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Conditions of Cartage and Storage

Madden Family Trust, Trading as M&S Transport Service Pty. Ltd. · ABN 86 235 864 133

M&S Transport Service Pty Ltd | Conditions of Cartage and Storage | Version 4.1 — Jan 2026

Important Notice

Please read all the following conditions carefully and in their entirety. You will be bound by these conditions if we carry or store goods for you. Please note that:

By accepting these conditions, you warrant that:

you are acquiring our services for, or in relation to, the transport or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by you; and
the consignee of the goods in question carries on or is engaged in a business, trade, profession or occupation in relation to those goods (see clause 4.2(h) and 4.2(i));
Our services are priced based on the exclusions and limitations set out in these conditions;
To the extent permitted by law, we will not be liable for any loss of or damage to goods, unless the loss or damage was caused by our proven negligence or wilful misconduct. The conditions provide for various exclusions of liability and limits on our liability for loss of or damage to goods, which are set out in clause 14;
The effect of these provisions is that, even if we have been negligent, you may not be able to recover the full value of any lost or damaged goods. If you want to negotiate for us to have a higher limit of liability with respect to your goods, you should contact us;
To recover for loss of or damage to your goods, regardless of the circumstances, we recommend that you or the owner of the goods arrange to purchase an appropriate insurance policy that covers the goods. If we store goods for you, you must take out a policy of insurance over those goods (see clause 15); and
There are some goods – defined as ‘Excluded Goods’ in clause 1.1 – that we do not agree to carry, and accordingly, we do not accept any liability for loss of or damage to these sorts of goods (see clause 14.3(e)). You must not, under any circumstances, include any ‘Excluded Goods’ in a consignment.
These conditions are binding without the need for signature. By submitting a booking through M&S Transport’s website, online portal, or booking system, or by otherwise requesting or accepting Cartage or Storage services, you acknowledge that you have read, understood, and agree to be bound by these conditions in their entirety.

Part One — Definitions and Interpretation

1. Definitions and Interpretation

1.1 In these conditions:

Australian Port means an Australian seaport operation where shipping containers are delivered for shipping to other ports and discharged from ships for pickup by domestic freight carriers.

Authority includes any legal or administrative authority exercising any jurisdiction within an Australian state or territory.

Cartage means the whole of the operations and services undertaken by the Carrier or any person on behalf of the Carrier in respect of the Goods (whether gratuitously or not), including transporting, by any mode including road, rail, sea or air,loading, unloading and Storage of the Goods, towing a trailer and the provision of any advice.

Carrier means Madden Family Trust, trading as M&S Transport Service Pty Ltd (ABN 86 235 864 133) trading under its own name, under the name M&S Transport or under any other business name.

Chain of Responsibility Law means the Heavy Vehicle National Law as enacted in any Australian state, the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and any other Commonwealth, state or territory Law dealing with the obligations of parties involved in the transport of goods by road.

Consequential Loss means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; wasted expenditure; loss of profit, revenue or anticipated revenue; loss of bargain, contract, expectation or opportunity; liquidated damages; punitive or exemplary damages; in each case arising from or in connection with the performance of the Cartage and whether or not foreseeable at the time of entering into any agreement incorporating these conditions.

Consignment means the consignment of Goods at any one time from the Consignor in a single load from one address in Australia to another address in Australia.

Consignor means the person engaging the Carrier.

Container includes any container, trailer, wagon, transportable tank, pallet, flat rack or any other unit or device used to consolidate Goods.

Crane includes any machine used for lifting Goods, including a forklift and a sideloader.

Damage means physical damage and includes deterioration, evaporation and contamination.

Dangerous Goods means Goods that are or may become noxious, dangerous, flammable or damaging or that may harbour or encourage vermin or other pests, or that are or may become liable to harm any property whatsoever.

Excluded Goods means pharmaceuticals, cash, securities and negotiable instruments; bullion, gold and other precious metals, precious stones, precious gemstones and precious jewellery; firearms and ammunition; bicycles (unless they have been crated or boxed); animals and livestock; human tissue or blood; antiques; furniture (unless flat-packed); white goods that are not in their original packaging; or household and personal effects.

Force Majeure Event means any event beyond the reasonable control of the Carrier including acts of God, lightning, earthquakes, cyclones, floods, landslides, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, malicious damage, vandalism, sabotage, explosions, nuclear accidents, strikes, labour disputes and other industrial disturbances, any road closure or congestion of roads, any quarantine or customs restriction, epidemic or pandemic, cyber warfare, cyberattacks, ransomware attacks, cyber sabotage, any interruption of power supply or scarcity of fuel or any accident, collision or breakdown of a vehicle, Crane, machinery or equipment.

Fuel Surcharge means the charge published monthly on the Carrier’s website, or communicated directly via email.

Future Taxes means any additional rates, taxes, charges, assessments and impositions which any government or statutory authority, in the future, requires to be paid in connection with the Cartage of the Goods.

Goods means the property accepted by the Carrier from, or at the request of, the Consignor for Cartage and includes any Container or packaging supplied by or on behalf of the Consignor.

GST means a goods and services tax or any similar tax, impost or duty.

Handling means all activities undertaken by or on behalf of the Carrier at a Storage Location including handling inbound and outbound Goods, picking, packing, unpacking, palletising, weighing, assembly, wrapping, stocktaking, reporting, inspecting, manufacturing or re-manufacturing, cutting or other handling but does not include circumstances where the Goods remain in place and stationary in their allocated storage position within the Storage Facility.

Interest means an amount calculated on any Outstanding Amount at the rate of the Reserve Bank of Australia cash rate plus 4% per annum, calculated daily and non-compounding, from the date on which the Outstanding Amount became due until the date of actual payment in full.

Law means applicable statutes and any associated regulations, proclamations, rules, bylaws, requirements and approvals.

Outstanding Amount means any amount which remains unpaid upon the expiry of the credit terms extended by the Carrier or for which the Consignor is otherwise liable, pursuant to these conditions, to the Carrier.

PPSA means the Personal Property Securities Act 2009 (Cth).

Stationary Storage means where Goods are held in a Storage Location, and those Goods are not undergoing Handling.

Store or Storage means all activities at a Storage Location including receiving Goods into a Storage Location, Stationary Storage and Handling.

Storage Location means a storage facility or warehouse operated for, or on behalf of, the Carrier.

Subcontractor includes any person who pursuant to a contract or arrangement with any other person (whether or not the Carrier) performs or agrees to perform the Cartage or any part of it, and may include railways, airlines and sea carriers.

1.2 In these conditions:

(a) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;

(b) headings are included for convenience only and do not affect the interpretation of these conditions;

(d) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(e) wherever ‘include’ or any form of that word is used, it will be construed as if it were followed by ‘(without being limited to)’; and

(f) all indemnities survive the termination or expiration of any agreement incorporating these conditions.

Part Two — Foundation

2. Negation of Liability as A Common Carrier

The Carrier is not a common carrier and will accept no liability as such. All Goods are carried and all Cartage is performed by the Carrier subject only to these conditions and the Carrier reserves the right to refuse the Cartage of goods for any person and the Cartage of any class of goods at its discretion.

2A. Multimodal Carriage

Where M&S Transport arranges or performs the transportation of Goods by any mode other than road, including rail, sea, or air, whether as principal, agent, or subcontractor, these conditions apply to that transportation in their entirety to the fullest extent permitted by Law. To the extent that any mandatory legislation governing a particular mode of transport imposes conditions that cannot be excluded or modified by contract, those mandatory conditions prevail over these conditions only to the extent of any inconsistency, and these conditions otherwise continue to apply in full.

3. Carrier’s Obligations

3.1 The Carrier will:

(a) take reasonable care to protect and safeguard the Goods and to follow any special handling requirements notified to the Carrier by the Consignor;

(b) provide the Cartage exercising the degree of skill, care and efficiency that would be expected from a competent provider of services of Cartage;

(d) use reasonable endeavours to deliver the Goods to the address nominated by the Consignor and to effect delivery at the date and time requested by the Consignor (subject to compliance with all Law, including Chain of Responsibility Law);

(e) to the extent that the Carrier Stores the Goods, account for all Goods received and use modes of Storage appropriate to the nature of the Goods which may include Stationary Storage of Containers outside and not under cover;

(f) use reasonable endeavours to comply with the Consignor’s reasonable and lawful directions.

3.2 The Carrier does not warrant or guarantee particular collection or delivery times for Goods.

3.3 Pallets remain the responsibility of the Consignor and will not be exchanged unless prior written arrangements have been made with the Carrier and then only on the basis that the Consignor provides all necessary instructions and documentation required for the exchange at the time the Goods are collected.

3.4 To the extent permitted by law, all conditions, guarantees, terms and warranties which would otherwise be imposed or implied into these conditions are excluded. Without limitation, this exclusion applies to any conditions, guarantees, terms or warranties of merchantability or of satisfactory quality applying to the Cartage.

4. CONSIGNOR’S WARRANTIES, OBLIGATIONS AND INDEMNITIES

4.1 The Consignor must:

(a) ensure that the loading of the Goods onto the Carrier’s vehicle will not cause the vehicle to exceed any dimension, mass limits or load restraint limits under Chain of Responsibility Law, and that all loads comply with the Load Restraint Guide published by the National Transport Commission;

(b) where the Goods are Dangerous Goods, provide written notice to the Carrier and otherwise comply with clause 12;

(c) where the Goods require special treatment or handling, provide written notice to the Carrier of the special treatment required;

(d) where the Goods require temperature control, provide written notice to the Carrier of the nature of the Goods and the appropriate temperature set point;

(e) provide all documents, information and assistance necessary to allow the Carrier to comply with Law or the requirements of any Authority; and

(f) indemnify M&S Transport on a full indemnity basis against all fines, penalties, infringement notices, investigation costs, legal costs, and any other loss or expense incurred by M&S Transport as a direct or indirect result of the Consignor’s breach of any Chain of Responsibility obligation, including any breach of clause 4.1(a). This indemnity survives termination of these conditions.

4.2 The Consignor warrants that:

(a) the Goods are fit for Cartage and are packed in a manner adequate to withstand the ordinary risks of Cartage having regard to their nature;

(b) it is authorised by all persons owning or having any interest in the Goods to accept these conditions on their behalf;

(d) all details supplied by the Consignor or any other party with respect to the Goods, including the details of description, items, pallet space, quantity, weight, volume, quality, value and measurements, are correct;

(e) there is a suitable and safe road and approach for the Carrier and the Carrier’s vehicles to the place from which the Goods are to be collected and the place to which the Goods are to be delivered;

(f) safe and adequate loading facilities and equipment will be available at any place from which any Goods are to be collected and to which any Goods are to be delivered;

(g) the Consignor will be responsible for loading and unloading of any Goods that consist of items of machinery for which a licence to operate is required;

(h) the Cartage is supplied for, or in relation to, the purposes of a business, trade, profession or occupation carried on or engaged in by the Consignor;

(i) the consignee of the Goods carries on, or is engaged in, a business, trade, profession or occupation in relation to the Goods; and

(j) unless specifically declared in writing prior to Cartage, the Goods are not Dangerous Goods.

4.3 If the Consignor breaches clause 4.2(a), the Consignor:

(a) must pay the Carrier’s additional charges in the event that the Goods must be unpacked or repacked; and

(b) will indemnify the Carrier for any additional clean up or other expenses that the Carrier incurs as a result of any failure of such packaging.

4.4 The Carrier relies on the details of description, items, pallet space, quantity, weight, quality, value and measurements supplied by the Consignor but does not admit their accuracy.

4.5 The Consignor will indemnify the Carrier in respect of all losses, damages, expenses, claims, actions and proceedings or any other liability suffered or incurred by, or made or instituted against the Carrier arising from:

(a) the breach of a warranty given by the Consignor in clause 4.2(b), 4.2(c), 4.2(h) or 4.2(i); and

(b) any incorrect or wrongful declaration made by the Consignor as to:

(i) the purpose for which the Consignor requires the Cartage;

(ii) the proposed use of the Goods by the consignee; or

(iii) the value of the Goods in a Consignment.

Part Three — Operational Provisions

5. Shipping Containers

5.1 This clause applies if the Consignor requests the transport of Goods to or from an Australian Port.

5.2 The Consignor must provide any request for transport in writing at least 72 business hours before any required collection or delivery of Goods to enable the Carrier to secure required time slots at the Australian Port.

6. Route and Deviation

6.1 The Consignor authorises any deviation from the usual route or manner of Cartage of Goods that may, in the opinion of the Carrier, acting reasonably, be considered desirable or necessary in the circumstances.

6.2 If the Consignor expressly or impliedly instructs the Carrier to use, or it is expressly or impliedly agreed that the Carrier will use a particular method of handling or storing the Goods, or a particular method of Cartage, the Carrier will give priority to that method but if it cannot conveniently be adopted by the Carrier, the Consignor authorises the Carrier, acting reasonably, to handle, Store or carry or to have the Goods handled, Stored or carried by another method or methods.

7. Inspection

7.1 The Carrier:

(a) is not obliged to carry out any inspection of the Goods; and

(b) may inspect the Goods (including opening any Container) to determine the nature or condition of the Goods or for any other purpose which the Carrier considers reasonably necessary.

7.2 If, under Law, a Container must be opened to allow the Goods to be inspected, the Carrier will not be liable for any loss, Damage or delay incurred as a result of any opening, unpacking, inspection or repacking and the Consignor agrees to pay the Carrier’s charge for the cost of any such opening, unpacking, inspection or repacking.

7.3 If the Consignor makes a claim that Goods have been Damaged or destroyed while in the custody of the Carrier, the Consignor must, on request, permit the Carrier to inspect those Goods.

8. Delivery

8.1 The Carrier is authorised to deliver the Goods at the address nominated to the Carrier for that purpose. The Carrier will be deemed to have delivered the Goods if, at that address, it obtains from any person a receipt or signed delivery docket for the Goods. A signed delivery docket, consignment note, or Proof of Delivery that does not record any notation of damage, shortage, or non-conformance shall constitute conclusive evidence that the Goods were delivered in good order and condition and in the correct quantity at the time of delivery, and any claim for loss, Damage, or shortage that was or ought reasonably to have been apparent at time of delivery shall be extinguished accordingly.

8.2 If, without advance notice to the Carrier, the nominated place of delivery is unattended or if delivery cannot otherwise be effected by the Carrier or the consignee otherwise fails to take delivery of the Goods, the Carrier must attempt to contact the Consignor to obtain alternative instructions for delivery. The Carrier may make an additional charge for following the alternative instructions.

8.3 If the Carrier is unable to obtain alternative instructions that the Carrier can reasonably and practicably carry out, the Carrier may, at its option:

(a) deposit the Goods at the nominated place of delivery (which will be conclusively presumed to be due delivery under these conditions); or

(b) Store the Goods.

8.4 If the Goods are Stored by the Carrier pursuant to clause 8.3:

(a) the Consignor will pay or indemnify the Carrier for all costs and expenses incurred with respect to such Storage; and

(b) the Carrier may, at any time, redeliver the Goods to the Consignor at the Consignor’s expense.

9. Crane Services

9.1 Where the Carrier provides Crane services, the Consignor warrants that:

(a) the road surfaces, access and egress to the site and the site itself are stable, adequate to support the Crane, clear of obstacles and of a gradient to allow the Crane to be operated safely;

(b) sufficient clearance will be afforded in respect of all overhead wires; and

9.2 The Carrier will supply a standard selection of slings, lugs and chains but accepts no responsibility for loss or delay if any slings, lugs or chains are found to be unsuitable for the Consignor’s purpose.

10. Storage

10.1 Where Goods are Stored by the Carrier at the request of the Consignor, the Consignor will provide:

(a) an address to which notices will be sent;

(b) samples of the signatures of persons entitled to collect the Goods; and

10.2 The Carrier may (but is not required to):

(a) check any inventory provided by the Consignor; and

(b) produce its own inventory of the Goods received at the time of receipt. Any such inventory will detail visible items but not any contents of any items unless the Consignor directs the Carrier to detail the contents. If the Carrier is required by the Consignor to detail contents, the Carrier may levy a reasonable additional charge for the preparation of the inventory.

10.3 If the Consignor signs or otherwise agrees with an inventory prepared by the Carrier, the inventory will be conclusive evidence of the Goods received by the Carrier from the Consignor.

10.4 The Carrier may remove the Goods from a place of Storage to another place of Storage in the same city at its discretion and will provide notice to the Consignor of any such removal.

10.5 Stationary Storage charges do not include Handling or delivering any Goods, all of which may attract additional charges.

10.6 The Consignor must give 48 hours’ notice to the Carrier of its intention to remove Goods from Storage.

10.7 The Carrier will not be obliged to allow an inspection of the Goods or to deliver up any Goods in Storage:

(a) to any person other than the Consignor or a person authorised in writing by the Consignor; or

(b) in circumstances where any amount is due by the Consignor to the Carrier on any account whatsoever.

10.8 The Consignor will remove its Goods from Storage within seven days of receipt of written notice from the Carrier.

10.9 If any identifying document or mark is lost, damaged, destroyed or defaced, the Carrier may open any document, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership.

11. Warehouse Access and Restriction

11.1 Access to M&S Transport’s warehouse facility is available to the Consignor by prior appointment only, during M&S Transport’s normal business hours, and at all times subject to compliance with M&S Transport’s site access rules, induction requirements, and Work Health and Safety requirements as notified from time to time.

11.2 M&S Transport may, immediately and without prior notice to the Consignor, deny, suspend, or restrict access to all or any Goods stored at its facility upon the occurrence of any of the following:

(a) any amount owed by the Consignor to M&S Transport on any account becoming overdue;

(b) any breach by the Consignor of these conditions;

(d) M&S Transport forming a reasonable view that the Consignor is insolvent or likely to become insolvent.

11.3 The Consignor acknowledges and agrees that the restriction or denial of access in the circumstances described in clause 11.2 constitutes a lawful exercise of M&S Transport’s contractual and statutory rights and does not constitute wrongful interference with goods, conversion, detinue, or any other tortious act.

11.4 Storage charges continue to accrue at M&S Transport’s standard rate during any period of restricted or denied access under this clause, and all such charges are payable by the Consignor as a debt.

11.5 M&S Transport will restore access to the Consignor’s Goods upon payment in full of all outstanding amounts owing to M&S Transport, including accrued Interest and Storage charges.

Part Four — Dangerous Goods

12. Dangerous Goods

12.1 If the Carrier agrees to accept Dangerous Goods for Cartage:

(a) such Goods must be accompanied by a written declaration disclosing the nature of such Goods;

(b) the Consignor must comply with all Law that deals with the Cartage of Dangerous Goods, including the Australian Code for the Transport of Dangerous Goods by Road & Rail;

(c) the Consignor must provide M&S Transport with complete Safety Data Sheets and all relevant classification documentation for the Dangerous Goods before those Goods are delivered to M&S Transport for Cartage or Storage;

(d) the Consignor must pay M&S Transport’s applicable Dangerous Goods surcharge as notified by M&S Transport from time to time; and

(e) M&S Transport may at any time and at its sole discretion withdraw consent to carry or Store Dangerous Goods and may return such Goods to the Consignor at the Consignor’s cost and risk. M&S Transport is not liable for any loss arising from the exercise of this discretion.

12.2 If, in the opinion of the Carrier, acting reasonably, the Goods are or are liable to become of a dangerous or flammable or damaging nature and pose a threat of property damage or personal injury, the Goods may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Consignor and without prejudice to the Carrier’s right to charge for the Cartage of the Goods.

Part Five — Financial Provisions

13. Carrier’s Charges

13.1 The Consignor agrees to pay all sums due to the Carrier without any deduction, counterclaim or set-off.

13.2 (i) The Carrier’s charges are deemed fully earned on receipt of the Goods by the Carrier. Unless otherwise agreed in writing, all invoices are due and payable within 30 days of the invoice date. If the Consignor defaults in making any payment in accordance with these conditions, then all amounts owed to the Carrier become immediately due and payable.

13.2 (ii) If any invoice remains unpaid after its due date, the Carrier may, without notice and without liability, suspend the provision of all services to the Consignor until all overdue amounts (including accrued Interest) are paid in full.

13.2 (iii) The Consignor shall pay to the Carrier, as a debt, all costs of recovering any overdue amount including solicitors’ costs on a full indemnity basis, mercantile agent fees, and any other collection charges, whether or not court proceedings are commenced.

13.3 Unless otherwise agreed in writing, the Cartage of Goods is charged on the basis of actual weight or volumetric weight, whichever is the greater.

13.4 VOLUMETRIC CUBIC CONVERSION CALCULATION AND VARIATIONS — The volumetric conversion factor for Goods carried by road or rail is 333 kg per cubic metre. To calculate volumetric weight, measure (in centimetres) length x width x height and divide by 3000 (for example, 120 x 130 x 145 / 3000 = 754 kg). Uncrated machinery and articles that are required to be kept clear of other Goods will be measured to a minimum of 250cm wide and 280cm high. Goods exceeding 270cm in height will require drop decks and will be charged as 330cm high for cubic calculations. Goods that require securing with chains, or that require placement in the centre of the trailer to ensure safe transit, will be charged to a width of 250cm.

13.5 OVERSIZE PALLET CHARGES — Pallet rate charges are for a pallet space with dimensions 120cm x 120cm x 150cm, with a maximum weight of 1000kgs. Pallets that exceed these dimensions will incur additional fees.

13.6 Where the Carrier accepts Containers or pallets from the Consignor, the Consignor must pay all charges associated with those Containers or pallets.

13.7 In addition to any other charges contemplated under these conditions, the Consignor is liable to pay:

(a) Interest on any Outstanding Amount;

(b) all Storage charges and any costs associated with loading or unloading Goods;

(c) the Fuel Surcharge, which may be adjusted by the Carrier at any time on reasonable grounds to reflect fuel price movements;

(d) if the Goods are at any time re-quantified, re-weighed or re-measured, any proportional additional charges;

(e) any additional costs arising from heavy or over-dimensional transport including costs associated with permits, escorts, equipment, bridge/road works and detours and fees imposed by any Authority;

(f) all taxes including Future Taxes and any tax in the nature of GST levied on all or any part of the Goods, the Cartage of the Goods or any other services;

(g) road tolls incurred on dedicated hourly or weekly vehicle hire transactions;

(h) all charges under Law including customs charges and excises in relation to the Cartage; and

(i) all other charges incurred in relation to the Cartage of the Goods or any other services provided by the Carrier or any third party (whether payable to the Carrier or a third party) including shipping, customs, railway, port fees and other charges.

13.8 Unless otherwise specified, GST and any other applicable tax, duties or charges (including Future Taxes) imposed by any Authority are additional to the price quoted and invoiced.

13.9 Where GST or any other tax, duties or charges (including Future Taxes) is included in a quotation, the quotation is based on the rate ruling at the time of the quotation and any subsequent variation is to the Consignor’s account.

13.10 If the services the Consignor ultimately requires the Carrier to undertake vary from the services for which a quotation was given, as a result of information provided being incorrect or incomplete, or due to the Consignor varying its requirements for Cartage, the Carrier will be entitled to make an additional charge in accordance with its schedule of rates.

13.11 The Carrier may charge the Consignor, in accordance with its schedule of rates, in respect of any delay in loading or unloading in excess of 90 minutes for full loads and 30 minutes for part loads occurring other than from the default of the Carrier. Such permissible delay period will commence upon the Carrier reporting for loading or unloading. Labour to load or unload is the responsibility and expense of the Consignor or consignee.

13.12 If the Consignor instructs the Carrier that the Carrier’s charges will be paid by the consignee or any other third party and the consignee or third party does not pay the Carrier’s charges within seven days of the date of delivery or attempted delivery of the Goods, the Consignor must pay such charges.

13.13 Where the Carrier Stores Goods for the Consignor, the Consignor must:

(a) pay the Carrier’s expenses and charges to comply with any Law including any customs, excise or warehouse charges;

(b) if any Goods are under customs control, pay all customs duty, excise duty and costs (including any fine or penalty) that the Carrier becomes liable to pay or pays; and

Part Six — Risk and Protection

14. Liability of Carrier

14.1 To the extent permitted by Law, the Carrier will not, under any circumstances, be liable (whether in contract, tort, bailment or otherwise), for any:

(a) loss of the Goods;

(b) Damage to the Goods; or

whether in the course of Cartage or otherwise, unless the loss, Damage, misdelivery, delay in delivery or non-delivery was caused by the proven negligence or wilful misconduct of the Carrier.

14.2 Any liability of the Carrier under clause 14.1 will be reduced proportionately to represent the extent to which the Consignor or any other person’s negligent or wrongful acts or omissions caused the loss, Damage, misdelivery, delay in delivery or non-delivery of the Goods.

14.3 Notwithstanding any other provision of these conditions, to the extent permitted by Law, the Carrier will not be liable for any loss of or Damage:

(a) to Goods caused by:

(i) a Force Majeure Event;

(ii) the Carrier following the Consignor’s instructions;

(iii) the Goods becoming infected or contaminated with any virus, bacteria, fungi, pathogen, disease, mould, vermin or like condition;

(iv) vibration, road conditions, weather or weather events of any kind whatsoever, including stone, rain, hail or storm Damage;

(v) the Goods being brittle, inherently defective or in such a condition that the Cartage cannot be performed without Damage;

(vi) a decline in value, or loss of value as a result of the Goods becoming past their ‘use by’ or expiry date;

(vii) the inherent vice or the nature of the Goods; or

(viii) insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary incidents of Cartage;

(b) to Goods where such loss or Damage comprises mechanical, electrical or electronic breakdown, derangement, or malfunction of the Goods;

(d) to Goods comprising glass, internal or external fittings, plasterwork, cornices or any other fragile material or substances; or

(e) to Excluded Goods.

14.4 Notwithstanding any other provision of these conditions, to the extent permitted by Law, the Carrier will not be liable, under any circumstances, for Consequential Loss.

14.5 TRANSPORT LIABILITY CAP — Notwithstanding any other provision, to the extent permitted by Law, M&S Transport’s total liability for any loss of or Damage to Goods during Cartage (other than during Stationary Storage or Handling), or for any misdelivery, delay in delivery or non-delivery during Cartage, is limited to the lesser of:

(a) AUD $20,000 per Consignment;

(b) twice the freight charge applicable to that Consignment; or

14.6 WAREHOUSING — STATIONARY STORAGE CAP — Notwithstanding any other provision, to the extent permitted by Law, M&S Transport’s liability arising from any loss of or Damage to Goods in Stationary Storage is limited to AUD $150,000 per incident. This cap does not apply to loss or Damage caused by M&S Transport’s gross negligence, fraud, criminal conduct, or wilful misconduct (which remain uncapped as required by the Competition and Consumer Act 2010 (Cth)).

14.7 HANDLING CAP — Notwithstanding any other provision, to the extent permitted by Law, M&S Transport’s liability arising from any loss of or Damage to Goods during Handling is limited to the lesser of:

(a) AUD $20,000; or

(b) the actual proven value of the Goods at the time of loss or Damage.

14.8 HIGH-VALUE GOODS DECLARATION — The Consignor must notify M&S Transport in writing before dispatch of any Consignment with a declared value exceeding AUD $25,000. M&S Transport reserves the right to refuse Cartage of any undeclared high-value Consignment or to impose additional conditions. Where the Consignor fails to comply with this obligation, M&S Transport’s liability for that Consignment shall not exceed AUD $5,000 regardless of the actual value of the Goods. For the purposes of this clause, ‘incident’ means any event which results in loss of or Damage to Goods or misdelivery, delay in delivery or non-delivery of Goods and all claims that result from the one original cause will be considered, for the purpose of this subclause, to have arisen from the same incident.

14.9 The limitations of liability set out in clauses 14.5 to 14.7 (inclusive) do not apply to the extent that any loss of or Damage to Goods is caused by the Carrier engaging in malicious conduct, deliberate or wilful misconduct, fraud or criminal conduct.

15. Insurance

15.1 If the Carrier Stores Goods pursuant to clause 10, the Consignor must:

(a) effect and maintain an insurance policy in its own name that covers loss of or Damage to the Goods whilst the Carrier is storing those Goods with that insurance policy to include a waiver of subrogation with respect to the Carrier; and

(b) provide a certificate of currency in respect of the policy referred to in clause 15.1(a), within seven days of receiving a request from the Carrier.

15.2 Carrier Transport Insurance — Standard Cover

Subject to clauses 15.3 and 15.4, M&S Transport offers cargo insurance cover for Goods in transit up to a maximum of AUD $750,000 per load, subject to the following conditions:

(a) transport insurance cover must be agreed in writing between M&S Transport and the Consignor prior to the commencement of any Cartage to which the cover is to apply — no insurance cover arises by implication, course of conduct, or from the mere acceptance of Goods for Cartage;

(b) the terms, conditions, exclusions, and premium applicable to any transport insurance cover shall be as set out in the written insurance agreement entered into between the parties;

(c) the Consignor must provide M&S Transport with an accurate and complete declaration of the nature, description, and value of the Goods to be insured prior to the commencement of Cartage — M&S Transport accepts no liability for any underinsurance arising from an inaccurate or incomplete declaration by the Consignor;

(d) transport insurance cover arranged under this clause does not apply to Excluded Goods as defined in clause 1.1, Dangerous Goods unless separately agreed in writing, or any Goods for which the Consignor has failed to make a full and accurate declaration of value; and

(e) where transport insurance cover has been agreed under this clause, M&S Transport’s liability for loss of or damage to Goods in transit remains subject to the limitations in clause 14. The insurance cover operates in addition to and independently of those limitations, and any insurance proceeds received by or on behalf of the Consignor are not affected by the liability cap.

15.3 Extended Cover — Specific Shipments

Where a Consignment requires insurance cover in excess of AUD $750,000, extended cover of up to a maximum of AUD $3,000,000 per shipment may be arranged subject to the following conditions:

(a) a written request for extended cover must be submitted to M&S Transport no less than 48 hours prior to the scheduled collection of the relevant Consignment. M&S Transport does not guarantee that extended cover can be arranged within a shorter timeframe;

(b) M&S Transport will use reasonable endeavours to arrange extended cover but does not warrant that cover at the requested amount will be available for any particular shipment. Availability is subject to underwriter acceptance at the time of the request;

(c) extended cover is subject to a separate written agreement specifying the insured value, premium, applicable conditions and exclusions, and the shipment or shipments to which the cover applies;

(d) the Consignor must provide such additional information regarding the nature, value, and destination of the Goods as M&S Transport or its insurer may reasonably require to assess and arrange extended cover; and

(e) M&S Transport reserves the right to decline to carry any Consignment for which extended cover has been requested but cannot be arranged, without liability to the Consignor.

15.4 No Insurance without Written Agreement

For the avoidance of doubt:

(a) M&S Transport does not insure Goods on behalf of the Consignor unless a written insurance agreement has been executed in accordance with clause 15.2 or 15.3;

(b) the acceptance of Goods for Cartage by M&S Transport does not, of itself, create any insurance obligation on M&S Transport’s part;

(c) where no insurance has been agreed in writing, the Consignor is solely responsible for insuring its Goods against all risks of loss, damage, delay, and non-delivery; and

(d) M&S Transport strongly recommends that the Consignor obtain independent cargo insurance for all Consignments regardless of whether transport insurance has been arranged under this clause.

15.5 Claims Under Transport Insurance

Where transport insurance has been arranged under clause 15.2 or 15.3 and a claim arises:

(a) the Consignor must notify M&S Transport of any potential insurance claim in writing within the timeframe specified in clause 19 — insurance claims are subject to the same notification obligations as damage claims generally;

(b) the Consignor must cooperate fully with M&S Transport and any insurer or loss adjuster in the investigation of any claim, including providing all documentation, information, and access reasonably required; and

(c) any insurance proceeds payable in respect of a valid claim shall be applied to the Consignor’s loss. M&S Transport and the Consignor agree to cooperate in good faith to ensure prompt settlement of any valid claim.

16. Lien

16.1 The Goods are accepted subject to a general lien for all charges due or that may become due to the Carrier by the Consignor on any account whatsoever, whether in respect of the Goods or in respect of any other goods for which the Carrier provides or has provided services of Cartage.

16.1(a) The lien described in clause 16.1 is in addition to, and does not limit, any lien, right of retention, or right of sale available to the Carrier under statute in any applicable jurisdiction, including without limitation the Warehouseman’s Liens Act 1958 (Vic), the Storage Liens Act 1935 (NSW), the Storage Liens Act 1973 (QLD), the Warehouse Liens and Storage Act 1990 (SA), and equivalent legislation in all other Australian states and territories.

16.1(b) Storage charges continue to accrue at the Carrier’s standard rate throughout any period during which the Carrier exercises its lien under this clause 16, and all such charges are recoverable from the Consignor as a debt in addition to the charges secured by the lien.

16.2 Without prejudice to any other rights the Carrier may have under Law, if charges remain unpaid for more than fourteen (14) days after they become due, or the Goods are not collected when required or designated, the Carrier may:

(a) remove all or any of the Goods and Store them as the Carrier, acting reasonably, thinks fit at the Consignor’s risk and expense; or

(b) without notice and immediately in the case of perishable Goods, or otherwise on the provision of fourteen (14) days’ notice, open and sell all or any of the Goods as the Carrier thinks fit (whether by private treaty or public auction, including auction on an internet based platform) and apply the proceeds to discharge the lien and costs of sale and pay any balance to the Consignor.

16.3 The parties agree that the lien arising under these conditions:

(a) attaches to the Goods when the Goods are accepted by the Carrier for Cartage; and

(b) is a security interest.

16.4 On request by the Carrier, the Consignor must promptly do anything for the purposes of ensuring that any security interest created under, or provided for by, these conditions is enforceable, perfected (including perfection by registration), maintained and is otherwise effective.

16.5 The parties agree that, to the extent permitted by the PPSA:

(a) sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply (unless the Consignor is otherwise notified in writing by the Carrier); and

(b) any right to receive a notice, statement or verification statement under sections 129, 130, 132, 134, 135 or 157 of the PPSA is waived.

16.6 Terms used in this clause have the same meaning as under the PPSA.

17. Force Majeure

17.1 The Carrier will not be liable for any failure or delay in performance of the Cartage to the extent that such failure or delay is due to a Force Majeure Event affecting the Carrier.

17.2 For the avoidance of doubt, a Force Majeure Event suspends M&S Transport’s service obligations only. All payment obligations of the Consignor under these conditions, including all charges for Storage under any warehousing arrangement, continue to accrue and remain due and payable throughout any Force Majeure period without abatement, reduction, or suspension.

17.3 The Carrier may charge an additional sum in accordance with its schedule of rates if, as a result of a Force Majeure Event causing road closures, it is necessary to re-direct the Carrier’s vehicles via an alternative route.

17.4 If a Force Majeure Event causes the delay or non-performance of the Carrier’s obligations for 30 days or more, either party may, by notice in writing, immediately terminate any agreement incorporating these conditions.

Part Seven — Subcontracting

18. Subcontracting

18.1 The Carrier, at its discretion, may subcontract on any terms the whole or any part of the Cartage.

18.2 M&S Transport’s liability for Cartage performed by a Subcontractor is limited to the same extent as if M&S Transport had performed that Cartage directly, subject always to the limitations and exclusions of liability in clause 14.

18.3 Every exemption, limitation, condition and liberty contained in these conditions and every right, exemption from liability, defence and immunity applicable to the Carrier or to which the Carrier is entitled under these conditions will also be available to and will extend to protect:

(a) all Subcontractors;

(b) every employee or agent of the Carrier or of a Subcontractor; and

(c) all persons who are or are found to be vicariously liable for the acts or omissions of any person falling within clauses 18.3(a) or 18.3(b).

18.4 For the purposes of clause 18.3, the Carrier is or will be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and all such persons will to this extent be, or be deemed to be, parties to any agreement incorporating these conditions.

18.5 The total aggregate liability of M&S Transport and all Covered Persons (as defined in clause 18.3) combined shall not in any circumstances exceed the cap applicable under clause 14.5. The Consignor may not recover in aggregate from M&S Transport and any Covered Person more than the applicable cap under clause 14.5.

18.6 The Consignor undertakes not to make any claim or commence any proceeding against any Covered Person in connection with the Cartage, whether in contract, tort (including negligence), statute, or otherwise. To the extent any such claim is made, M&S Transport may assert this clause as a complete defence on behalf of that Covered Person.

Part Eight — Claims Procedure

19. Notification of Claim

19.1 Notwithstanding any other provision of these conditions (other than clause 21), to the extent permitted by Law, the Carrier will be forever and irrevocably discharged from all liability whatsoever in respect of the Goods unless written notice of a claim or an intended claim (together with particulars of the circumstances on which the claim is based) is given to the Carrier:

(a) in the case of Goods allegedly lost or Damaged in the course of loading, unloading or transit, within 3 business days from the delivery of the Goods or from the date on which in the ordinary course of business, delivery would have been effected; or

(b) in the case of Goods allegedly lost or Damaged during Storage, within 3 business days of the date of removal or attempted removal of the Goods from Storage; or

(c) in the case of non-delivery or total loss, within 7 business days of the scheduled or reasonably expected delivery date.

19.2 PROOF OF DELIVERY — CONCLUSIVE EVIDENCE — Where Goods have been delivered and the Consignor or consignee or any person at the delivery address has signed a delivery docket, consignment note, or Proof of Delivery (POD) without recording any notation of damage, shortage, or non-conformance, such signature shall constitute conclusive evidence that the Goods were delivered in good order and condition and in the correct quantity at the time of delivery. Any claim for loss, Damage, or shortage that was or ought reasonably to have been apparent at the time of delivery is extinguished by an unnotated signed POD. This clause applies whether the POD is in paper or electronic form.

Part Nine — Exit, Termination and Default

20. Termination

20.1 TERMINATION FOR CONVENIENCE — Either party may terminate these conditions and any services provided under them by giving 30 days written notice to the other party. All obligations of both parties continue during the notice period and all amounts outstanding at the end of the notice period are immediately due and payable.

20.2 TERMINATION FOR REMEDIABLE BREACH — If the Consignor is in breach of any provision of these conditions and that breach is capable of remedy, M&S Transport may give the Consignor 7 days written notice to remedy the breach. If the Consignor fails to remedy the breach within that period, M&S Transport may terminate immediately by written notice without further liability.

20.3 IMMEDIATE TERMINATION — NO NOTICE OR CURE — M&S Transport may terminate immediately and without notice upon the occurrence of any of the following:

(a) the Consignor becomes insolvent, enters voluntary administration, receivership, liquidation, or makes any arrangement or composition with its creditors;

(b) the Consignor introduces or causes to be introduced any undisclosed Dangerous Goods in breach of clause 12;

(c) the Consignor makes any fraudulent misrepresentation to M&S Transport regarding the nature, value, or contents of any Goods;

(d) the Consignor commits a material breach of any Work Health and Safety obligation that creates an immediate risk to any person at M&S Transport’s facility;

(e) any payment default by the Consignor remains outstanding for more than 14 days following suspension of services under clause 13.2; or

(f) the Consignor commits a deliberate or reckless breach of any Chain of Responsibility obligation — being a breach where the Consignor knew or ought reasonably to have known that the Goods tendered exceeded applicable mass, dimension, or load restraint limits under the Heavy Vehicle National Law.

20.4 Chain of Responsibility — Escalation Framework

(a) Where the Consignor commits a Chain of Responsibility breach that is not deliberate or reckless within the meaning of clause 20.3(f), M&S Transport will issue a formal written warning to the Consignor documenting the breach. The Consignor must acknowledge the warning in writing and confirm corrective action within 7 days.

(b) If the Consignor commits a further Chain of Responsibility breach of any kind within 12 months of receiving a written warning under clause 20.4(a), M&S Transport may terminate immediately and without further notice. The prior written warning constitutes adequate notice for the purposes of this clause.

(c) A written warning under this clause is recorded on the Consignor’s account and is not withdrawn by any subsequent good conduct within the 12-month period.

20.5 CONSEQUENCES OF TERMINATION — Upon termination for any reason:

(a) all amounts owing to M&S Transport become immediately due and payable;

(b) the Consignor must collect all Goods stored at M&S Transport’s facility within 14 days of the termination date — after which M&S Transport’s lien and sale rights under clause 16 apply immediately and without further notice;

(c) where termination occurs under clause 20.3 or 20.4(b), M&S Transport may recover all costs arising from or connected with the termination on a full indemnity basis.

20.6 SURVIVAL — The following clauses survive termination of these conditions and remain binding on the parties in relation to all events, goods, or amounts arising prior to or at the date of termination: clauses 1.2(f), 4.5, 14 (liability), 6 (route), 15 (insurance), 16 (lien), 13 (charges), 17 (force majeure), 12 (dangerous goods), 19 (claims), 21 (legislation), 22 (entire agreement), and 23 (general).

Part Ten — Governance

21. Applicable Legislation

21.1 Notwithstanding anything contained in these conditions, the Carrier will continue to be subject to any terms, conditions, guarantees or warranties imposed or implied by the Competition and Consumer Act 2010 (Cth) or any other Commonwealth or state legislation but only in so far as such legislation applies and prevents the exclusion or modification of any such term, condition, guarantee or warranty.

21.2 The Carrier, Consignor and consignee must comply with all Law, including Chain of Responsibility Law.

21.3 The Consignor must not impose any requirement on the Carrier that would directly or indirectly encourage or require the Carrier or any person on behalf of the Carrier to speed, drive while fatigued or otherwise perform the Cartage in an unsafe manner or in breach of Law.

22. Entire Agreement

22.1 The entire agreement between the parties is contained in these conditions and there are no other understandings, representations or agreements between the parties that are not set out in these conditions.

22.2 The Consignor acknowledges and agrees that these conditions set out the sole basis upon which the Carrier will provide Cartage to the Consignor. The supply or provision by the Consignor of any document setting out other, or alternative, terms will be of no legal effect and will not constitute a variation of these conditions or amount to a new contract or be part of these conditions.

22.3 The Carrier will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of the Carrier by an authorised officer of the Carrier.

23. General

23.1 These conditions are governed by and construed in accordance with the law of the State of Victoria, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and the courts having appellate jurisdiction from them, and waives any objection to proceedings being brought in those courts on the grounds of inconvenient forum or otherwise.

23.2 The failure of a party to take action to enforce its rights under any agreement incorporating these conditions or the granting of any time or indulgence will not be construed as a waiver of the provision nor as a waiver of the right of the party at a later time to enforce its rights under any agreement incorporating these conditions.

23.3 Where the Consignor comprises two or more persons, an agreement or obligation to be performed or observed by the Consignor binds those persons jointly and severally.

23.4 If any provision of these conditions is invalid, illegal or unenforceable, that provision will, to the extent that it is invalid, illegal or unenforceable, be treated as severed from this agreement, without affecting the validity and enforceability of the remaining provisions.

23.5 Dispute Resolution:

(a) If a dispute arises between the parties in connection with these conditions or any services, neither party may commence court proceedings (other than for urgent interlocutory relief or recovery of a debt due and payable) unless the initiating party has:

(i) given the other party written notice of the dispute specifying its nature and the outcome sought;

(ii) allowed the other party 14 days from receipt of that notice to resolve the dispute by good-faith negotiation; and

(iii) if the dispute remains unresolved, participated in a formal mediation conducted in accordance with the Resolution Institute Mediation Rules, with costs of mediation shared equally between the parties.

(b) Nothing in clause 23.5(a) prevents M&S Transport from commencing proceedings at any time to recover any amount that is due and payable, or from seeking urgent interlocutory or injunctive relief without prior notice.

23.6 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these conditions or to any agreement incorporating them.

M&S Transport Service Pty Ltd · ABN 86 235 864 133 · 477 Maroondah Hwy, Ringwood VIC 3134

Phone 1300 993 001 · Email operations@mstransport.com.au