Port Logistics, Warehouse & Distribution

Norman Carriers Terms & Conditions

This document sets out the terms and conditions of an agreement (this “Agreement”) with you (the Customer) in respect of goods & services supplied to you by Norman Carriers (Aust) PTY LTD - ACN 614 706 311.

1. Definitions

1.1. “Act” shall mean the Personal Property Securities Act 2009 (Cth).
1.2. “NC” shall mean Norman Carriers (Aust) Pty Ltd – ACN 614 706 311 and its successors and assigns.
1.3. “Sub-Contractor” shall mean and include;

1.3.1. Any railways or airways entities operated by the Commonwealth or any State or any other country or by any corporation; or
1.3.2. Any other person, firm or company with whom NC may arrange to effect any Services in respect of the Goods that are the subject of this Agreement; or
1.3.3. Any person who is now or hereafter a servant, agent, employee or subcontractor of any of the persons referred to in clause 1.3.1 and 1.3.2.
1.3.4. Any other person, firm or company (other than NC) by whom the Services or any part thereof are arranged, performed or undertaken.

1.4. “Container” shall mean a standard International Standards Organisation container which is designed and built for freight transport.
1.5 “Customer” shall mean the shipper (consignor), the receiver (consignee), the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are performed and includes any person or persons acting on behalf of and with the authority of the Customer. Where more than one Customer has entered into these terms and conditions, the Customers shall be jointly and severally liable for all payments of the Price.
1.6. “Goods” shall mean cargo together with any Container, packaging, or pallet(s) supplied by the Customer to NC for the purposes of movement from one place to another by way of NC’s Services (and where the context so permits shall include any supply of Services as hereinafter defined).
1.7. “Dangerous Goods” means Goods classified as such by either the IATA Dangerous Goods Regulations or the Australian Dangerous Goods Code or Goods that otherwise might injure or cause damage to other goods or to any person, animals, property, the environment or any thing in which those Goods are carried, handled or stored. They include Goods that shall be, or become, in fact or at law, noxious, dangerous, hazardous, poisonous, corrosive, volatile, explosive, inflammable or radioactive.
1.8. “Services” shall mean the storage/warehousing, carriage, transport, movement, handling of the Goods and/or any other services performed or arranged by NC pursuant to this Agreement with the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.9. “Price” shall mean the cost of the Services as agreed between NC and the Customer subject to clause 11 of this Agreement.

2. NC Not Common Carrier

NC 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 NC subject only to these terms and conditions and NC reserves the right to refuse the carriage or transport of articles for any person or corporation at its discretion without assigning any reason for such refusal.

3. Acceptance

Any instructions received by NC from the Customer for the supply of Services shall constitute acceptance of the terms and conditions contained herein. The Customer acknowledges that it has raised all queries relevant to its decision to enter these terms and conditions with NC and that NC has, prior to the Customer entering into these terms and conditions, answered all such queries to the satisfaction of the Customer. The Customer acknowledges that any matters resulting from such queries have, to the extent required by the Customer and agreed to by NC, been reduced to writing and incorporated into the terms of these terms and conditions.

3.1. Upon acceptance of these terms and conditions by the Customer, 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 NC.
3.2. None of NC’s agents, contractors or representatives are authorised to make any representations, statements, conditions or agreements and NC is not bound by any such unauthorised statements unless provided by the manager of NC in writing.
3.3. These terms and conditions are to be read in conjunction with NC’s consignment note, agreement, airway bills, manifests, or any other forms as provided by NC to the Customer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
3.4. This Agreement applies to all dealings between NC and the Customer unless varied in writing by NC’s Chief Financial Officer.
3.5. All rights and conditions implied by law as they relate to the parties are excluded unless contained within this Agreement. This applies unless the rights, terms and conditions cannot be excluded. If that is the case, they are taken to form part of this Agreement.
3.6. This Agreement applies to all past, present and future dealings between the Customer and NC.
3.8. Nothing in this clause limits the ability of NC to update the Price in any of NC’s consignment note, agreement, airway bills, manifests, or any other forms as provided by NC to the Customer.
No failure or delay by NC to exercise its rights under these terms and conditions will operate to waive those rights.

4. Services

4.1. The Services shall be as described on the invoices, consignment note, airway bills, manifests, sales order or any other forms provided by NC to the Customer.
4.2. If the Customer instructs NC to use a particular method of handling, storage or carriage of the Goods, NC will give consideration to that method, but the Customer gives NC authority to:

4.2.1. use any method for handling, transporting or storing the Goods as NC sees fit; and
4.2.2. deviate from the usual route or method of transport of the Goods which may, in the absolute discretion of NC, deemed to be necessary or desirable in the performance of the Services.

4.3. NC is authorised to deliver the Goods to the address given to NC by the Customer for delivery and NC shall be deemed to have delivered the Goods in accordance with these terms and conditions if at that address, NC obtains from any person a receipt or signed delivery docket for the Goods.
4.4. The Customer acknowledges that NC will use its best endeavours to provide proof of delivery (POD) on request (surcharge may apply). Notwithstanding clause 4.3, the Customer agrees that it has no right to demand a POD nor is NC liable to the Customer for failing to provide a POD and that the non-provision of POD is not a reason to withhold payment. It is agreed that any of the following are conclusive proof of same even without a POD:

4.4.1 a statement signed by the delivery driver that delivery was made;
4.4.2.driver’s run sheet;
4.4.3. Personal Data Authority confirmation;
4.4.4. signed acknowledgment of recipient;
4.4.5. agent’s consignment note;
4.4.6. signed label;
4.4.7. POD run sheet; or
4.4.8. driver’s run book of that delivery.

4.5. If the address given to NC for delivery is unattended or if delivery cannot otherwise be affected by NC at that address, NC may at its option:

4.5.1. deposit the Goods at that address which shall be conclusively deemed to be delivery under these terms and conditions; or
4.5.2. store the Goods and re-deliver the Goods to the Customer at the Customer’s cost. The Customer must indemnify NC for all costs associated with such storage. NC will be entitled to retain the Goods until payment of the storage fees have been made by the Customer.

4.6. Subject to clause 8, the Goods are carried entirely at the risk of the Customer and not of NC and unless otherwise expressly agreed in writing, NC accepts no responsibility in tort or contract or otherwise for any loss of, or damage to, deterioration of or incorrect delivery, non-delivery or delay in delivery of the Goods or (including Goods that are chilled, frozen refrigerated or perishable) either in transit or in storage for any reason whatsoever.

4.7. The Customer must:

4.7.1. give prior written notice to NC if any of the Goods are liable to customs duties or port charges or other supply chain costs and charges and pay such charges or, if agreed by NC, reimburse NC if it agrees to pay those costs and charges on behalf of the Customer;
4.7.2. ensure that the Goods are ready for pickup at the designated time so that NC is not delayed in performing the Services.
4.7.3. arrange at its cost, all necessary labour and facilities to load and unload the Goods. The Customer must ensure loading and unloading of the Goods complies with all relevant laws, NC’s workplace safety standards and NC’s directions.

5. Customers Responsibility

5.1. The Customer:

5.1.1. Warrants that they have knowledge of the contents of the Goods;
5.1.2. warrants that they are the owner and/or agent in control of the Goods, and/or are entitled at law to deal with them in accordance with all aspects of these terms and conditions.
5.1.3. by entering into this Agreement the Customer accepts these terms and conditions for the Consignee as well as for all other persons on whose behalf the Customer is acting.
5.1.4. warrants that the Goods are fit for carriage and the Services and have been suitably packaged for those purposes; and
5.1.5. warrants that except where the receipt for the Goods are endorsed with the word “hazardous”, the Goods are non-hazardous as defined from time to time by the Insurance Council of Australia Limited and warrants that the Goods are free from, and are not likely to encourage infestation by vermin or pest;
5.1.6. must provide prior written notice and instructions regarding: any special handling requirements (including temperature) for the storage and transport of Goods; Dangerous Goods including a full and accurate written description of them; or any Goods that are fragile or of brittle nature or valuables having a value of over $1,000

5.2. If, in the reasonable opinion of NC, any or all of the Goods shall be or become deteriorated, objectionable or unwholesome, a source of danger or contamination or hazardous, as defined from time to time by the Insurance Council of Australia Ltd of the state or territory in which this Agreement is made or the Goods shall be or become Dangerous Goods or do not meet legal requirements or recommendations of relevant government agencies relating to the Goods or Services, or are unsuitable to be handled by NC using the equipment and operating procedures normally employed by NC in providing the Services, NC in its absolute discretion may, without notice or recourse to the Customer:

5.2.1. Refuse to provide the Services in respect of the Goods or any part of them; or
5.2.2. take whatever measures (including testing or analysis of the Goods) it deems 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 NC; and/or
at the cost of the Customer, destroy, dispose of or render harmless the Goods without prejudice to any of NC’s rights under these terms and conditions, and the Customer will bear all risk of loss arising in connection with such Goods.

6. Storage & Access Conditions

6.1. Goods are stored at the Customer’s sole risk. NC accepts no responsibility in tort or in contract for the loss of or damage to any Goods howsoever arising. This applies whether or not such loss or damage was occasioned wholly or in part by the negligence or alleged negligence of NC or its servants agents or Sub-Contractors or any act of omission, default, neglect, breach of duty or breach of contract by NC, its servants agents or Sub-Contractors. This exemption extends not only to loss or damage to the Goods themselves, but to any loss consequently arising from such loss or damage. The provisions of this clause apply irrespective of the manner in which, or the time at which, or the reason by which any such loss or damage may occur and despite that such loss or damage may be the fault of NC.
6.2. Where the Customer requires NC to store Goods as part of the Services, the Customer must provide NC an inventory of the Goods prior to the Service. NC is entitled to inspect the Goods against the inventory provided by the Customer and provide its own inventory of the Goods received at the time of receipt. NC’s inventory will be conclusive evidence of the Goods received by NC from the Customer.

6.3. The Customer:

6.3.1. is entitled, upon giving NC reasonable notice, to inspect the Goods in store, but a reasonable charge may be made by NC for this service.
6.3.2. in the event of uncleanliness of or damage to products, equipment or the NC facility caused by the storage of the Goods as part of the Services being provided by NC to the Customer, NC will be entitled to charge a cleaning fee, and/or full reimbursement from the Customer to the value of the repairs and/or cleaning required;
6.3.3. cannot assign these terms and conditions.

6.4. NC may refuse access to the Goods and/or the NC facility by the Customer where moneys are owing by the Customer to NC and the Customer fails to pay upon reasonable demand by NC.
6.5. The Customer acknowledges that health and safety at the NC facility is an important issue and:

6.5.1. Before being given access to the Container, the Customer must complete, and ensure that persons under their control who wish to access the Goods complete NC induction process covering health and safety procedures which must be followed at the NC facility.
6.5.2. While at the NC facility, the Customer must follow, and ensure that persons under their control follow, all health and safety procedures as notified by NC and all applicable laws and legal requirements.
6.5.3. The Customer must immediately notify NC if they identify any actual or potential health and safety risk or hazard at the NC facility or any notifiable events which occur at the NC facility. The Customer acknowledges that access to the NC facility is at the Customer’s risk, to the fullest extent legally permissible.
6.5.4. NC is not liable for any loss or damages suffered by the Customer resulting from an inability to access the NC facility or the Goods.
6.5.5. NC reserves the right to relocate the Customer’s Goods to another facility. NC will give at least seven (7) days notice of intended relocation to the Customer.
NC may dispose of the Goods in the event that the Goods are damaged due to fire, flood or other event that has rendered the Goods, in the reasonable opinion of NC, severely damaged, of no commercial value, or dangerous to the NC facility, any persons, or other Customers and/or their goods. Where practicable, NC will provide the Customer with reasonable notice and an opportunity to review the Goods, before the Goods are disposed of.

7. Nomination of Sub-Contractor

The Customer hereby authorises NC (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods the subject of the contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery/collection 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 NC. In so far as it may be necessary to ensure that such Sub-Contractor shall be entitled, NC shall be deemed to enter into this Agreement for its own benefit and also as agent for the Sub-Contractor (Himalaya Clause).

8. Loss or Damage

8.1. Australian Consumer Law. Except where the Services are required by the Customer for the purposes of a business, trade, profession or occupation in which the Customers are engaged, these terms and conditions will be subject to the guarantees set out in sections 60, 61 and 62 of the Australian Consumer Law (as enacted as Schedule 2 of the Competition and Consumer Act 2010) being, in particular, a guarantee that the Services will be rendered with due care and skill, and the following conditions of this clause 8 will apply.
8.2. Subject to clause 18, the Customer undertakes to indemnify NC in respect of any liability, cost (including legal and recovery costs on a solicitor and client basis) or expense whatsoever and howsoever arising in connection with the Goods to any person who is found to have any interest in the Goods. The Customer will indemnify NC for any claim, loss, damage, payment, fine, expense, duty, tax, impost, or other outlay whatsoever or howsoever caused, whether arising directly or indirectly from any Service arranged or performed by NC in respect of the Goods or in for any such cost incurred as a result of any breach of the terms, conditions or warranties in this Agreement by the Customer.
8.3. If a Container has not been stowed by or on behalf of NC, NC shall not be liable for loss of or damage to the Goods caused by;

8.3.1. the manner in which the Container has been stowed; or
8.3.2. the unsuitability of the Goods for carriage in Containers; or
8.3.3. the unsuitability or defective condition of the Container.

8.4. To the maximum extent permitted by law, NC:

8.4.1. will only be liable for the proportion to which the loss or damage to the Goods is caused by or contributed to by NC negligence (including the negligence of any Subcontractor). NC will not be liable for loss or damage to the Goods caused or contributed to by the Customer or someone else that NC are not responsible for at law.
8.4.2. will not be liable for any loss or damage nor any delay which results from any cause beyond NC control, including any loss or damage occurring in the course of the provision of Ancillary Services by Third Party Providers.
8.4.3. Damage to Goods – Packaging. If the Goods sustain damage by reason of defective or inadequate packing or unpacking, and the packing or unpacking (as the case may be) was not undertaken by NC or a Subcontractor on behalf of NC, NC will not be liable.
8.4.4. Damage to Goods – Inherent Risk. Certain goods (including electrical and mechanical appliances, computer equipment, scientific instruments and certain musical instruments) are inherently susceptible to suffer damage or disorder upon carriage. Unless that damage or disorder results from a failure to exercise due care and skill on NC’s part, NC will not be liable.
8.4.5. will only be liable for lost, stolen or misplaced Goods if the Customer has provided NC with a completed inventory including valuation of the contents of the box containing the Goods prior to commencement of transit or storage and there is evidence that NC (or NC Subcontractor) failed to reasonably secure the Goods whilst in NC custody or care.
8.4.6. To the maximum extent permitted by law, NC shall be under no liability whatsoever unless; the Customer provides written notice to NC detailing the alleged damage, and that such written notice shall received by NC seven (7) days after the delivery or collection of the Goods; or

9. Insurance

9.1. The Customer acknowledges that it is aware that NC is not an insurer of Goods (either warehoused or in transit) and that NC does not affect insurance on behalf of the Customer. The Customer notes that under these conditions of carriage, subject to its obligations pursuant to the “warranty on deliveries”, NC has no liability for loss of or damage to the Goods and that if the Customer wishes to protect itself from exposure to potential loss of this nature, it should arrange its own insurance.
9.2. The Price does not include insurance which, if required, must be taken out by the Client.
9.3. In the event the Customer requests NC to take out any insurance policies for the Goods and/or Services on its behalf, the Customer must indemnify NC for all costs and expenses incurred by NC for taking out such insurance policies. We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

10. Price and Payment

10.1. At NC’s sole discretion, the Price shall be NC’s quoted price that shall be binding upon provided that the Customer shall accept NC’s quote within twenty-eight (28) days.
10.2. NC shall provide written notice to the Customer of any increase in the Price of the Services to reflect any increase in the cost to NC beyond the reasonable control of NC (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).
10.3. The Price shall be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent those taxes are expressly included in any quotation given by NC.
10.4. Any increase to the Price are deemed to be accepted by the Customer seven (7) days from the date the change was notified to the Customer as set out in clause 10.2, unless written objection to the increase is received by NC first.
10.5. The Customer is responsible to pay:

10.5.1. must pay the invoice in full without any deduction, set-off or counterclaim
10.5.2. the service fee being the amount notified to the Customer by NC via written quotation. The service fee is payable within the given term and it is the Customer’s responsibility to see that payment is made directly to NC on time, and in full, throughout the period of storage. NC may increase the service fee any time after expiry of any initial fixed period of storage. NC will give the Customer 30 days’ notice of any increase. If the Customer does not agree to pay the increased fee, the Customer may terminate these terms and conditions as at the date of the proposed increase.
10.5.3. an applicable late payment fee, as notified to the Customer, which becomes payable each time a payment is late.
10.5.4. any reasonable costs incurred by NC in collecting late or unpaid service fees, or in enforcing these terms and conditions in any way, including but not limited to postal, telephone, debt collection, personnel and/or the default action costs.
10.5.5. any government taxes or charges (including any goods and services tax) being levied on these terms and conditions, or any supplies pursuant to these terms and conditions. NC reserves the right to add a credit card surcharge reflecting its actual costs of offering payment by credit card.

10.6. 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 order forms. If no time is stated then payment shall be on delivery or return of the Goods.
10.7. At NC’s sole discretion, payment for approved Customer’s order shall be due thirty (30) days after the invoice date.
10.8. Payment shall be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and NC.

11. Title and Personal Property Security Act

11.1. The Customer grants NC a security interest pursuant to the Act in all Goods the subject of the Services and held in NC’s possession.
11.2. While the Customer complies with this Agreement, NC will not seek to register its interest in the Goods, but will do so if the Customer breaches any of the terms of this Agreement, including payment outside of the trading terms (in relation to any service, unrelated to the Goods or otherwise).
11.3. The Customer will, upon request, execute any documents, provide all necessary information and do anything else required by NC to ensure that the security interest constitutes a “perfected security interest” as defined in the Act, in order for the interest to have priority over all other security interests in the Goods not already registered.
11.4. If the Customer is in breach of these terms and NC takes steps to register its interest, the Customer agrees to pay upon demand all of NC’s expenses and legal costs (on a solicitor and client basis) in or in connection with the registration of a financing statement or financing change statement relating to the security interest created by this Agreement.
11.5. To the maximum extent permitted by law, the Customer irrevocably waives any right it may have to:

11.5.1. receive notices or statements under sections 95, 118, 121(4), 124(4), 125, 130, 132(3)(d) 132(4) and 135 of the Act;
11.5.2. redeem the Goods under section 142 of the Act;
11.5.3. reinstate this Agreement under section 143 of the Act; and
11.5.4. receive a verification statement.

12. LIEN

12.1. The Goods are subject to a general and particular lien for all charges due, or which may become due, to NC by the Customer in respect of the Services.
12.2. For the purposes of the Act, NC is deemed to be in possession of the Goods and/or the Container from the moment NC accesses the Container.
12.3. If NC intends on exercising its lien over, and power of sale of, the Goods, NC must first notify the Customer of that intention, identify the matters to which the Customer must attend in order to avoid that outcome, and allow the Customer fourteen (14) days in which to attend to those matters. If at the conclusion of that period, the lien has not been satisfied and/or the Goods are not collected, then subject to law, NC may at its option – in the case of perishable Goods immediately and in any other case upon the expiration of a further fourteen (14) days’ notice – either:

12.3.1. remove such Goods or part thereof and store them in such place and manner as NC shall think proper at the risk and cost of the Customer;
12.3.2. sell by public auction or private sale such Goods or part thereof upon such terms as it thinks fit and apply the proceeds in or towards discharge of the lien without being liable to any person for any Loss thereby caused; or
12.3.3. Subject to Clause 13, dispose of abandoned Goods at the expense of the Customer in any way NC deems fit and without compensation being payable to the Customer, and the Customer must indemnify NC for all costs incurred by NC in the exercise of these rights
12.3.4. In the sale of any Goods under these conditions, the Services Provider must comply with the provisions of any legislation or regulations relating to warehousemen’s liens, as regulate the sale of Goods by a warehouseman.

13. Right to Dispose of Goods

13.1. If, in the reasonable opinion of NC, a defaulting Customer’s Goods are not saleable, fail to sell when offered for sale, may pose a health risk to staff or the public if handled, or are not of sufficient value to warrant the expense of attempting to sell, NC may dispose of all Goods by any means.
13.2. Upon termination of these terms and conditions by either the Customer or NC, in the event that a Customer fails to remove all Goods from the NC facility, NC is authorised to dispose of or sell all Goods and/or the Container by any means after fourteen (14) days from the termination date, regardless of the nature or value of the Goods. NC will give at least fourteen (14) days notice of its intended disposal or sale of the Goods.

14. Risk and Responsibility

14.1. The Customer agrees to comply with all relevant laws, including Acts and Ordinances, Regulations, By-laws, and Orders, as are or may be applicable to the use of the Container. This includes laws relating to the material which is stored, and the manner in which it is stored.
14.2. If NC reasonably believes that the Customer is not complying with any relevant laws, NC may take any action NC reasonably believes to be necessary, including contacting, cooperating with and/or submitting Goods to the relevant authorities, and/or immediately disposing of or removing the Goods at the Customer’s expense, including where in NC’s reasonable opinion the Customer is engaging in illegal activity in relation to the storage of the Goods.

15. Inspection and Entry by NC

15.1. Subject to clause 15.2. the Customer consents for NC to inspect and enter the Container provided that NC gives at least fourteen (14) days written notice.
In the event of an emergency, that is where obliged to do so by law or in the event that property, the environment or human life is, in the reasonable opinion of NC, threatened, NC may enter the Container using all necessary force without the consent of the Customer. NC must thereafter notify the Customer as soon as practicable.

16. Termination

16.1. Either party may terminate these terms and conditions by giving the other party fourteen (14) days notice of termination. In the event of non-payment of any invoices on due date or illegal or environmentally harmful activities on the part of the Customer, NC may terminate these terms and conditions forthwith. The Customer must remove all Goods before the close of business on the termination date to the satisfaction of NC. In the event that Goods are left at the NC facility after the termination date, clause 13.2 will apply. The Customer must pay any outstanding invoices and any expenses on default or any other moneys owed to NC up to the termination date or clauses 12 and/or 13 may apply. Any calculation of the outstanding fees will be determined by NC.
16.2. The Customer’s liability for outstanding moneys, property damage, personal injury, environmental damage and legal responsibility under these terms and conditions continues to run beyond the termination of these terms and conditions.

17. Severance

17.1. If any clause, term or provision of these terms and conditions is legally unenforceable or is made inapplicable, or in its application would breach any law, that clause, term or provision will be severed or read down, but so as to maintain (as far as possible) all other terms of these terms and conditions.

18. Limitation of Liability

18.1. To the maximum extent permitted by law, the obligations of a bailor are excluded. NC will not be responsible for any loss of, or damage to, or incorrect delivery of, or delay in the delivery of, any Goods (including perishable Goods). This applies:

18.1.1. when such loss, damage, incorrect delivery, non-delivery or delay in delivery may be occasioned by the negligence of wrongful act of NC (whether intentional or not);
18.1.2. to any loss or damage suffered by the Customer or any other person, including loss of profit, indirect or consequential loss, howsoever caused or arising, whether an authorised or unauthorised act under this Agreement, and whether caused by the negligence, recklessness or wilful negligence or misconduct of NC’s servants, agents, employees, Sub-Contractors or otherwise; and
18.1.3. to any loss or damage resulting from or attributable to any quotation, statement, representation or information, oral or written, made or given on behalf of NC or its servants, agents employees or Sub-Contractors as to the classification of, liability for, amount, scale or rate of custom duty, excise duty or other impost or tax applicable to any Goods in carriage or subject of any Service.

18.2. The Customer expressly agrees that this Agreement contains no clause, condition or warranty express or implied, which would make NC responsible for any loss, damage, incorrect delivery, non-delivery or delay in the delivery of Goods. This clause must not be construed so as to exclude or limit any liability of NC to consumers which arises under the Australian Consumer Law. To the extent that it may be permitted by that legislation the liability NC, if any, shall be limited to the supplying again of any services to be supplied by NC to the Customer or the payment by NC to the Client of the cost of having such services supplied again.
18.3. Nothing in clauses 18.1 and 18.2 limits NC’s obligations pursuant to the “warranty on deliveries” where taken out by the Customer at the point of order of Service.

19. Notice

19.1. A party and the party’s legal practitioner may serve a notice, by:

19.1.1. personal service on the other party or the legal practitioner for the other party;
19.1.2. prepaid post to the other party or the legal practitioner for the other party;
19.1.3. facsimile transmission to the other party or the legal practitioner for the other party;
19.1.4. email to an email address notified by the recipient; or
19.1.5. any other method authorised by law.

19.2. A notice is taken to be served:

19.2.1. on the date the recipient receives it if the notice or other document is given personally;
19.2.2. six business days after posting if the notice or demand is sent by regular post;
19.2.3. on the date the sender’s facsimile confirms receipt by the other party; or
19.2.4. on the date the recipient’s email server receives the email without the sender receiving an error or “out of office” report. .

20. Personal Information and Privacy

20.1. The Customer acknowledges and consents to NC gathering and retaining personal information about the Customer and its Guarantors. The Customer may access this information for the purposes of ensuring that the information is correct by making a written request for access to this personal information to NC. Upon request, NC will then provide such access to the Customer. The Customer agrees that NC may use this personal information in the course of NC’s business including credit assessment, debt collection and direct marketing activities and the Customer consents to any person providing NC with such personal information and the use of that personal information by NC. NC may disclose the Customer’s personal information to third parties including to its related entities or other third parties that provide products or services to NC provided such disclosure does not breach the terms of NC’s external privacy policy.
20.2. The Customer agrees that NC may directly collect, hold and use personal information (name, address, phone numbers, email address, date of birth, occupation, previous credit history) of the Customer to enable it to deal with the Customer on a commercial basis and to assess the creditworthiness of the Customer, to send invoices and demands for payments and to issue proceedings for monies owing. NC may directly collect, hold and use personal information of the Customer, other than sensitive information, to promote goods and services of NC to the Customer. The Customer may request not to receive direct marketing communications.
20.3. The Customer agrees that NC may obtain from a credit reporting body (CRB) a credit report containing personal credit information (name, address, date of birth, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by NC. NC shall notify the Customer of such receipt of information.
20.4. The Customer agrees that NC may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:

20.4.1. to assess an application by the Customer;
20.4.2. to notify other credit providers of a default by the Customer;
20.4.3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; or
20.4.4. to assess the creditworthiness of the customer including the Customer’s repayment history in the preceding two (2) years.

20.5. The Customer agrees that personal credit information provided may be used and retained by NC for the following purposes (and for other agreed purposes or as required by law):

20.5.1. the provision of Goods and/or Services;
20.5.2. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods and/or Services;
20.5.3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer;
20.5.4. enabling the collection of amounts outstanding in relation to the Goods and/or Services; or
20.5.5. the collection of overdue payments on commercial credit.

20.6. NC may give information about the Customer to a CRB for the following purposes:

20.6.1. to obtain a consumer credit report; or
20.6.2. allow the CRB to create or maintain a credit information file about the Customer including credit history.

The information given to the CRB may include:

20.6.3. personal information as outlined above;
20.6.4. name of the credit provider and that NC is a current credit provider to the Customer;
20.6.5. whether the credit provider is a licensee;
20.6.6. type of consumer credit;
20.6.7. details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
20.6.8. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and NC has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
20.6.9. information that, in the opinion of NC, the Customer has committed a serious credit infringement; or
20.6.10. advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

20.7. NC will take reasonable steps to ensure that the personal information of the Customer it collects, uses or discloses is accurate, up to date, complete and relevant. NC shall also take reasonable steps to protect information it holds from misuse, interference, loss and unauthorised access and use. The Customer shall have the right to request from the NC:

20.7.1. a copy of the information about the Customer retained by NC;
20.7.2. that NC corrects any incorrect information; or
20.7.3. that NC does not disclose to a third party any personal information about the Customer for the purpose of direct marketing.

20.8. NC will destroy personal information upon the Customer’s request or where it is no longer required for the purpose it was collected unless NC is required to retain it by law or to fulfil the obligations of this Agreement.
20.9. The Customer can make a privacy complaint by contacting NC. NC shall respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
20.10. NC shall comply with all obligations under the Notifiable Data Breach Scheme. In the event that a data breach occurs and is likely to result in serious harm to the Customer, NC will as soon as practicable notify the Customer and provide a statement to the Commissioner. If it is not practicable to notify the Customer, NC shall publish a copy of the statement on its website and take reasonable steps to inform the Customer of its contents.

21. Recovery, Interest and Suspension of Account

21.1. NC may at its discretion charge interest on overdue accounts at the rate of 5% higher than the rate prescribed by law.
21.2. The Customer will pay to NC all costs and expenses incurred in the recovery, or attempted recovery, of overdue accounts including but not limited to all costs and expenses payable to mercantile agents, solicitors (on a solicitor and client basis) and third parties in securing any account balance, outstanding or otherwise. These costs shall extend to the costs in defending actions, or advice incidental to the account, while overdue, despite that same is not categorised as debt recovery.
21.3. If the Customer fails on reasonable demand being made to pay charges due to NC in respect of any services rendered by NC, NC may detain or sell any of the Goods of the Customer which are in its possession at any time. This applies whether the charges relate to that contract of carriage or previous contracts and, out of the monies arising from such sale, retain any monies due to NC together with all charges and expenses of the detention or sale and will render the surplus (if any) of the monies arising from any sale, and such of the Goods as remain unsold, to the party entitled to that sale. Any such sale will not prejudice or affect the right of NC to recover from the Customer the balance of any such charges due or payable in respect of such service, or the detention or sale.

22. Force Majeure

22. 1. In this clause, a Force Majeure Event means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency
22.2. NC will not be liable and shall not be taken to have failed to perform its obligations to deliver the Goods as a result of a Force Majeure Event.

23. Insolvency

The Customer will be in breach of this Agreement if at any time it becomes the subject of bankruptcy proceedings, voluntarily enters into bankruptcy, goes into liquidation either compulsorily or voluntarily, if a receiver is appointed in respect of the whole or any part of its assets, if it makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things, or any judgment is made against the Customer or any similar occurrence under any jurisdiction affects the Customer.

24. Change in Ownership

The Customer must advise NC’s Chief Financial & Operation Officer in writing within one day of any change in ownership of the partnership, business or company, including a change in shareholding of more than 25% (aggregated), together with any change in the directors, whether or not guarantors to this agreement.

25. Personal Guarantee

25.1. In consideration of NC having at the request of the Customer agree to supply Goods and Services from time to time on credit terms to the Customer named in the credit application, the directors of the Customer named in the credit application (“the Guarantor”) unconditionally guarantees the due and punctual payment by the Customer to NC on demand of all amounts (including damages) that are payable, owing but not payable, or that otherwise remain unpaid by the Customer to NC on any account at any time under or in connection with this Agreement or any transaction contemplated by the Agreement, whether present or future, actual or contingent or incurred alone, jointly, severally, or jointly and severally and without regard to the capacity in which the Customer is liable (the “Guaranteed Moneys”).
25.2. This Guarantee:

25.2.1. is a principal obligation and is not ancillary or collateral to any other right or obligation however created or arising
25.2.2. may be enforced against the Guarantor without NC first being required to exhaust any remedy it may have against the Customer or to enforce any security it may hold relating to the Guaranteed Moneys;
25.2.3. is a continuing guarantee and indemnity for the whole of the Guaranteed Moneys; and
25.2.4. is absolute, unconditional and irrevocable, and remains in full force and effect until the Guaranteed Moneys have been irrevocably paid in full despite any transaction or other thing (including a settlement of account or intervening payment).

25.3. The Guarantor must pay interest at the rate specified below on each amount from time to time owing under this Guarantee that is not paid when due, from the day on which it falls due. Interest on the unpaid amount accrues each day at the rate of 15% per annum both before and (as a separate, independent obligation) after any judgment.
25.4. The liability of the Guarantor is absolute and is not affected by any circumstance, act, omission, matter or thing which, but for this provision, might otherwise affect it at law or equity.
25.5. If the whole or any part of the Guaranteed Moneys are not recoverable by NC for any reason whatsoever then:

25.5.1. the Guarantor as a separate and severable liability under this Guarantee unconditionally and irrevocably indemnifies NC in respect of the Guaranteed Moneys;
25.5.2. as a principal debtor, the Guarantor agrees to pay NC, on demand in writing, a sum equal to the amount of the Guaranteed Moneys; and
25.5.3. for the purposes of this indemnity, this clause must be construed as if the Guaranteed Moneys were recoverable and the terms of this Guarantee apply as far as possible to this indemnity.

25.6. Where this Guarantee is given by more than one person, the obligations on the part of the Guarantor contained in this Guarantee take effect as joint and several obligations and references to the Guarantor take effect as references to those persons or any of them. This Guarantee binds each of the persons executing it notwithstanding that any one or more of the persons named in this Guarantee as Guarantor does not execute, or is not or ceases to be bound by this Guarantee, or NC does not execute or only subsequently executes this Guarantee. A release by NC of any Guarantor from this Guarantee will not affect the liability of the other Guarantors.
25.7. The Guarantor must indemnify NC against all reasonable expenses incurred by NC in connection with the entry into, enforcement of, or the preservation of any rights under this Guarantee, including legal expenses on a solicitor/client basis.
25.8. In consideration of this Guarantee and by way of security for the performance of the obligations of the Customer and the Guarantor, the Guarantor hereby charges their rights and interest in any real property owned by the Guarantor, and authorizes NC to lodge a caveat on such real properties without prior further notice to the Customer or the Guarantor to better secure payment. A caveat may be lodged by NC at any time following execution of this Guarantee.

26. Jurisdiction and Dispute

26.1. This Agreement is governed and construed by the non-exclusive jurisdiction of the courts of the State of Victoria.
26.2. The parties submit to the jurisdiction of the appropriate Court in the jurisdiction referred to in clause 26.1 if there is a dispute.
26.3. Where a dispute arises as to the payment of the Customer’s account, the Customer will pay into an interest bearing trust account of NC or its solicitors all monies claimed outstanding by NC before being entitled to dispute the debt. The Customer acknowledges that this clause will operate as a bar commenced against NC and as a bar to any defence in proceedings commenced by NC until such time as payment required by this clause is made.

26.3.1. In the case where the Goods have been lost in transit, whilst in NC custody or care, then the Customer shall be required to provide written notice detailing the alleged loss within fourteen (14) days of the date of dispatch of the Goods.