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Brisbane
Terms and Conditions
National Car Movers Terms and Conditions
- Recitals
- The Customer has engaged the Company to perform the Services in accordance with this Agreement.
- The Company agrees to perform the Services in accordance with this Agreement.
- The Parties agree to be bound by the terms of this Agreement.
- This Agreement is legally binding and enforceable in all respects.
- Not a Common Carrier
The Company is not a common carrier and will accept no liability as such. All Goods are carried and all storage and other services are performed by the Company subject only to this Agreement and the Company reserves the right to refuse the carriage of Goods for any person, corporation, company and/or other entity and the carriage of any class of goods at its discretion.
- Customer Warranties & Promises
3.1 The Customer warrants that:
- It is either the owner and/or the authorised agent of the person or persons owning or having any interest in the Goods or any part of the Goods and enters into this Agreement on its own behalf and/or as authorised agent of that person or persons;
- It has accurately and fully described the Goods having regard to the nature and packing of the Goods and has provided all necessary instruction and information regarding handling, care and control of the Goods having regard to the nature and packing of the Goods;
- It has complied with the requirements of any applicable law (including the Australian Dangerous Goods Code 2018) relating to the nature, condition, packing, handling, labelling, storage and carriage of the Goods and it shall provide all necessary assistance, information and documentation to enable the Company to comply with any of its obligations under such law;
- The Goods do not include and/or conceal any Dangerous Goods;
- Other than a Claim or allegation by the Customer against the Company, no Claim or allegation shall be made by any person (including the Customer) against any other person (including the Company) who provides the Services or any part of the Services, which imposes or attempts to impose any liability whatsoever and howsoever arising in connection with the provision of the Services and/or Goods;
- The adequacy of packing and suitability of the Goods for Services contracted will be capable of withstanding handling, transport and storage. The accuracy of all markings or brandings of the Goods, descriptions and other particulars furnished to the Company for the cartage and any other purposes and undertakes to indemnify the Company against all loss, damage, expenses and fines arising from any inadequacy, unsuitability, inaccuracy or omission in this respect.
3.2 The Customer promises that:
- The Customer has removed all personal effects from the Goods, with the exception of a child restraint seat (but not a booster seat) which is properly fastened or affixed to the interior of the Goods in accordance with requirements of the relevant laws;
- Any personal effects in the Goods have been removed, notwithstanding any other term of this Agreement, the Customer bears all risk of loss and/or damage to personal effects left in the Goods and/or damage caused to the Goods by having personal effects in the Goods.
- The Customer is the registered owner of the Goods, or if there are other owners the Customer acts as their agent and they agree to handling, transport and storage of the Goods on the terms of this Agreement.
- The Customer will indemnity the Company from the time the Company receives any written notice of Claim in connection with this Agreement or the handling, transport or storage of the Goods from any person other than the Customer (including the sender where the Customer is not also the sender);
- The Customer, or a person with authority to act on the Customer’s behalf, has provided the Company with accurate information in respect to the Goods;
- The Goods are presented by the Customer to the Company in a safe condition to withstand handling, transport and storage;
- The Customer has complied with all laws in connection with the Goods to ensure that it can be lawfully handled, transported or stored;
- The Customer has not asked the Company to handle, transport and/or store the Goods in any way that could be unlawful;
- The Customer will not sue any person referred to in clause 3 herein for anything arising in connection with this Agreement or the handling, transport or storage of the Goods; and
- The Customer will indemnify the Company against any claims in respect of death or injury to any person, loss of or damage to any property, and any fines or penalties incurred by the Company as a result of the Customer’s breach of this Agreement or as a result of, in connection with, or arising out of personal effects left in the Goods.
- Authority
4.1 The person delivering the Goods to and the person collecting the Goods from the Company is authorised to do so and is author sided to bind the Customer under this Agreement.
4.2 Company is not, and will not be deemed to be, a consignor as defined by the Road Transport Reform (Dangerous Goods) Regulations 1997 (CTH) and accepts no liability as such. The Customer authorises the Company to name the Customer or another person as the consignor in any documentation where applicable.
4.3 Upon delivery of the Goods, the Customer authorises the Company to handover the Goods to an employee, agent and/or representative of the Customer.
- Delivery and Pickup
5.1 The Company will collect the Goods from, and deliver the Goods to, the locations and persons specified in the booking confirmation or, if relevant, the bill of lading or consignment note. The Customer is responsible for arranging that the collection and delivery locations of the Goods are accessible at the times agreed for collection and delivery and are reasonably suitable for collection or delivery of Goods. If the delivery location is unattended or not reasonably accessible or delivery of the Goods is refused, the Company may choose to deposit the Goods at the delivery location, store the Goods or return the Goods to the sender at the Customer’s risk and expense and that action will be deemed to constitute delivery of the Goods.
5.2 The Company will not accept liability for damage to the Goods or if the Goods are in poor condition upon delivery of same to the Customer.
5.3 If the Customer or the receiver fails to accept delivery of Goods, the Company shall be entitled to store the Goods at the risk and expense of the Customer.
5.4 Any Vehicle used by the Customer and/or the Customer’s representative, agent and/or employee to deliver the Goods to the Company will be in a fit and proper condition and will comply with all applicable laws. - Route and Deviation
If the Company is instructed by the Customer and agrees to use a particular method or type of Service, the Company shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed. The Customer hereby authorises the Company to substitute alternate carriers or Service providers without notice to the Customer.
- Insurance
The Company does not hold an Australian Financial Services License and, in accordance with the Corporations Act 2001 (Cth), shall not arrange or provide insurance for the Customer. The Customer must obtain its own insurance in respect of the Goods and/or the Services.
- Valuables, Personal Effects and Dangerous Goods
8.1 The Company will not accept Valuables, Personal effects or Dangerous Goods, for Services arranged or performed by the Company. Should the Customer nevertheless supply any such goods to the Company or cause the Company to handle any such goods, the Customer (not the Company) shall be liable for any loss, damage or consequence howsoever caused and the Customer shall indemnify the Company from and against all penalties, claims, damages, and expenses arising in connection therewith.
8.2 The Customer undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of any Service having regard to their nature and in compliance with all laws and regulations which may be applicable with respect to any Service. The Customer shall indemnify the Company against all claims, losses, damages or expenses arising in consequence of any breach of this clause 8.
8.3 The Customer will indemnify the Company against all loss (including consequential loss) damage or injury howsoever caused arising out of the carriage of any Dangerous Goods whether declared as such or not and whether or not the Customer was aware of the nature of the Dangerous Goods.
8.4 If in the opinion of the Company, the Goods are or are liable to become of a dangerous or flammable or damaging nature, the Goods may at any time be destroyed, disposed of, abandoned or rendered harmless without compensation to the Customer and without prejudice to the Customer’s right to charge for the carriage of the Goods. The Company shall bear no liability and the Customer shall indemnify the Company from/against all costs and expenses in respect thereto.
8.5 The Customer’s compliance with the above in no way reduces or limits those rights afforded to the Company under this clause 8. - Loading and Unloading Goods
9.1 The Customer shall be responsible for the cost of, and arranging for, the supply of the Goods for loading, to and from the Company’s relevant transportation vehicle.
9.2 In the event that there is a delay in the loading or unloading of the Goods by reason other than the default of the Company or the Company’s subcontractor, the Customer shall be liable for the Company’s expenses incurred by reason of the delay, including demurrage costs as notified by the Company orally or in writing from time to time or available upon request.
9.3The Customer also warrants that the Goods will be suitable for cartage on the Company’s transportation vehicle.
9.4 The Customer has the right to inspect the Company’s transportation vehicle before the loading of the Goods. Absent any inspection and complaint, the Company’s transportation vehicle will be deemed to be in adequate and suitable condition for the carriage of the Goods. Thereafter, the Customer shall have no rights against the Company with respect to the condition of the Company’s transportation vehicle and the Company will not be liable in respect of any loss or damage caused by the inadequate or unsound condition of the Company’s transportation vehicle.
9.5 A charge of $33.00 (inclusive of GST) for each 30 minute period or part thereof may be made by the Company in respect of any delay in excess of 30 minutes in loading or unloading the Goods occurring other than from the default of the Company. Such delay period will commence upon the Company reporting for loading or unloading the Goods. - Subcontractors
The Company and any subcontractor of the Company may subcontract part or all of the Company’s obligations under this Agreement on any terms.
10.2 The Customer agrees that:
(a) The Company’s employees, agents and subcontractors and their employees, agents and subcontractors have the benefit of this Agreement as if they were parties to it; and
(b) The Company holds that benefit on trust for them and can, if requested by them, enforce it on their behalf. - Warehousing
The Goods may at any time be warehoused or otherwise held at any place or at any time be removed from any place at which they may be warehoused or otherwise held, to any other place to be warehoused or otherwise held at the sole discretion of the Company. In every case, whether warehousing is incidental or the primary Service provided by the Company, it will be provided at the Customer’s risk and expense as primary charge(s) or charge(s) incidental to or in connection with the carriage of the Goods or any Service hereunder.
- Costs and Payments
12.1 The Customer must pay Charges to the Company for the Services prior to commencement of the Services unless the Company agrees otherwise. If the Customer does not pay Charges by the due date for payment, the Company may suspend the provision of the Services until Charges have been paid or may, on seven (7) days’ notice, terminate this Agreement.
12.2 Charges must be paid by credit card or by deposit to an account identified by the Company in the booking confirmation.
12.3 Charges payable for the Services are confidential and the Customer agrees not to disclose them to any third party.
12.4 Deposit payments are non-refundable. Deposits are only accepted on bookings confirmed more than seven (7) business days prior to the transport date of the Goods. Full payment is required two (2) business days prior to the transport date of the Goods.
12.5 The price lock-down fee is strictly in addition to the value of the quotation and will be forfeited if the Customer does not confirm the booking within the applicable price lock-in period. the fee for price lock-down is not a deposit for the booking.
12.6 The Company will charge a cancellation fee if the Customer terminates this Agreement. The charges are calculated as follows:
(a) All cancellations will incur a minimum cancellation fee of $180;
(b) For cancellations on the agreed collection day or the business day prior a fee of 80% of the full-Service charge will apply.
(c) For cancellations once the Service has commenced, a 100% cancellation fee will apply.
12.7 The Company may charge 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, re-valued or remeasured and charge proportional additional Charges accordingly.
12.8 Every special instruction to the effect that Charges shall be paid by a person other than the Customer shall be deemed to include a stipulation that if that person does not pay those Charges within seven (7) days of the date set for payment, or if no date is set for payment within seven (7) days of delivery or attempted delivery of the Goods, then the Customer shall pay those Charges within seven (7) days of being notified of that person’s failure to pay.
12.9 The Company is entitled to set off against any amount that the Company may owe the Customer, any amount owed by the Company to the Customer.
12.10 Any obligation to make payment under this clause 12 of the Agreement shall be a fundamental term of the Agreement.
12.11 If the Customer does not pay any money owing to the Company under this Agreement when due, the Customer must pay interest on that money at the Default Interest Rate as published by the Queensland Law Society from time to time, from the time that money came due until payment. - GST
13.1 GST Exclusive Amounts
All amounts payable under or in connection with this Agreement are inclusive of GST, at the rate of GST applicable as at the commencement date of this Agreement. If the rate of GST increases or decreases throughout the term of this Agreement, then the Customer must pay the Company or the Company must pay the Customer respectively, an amount so that the amount received by the Company after payment of GST is the same as if the rate of GST applying at the commencement of this agreement applied throughout the entire term of this Agreement.
13.2 Payment of GST
The recipient of a taxable supply must pay the GST relevant to that supply to the supplier when the GST exclusive consideration or part of it is provided, except that the recipient need not pay the GST relevant to the supply if it has an Australian Business Number, until the recipient has received a tax invoice (or an adjustment note) for that taxable supply.
13.3 Reimbursements
Where a supplier incurs a cost or expense for which it may claim payment, reimbursement or indemnity from another party under or in connection with this document, the amount to be paid or credited to the supplier is the cost or expense (reduced by the input tax credit that the supplier is entitled to claim in respect of that cost or expense) plus the amount in respect of GST payable by the recipient. - Provision of Security
14.1 Guarantee and Indemnity by Guarantor
If there is a Guarantor, than the Company has entered into this Agreement at the request of the Guarantor, and the Guarantor:
(a) guarantees to the Company:-
(i) the performance by the Customer of the Customer’s obligations under this Agreement; and
(ii) the payment of all loss and damage recoverable by the Company from the Customer; and
(b) indemnifies the Company on demand against and in respect of:-
(i) any loss, damages, costs or expenses sustained or incurred by the Company in consequence of any failure on the part of the Customer to punctually discharge any obligation under this Agreement; and
(ii) any liability of the Company arising directly or otherwise from such a failure on the part of the Customer and any costs and expenses incurred by the Company in respect of such liability whether in proceedings to establish the same or otherwise.
The liability of the Guarantor under this Agreement shall not be affected by reason of the fact that the Agreement is void, voidable or unenforceable for any reason whatsoever, or is rescinded or terminated for any reason whatsoever.
Notwithstanding that as between the Guarantor and the Customer, the Guarantor may be a surety only nevertheless in any proceedings in which the liability of the Guarantor to the Company is in issue:-
(c) the Guarantor shall be deemed to be principal debtor and contractor jointly and severally liable with the Customer to discharge the obligations under the Agreement and this clause/guarantee; and
(d) the Guarantor shall not be entitled to raise any defence based upon an allegation (express or implicit) that its position as against the Company is that of a promisor or surety.
The Guarantor hereby waives all or any of its rights as surety (legal, equitable, statutory or otherwise) which may at any time be inconsistent with any of the provisions of this clause/guarantee.
The Company is not required to enforce our rights (or any of them) against the Customer, or make any claim against the Customer in respect of a breach of this Agreement by the Customer, or incur any cost or expense or take Court action in respect of such breach before enforcing its rights against the Guarantor. - PPSA and Lien
15.1 The Goods are accepted subject to a general lien for all charges now due or that may become due to the Company by the Customer on any account whatsoever, whether in respect of the Goods or in respect of any other goods for which the Company provides or has provided services of carriage to the Customer.
15.2 If charges are not paid when due, or the Goods are not collected when so required or designated, the Company may, without notice, and immediately:
(a) Remove all or any of the Goods and store them as the Company thinks fit at the Customer’s risk and expense;
(b) Open and sell all or any of the Goods as the Company thinks fit (whether by private treaty or public auction) and apply the proceeds to discharge the lien and costs of sale without being liable to any person for any loss or damage caused.
(c) The parties agree that the lien attaches to Goods when the Goods are accepted by the Company for carriage of the Goods.
15.3 The Customer agrees that the lien arising under this clause 15 is a security interest.
15.4 If the Company requests, then the Customer must promptly upon receipt of a request from the Company do anything for the purposes of ensuring that any security interest created under, or provided for by, this clause 15 is enforceable, perfected (including but not limited to perfection by registration), maintained and is otherwise effective.
15.5 Anything that is required by the Customer to be done under this clause will be done by the Customer at its own expense. The Customer agrees to reimburse the costs of the Company in connection with any action taken by the Company under or in connection with this clause.
15.6 The parties agree that, to the extent permitted by the PPSA:
(a) sections 125, 142 and 143 of the PPSA do not apply (unless the Customer is otherwise notified in writing by the Company);
(b) any right to receive a notice or statement arising by virtue of sections 129, 130, 132, 134 and 135 of the PPSA is waived; and
(c) any right to receive a copy or any notice of any verification statement confirming registration of a financing statement or a financing change statement relating to any security interest under or provided for by this clause is waived. - Force Majeure
Where the Company is unable to carry out any obligation under this Agreement or any loss or damage is caused to the Goods or otherwise due to any circumstance, matter or thing beyond its reasonable control (“force majeure”) or its exercise of reasonable care, the Company shall be excused and released from such obligations or liability to the extent of such prevention, restriction or interference so caused.
- Default & Termination
17.1 Termination by the Company
(a) The Company may terminate this document upon the occurrence of an Event of Default.
(b) All costs and expenses incurred by the Company in recovering Monies Owing pursuant to this Agreement, including (but not limited to) legal, administrative or other collection costs will be payable by the Customer on an indemnity basis upon demand.
17.2 Termination by the Customer
(a) The Customer may terminate this Agreement by giving written notice to us provided that:
(i) The Company has breached the terms of this Agreement; and
(ii) a period of 7 days has elapsed after the Company has been given written notice of the breach and has failed to rectify the breach within that period. - Confidentiality
18.1 The Customer agrees that the Customer (or it where appropriate) will:
(a) maintain absolute confidentiality in relation to the Confidential Information and shall not divulge the Confidential Information to any person other than in accordance with this Agreement;
(b) not use any part of the Confidential Information to the detriment of the Company;
(c) keep any Confidential Information secure;
(d) use best endeavours to protect such Confidential Information from unauthorised use, disclosure, access, damage or destruction;
(e) indemnify the Company and keep the Company indemnified against any loss, damage, cost, expense, claim or action (including, but not limited to, legal fees and disbursements sustained and incurred by the Discloser) as a result of or arising out of any breach of the obligations in this clause; and
(f) take all reasonable steps to ensure that the Confidential Information is made known only to:-
(i) any person where disclosure is required by law;
(ii) any person where disclosure is required to enforce the terms of this Agreement;
(iii) directors, provided they prior to being disclosed to such director, they personally agree to and comply with this clause; and
(iv) any other person approved in writing by the Company. - Privacy
(a) The Company may collect personal information about the Customer and the Company will treat this information in accordance with the Australian Privacy Principles.
(b) The information may be used to provide services to the Customer, to fulfil administrative functions associated with these services (for example assessment of credit worthiness), to enter into contracts with the Customer or third parties and for marketing and client relationship purposes. If the Customer does not provide all personal information required, the Company may not be able to offer this Agreement to the Customer or provide the associated services to the Customer. The Company may disclose the Customers information to the Company’s service providers, contractors or affiliated companies to the Customer. Generally, the Customer has the right to access personal information the Company holds about the Customer.
(c) The Customer consents to and authorises the Company to use and disclose the Customers personal information to any credit provider or credit reporting agency and to the Company’s service providers, contractors and affiliated companies from time to time to help the Company’s services to the Customer. - Indemnity & Exclusion of Liability
20.1 Every exemption, limitation, condition, right, defence and immunity available to the Company shall be available and shall extend to protect a subcontractor or any person who is or may be vicariously liable for the acts or omissions of the Company, or a subcontractor.
20.2 The Company accepts no responsibility for the accuracy of any part of any description of, or any declaration in the relation to, the Goods on any document to which the Services relate.
20.3 The Company shall not be liable or responsible in tort, contract, bailment or otherwise for any, or the consequences of any:
(a) Breach by the Customer or the Customer’s associates of any term of this Agreement;
(b) Loss or damage to personal effects or other items in the Goods;
(c) Tarpaulins attached to the Goods;
(d) Goods which cannot be moved under its own power, has a ground clearance of less than 15 centimetres, or is in an unroadworthy condition;
(e) Damage to any of the Goods caused by animal droppings, hail or airborne objects;
(f) Damage to any real and personal property and any injury to or death of any person, caused by any negligent act or omission of the Customer or the Customer’s associates arising out of or in connection with this Agreement;
(g) Loss of or damage to the Goods (whether driveable and/or non-driveable Goods), or delay in delivering or failure to deliver the Goods; or
(h) Delay in providing or failure to provide or perform Services.
20.4 The Company shall not be responsible in tort, contract, and bailment or otherwise for any, loss or damage, costs or expenses incurred by the Customer or any other person arising out of or in connection with the provision of the Services.
20.5 To the extent permitted by law, where the Company accepts liability for damages caused to a Motor Vehicle whilst in its care:
(a) That liability shall not exceed AUD $60,000.00;
(b) The Company’s liability is limited to the cost of repairing the Motor Vehicle, or by payment of the current market value of the Motor Vehicle (whichever is the lesser amount);
(c) The Company shall be entitled to choose whether it will repair the Motor Vehicle at a repairer of its choice or pay the cost of current market value;
(d) The Company also has the right to specify the use of new, used or non-genuine parts for the repairs;
(e) The Company may appoint a loss assessor of its own choice.
20.6 The liability of the Company in respect of an incident is limited to supplying the Services again or to the payment of the cost of having Services supplied again, subject to the loss of or damage to the Goods exceeding AUD $600.00.
20.7 Any Claim for loss of or damage to the Goods or relating to performances of the Services must be notified in writing to the Company within 48 hours of delivery of the Goods or Container or the date by which the Goods should have been delivered.
20.8 The Customer or the receiver shall inspect the Goods upon delivery and shall immediately notify the Company of any alleged damaged to the Goods by noting such damage on the consignment note issued by the Company or it’s agent.
20.9 In any event, the Company shall be discharged from all liability whatsoever unless suit is brought within 6 months of the provision of the Services, delivery of the Goods or Container, when the Services should have been provided, or when the Goods should have been delivered.
20.10 In the event that damage is caused to the Motor Vehicle whilst in the care of the Company, the liability of the Company is limited to loss or damage exceeding AUD $600.
20.11 In addition to the Company’s individual carrier’s insurance policies, the Company holds insurance policies for damages incurred and total loss both by accident or theft. The standard excess is $600 on damage and is $1,000 on a total loss or theft.
20.12 The following are exceptions to the damage warranty:
(a) No claim will be accepted if the damage to the Goods is not recorded on the delivery condition report;
(b) The Company will not accept any responsibility for underside damage to the Goods with a ground clearance of less than 150mm;
(c) The Company will not accept responsibility for any mechanical derangement in respect to the Goods;
(d) The Company will not accept responsibility for the loss of any personal items transported within the Goods;
(e) The Company will not accept liability for damage to the Goods in poor or damaged condition at pickup;
(f) The Company will not accept liability for damage to the underside or concealed areas of the Goods;
(g) The Company warranty does not cover non-drivable Goods.
20.13 Further without limiting the generality of the foregoing, the Company shall not be liable for any loss or damage suffered by the Customer or any other person as a result of an inability of the Company or a contractor of the Company to collect or receive cash on delivery payments from any consignees or their agents whether caused by the negligence of the Company, the Company’s contractors or otherwise.
20.14 No declaration of value will be made for the purpose of extending liability and the Goods will be forwarded or dealt with at the Customer’s or owner’s risk unless express written instructions to the contrary are given by the Customer and accepted in writing by the Company and extra charge paid if required by the Company.
20.15 The Customer is liable for the costs associated with the replacement of any Goods lost or stolen. The Customer agrees to advise the Company immediately of the loss, theft or damage.
20.16 During the term of this Agreement, the Customer shall be responsible for and shall meet all losses and damages covering the Goods and shall keep the Company indemnified against all loss or damage to the Goods arising from whatever cause, (except in the case of a defect in manufacture or our acts or negligence) and from all claims arising out of accidents either to persons or property caused by the Goods or its use.
20.17 The Customer agrees to accept full responsibility for all claims in respect of any injury to persons, loss of productivity or loss or damage to property, arising out of the delivery, servicing, storage, possession, use or failure of the Goods during the term of this Agreement except to the extent of the Company’s negligence and agree to indemnify the Company with respect to these claims. - Indemnities and Exclusion of Service
(a) Nothing in this Agreement is intended to exclude, restrict or modify any guarantee, term, conditions or warranty implied or imposed by law which cannot be lawfully excluded or limited.
(b) To the extent permitted by law (unless otherwise expressly set out in this document), all terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to our obligations under this Agreement are excluded.
(c) The total liability of the Company (subject to this clause) for any Claim is the total amount paid by the Customer in relation to the particular Goods pursuant to which the Claim arises.
(d) Except to the extent of deliberate negligence by the Company, the Company is not liable for:
(i) consequential loss or damage (including but not limited to loss of actual or anticipated revenue, business interruption, loss of production or economic loss of any kind) in contract, tort, under statute or otherwise; and
(ii) any Claims for personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever,
caused by or arising from or in relation to:
(iii) any loss or damage arising directly or indirectly from any use of the Goods;
(iv) loss or damage caused directly or indirectly by any Goods.
(e) Each indemnity is a continuing obligation and survives termination or expiration of this Agreement. It is not necessary for the Company to incur expense or make any payment before enforcing a right of indemnity under this Agreement. The Customer must pay on the Company’s demand under this Agreement. - Miscellaneous
22.1 If the Company becomes aware of any damage to or deterioration of Goods whilst in its possession or under its control, the Company will promptly notify the Customer and, to the extent reasonably practicable, will quarantine the affected Goods to allow the Customer to inspect them. The Customer and the Company must use reasonable endeavours to agree as to what to do with the quarantined Goods.
22.2 All Services are provided by the Company are subject only to this Agreement, which are incorporated into any bill of lading, waybill or consignment note issued by the Company, the conditions in the bill of lading, waybill or consignment note shall prevail.
22.3 All rights, immunities, indemnities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances and notwithstanding any breach of this Agreement by the Company or any other person entitled to the benefit of such provisions.
22.4 If any provision or any part of a provision in this Agreement is unenforceable, such unenforceability shall not affect any other provision or any other part of a provision.
22.5 This Agreement is subject to any warranty implied by the Corporations Act 2001 (Cth) (“Act”) to the extent to which the Act is applicable to this Agreement and prevents the exclusion, restriction and modification.
22.6 The Company shall not be bound by any agreement purporting to waive or vary this Agreement unless such agreement is in writing and signed by an authorised person.
22.7 The Company may provide the Services by any method which the Company in its absolute discretion deems fit notwithstanding any instructions of the Customer that the Services are to be supplied by another method.
22.8 The Company may comply with any orders, directions or recommendations made by a Government Agency in relation to the Goods and/or the provision of the Services without recourse by, and at the risk and expense of, the Customer.
22.9 If, in the opinion of the Company, the Goods do not meet the requirements of all applicable laws relating to the Goods and Services to be handled by the Company using the equipment and operating procedures normally employed by the Company in providing the Services, the Company in its absolute discretion may:
(a) Refuse to provide the Services in respect of the Goods or any part of them; or
(b) Take whatever measures deemed necessary at the risk and expense of the Customer to cause the Goods to comply with the requirements of all such laws or to make the Goods suitable to be handled by the Company.
22.10 If, in the opinion of the Company it is necessary and reasonable to do so to render the Goods or Services in relation to the Goods safe, the Company may open any Container, package, wrapping or documents.
22.11 The Company shall not be responsible in tort, contract or otherwise for any, or the consequences of any, loss or damaged, sots, fines or penalties incurred by the Customer or any other persons 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 the Company to the Customer or others as to the classification of or any matter material to the valuation of or the liability for the amount, scale or rate of customs and/or exercise duty or other impost, tax or rate charged in respect of the Goods or cargo.
22.12 In giving or making such quotation, advice, statement, representation or information the Company relies solely on the particulars provided by the Customer in relation to the Goods or cargo and in relation to the transaction(s) relating to the Goods or cargo.
22.13 Assignment
The Company may assign the Company’s rights under this Agreement without the Customer’s permission.
22.14 Amendment
This Agreement can only be amended, supplemented, novated or replaced by another document signed by the parties.
22.15 No Merger
None of the rights and obligations of a party under this Agreement merge:
(a) on completion of any transaction contemplated by this Agreement;
(b) with any security interest, guarantee, judgement or other right or remedy that a party may hold at any time; or
(c) as a consequence of anything done under this Agreement, and those rights and obligations at all times remain in full force and effect.
22.16 Survival of Rights and Obligations
The following survive termination or expiration of this Agreement:
(a) rights accrued to a party up to the date of termination or expiration of this Agreement.
(b) indemnities and obligations of confidence given by a party under this Agreement.
22.17 Compliance
Upon receiving notice to do so, the Customer must provide evidence in the form reasonably required by the Company of compliance with any nominated term or condition of this Agreement. The Company will comply with the same obligation.
22.18 Entire Agreement
This Agreement embodies the entire agreement between the parties and supersedes all previous agreements, understandings, negotiations, warranties and representations on the subject matter of this Agreement. If this Agreement is inconsistent with any other agreement between any of the parties, this document prevails to the extent of the inconsistency.
22.19 Severability
If the whole, or any part, of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction, it is severed for that jurisdiction. The remainder of this Agreement has full force and effect, and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance materially alters the nature or intended effect of this Agreement.
22.20 Duty
The Customer will pay all duty (including any fines or penalties) payable:
(a) in connection with this Agreement; and
(b) on any transaction contemplated by this Agreement.
22.21 Governing Law
This Agreement shall be governed and constructed in accordance with the laws of the State or Territory in which the Goods relevant to the Services were collected from and the parties submit to the exclusive jurisdiction of the courts of that State or Territory.
Any right to any legal remedy against the Company shall be extinguished unless legal proceedings are brought against the Company in the and not otherwise within 6 months from the date of this Agreement or the date the Services were completed or Goods delivered, or the date the Services should have been completed or the Goods should have been delivered, whichever date occurs first.
22.22 Counterparts or Email Copies
This Agreement may be executed in counterparts. A counterpart may be an email of this Agreement. All counterparts together are taken to constitute one instrument. An email copy of this Agreement may be relied upon by a party to the same extent as if it was an original of this document executed by the signatory. - Interpretation
In this Agreement, unless the context otherwise requires a reference to:
(a) legislation (including sub-ordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(b) a party to this Agreement, or a party to any other document or agreement, includes that party’s executors, administrators, permitted substitutes and permitted assigns;
(c) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person;
(d) AUD$, A$, $A, dollar or $ is to Australian currency; or
(e) a clause, schedule or annexure is to a clause of, or schedule or annexure to, this Agreement.
(f) a singular word includes the plural, and vice versa.
(g) an obligation on, warranty by, or right of:
(i) two or more persons; or
(ii) a party that comprises two or more persons, is the obligation, warranty or right (as the case may be) of those persons jointly and severally.
(h) time is reckoned as follows:
(i) a reference to the date or time of day is a reference to that date or that time of day in the state in which the work or related services are provided in Australia.
(ii) if a period expressed in days, beginning on a given day, act or event is provided or allowed for any purpose, the period is calculated by:
(A) excluding the day, or the day of the act or event; and
(B) including the day on which the purpose is to be fulfilled.
(iii) if something is to be done on a particular day, it must be done by 5.00pm on that day.
(iv) if something is to be done on a day which is not a Business Day then that thing must be done on the next Business Day.
(i) This Agreement takes precedence over any terms and conditions proposed by the Customer;
(j) to the extent of any inconsistency between this Agreement and:
(i) any terms and conditions proposed by the Customer;
(ii) the terms of any quotation or memorandum of understanding; the terms of this Agreement will prevail.
(k) terms defined in the GST Law have the same meaning in this Agreement unless the context makes it clear that a different meaning is intended.
(l) This Agreement will be interpreted neutrally and will not be interpreted in favour or against either party notwithstanding that one party may have drafted this Agreement.
(m) Where this Agreement requires the Customer to obtain the Company’s consent, the Company may give or withhold its consent in the Company’s absolute discretion unless otherwise provided.
- Definition
Agreement means this document including its terms and conditions and any Annexures and the terms and conditions contained within such Annexures.
Australian Privacy Principles means those principles set out in Schedule 1 to the Privacy Act 1988 (Cth).
Bankruptcy Act means the Bankruptcy Act 1966 (Cth).
Business Day means a day on which banks are open for retail banking, other than a Sunday or public holiday, where the Goods are located.
National Car Movers means the legal entity Tradecartransport.com.au Pty Ltd A.C.N. 145 338 521 and where the context permits includes each of its directors, employees and permitted assigns.
Charges means the Company’s quoted charges for Services calculated under its rates schedule or other agreed rates and the charges and any cost of any of the Company’s extra services tax (GST) levied directly on transport or supply under this Agreement.
Claim means any claim (whether actual or contingent) including a claim for loss, damage and expenses (including legal fees) arising out of tort, breach of statute, breach of warranty or guarantee or breach of this Agreement.
Company means National Car Movers.
Conditions mean these Standard Conditions of this Agreement.
Confidential Information means the subject matter of this Agreement, the details (whether general or otherwise) of any discussions or negotiations (whether oral or in writing) concerning this Agreement or its subject matter and the terms and conditions of this Agreement.
Container means any container, trailer, transportable tank, pallet, flat rack, bolster or any device used to consolidate and carry cargo.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means the person at whose request or on whose behalf of the Company provides the Services (including any employee, contractor, agent and/or subagent engaged by or authorised by the Customer).
Dangerous Goods means Dangerous Goods as defined in the Australian Dangerous Goods Code 2018 as replaced from time to time, and any Goods which are dangerous, volatile, explosive, inflammable or offensive, or which may become harmful to any person, property or the environment whatsoever.
Dispute means any controversy, Claim or dispute arising out of or in relation to this agreement.
Event of Default means any of the following:
(a) failure by the Customer or the Guarantor to pay the monies payable under this Agreement on the due date and the failure continues for more than 5 Business Days;
(b) the Customer or the Guarantor suffer an Insolvency Event;
(c) the Customer or the Guarantor, without our prior written consent, suspend payment generally or cease to carry on the Customer’s business (if applicable);
(d) if any event occurs or any circumstances exist which, in the Company’s reasonable opinion, has or is likely to have a material adverse effect on the ability of the Customer to meet any of the Customers’ obligations under this Agreement; (e) if this Agreement, is or becomes void, voidable or unenforceable;
(f) if the Goods are abandoned or is seized or appropriated by any lawful authority and not released within 14 days;
(g) the Customer or any Guarantor fail to comply with the Customer’s obligations set out in this Agreement;
(h) the Customer fails to maintain the Goods in accordance with this Agreement; or
(i) the Customer is in breach of any other provision of this Agreement and do not remedy that breach within seven (7) days of written notice to do so.
Goods means the Motor Vehicle or item in relation to which any part of any Services have been or are to be performed.
Government Agency means a government or government department or other body, a governmental semi-governmental or judicial person, or a person (whether autonomous or not) who is charged with the administration of a law.
GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) ACT 1999 (CTH).
Guarantor means a person, persons, company or companies who jointly and severally guarantee the performance of the Customer under this Agreement and indemnify the Company against any/all potential liability, loss and/or damage arising from the Customer’s breach of this Agreement.
Invoice means a tax invoice issued under the GST Law.
Insolvency Event means any of the following events occurring in relation to the Customer or any Guarantor:
(a) if the Customer and/or any Guarantor are a company;
(i) an application is filed for winding up (Winding Up Application) and the Winding Up Application is not dismissed or withdrawn within 10 Business Days of the application being filed;
(ii) if an order is made for winding up and the winding up is not stayed indefinitely or terminated within 10 Business Days of the winding up order being made;
(iii) if any of their directors pass a resolution for its winding up;
(iv) if a receiver, receiver and manager, controller (as defined in section 9 of the Corporations Act), or a similar person is appointed to, or the holder of a Security Interest (as defined under the PPSA) takes (or appoints an agent to take) possession of, any property of the party;
(v) if a provisional liquidator is appointed;
(vi) if:
(A) the Customer or any Guarantor are placed into administration (as defined in section 9 of the Corporations Act) or enters into a deed of company arrangement (as defined in section 9 of the Corporations Act); or
(B) any of them, or any other person takes any step towards placing any of them into administration or towards entering into a deed of company arrangement;
(vii) if the Customer or any Guarantor:
(A) advise the Company that the Customer and/or Guarantor are financially unable to proceed with or meet any of the obligations under this Agreement;
(B) without our written consent, suspends payment of the Customer’s and/or Guarantor’s debt, other than as the result of a failure to pay a debt or claim which is subject to a genuine dispute;
(C) cease, or threat to cease, to carry on all or a material part of the Customer’s and/or Guarantor’s business;
(D) are or states that the Customer and/or Guarantor are, unable to pay debts as and when they fall due and payable;
(E) fail to comply with a statutory demand under section 459F of the Corporations Act; or
(F) have execution levied by a creditor.
(viii) if the Customer or any Guarantor, without the Company’s prior written consent:
(A) begin negotiations with one or more creditors seeking a general readjustment or rescheduling of indebtedness to one or more creditors;
(B) takes any steps towards entering into, or enters into, any compromised or arrangement with one (1) or more creditors under part 5.1 of the Corporations Act; or
(C) make any assignment or enters into any arrangement or composition generally for the benefit of one or more creditors;
(D) become or take any step that could result in the Customer or them becoming insolvent under administration (as defined in section 9 of the Corporations Act); or
(E) become subject to a direction under, or has the effect as if it were a direction under section 14 of the Australian Securities Commission and Investment Act 2001 (Cth), or are subject to an investigation under or taken to be under that act;
(b) if the Customer or any Guarantor are natural persons and:
(i) commit an act of bankruptcy under section 40 of the Bankruptcy Act; or
(ii) are made bankrupt;
(iii) take any step that could result in them entering into a debt agreement under part IX of the Bankruptcy Act;
(iv) take any step that could result in the entering into of a personal insolvency agreement under part X of the Bankruptcy Act; or
(v) if execution is levied against any of them by a creditor.
Monies Owing means any amounts, costs, interest and duties due to the Company by the Customer or any Guarantor from time to time.
Motor Vehicle means a passenger vehicle, light commercial vehicle and/or truck owned by the Customer.
Personal effects means personal property, possessions or belongings.
PPSA means the Personal Property Securities Act 2009 (Cth) and where applicable includes all regulations made pursuant to it.
Services means the whole of the operations and services undertaken by the Company in anyway whatsoever connected with or concerning the Goods, together with a license to use related information technology systems/processes and software developed by the Company (if applicable) and utilized by the Company and/or the Customer in relation to those Services.
Services Agreement means, where applicable, the agreement forming part of this Agreement which includes specific provisions in relation to the Services.
Subcontractor means any person, and its servants or agents, who pursuant to a contract or arrangement with any other person (whether or not the Company) provides or agrees to provide the Services or any part of the Services.
Valuables means bullion, cash, coins, jewellery or any items of value.
Vehicle means a truck or other Motor Vehicle, or train employed by a person other than the Company or its subcontractors to deliver the Goods to the Company or to collect Goods from the Company fat a premises.
You and Your means you, the Customer specified in the booking confirmation
