1.1 NT shall mean Nightingale Transport (QLD) Pty Limited and its successors and assigns or any person acting on behalf of and with the authority of Nightingale Transport (QLD) Pty Limited.
1.2 Sub-Contractor shall mean and include:
(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
(b) any other person or entity with whom NT may arrange for the carriage or storage of any Goods the subject of the contract; or
(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clause 1.2(a) and 1.2(b).
1.3 Client shall mean the Client or any person or persons acting on behalf of and with the authority of the Client. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
1.4 Consignee shall mean the person to whom the Goods are to be delivered by way of NTs Services.
1.5 Goods shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of NTs Services, or for storage by NT.
1.6 Services shall mean all services supplied by NT to the Client (including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or fumigating, transhipping, or otherwise handling the Goods, or anything else done in relation thereto including the offering of any advice or recommendations.
1.7 Price shall mean the cost of the Services as agreed between NT and the Client subject to clause 4 of this contract.
2.1 Any instructions received by NT from the Client for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of NT.
2.3 These terms and conditions are to be read in conjunction with NTs quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by NT to the Client. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
2.4 The Client shall give NT not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Clients name and/or any other change in the Clients details (including but not limited to, changes in the Clients address, facsimile number, or business practice). The Client shall be liable for any loss incurred by NT as a result of the Clients failure to comply with this clause.
2.5 The Client accepts, acknowledges and understands the concept of Chain of Responsibility (COR) i.e. control or influence of the transport chain can be held legally accountable, if by actions, inactions or demands, they cause or contribute to road safety breaches. Therefore any person wittingly or unwittingly contributing to driver fatigue through inappropriate scheduling/rostering, excessive queuing times, excessive loading/unloading times, or any other driver fatigue contributing act will be held directly accountable.
3 Freight Forwarding
3.1 Except to the extent that any of the Services shall be actually performed by NT, NT shall act as a forwarding agent only. NT shall be entitled, to enter into contracts on behalf of and as agent for the Client and without notice to the Client, for the carriage of the Goods by any route, means and carrier, for the storage, packing, trans-shipment, unloading, loading or handling of Goods by any person at any place and for any length of time, and for such other matters as in the opinion of NT may be necessary or desirable to the performance of the Services. The Client hereby appoints NT the agent of the Client for the purpose of entering into any contract, upon such terms and conditions, as NT may in its absolute discretion think fit. The Client shall be bound by the terms of any consignment note, air waybill or other contractual document which NT may receive for the Goods, or for any package, unit or container in which the Goods may be packed, whether by the Client, NT, or any other person.
4 Price And Payment
4.1 At NTs sole discretion the Price shall be either;
(a) as indicated on invoices provided by NT to the Client in respect of Services supplied; or
(b) NTs quoted Price (subject to clause 4.2 & 4.3) which shall be binding upon NT provided that the Client shall accept in writing NTs quotation within fourteen (14) days.
4.2 NT may by giving notice to the Client increase the Price of the Services to reflect any increase in the cost to NT beyond the reasonable control of NT (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).
4.3 The Carrier may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
4.4 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment note, airway bills, manifests or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.5 At NTs sole discretion;
(a) payment shall be due on delivery of the Goods, or
(b) payment shall be due before delivery of the Goods, or
(c) payment for approved Clients shall be due on thirty (30) days following the end of the month in which a statement is posted to the Clients address or address for notices.
4.6 Payment will be made by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and NT.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5 NT Not Common Carrier
5.1 NT is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by NT subject only to these conditions and NT reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
6 Client-Packed Containers
6.1 If a container has not been stowed by or on behalf of NT NT shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.
7 Nomination Of Sub-Contractor
7.1 The Client hereby authorises NT (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Client upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as NT. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled NT shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
8 NTs Servants or Agents
8.1 The Client undertakes that no claim or allegation shall be made against any servant or agent of NT which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify NT and any such servant or agent against all consequences thereof.
9 Method Of Transport
9.1 If the Client instructs NT to use a particular method of carriage whether by road, rail, sea or air NT will give priority to the method designated but if that method cannot conveniently be adopted by NT the Client shall be deemed to authorise NT to carry or have the Goods carried by another method or methods.
10 Route Deviation
10.1 The Client shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of NT be deemed reasonable or necessary in the circumstances.
11 Charges Earned
11.1 NTs charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and despatched from the Clients premises.
12.1 The Client will be and shall remain responsible to NT for all its proper charges incurred for any reason. A charge may be made by NT in respect of any delay in excess of one (1) hour and thirty (30) minutes in loading or unloading occurring other than from the default of NT. Such permissible delay period shall commence upon NT reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Client or Consignee.
13 Dangerous Goods
13.1 Unless otherwise agreed in advance in writing with NT the Client or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Client shall be liable for and hereby indemnifies NT for all loss or damage whatsoever caused by any Dangerous Goods.
14 Consignment Note
14.1 It is agreed that the person delivering any Goods to NT for carriage or forwarding is authorised to sign the consignment note for the Client.
15 Clients Responsibility
15.1 The Client expressly warrants to NT that the Client is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Client accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Client is acting.
16.1 NT is authorised to deliver the Goods at the address given to NT by the Client for that purpose and it is expressly agreed that NT shall be taken to have delivered the Goods in accordance with this contract if at that address NT obtains from any person a receipt or a signed delivery docket for the Goods.
16.2 NT may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.
16.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery for the purposes of this agreement.
16.4 It is the Clients sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.
16.5 The failure of NT to deliver shall not entitle either party to treat this contract as repudiated.
17 Loss Or Damage
17.1 Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):
(a) NT shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of NT or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
(b) the Client will indemnify NT against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by NT in connection with the Goods.
18.1 The Client acknowledges that:
(a) the Goods are carried and stored at the Clients sole risk and not at the risk of NT; and
(b) NT is under no obligation to arrange insurance of the Goods and it remains the Clients responsibility to ensure that the Goods are insured adequately or at all; and
(c) under no circumstances will NT be under any liability with respect to the arranging of any such insurance and no claim will be made against NT for failure to arrange or ensure that the Goods are insured adequately or at all.
19.1 Notwithstanding clauses 17 and 18 in the event that the Client believes that they have any claim against NT then they must lodge any notice of claim for consideration and determination by NT within seven (7) days of the date of delivery, or for non delivery within seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
19.2 The failure to notify a claim within the time limits under clause 19.1 is evidence of satisfactory performance by NT of its obligations.
20 The Commonwealth Competition and Consumer Act 2010 and Fair Trading Acts
20.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
20.2 Where the Client purchases the Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumers statutory rights.
20.3 Liability of NT arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Competition and Consumer Act 2010 or howsoever arising, is limited to any of the following as determined by NT;
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again; or
(c) where the Client is a consumer as defined in the Competition and Consumer Act 2010 then the Client shall also be entitled to a refund.
21 Default & Consequences Of Default
21.1 If the Client owes NT any money the Client shall indemnify NT from and against all costs and disbursements incurred by NT in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, NTs collection agency costs, and bank dishonour fees).
21.2 Without prejudice to any other remedies NT may have, if at any time the Client is in breach of any obligation (including those relating to payment), NT may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. NT will not be liable to the Client for any loss or damage the Client suffers because NT exercised its rights under this clause.
21.3 Without prejudice to NTs other remedies at law NT shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to NT shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to NT becomes overdue, or in NTs opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
22 Unpaid Sellers Rights to Dispose of Goods
22.1 NT shall have a lien on any Goods owned by the Client and in the possession or control of NT (and any documents relating to those Goods) for all sums payable by the Client to NT, and NT shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Client. NT shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
23 Personal Property Securities Act 2009 (PPSA)
23.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and NT by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
23.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by NT to the Client (if any);
(ii) all Goods that will be supplied in the future by NT to the Client.
23.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which NT may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 23.3(a)(i) or 23.3(a)(ii);
(b) indemnify, and upon demand reimburse, NT for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of NT;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of NT; and
(e) immediately advise NT of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
23.4 NT and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
23.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
23.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
23.7 Unless otherwise agreed to in writing by NT, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
23.8 The Client shall unconditionally ratify any actions taken by NT under clauses 23.3 to 23.5.
24 Security And Charge
24.1 Despite anything to the contrary contained herein or any other rights which NT may have howsoever:
(a) where the Client is the owner of land, realty or any other asset capable of being charged, the Client agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to NT or NTs nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client acknowledges and agrees that NT (or NTs nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should NT elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client shall indemnify NT from and against all NTs costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client agrees to irrevocably nominate constitute and appoint NT or NTs nominee as the Clients and/or Guarantors true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 24.1.
25 Privacy Act 1988
25.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for NT to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by NT.
25.2 The Client agrees that NT may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Clients creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
25.3 The Client consents to NT being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
25.4 The Client agrees that personal credit information provided may be used and retained by NT for the following purposes (and for other purposes as shall be agreed between the Client and NT or required by law from time to time):
(a) the provision of Services; and/or
(b) the marketing of Services by NT, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Clients credit, payment and/or status in relation to the provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Clients account and/or the collection of amounts outstanding in the Clients account in relation to the Services.
25.5 NT may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
25.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Clients name, sex, address, previous addresses, date of birth, name of employer and drivers licence number;
(b) details concerning the Clients application for credit or commercial credit and the amount requested;
(c) advice that NT is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Clients overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of NT, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by NT has been paid or otherwise discharged.
26 Compliance with Laws
26.1 The Client and NT shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
26.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
26.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
27.1 NT may cancel any contract to which these terms and conditions apply or cancel the Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice NT shall repay to the Client any sums paid in respect of the Price. NT shall not be liable for any loss or damage whatever arising from such cancellation.
27.2 In the event that the Client cancels the Services, then the Client shall be liable for any loss incurred by NT (including, but not limited to, any loss of profits) up to the time of cancellation.
28.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
28.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
28.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Beenleigh.
28.4 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by NT.
28.5 NT reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which NT notifies the Client of such change. Except where NT supplies further Services to the Client and the Client accepts such Services, the Client shall be under no obligation to accept such changes.
28.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
28.7 The terms and conditions set out herein shall prevail over the terms and conditions set out in any document used by the Client, the owner or any other person having an interest in the Goods and purporting to have a contractual effect.
28.8 The failure by NT to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect NTs right to subsequently enforce that provision.