standing, history, capacity, and/or other necessary information. Ofload may refuse to issue Transport Orders to a Carrier due to the result of any credit check performed.
26. Data privacy
26.1 Both Parties will comply with all applicable Privacy Laws, including with regard to the use, disclosure, storage and processing of any Customer personal information.
27.1 Each party must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.
27.2 Neither party may use or disclose the Confidential Information except:
28. Dispute resolution
28.1 Any party who claims to have a dispute against another party must issue a notice claiming a dispute has arisen, setting out the nature of the dispute and all other information relevant to the dispute (Dispute Notice).
28.2 Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
28.3 If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
28.4 Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
29.1 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this Agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
29.2 This Agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
29.3 The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions.
29.4 If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
29.5 This Agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
29.6 Unless otherwise expressly set out under this Agreement, the Carrier may not assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.
29.7 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this Agreement.
Schedule 1 - Performance Criteria