Norman Carriers Trading Terms

1. Definitions 

1.1. The following capitalised terms have the following meanings, unless otherwise stated:

(a) Chain of Responsibility has the same meaning as the term referred to in the Heavy Vehicle National Law which defines specific parties in the supply chain who have influence or control over the transport activity such as consignors, transport operators, loaders, drivers, and schedulers;

(b) Claim includes all sums of money, actions, suits, causes of actions, proceedings, accounts, liability, losses, assessments, demands, costs, expenses, notices, demands or any other types of claims however arising;

(c) Container means any container, reefer container, flexitank, trailer, wagon, transportable tank, pallet, flat rack or any other unit or device used to consolidate Goods.

(d) Consequential Loss means any indirect or consequential loss or damage; loss use of any good; loss of market; loss of reputation; loss of chance; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; economic loss, loss of profit, revenue or anticipated revenue; loss of bargain,  contract, expectation damages or loss of opportunity; liquidated damages, punitive or exemplary damages; labour costs, investigation or auditing costs,  costs of borrowing,  wasted expenditure; incurred and reliance damages in each case arising from or in connection with the performance of Services and whether or not foreseeable at the time of entering into any agreement incorporating these conditions;

(e) Customer means the owner of the Goods, the bailor of the Goods or the person for whom any of the Services are performed and includes any agent or person acting on behalf of and with the authority of the Customer;

(f) Dangerous Goods means Goods that are classified as dangerous goods under the Australian Dangerous Goods Code (ADG), or in the International Maritime Dangerous Goods Code (IMDG)  or any good that becomes noxious, dangerous, hazardous, poisonous, corrosive, volatile, explosive, combustible, flammable or radioactive  and that may or can injure or cause damage to other goods or to any person, animals, property, and the environment;

(g) Force Majeure Event means any event beyond the reasonable control of NC including war (declared or undeclared),  riots, revolution, civil commotion, acts of terrorism, public disorder, labour strikes, industrial disputes or actions, malicious attacks, vandalism, nuclear accident, acts of sabotage, blockade, fire, explosion, custom restrictions, quarantine restrictions,  border closures, government orders, cyber warfare, cyber attack, ransomware attack, cyber sabotage, road closure, road congestion, roadworks, power supply interruption, fuel shortages, vehicle collision, breakdown of vehicles, cranes and machinery,  any natural disaster,  earthquakes, landslides, avalanches, floods,  forces of nature, epidemic or pandemic, and action or inaction by a government agency;

(h) Goods means the Goods accepted by NC together with any Container, packaging, or pallet(s) supplied by the Customer to NC for the purposes of provision of Services by NC;

(i) PPSA means the Personal Property Securities Act 2009 (Cth);

(j) Trading Terms means this agreement, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this agreement;

(k) NC means Norman Carriers (Aust) Pty Ltd (ACN 614 706 311), being the entity engaged by the Customer and being either each of its subsidiaries, divisions, affiliates, associated companies and related entities and any successors and assigns;

(l) Subcontractor means any other person, firm or company (other than NC) by whom the Services or any part thereof are arranged, performed or undertaken;

(m) Rates means charges set out in the NC price list; and

(n) Services means any services undertaken by NC in connection with the Goods including loading, unloading, packing, unpacking, handling, movement, transporting and storage of goods, completing documents and the provision of advice and any other matters or services performed or arranged that is connected to the provision of the Services.

2. Not a Common Carrier

NC is not a common carrier and reserves the right to refuse the carriage of any Goods without assigning any reason for such refusal. NC will accept no liability as a common carrier.

3. Performance

3.1. NC agrees to:

(a) take reasonable care for the safety of the Goods and reasonably protect them; 

(b) render the Services with due care and skill;

(c) deliver the Goods to the address on the date and time given to NC by the Customer; 

(d) reasonably comply with the reasonable and lawful directions of the Customer.

3.2. The Services are provided to the Customer subject to the exclusions and limitations set out in this Agreement. 

4. Charges

4.1. NC will charge the Customer for the Services in accordance with its Rates. 

4.2. The Customer is deemed to be charged the Rates applicable to the Services on receipt of the Goods by the Customer or when NC deems the Customer has incurred the charges and NC has issued a tax invoice for the charges.

4.3. The Customer is liable to pay the invoice in full without deduction, set-off or counterclaim.

4.4. In addition to the charges set out in the Rates, the Customer must pay NC:  

(a) fuel levies or surcharges imposed by NC to account for changes in the fuel price;

(b) toll levy;

(c) carbon charges;

(d) chain of responsibility surcharge;

(e) timeslot booking fees; 

(f) any custom duty, excise duty or other impost or tax applicable to any Goods;

(g)terminal or infrastructure tariffs, levies, fees, imposts or charges;  

(h) all fines and penalties arising from NC performing the Services;

(i) account keeping fees;

(j) minimum pick-up fees;

(k) costs and expenses associated with delays in loading or unloading the Container or packing or unpacking the Goods;

(l) disassemble and reassembly of machinery;

(m) interest on any overdue amount at a rate of 10% more than the interest rate set by the Penalty Interest Rates Act 1983 (Vic) from time to time;

(n) Container cleaning fee; and

(o) all costs and expenses incurred in the recovery or attempted recovery of the over due amount 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. 

4.5. The Customer remains liable for the NC’s charges notwithstanding the Goods were delivered to a third party.

4.6. The Customer undertakes to pay all charges within 14 days from the date of NC’s tax invoice.

4.7. The Customer acknowledges that NC may suspend the performance of its Services until all outstanding amounts are paid.

4.8. The Customer agrees to permit NC to increase its Rates for the Services provided under these trading conditions. Such Rate increases may occur due to changes in market conditions or other relevant factors. 

4.9. Where NC stores the Goods for the Customer, the Customer must:

(a) pay NC any expense, levy or charge to comply with any Law including customs, excise or warehouse charges;

(b) supply of labour or machinery, or both, to load or unload the Goods; and

(c) pay NC the cost, expenses or loss arising from the damage to property caused by the nature of the Goods.

5. Credit Limit

5.1. NC may increase or decrease the Customer’s credit limit at its sole discretion and without notice to the Customer.

5.2. At any time and in its sole discretion and on reasonable notice NC may amend, suspend or withdraw its Trading Terms.

6. Warranties and Representations 

6.1. The Customer:

(a) agrees to comply with all relevant laws, including Acts and Ordinances, Regulations, By-laws, and Orders, as are or may be applicable Services and relating to load safety, Chain of Responsibility;

(b) provide to the NC adequate and accurate descriptions of the Goods and Containers;

(c) shall be solely responsible for the safe and proper packaging of the Goods (including the manner in which the Goods have been packed, the suitability of the Goods for carriage or manner or packaging and/or the condition of the packaging, etc.) and for any loss suffered or incurred by any person (including the Customer) through any such failure;

(d) has taken out the appropriate insurance over the Goods;  

(e) ensure the loading of the Goods do not cause the vehicle used by NC to exceed any dimension or mass limits under any state law or under Chain of Responsibility Law; and

(f) ensure the Goods within the Container are evenly distributed.

6.2. The Customer warrants:

(a) the Goods are fit for carriage and the Services and have been suitably packaged for those purposes;

(b) they have provided NC with the necessary information and documents to assist NC to comply with the requirement of any Authority and the provision of the Services;

(c) all details supplied to NC in respect of the Goods including but not limited to the description of the Goods, items, pallet pace, quality, weight, volume, quality, value and measurements are true and accurate;

(d) the Goods within any Container are packed by the Customer, its servants agents or contractors adequately in order to protect them from the ordinary  risk of damage in the performance of the Services;

(e) 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 Trading Terms; and

(f) the road leading to, place of pickup, collection, unloading or delivery of the Goods are safe and suitable for the weight of the Goods and type of Vehicle used in the performance of the Services by NC. 

7. Delivery

7.1. NC will be deemed to have delivered the Goods to the Customer, if at the Customer’s nominated address NC obtains from any person a receipt or delivery docket of the Goods from any person at the nominated address. 

7.2. If delivery cannot be effected, NC may store the Goods and redeliver the goods to the Customer and the Customer will pay such costs, expenses, redelivery fees and storage fees. 

8. Subcontracting

8.1. The Customer authorises NC to arrange with a Subcontractor to perform all or any part of the Services relating to the Goods.

8.2. Unless any loss or damage is caused by negligence of the Subcontractor, the Customer agrees that the Subcontractor is entitled to the full benefits of these terms and conditions and clause 8.3(c) operates to the benefit of the Subcontractors despite not being a party to this agreement.  

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

(a) all Subcontractors;

(b) every employee or agent of the Service Provider or of a Subcontractor;

(c) every other person (other than the Service Provider) by whom the Services or any part of them is undertaken; and

(d) all persons who are or are found to be vicariously liable for the acts or omissions of any person falling within clauses 8.3(a), 8.3(b) or 8.3(c).

8.4. For the purposes of clause 8.3 (c), NC is deemed to be acting as agent or trustee and for the benefit of such person or all of such persons. 

9. Insurance

9.1. The Customer is responsible for insuring the Goods. 

9.2. The Customer acknowledges that it is aware that NC is not an insurer of Goods and that NC does not affect insurance on behalf of the Customer. 

9.3. NC Warrants that it has taken out the relevant legislative insurance and may provide evidence of the policies upon request. 

9.4. In the event the Customer requests NC to take out any insurance policies on its behalf for the Goods, the Customer must pay NC for all premiums, costs (including NC administrative costs in procuring and arranging the insurance policies) and expenses in advance of NC taking out such insurance policies. 

10. Liability

10.1. The Customer agrees that NC, any Subcontractor or any other person who undertakes the Services is not liable under any circumstances (whether in contract, tort, bailment or otherwise) for any:

(a) loss of the Goods; 

(b) damage to the Good; or 

(c) loss or damage arising from incorrect delivery, non-delivery or delay in delivery, arising from the performance of the Services or otherwise, unless such loss or damage may be occasioned by the negligence or wrongful act of NC (whether intentional or not) or a substantial breach of these terms and conditions by NC.

10.2. Notwithstanding any other provision of these conditions, NC is not liable for any loss or damage to Goods caused by:

(a) a Force Majeure Event;

(b) NC following the Customer’s instructions;

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

(d) vibration, road conditions, weather or weather events of any kind whatsoever; 

(e) the Goods being inherently defective or in such a condition that they cannot be loaded, unloaded or transported by road without damage;

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

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

(h) insufficiency or unsuitability of packing or preparation of the Goods to withstand the ordinary risks associated with the Services;

(i) from being denied access to inspect the Goods;

(j) comprising electrical or mechanical derangement, shrinkage or ordinary wear and tear of the Goods; 

(k) failing to properly and carefully carry, store, keep and care for Goods in a refrigerated Container;

(l) the Container’s defective door, lock, lock rods, hinge, seal, wall;

(m) any dent, bulge or scratches to the Container; or

(n) where the loss of or damage to the Goods occurs while the Goods are not in the possession of NC.

10.3. Pursuant to these terms and conditions, the maximum aggregate financial liability of NC in relation to or in any way connected with the Services or any loss of or damage to Goods, or misdelivery, delay in delivery or non-delivery of goods is limited to the cost of resupplying the Services that were supplied with respect to the lost or damaged goods or misdelivery for each incident. 

10.4. For the purposes of clause 10.3, ‘incident’ means any event which results in loss or damage to goods and all claims that result from the one original event will be considered to have arisen from the same incident.

10.5. Notwithstanding any other provision of these conditions, NC is not liable for any Claim for Consequential Loss.

11. Container and Pallets

11.1. If a Container has not been packed or stuffed by or on behalf of NC, NC shall not be liable for loss of or damage to the Goods caused by;

(a) the manner in which the Container has been packed or stuffed; 

(b) the unsuitability of the Goods for carriage in Containers; or

(c) the unsuitability or defective condition of the Container.

11.2. NC is not obliged to pack or unpack the Goods or to provide any plant, power or labour required for loading and/or unloading of the Goods. 

11.3. NC accepts no responsibility and liability for:

(a) hire or demurrage charges associated with any Container or pallets;

(b) any damage to, and the misplacement or lost, pallets or Container;

(c) an incorrect temperature set-point; or

(d) refrigerated container malfunction or failure.   

11.4. Where NC is required to store a refrigerated Container packed with refrigerated or frozen Goods, NC agrees that on arrival of the refrigerated Container and each day after check that the Container is connected to electrical power.

12. Storage

12.1. Where the Customer request NC to store Goods as part of the Services, the Customer must provide NC an inventory of the Goods that are to be stored.

12.2. On condition that NC provides 48 hours written notice to the Customer,  NC may  move  the Goods to  any place, store or warehouse whatsoever and every such dealing with the Goods shall be deemed to be within the scope of these conditions.

12.3. Within 5 business days the Customer receives written notice from NC the Customer must remove the Goods from storage from NC facility.

12.4. NC is authorised to deliver the Goods to the address given to NC by the Customer for delivery.

12.5. The Customer acknowledges that it will not be allowed to inspect the Goods or to demand delivery of the Goods in circumstances where there are amounts owing to NC.

12.6. All charges for storage accrue day to day and will be calculated in accordance with NC’s Rates.

13. Dangerous Goods

13.1. If Customer requires NC to provide Services relating to Dangerous Goods, the Customer must provide prior written notice and instructions regarding Dangerous Goods including a full and accurate written description of them, and the class and UN Numbers. 

13.2. If NC accepts the request to provide Services for the Dangerous Goods, the Customer undertakes that it has complied with the Australian Dangerous Goods Code.  

13.3. If NC accepts the request to provide Services for the Dangerous Goods, the Customer must indemnify NC against all loss, Damage, fines, expenses, harm or injury, charge, liability, duty, cost or expense whatsoever  arising form or in connection with the performance of the Services Dangerous Goods whether declared or not, unless such loss, harm, Damage or injury is due to the negligence of NC or its servants, agents or subcontractors.

13.4. 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, 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: 

(a) refuse to provide the Services in respect of the Goods or any part of them; 

(b) 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; or 

(c) 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. 

14. Inspection

14.1. The Customer is entitled, upon giving NC reasonable notice, to inspect the Goods in store, but Rates may be incurred by the Customer for this service.

14.2. 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.

14.3. If NC is required by any law, regulation or instructions from any government authority to open the container then NC will not be liable for any loss, damage and Consequential Loss arising from opening, unpacking inspecting and repacking and the Customer agrees to pay the Rates to NC for the services.

15. Title and Personal Property Security Act and lien

15.1. The Customer grants NC a security interest pursuant to the PPSA in all Goods the subject of the Services and held in NC’s possession.

15.2. 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 PPSA, in order for the interest to have priority over all other security interests in the Goods not already registered.

15.3. If the Customer is in breach of this Agreement 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.

15.4. To the maximum extent permitted by law, the Customer irrevocably waives any right it may have to: 

(a) receive notices or statements under sections 95, 118, 121(4), 124(4), 125, 130, 132(3)(d) 132(4) and 135 of the PPSA;

(b) redeem the Goods under section 142 of the PPSA;

(c) reinstate this Agreement under section 143 of the PPSA; and

(d) receive a verification statement. 

15.5. 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. 

15.6. For the purposes of the PPSA, NC is deemed to be in possession of the Goods and/or the Container from the moment NC accesses the Container. 

15.7. 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:

(a) 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; 

(b) 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 

(c) 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.

15.8. In the sale of any Goods under this clause 15, NC must comply with the provisions of any legislation or regulations relating to warehousemen’s liens, as regulate the sale of Goods by a warehouseman.

16. Entire agreement

16.1. The terms and conditions governing the relationship between NC and the Customer for the Services provided by NC to the Customer are set out in in this agreement. This agreement applies to all dealings between NC and the Customer unless varied in writing by NC.  

16.2. 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.

16.3. This agreement applies to all past, present and future dealings with NC.

17. Force Majeure Event

17.1. 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.

17.2. When the Force Majeure Event takes place, NC will notify the Customer of the event and that the unperformed obligations of this agreement are suspended for the duration of the Force Majeure Event.

17.3. Where it is determined by NC the Force Majeure Event is at an end, NC agrees to resume performance of the Services as soon as practicable.

18. Notices

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

(a) personal service on the other party or the legal practitioner for the other party;

(b) prepaid post to the other party or the legal practitioner for the other party;

(c) email to an email address notified by the recipient; or

(d) any other method authorised by law.

18.2. A notice is taken to be served:

(a) on the date the recipient receives it if the notice or other document is given personally;

(b) six business days after posting if the notice or demand is sent by regular post;

(c) on the date the sender’s facsimile confirms receipt by the other party; or

(d) on the date the recipient’s email server receives the email without the sender receiving an error or “out of office” report. 

19. General

19.1. If any provision of this contract is unenforceable, that provision is severable and its unenforceability will not, to the extent permitted by law, affect any other part or provision of this contract.

19.2. If this agreement is completed in the name of a partnership, the partners of that business at any one time are jointly and severally liable to the Services Provider for any outstanding account. This will be so despite any agreement, compromise or arrangement with one or more of the partners.

19.3. This Agreement is governed and construed by the non-exclusive jurisdiction of the courts of the State of Victoria. The parties submit to the jurisdiction of the appropriate Court in the jurisdiction referred to in this clause if there is a dispute.

19.4. 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.