HOOD EXPRESS PTY LTD (“HEX”) (A.C.N. 127 766 581)

STANDARD TERMS & CONDITIONS OF CONTRACT FOR TRANSPORT SERVICES 

NB: THESE TERMS & CONDITIONS EXCLUDE OR LIMIT THE LIABILITY OF HEX FOR LOSSES AND DAMAGES. CUSTOMERS ARE ADVISED TO READ THEM CAREFULLY AND TO CONSIDER PURCHASING APPROPRIATE INDEMNITY OR INSURANCE COVER TO ENSURE THEIR INTERESTS ARE ADEQUATELY PROTECTED.

1.    These terms and conditions (hereinafter referred to as “Conditions”) shall apply to provision of Services and except where otherwise expressly provided or where such meaning would be repugnant to or manifestly inconsistent with the context in which the word or expression appears:

(a)      “charges” means the prices, fees and charges being consideration due and 

        payable to HEX for provision of Services to the Consignor in accordance with

        the Rates Schedule(s) applicable to the Consignor and the Surcharges Schedule

        and any other agreement between HEX and the Consignor applicable to the

        particular consignment

(b)     “HEX” means Hood Express Pty Ltd (A.C.N. 127 766 581) howsoever trading  

 (including as “Hood Logistics”) its employees, agents and subcontractors

(c)      “consignment” means goods (together with any containers, packaging, pallets

                or similar items containing holding or accompanying the goods) accepted by

                HEX from a Sender for the purpose of supplying Services

(d)      “consignment note” (which term shall, except to the context in which it appears, include a prepaid consignment note) means a document in a form approved by HEX  and used to accompany a consignment identifying the Sender and Consignee of the consignment and to obtain a recipient’s signature as proof of delivery (“POD”) of the consignment

(e)       “Consignor” means the person with whom HEX contracts to provide Services

         except in the case of a quotation by HEX where it means the person to whom

         the quotation has been issued,  in 19 where it means the recipient of the

         quotation, advice etc referred to therein and 25 where it means the person

         whose credit worthiness is being assessed

(f)     “Consignee” means the intended recipient of the consignment as advised to 

         HEX by or on behalf of the Consignor

(g)         “Contract” means the contractual relationship between HEX and the Consignor arising from placement of an order by the Consignor with HEX to provide Services to the Consignor and acceptance by HEX of that order

(h)         “Credit Account Application” means the document so or similarly titled by which the Consignor requests HEX to establish a credit account on its behalf against which charges are debited and subsequently invoiced by HEX

(i)           “dangerous goods” means goods classified as such by any Dangerous Goods Code or similar instrument applicable to the goods or which are or may become dangerous, volatile, offensive, noxious, hazardous, inflammable, poisonous, corrosive, explosive or radioactive or which are or may become liable to injure people or cause damage to the environment or any property whatsoever 

(j)     “goods” means the wares and other tangible items of property (including 

         liquids and bulk materials) comprised in a consignment and any receptacle,

                 container, packaging or pallet in or on which they are contained or with which

         they are stored or handled.

        (k)    “invoice” (and “invoicing”) in relation to an invoice issued by HEX means a

                 Tax Act, 1999 (as amended) or any other legislation imposing a goods and

                 services tax or value added tax with respect to provision of Services

        (l)     “loss” and “damage” in relation to goods shall include concealed damage,

deterioration, contamination or evaporation and all loss or damage consequential upon loss of or damage to goods (including but not

                 limited to actual or potential loss of profit or custom or damage to reputation

                 and all costs, expenses, fines and other amounts arising as a consequence of or

                 incidental to such loss or damage)  

(m)    “normal trading hours” means the time between 7.00am and 6.30pm Monday

         to Friday excluding public holidays

(n)      “owner’s risk” means that, subject only to the provisions of these conditions,

   HEX shall not be liable for loss or damage to goods 

        (o)    “pallet” means any mobile platform or container made of wood, metal,

                 plastic or other material used for storage and/or transportation of goods

                 (including liquids) and includes equipment referred to as “skids” and

                 “pallecons”;

(p)      “prepaid consignment note” means a consignment note referred to in (d) above

        supplied by HEX to the Consignor and paid for by the Consignor at the

                 time of supply at a charge agreed with HEX on condition that where later used

                 by the Consignor to accompany a consignment that consignment will not be

                 subject to any additional charge so long as the consignment does not exceed

                 certain maximum weight and/or volume limits or is not consigned to a place

                 other than an agreed place

        (q)    “POD” means proof of delivery of a consignment as referred to in (d) above

(r)     “Rate Schedule” means a written schedule addressed and supplied by HEX to

    a Consignor by which charges can be calculated having regard to such factors

    as the type of service supplied, the number and size of goods, minimum

    charge, place of pick-up and delivery, weight, distance and transit time

        (s)     “Services” means the whole or any part of the operations and services

          (including computer systems and programs) used performed or supplied by

          HEX in connection with a consignment including but not limited to the

          collection, carriage, transportation, delivery and/or storage of the consignment

        (t)      “Sender” means the person (including a Consignor) from whom HEX accepts

a consignment for the purpose of supplying Services

        (u)      “subcontractor” includes any person who pursuant to a contract or   

         arrangement with any other person (whether or not HEX) performs or agrees

         to perform Services or any part thereof

        (v)     “surcharge” means a charge payable pursuant to and invoiced in accordance

        with the Surcharges Schedule

        (w)     “Surcharges Schedule” means a document so or similarly titled and produced

        by HEX listing charges in addition to those set forth in a Rates Schedule

        (x)    “tender” (and “tendered”) in relation to goods consigned to HEX includes

         goods picked up from a Sender (other than the Consignor) on the instructions

         of the Consignor

        (y)     “weight” includes mass

(z)      (i)   the singular includes the plural and vice versa;

          (ii)   any gender includes the other genders;

(iii)  “person” includes  natural person, partnership, corporation,                               

                          unincorporated association, regulatory body or governmental or semi-

                          governmental organisation;

                 (iv)   reference to any legislation includes reference to regulations and other

                          subordinate statutory instruments made pursuant to that legislation and

                          amendments to that legislation and to legislation replacing or revoking

                          that legislation that come into force and effect from time to time

                  (v)   reference to numbers and letters is reference to corresponding clauses

                          and sub-clauses in these Conditions. 

     2.    (1)    Except where otherwise expressly agreed in writing by HEX:

       (a)   each and every Contract for supply of Services shall be subject to these

              Conditions and to payment by the Consignor of charges in accordance

              with operative Rate and Surcharges Schedules;

       (b)   these Conditions will prevail over any contractual conditions (written

               or otherwise) used or relied upon by the Consignor; and

       (c)   when the Consignor tenders goods to HEX the Consignor shall thereby

               be and be deemed to be bound by these Conditions and to payment of

               charges in accordance with operative Rate and Surcharges Schedules.  

            (2)    No person (including an employee, agent or subcontractor of HEX) has any

      authority from HEX to waive or vary any of these Conditions or the

      application of the operative Rate and Surcharges Schedules unless the

      waiver or variation is in writing and signed by a director, so described, of

      HEX.

            (3)    The terms of the Consignor’s or Sender’s documentation shall not

      diminish or negate the application of these Conditions or operative Rate

      and Surcharges Schedules to the provision of Services.

     3.    (1)    For the purposes of these Conditions the expressions “operative Rate

               Schedule” and “operative Surcharges Schedule” and expressions of similar

               import mean the Rate Schedule(s) and Surcharges Schedule(s) in force and

               binding on the Consignor at the time the Services were performed by HEX

               for the Consignor.

            (2)    The Consignor acknowledges and agrees that:

                     (a)   subject to 3(2)(b), HEX may at its discretion review and increase

                            charges set forth in an operative Rate Schedule at any time after the

                            expiration of 6 calendar months following that Rate Schedule coming

                            into force provided however that:

     (i)   any such increase shall only take effect upon expiration of a

            period of at least one month’s written notice by HEX  to the

            Consignor of such proposed increase; and

                           (ii)   such increases shall not take effect at intervals of less than 6

                                   months;

                     (b)   HEX shall have the right to review and increase charges set forth in 

                             the operative Rate Schedule in the event that:

                             (i)   over a continuous period of at least 21 days the Consignor’s

                                    average weekly expenditure for Services is less than the

                                    minimum average weekly  expenditure indicated in the

                                    Consignor’s Credit Account Application; or

                            (ii)   any invoice issued by HEX to the Consignor has not been paid in

                                    full by the Date Payable noted on the invoice;

     provided however that:

            (ba)   any such increase shall only take effect upon expiration of a

                      period of at least one month’s written notice by HEX  to the

                      Consignor of such proposed increase; and

(bb)    the right conferred on HEX under 3(2)(b)(ii) shall not

          derogate from the right of HEX to suspend supply of

          Services in those circumstances.

            (3)    HEX shall have the right at any time and from time to review and increase

                     existing charges set forth in the operative Surcharges Schedule or impose 

                     new charges provided that such increase or imposition does not take effect  

                     less than one month following notification of such increase by HEX.

            (4)    For the purposes of 3(3) notification shall be deemed to have been given by

      HEX from and including the day upon which details are displayed on its

      internet web site and it shall be the absolute responsibility of the Consignor

      to ensure awareness of those details.

            (5)    HEX may charge by weight, measurement (volume) or value and may at any

                     time reweigh, re-measure or revalue or require the goods to be reweighed,

                     re-measured or revalued and levy and recover proportional additional

                     charges accordingly.

            (6)    Where in the case of a prepaid consignment note the actual weight and/or

      measurements (volume) of the consignment  exceeds the maximum limit as

      to weight and/or measurements (volume) or is consigned to a place other

      than an agreed place, HEX shall be entitled to levy and recover proportional

      additional charges accordingly. In the case of the consignment being

      directed to a place other than an  agreed place, the additional charge shall be

      based on the difference between the prepaid charge and the charge normally

      levied by HEX on a similar consignment sent to the destination nominated

      by the Sender.

            (7)    Where the goods are charged by measurement (volume) then unless  

                     otherwise stipulated by HEX in writing they shall be charged at the rate of

                     250 kgs per cubic metre.

            (8)    For the purpose of calculating the chargeable weight of goods, HEX

      reserves the right to round up the weight of the goods, whether calculated

      by actual weight or by measurement (volume), to the next whole kilogram.

            (9)    Where HEX or any agent or subcontractor of HEX weighs or reweighs,

measures or re-measures, values or revalues any goods by electronic or   

mechanical device or by any other means, the weight, measurements (volume) or value so determined shall be deemed to be accurate and correct  

for the purpose of determining charges to be invoiced and unless manifestly and demonstrably wrong shall be conclusive for that purpose.

     4.    Quotations by HEX are given on the basis of immediate acceptance and subject

             to the right of withdrawal or revision by HEX with or without notice and without

             need to show cause to the Consignor.

     5.    (1)    In addition to charges payable pursuant to the operative Rate and Surcharges

                     Schedules, the Consignor shall be liable to HEX for all costs fees and

                     expenses incurred for any reason in the provision of Services including the

                     cost to HEX of labour and material required to re-pack or palletise or

                     otherwise rectify or render secure the packaging of goods to the extent

                     which HEX considers in its absolute discretion to be required for the

                     proper provision of Services.           

            (2)    Notwithstanding the provisions of 5(1):

 (a)   HEX shall not be obliged to expend such labour or material and shall

      incur no liability whatsoever in consequence of either doing or not

      doing so;

                    (b)   whether or not HEX expends such labour and material, the goods shall

                            be at the owner’s risk; and

      (c)   the Consignor shall at all times be solely responsible for the conformity

                    of any containers, packaging, pallets or similar items with any

                    requirements of the Consignee and any liability or expense incurred by

                    HEX from any failure to so conform. 

     6.    (1)    HEX is not a common carrier and accepts no liability as such and may in its 

                     absolute discretion:

(a)       refuse (without need to show cause) provision of Services to any person

        (including the Consignor) whether before or after collection of  goods

        or transportation by HEX has occurred;

                     (b)   without limiting the generality of 6(1)(a), refuse to pick up or deliver

       freight where, in the absolute discretion of HEX, facilities and  

       resources available at the point or pick-up or delivery (as the case may

       be) are not adequate to properly and safely effect loading, unloading or

       other handling of goods;

                     (c)   open any document, envelope, package or other container in which

                             goods are placed or packaged to inspect the goods to determine the

       nature or condition of the goods, or, where any consignment note or

       identifying document or mark is lost, damaged or destroyed, to

       ascertain the ownership or intended destination of the goods provided

       however that HEX shall not be obliged to do so and shall incur no 

       liability whatsoever in consequence of either doing or not doing so.

(2)    Any refusal pursuant to 6(1)(a) or (b) shall be conditional upon refund of

         any moneys paid by the Sender for Services not supplied subject to the

         right of HEX to charge a fee applicable in accordance with the operative

         Surcharges Schedule or otherwise in accordance with these Conditions.

       7.    Where HEX supplies prepaid consignment notes for the purpose of providing

              Services, those prepaid consignment notes are not transferable and moneys paid

              for them are not refundable other than where required by law.

       8.    The Consignor warrants and agrees that any person who purports to tender goods  

              to HEX on behalf of the Consignor (or any Sender from whom HEX picks up

              goods at the direction or in accordance with the instructions of the Consignor) is

              authorised by the Consignor to do so, to sign the relative consignment note and

              to accept these Conditions on behalf of the Consignor and any person having an

              interest in the goods.

       9.    Where the Consignor is not the owner of the goods tendered to HEX, it warrants

              its authority to act as agent of the owner of, or any other person having an

              interest in, the goods for all purposes in connection with provision of Services

              and is authorised to accept and is accepting these Conditions not only for itself

              but as agent for and on behalf of all other persons who are or may hereafter be

              interested in the goods.  

     10.    The Consignor indemnifies and shall keep indemnified HEX in respect of all

              liability whatsoever or howsoever arising (including, without limitation, from

              negligence by act or omission by HEX or any other person) to any person in

              connection with provision of Services or the goods generally.

     11.    The Consignor for itself and the Sender (where they are not identical):

              (1)   warrants that it has provided any necessary instructions and information

                      regarding handling, care and control of the goods and the provision of

                      Services with respect to them; and

              (2)   warrants that it has complied with all laws and regulations relating to the

                      nature, description, condition, packaging, labeling, storage and

                      transportation of the goods and that the goods are packed in a manner

                      adequate to withstand the ordinary risks associated with performance of

                      Services having regard to the nature of the goods; and

              (3)   warrants that it shall provide to HEX any assistance, information and

                      documentation that may be necessary to enable HEX to comply with such

                      laws and regulations; and

              (4)   warrants the accuracy of all markings and brandings of the goods and all

        particulars furnished to HEX for the purpose of provision of Services; and

(5)   warrants that appropriate and adequate equipment and personnel will be

       available at points of pick-up and delivery to carry out loading and

       unloading activities where the size and/or nature of the consignment so

       requires; and

(6)   agrees that it is the responsibility of the Consignor to ensure the

                      conformity of any containers, packaging or pallets supplied by the Sender

                      with any requirements of the Consignee; and

              (7)   indemnifies and holds harmless HEX against all loss and damage arising

                      and all costs and expenses incurred as a consequence of failure to comply

                      with the warranties referred to in 11(1), (2), (3) and (5), the agreement

                      referred to in 11(6) and any inaccuracy or omission in respect of matters

                      referred to in 11(4).

12.    (1)    The Consignor shall not tender to HEX any dangerous goods without

                  presenting to HEX a full and accurate description disclosing the nature of

                  the goods and, where relevant, how Services should be provided with

                  respect to the goods and in any event shall be liable for and shall indemnify

                  and hold harmless HEX from and against all claims for death, bodily injury, 

                  loss, damage, expense or penalty caused by those goods.

             (2)    If in the opinion of HEX the goods are or are liable to become dangerous

         goods, HEX may at any time, at the cost and without compensation or

         liability to the Consignor, take such action in respect of the goods as it

         considers appropriate including retention, destruction, disposal,

         abandonment or rendering harmless of the goods AND any such action

         shall be without prejudice to HEX’s right to payment from the Consignor of

         all charges as would have been payable if the goods concerned had been

         delivered undisturbed and intact as well as the costs of taking action

         pursuant to this Clause.  

    13.    (1)    HEX and any subcontractor may subcontract on any terms all or any part of

                  the Services.

             (2)    Every exemption, limitation, condition and liberty herein contained and

                      every right, power, authority, exemption from liability, defence and

                      immunity of whatsoever nature applicable to HEX or to which HEX is

                      entitled hereunder shall also be available and shall extend to protect:

              (a)   all subcontractors;

               (b)   every employee or agent of HEX and of every subcontractor;

                      (c)   every other person (except HEX) by whom Services or any part

                              thereof are performed; and

                      (d)   all persons (including HEX) who are or may  be vicariously liable for

        the acts or omissions of any person falling within (a), (b) or (c) hereof.

             (3)    For the purpose of this Clause 13, HEX is or shall be deemed to be acting as

                      agent or trustee on behalf of and for the benefit of all persons (except HEX)

                      falling within 13(2)(a), (b), (c) and (d) who shall to that extent be deemed to

                      be parties to the Contract.

 (4)    The Consignor:

        (a)   warrants that no claim or allegation inconsistent with this Clause 13

                shall be made by the Consignor or any other person who is or may

                hereafter be interested in the provision of Services and/or the goods;

                and

(b)      indemnifies and shall keep indemnified HEX and each person referred

        to in 13(2) against all claims including liability for legal costs incurred

        by HEX in relation to any such claim on a full indemnity basis.

    14.   (1)    If the Sender expressly or impliedly instructs HEX to perform Services in a

                     particular way (whether as to means or route of carriage, place of storage or

                     otherwise) HEX shall endeavour to give priority to that way but in any event

                     the way of providing Services shall be at the sole discretion of HEX and the

                     Consignor authorises HEX in its absolute discretion to adopt any

                      way of providing Services other than the way instructed or agreed.

            (2)    The Consignor authorises any deviation from the customary or usual means

                     or route of carriage or place of storage (if any) as HEX may in its absolute

        discretion deem desirable or necessary.

            (3)    HEX may comply with all orders, directions or recommendations made by a

                     government or regulatory agency in relation to the goods and /or provision

                     of Services without recourse to the Sender.  

   15.    (1)    HEX is authorised to deliver goods to the Consignee at the address

                     nominated by the Consignor or Sender or Consignee and shall be deemed

                     to have delivered the goods in accordance with the Contract if at that

                     address it obtains a signature acknowledging receipt of delivery from or on

                     behalf of the Consignee by a person who holds himself out to be or  to

                     have the authority of the Consignee.

            (2)    An acknowledgement of receipt of the goods in good order and condition

        shall be conclusive in favour of HEX that the goods were delivered and

        received without loss or damage.

            (3)    The Consignor agrees without exception that the signature of any person at

                     pick-up made on behalf of HEX is only acknowledgment of the number of

                     separate visible items, not of the accuracy of the nature, weight, dimensions

                     or volume of all of any of the goods comprised in the consignment.

            (4)    If the nominated place for delivery is unattended at the time delivery is

        attempted during normal trading hours or at the time specified by the

        Consignor (and agreed to by HEX) or if delivery cannot otherwise be

        effected for any reason whatsoever beyond the control of HEX, HEX may in

        its absolute discretion and without having to obtain prior instructions

        from the Consignor or Sender:

                     (a)   leave the goods at the nominated place which shall be conclusively

     presumed to be delivery of the goods in accordance with the Contract;   

     or

                     (b)   without being obliged to do so, store the goods pending redelivery or

     return; and

                     (c)   attempt redelivery of the goods at the nominated place for delivery;

     and/or

                     (d)  return the goods to the Consignor or Sender.

             (5)    Storage, each attempt at redelivery and return of goods in accordance with          

       15(4)(b), (c) and (d) above shall be at the owner’s risk and expense of the

       Consignor. Unless otherwise agreed in writing, the minimum charge

       payable for:

                      (a)   each attempt at redelivery shall be the same as the charge payable as a

                              successful attempt; and

                      (b)   return of the goods shall be the charge normally payable to HEX for

        goods being delivered from the place of storage or intended delivery

        (as the case may be) to the place where return is effected.

             (6)    Should an attempt by HEX to pick up goods at the place nominated by the

                      Consignor during normal trading hours or at a time specified by the

                      Consignor (and agreed to by HEX) be rendered futile because at such time

                      or place:

                      (a)   the Consignor or other person nominated by the Consignor is not in

                       attendance; or

      (b)   without reasonable prior notice to HEX a consignment is not available

              for prompt pick-up; or

               (c)   for any other reason whatsoever beyond the control of HEX,

               then HEX shall be entitled to impose and the Consignor shall be liable to

               pay a charge in accordance with the operative Surcharges Schedule and                    

               otherwise adequate to reasonably compensate HEX for each such attempt.

      (7)    If for any reason beyond the control of HEX (including time involved in

                      waiting for a consignment to be available for collection or for loading or 

                      unloading to commence or be carried out) a pick-up or delivery cannot be

               completed within 10 minutes of arrival of HEX’s vehicle at the nominated

               place within normal trading hours then HEX shall be entitled to impose

               and the Consignor shall be liable to pay a charge in accordance with the

               operative Surcharges Schedule and otherwise sufficient to reasonably  

               compensate HEX for the time taken up by such delay.

         (8)    The Consignor acknowledges and agrees that in some circumstances, due to

                  the nature or location of nominated address for pick-up or delivery (such as

                  remoteness, accessibility or distance from the nearest depot of HEX or its

                  local sub-contractor), or the characteristics of the goods (such as their

                  weight or bulk), or, the lack of resources available to effect pick-up or

                  delivery (such as fork-lifts or other appropriate equipment), it will

                  impracticable for HEX to effect pick-up or delivery at the address

                  nominated by the Sender in which case it will be necessary for:

(a)       the Sender to drop off the goods at a place nominated by HEX (or its 

        sub-contractor); or

                      (b)   the Consignee to pick-up the goods at such a nominated place; and

          (c)   the Consignor to pay HEX’s reasonable charges, if any, attributable to

                  additional cost and expense caused by such circumstances.  

   16.    Without limiting the force and effect of relief from liability conferred on HEX by

            these Conditions:

(1)         Any claim by a Consignor against HEX for loss and/or damage to goods

and/or other property allegedly caused in the course of  provision of Services by HEX must be made in writing by the Consignor containing all relevant details and substantiated with all appropriate documentation, and:

(a)       where the claim relates to alleged damage to goods or any other

property, must be made within 48 hours of delivery;

(b)      in the case of alleged loss, must be made within 48 hours from the time

the goods allegedly lost should in the ordinary course have been delivered; or

(c)       where the claim arises from any other cause (including with respect to

HEX’s charges) must be made within 14 days from the Closing Date shown on HEX’s relative invoice.

(2)         Where a claim is made within the relevant prescribed period and HEX

makes written request of the claimant for further particulars, the time period

     prescribed in 16(1) shall be deemed to be extended for a further 7 working

     days from the date that the request was made and to expire at 5.00pm on the

     day marking the expiration of that period except where that day is not a

     working day in which case it shall expire at 5.00pm on the next working

     day.

(3)    Consideration of claims made outside these periods will be entirely at the

discretion of HEX and failure to notify a claim within the relevant

             prescribed period will be evidence of satisfactory performance by HEX of

             its obligations under the Contract.

(4)    A claim will not be valid or eligible for consideration if based only on

absence of evidence of proof of delivery endorsed on the Consignor’s 

                     paperwork if that evidence is provided by HEX’s consignment note and vice

                     versa.

     (5)    A claim for loss of or damage to goods or other property will not be valid or

              eligible for consideration by HEX if at the time of delivery (provided the

              Consignee or some other person is in attendance at the place of intended

              delivery) an acknowledgement referred to in 15(2) is made by the Consignee

              or that other person.

            (6)    HEX shall promptly consider and give written notice to the Consignor of its

                     decision with respect to any claim validly submitted, and, unless manifestly

                     wrong or unreasonable, the decision of HEX shall be final and conclusive.

            (7)    Where HEX does not give written notice of its decision regarding a claim

             within 14 days from expiration of the prescribed period or the extended

             period referred to in 16(1) and (2), in the absence of written agreement

             between HEX and the claimant to the contrary, HEX will be deemed to have

             rejected the claim.                 

     (8)    HEX’s charges shall be deemed fully earned as soon as the goods are

              received from the Sender and (unless paid by the Consignee) shall be  

              payable in full by the Consignor without deduction or set-off for any

              outstanding credit claims which, if approved, will be the subject of

              adjustment against subsequent invoices or direct reimbursement by HEX.   

    (9)    The Consignor (and any party seeking to claim through the Consignor) shall

             be completely and forever barred from bringing suit against HEX with

             respect to a consignment unless:

                      (a)   the claim giving rise to the alleged cause of action has been the

             subject of a valid claim made to HEX in accordance with 16(1); and

                      (b)   the claim has been rejected wholly or in part by HEX or is deemed to  

                              have been rejected pursuant to 16(7); and

              (c)   the proceedings are commenced against HEX within 21 days from

                      rejection or deemed rejection of the claim (as the case may be),

                       AND it acknowledged and agreed that these provisions may be adduced by 

                       HEX as an absolute bar and estoppel in any proceedings brought in

                       contravention of these provisions.

     17.    (1)    Unless otherwise agreed in writing, HEX’s invoices shall be payable no

                       later than the Date Payable shown on each invoice.

              (2)    In the event that the Consignor does not pay all or any part of  an invoice

                       in accordance with 17(1), the Consignor shall upon payment becoming

                       overdue become liable to pay to HEX in addition to the unpaid invoiced

                       amount an amount representing whichever from time to time is the greater

                       of:

                       (a)   interest at the rate of 12% per annum on the unpaid amount; and

                       (b)   interest at a rate 2% per annum greater than interest on a pre-

 Act, 2005 (NSW).

              (3)    The Consignor irrevocably agrees that an amount calculated by either or

                       both alternatives set forth in 17(2) is a properly and fully recoverable as a

                       genuine and substantially accurate pre-estimate of damages which will be

                       suffered by HEX from non-payment of any invoiced in accordance with

                       17(1) and does not constitute a penalty such as might otherwise render it

                       unrecoverable by HEX in any legal proceedings against the Consignor.

     18.    (1)    Unless HEX has agreed in writing to insure or arrange insurance against

                       loss of or damage to a consignment then HEX shall have no responsibility

                       whatsoever for  insuring or arranging insurance and incur no liability

                       whatsoever for not insuring or arranging insurance of that consignment

                       which shall be the sole responsibility of the Consignor.

              (2)    If  HEX has agreed in writing to insure or arrange insurance for a

                       consignment, then, subject to 21,  the liability of HEX is limited to the

                       amount, if any, it is liable to pay under such insurance for physical loss of

                       or damage to goods contained in the consignment provided however that

                       any such liability shall be based on the cost to purchase or manufacture

                       like goods or in the case of repairable damaged goods the cost of repair

                       and in each case excluding GST except to the extent that the Sender is not

                       legally able to claim an adjustment by way or refund  of or reduction in or

                       an input tax credit with respect to GST paid or payable to replace or repair

                       lost or damaged goods (as the case may be). 

              (3)    Subject to 18(1) and (2), all consignments and goods are at the owner’s

                       risk and, unless expressly agreed in writing, HEX shall not be responsible

                       in tort or contract or otherwise (including as bailee) for any loss of or

                       damage to goods or misdelivery or failure to deliver or delay in delivery of

                       goods (including perishable goods) either in transit or in storage, for any

                       reason whatsoever including (without limiting the generality of the

                       foregoing) the negligence or breach of contract or wilful act or default of

                       HEX or others, and, this sub-clause 18(3) shall apply to all such loss of or

                       damage to goods or misdelivery or failure to deliver or delay in delivery of

                       goods as aforesaid whether or not the same occurs in the course of:  

                       (a)   performance by HEX of the Contract; or

                       (b)   events which are in the contemplation of or are foreseeable by HEX

                               and/or the Consignor; or

         (c)   events which would constitute a fundamental breach of these    

                               Conditions or the Contract or a breach of a fundamental term thereof.

              (5)    Subject to 18(1) and (2), in the event that any loading, unloading, handling,

                       removal, dismantling, assembly or erection of any kind whatsoever is

                       involved in performance of the Contract it is undertaken strictly on the

                       basis that HEX accepts no liability for any loss, damage or injury of any

                       kind whatsoever, however caused or incurred or occurring during any part

                       of the relevant activity. This disclaimer extends to include not only loss of

                       or damage to itemised goods or equipment itself, but loss, damage or injury

                       to any person, property or thing caused during the activity and to any loss

                       or damage consequentially or otherwise arising from any such loss,

                       damage or injury aforesaid.

              (6)    Goods are accepted by HEX on condition that it shall not be responsible  

         for the collection on behalf of the Consignor or any other person of

         payment of moneys (in cash or otherwise) from the Consignee or any other

         person for the goods and/or charges payable to HEX, and, when goods are

         tendered to HEX with instructions to collect such payment and HEX fails

         to  comply with those instructions:

                       (a)   HEX shall not be liable to the Consignor or any other person for such

                 failure; and

         (b)   the Consignor shall indemnify HEX against any claim or demand    

                 brought against it arising from such failure; and

                       (c)   the Consignor shall nevertheless be liable for payment in full of all

                               HEX’s charges relating to provision of Services with respect to those

                 goods.

              (7)    Every instruction to HEX to the effect that charges shall be paid by a  

person other than the Consignor shall be deemed to include a stipulation that if the nominated person does not pay those charges within 7 days of delivery or attempted delivery of the goods, then those charges shall become due and payable by the Consignor on or before the Date Payable shown on the invoice including those charges sent to the Consignor.

     19.    (1)    HEX shall not be liable in negligence or contract or otherwise for loss,

                       damage, costs fines or penalties incurred by the Consignor or any other

                       person resulting from or arising out of or in connection with any quotation,

                       advice, statement, representation or information given or made by or on

                       behalf of HEX to the Consignor or others as to classification of or any

                       matter material to the valuation of or the liability for or the amounts, scale

                       or rate of customs or excise duty or other impost, tax or rate charged in

                       respect of the goods or any other item whatsoever.

              (2)    In giving or making any such quotation, advice, statement, representation

                       or information, HEX relies solely on the particulars provided by the

                       Consignor which warrants that those particulars accurately and completely

                       describe all aspects of the goods and the transactions relating to the goods.

     20.    (1)    Without limiting or prejudicing other legal and equitable rights and

                       remedies available to it, HEX shall have both a general and a particular

                       lien over the goods and/or any freight or other  items of the Consignor (and

                       any documents relating thereto) of the Consignor in the custody or under

                       the control of HEX for any moneys owing to HEX by the Consignor

                       whether in connection with the carriage of the goods or otherwise. HEX

                       shall have the right to sell or dispose of any or all of the goods or other

                       items as agent for and at the expense of the Consignor by public auction or

                       private treaty without notice to the Consignor to satisfy that obligation and

                       all costs incurred by HEX for storage  or in relation to the sale, including

                       legal costs on a full indemnity basis.

 (3)    The lien conferred on HEX by 20(1) shall extend to allowing HEX without

          liability to withhold delivery and retain possession of the goods, other

          items and documents referred to therein pending payment of the moneys

          owing whether or not the goods, other items and documents are or

          reasonably appear to be the property of the Consignor.

 (4)    The Consignor shall indemnify and keep indemnified HEX from and

          against all liability whatsoever to any other person arising from any action

          taken by HEX pursuant to the provisions of this clause 20.

     21.    In all cases where liability of  HEX has not been excluded, whether by these

              Conditions, by statute or otherwise, the liability of HEX whatsoever and

              howsoever arising is limited to:  

              (a)   AUD100 or the value of the goods the subject of the Contract at the time

  the goods were received by HEX, whichever is the lesser; or

              (b)   in the case of a proven breach of any warranty implied by the Trade   

  Practices Act, 1974, supplying the Services again or to the payment of the

  cost of having Services supplied again.         

     22.    (1)    Any relief from liability in these Conditions is to be read subject to any

                       restriction on contracting out of liability and to any implied terms,

                       Practices Act 1974) binding on HEX so that the provisions for relief in

                       these Conditions are limited or rendered ineffective only to the extent

                       required to give effect to that legislation but are otherwise fully effective

                       or independent of  any provisions which are void or ineffective by reason

                       of the legislation.

(2)    In the absence of any such implied term, condition or warranty, HEX gives

         no warranty or undertaking:

         (a)   as to time of pick-up or delivery of goods; or

                       (b)   that it will inform the Sender of the expected or actual time of pick-up

                               or delivery,

                       and may in its discretion cancel the supply of Services at any time without

                       liability to any person.

     23.    If any provision or part of any provision in these Conditions or in the Contract is

              or becomes unenforceable that unenforceability shall not affect the

     24.    These Conditions and the Contract shall be governed and construed in

              accordance with the laws in force from time to time in the State of New South

              Wales and shall be subject to the jurisdiction of the courts of that State.     

     25.    In applying for credit facilities from HEX, the Consignor expressly agrees:  

              (a)   to the disclosure of personal, financial and other information to HEX from

                     a credit reporting agency;        

              (b)   to the disclosure of personal, financial or other information by HEX to a

                      credit reporting agency;

              (c)   that HEX may contact any trade reference or other credit reference at any

                      time or from time to time for the purpose of assessing the credit worthiness

                      of the Consignor;

              (d)   that HEX may receive from any credit provider or may supply to any credit

                      provider any credit information whether by way of report, record, data or

                      otherwise relating to the credit worthiness of the Consignor for the

                      purposes of exchange of information, assessing credit worthiness, and

                      notification of default at any time by the Consignor.

    26.    (1)    HEX has the right at any time and from time to time to amend these

                      Conditions without specific notice, written or otherwise, to the Consignor.

                      All such amendments shall have full force and effect on and from the date

                      upon which the amendments are incorporated in the Conditions displayed

                      on HEX’s internet website (www.hoodlogistics.com.au).

             (2)    It shall be the absolute responsibility of the Consignor to ensure at all times

                      that it has or has access to an up-to-date copy of these Conditions a written

                      copy of which HEX will make available on request.