Terms and Conditions
1.1 “Newman” means Newman Transport Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Newman Transport Pty Ltd.
1.2 “Sub-Contractor” means and includes:
(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
(b) any other person or entity with whom Newman may arrange for the carriage or storage of any Goods the subject of the contract; or
(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in sub-clauses (a) and (b).
1.3 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting Newman to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a part of a trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Consignee” means the person to whom the Goods are to be delivered by way of the Services.
1.5 “Goods” means any cargo, together with any container (being any container, trailer, tilt, igloo, wagon, transportable tank, flat pallet or any other unit load devised used to consolidate Goods) to be moved from one place to another by way of the Services.
1.6 “Services” means all services provided by Newman to the Customer (including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or fumigating, transshipping, or otherwise handling the Goods, or anything else done in relation thereto, including the offering of any advice or recommendations.
1.7 “Price” shall mean the cost of the Services (plus any GST where applicable), as agreed between Newman and the Customer, subject to clause 7 of this contract.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. The Commonwealth Competition and Consumer Act 2010 (CCA) and Fair Trading Acts
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Customer purchases Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
2.3 Liability of Newman arising out of any one incident whether or not there has been any declaration of the value of the Goods, for breach of warranty implied into these terms and conditions by the Competition and Consumer Act 2010 or howsoever arising, is limited to any of the following as determined by Newman:
(a) rectifying the Services; or
(b) providing the Services again; or
(c) paying for the Services to be provided again.
2.4 If Newman is required to rectify, re-provide, or pay the cost of re-providing the Services under clause 2.3 or the CCA, but is unable to do so, then Newman may refund any money the Customer has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Customer which were not defective.
3.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts, Services provided by Newman.
3.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Newman.
3.3 These terms and conditions are to be read in conjunction with Newman’s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by Newman to the Customer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
3.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales and South Australia), the Electronic Transactions Act 2001 (Australian Capital Territory), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania), Section 10 of the Electronic Transactions Act 2011 (Western Australia) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Freight Forwarding
4.1 Except to the extent that any of the Services shall be actually performed by Newman, Newman shall act as a forwarding agent only.
4.2 Newman shall be entitled, to enter into contracts on behalf of and as agent for the Customer and without notice to the Customer, for the carriage of the Goods by any route, means and carrier, for the storage, packing, trans-shipment, unloading, loading or handling of Goods by any person at any place and for any length of time, and for such other matters as in the opinion of Newman may be necessary or desirable to the performance of the Services.
4.3 The Customer hereby appoints Newman the agent of the Customer for the purpose of entering into any contract, upon such terms and conditions, as Newman may in its absolute discretion think fit. The Customer shall be bound by the terms of any consignment note, air waybill or other contractual documents which Newman may receive for the Goods, or for any package, unit or container in which the Goods may be packed, whether by the Customer, Newman, or any other person.
5. Errors and Omissions
5.1 The Customer acknowledges and accepts that Newman shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s) resulting from an inadvertent mistake made by Newman in the formation and/or administration of this contract.
5.2 In the event such an error and/or omission occurs in accordance with clause 5.1, and is not attributable to the negligence and/or willful misconduct of Newman; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
6. Change in Control
6.1 The Customer shall give Newman not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by Newman as a result of the Customer’s failure to comply with this clause.
7. Price and Payment
7.1 At Newman’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Newman to the Customer in respect of Services provided; or
(b) Newman’s quoted Price (subject to clauses 7.2 and 7.3) which shall be binding upon Newman provided that the Customer shall accept in writing Newman’s quotation within thirty (30) days.
7.2 Newman may, by giving notice to the Customer, increase the Price of the Services to reflect any increase in the cost to Newman beyond the reasonable control of Newman (including, without limitation, foreign exchange fluctuations, or increases in taxes, customs duties, insurance premiums, or warehousing costs or as the result of unforeseen conditions such as the weather, availability of labour and vehicles, etc.).
7.3 Newman may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
7.4 Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by Newman, which may be:
(a) on delivery of the Goods;
(b) before provision of the Services;
(c) for certain approved Customers, thirty (30) days following the date of any invoice given to the Customer by Newman.
(d) the date specified on any invoice or other forms as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Newman.
7.5 Payment may be made by cash, cheque, bank cheque, electronic/online banking, or by any other method as agreed to between the Customer and Newman.
7.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Newman nor to withhold payment of any invoice because part of that invoice is in dispute.
7.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Newman an amount equal to any GST Newman must pay for any provision of Services by Newman under this contract or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8. Newman not a Common Carrier
8.1 Newman is not a Common Carrier and will accept no liability as such. All Goods are carried or transported, and all storage and other services are performed, by Newman subject only to these terms and conditions and Newman reserves the right to refuse the carriage or transport of Goods for any person, corporation or body, and the carriage or transport of any class of Goods, at its discretion.
9. Customer-Packed Containers
9.1 If a container has not been stowed by or on behalf of Newman then Newman shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.
10. Nomination of Sub-Contractor
10.1 The Customer hereby authorises Newman (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as Newman. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled Newman shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
11. Newman’s Servants or Agents
11.1 The Customer undertakes that no claim or allegation shall be made against any servant or agent of Newman which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify Newman and any such servant or agent against all consequences thereof.
12. Method of Transport
12.1 If the Customer instructs Newman to use a particular method of carriage whether by road, rail, sea or air Newman will give priority to the method designated but if that method cannot conveniently be adopted by Newman the Customer shall be deemed to authorise Newman to carry or to have the Goods carried by another method or methods.
13. Route Deviation
13.1 The Customer shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of Newman be deemed reasonable or necessary in the circumstances, which may include, but not be limited to movement in a contrary direction to or out of or beyond the customary or intended or advertised routes) one or more often in any order backwards or forwards, and store the Goods at any such place whatsoever.
13.2 Furthermore, Newman shall comply with any order, directions or recommendations as to unloading, unloading, departure, routes, places of call, stoppages, destination, arrival, discharge, delivery or any other ways whatsoever given by an government or authority or any personal body acting or purporting to be to act with the authority of such government or authority.
14. Charges Earned
14.1 Newman’s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and dispatched from the Customer’s premises.
15.1 The Customer will be and shall remain responsible to Newman for all its proper charges incurred for any reason. A charge may be made by Newman in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of Newman. Such permissible delay period shall commence upon Newman reporting for loading or unloading. Labour and/or equipment to load or unload the vehicle shall be the responsibility and expense of the Customer or Consignee.
16. Dangerous Goods
16.1 Unless otherwise agreed in advance in writing with Newman the Customer or their authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Customer shall be liable for and hereby indemnifies Newman for all loss or damage whatsoever caused by any Dangerous Goods.
16.2 Where Dangerous Goods are delivered to Newman without written consent or where they are not distinctly marked to indicate the nature and character of the Goods, or if in the opinion of Newman, the articles are or are liable to become of a dangerous and flammable or damaging nature, the same may at any time be destroyed, disposed of, abandoned, or rendered harmless without compensation to the Customer and without prejudice to Newman’s right of carriage.
16.3 Dangerous Goods shall be accompanied by a full declaration of their nature and contents and be properly and safely packed in accordance with statutory regulations applicable to the carriage of said Goods.
17. Consignment Note
17.1 It is agreed that the person delivering any Goods to Newman for carriage or forwarding is authorised to sign the consignment note for the Customer.
18. Customer’s Responsibility
18.1 The Customer expressly warrants to Newman that the Customer is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Customer accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Customer is acting.
18.2 The Customer warrants that the Goods are fit for cartage and/or storage. Furthermore, the Customer acknowledges and accepts that where Newman is required to verify such condition of the Goods, then this may result in the container being opened or removed.
19.1 Newman is authorised to deliver the Goods at the address given to Newman by the Customer for that purpose and it is expressly agreed that Newman shall be taken to have delivered the Goods in accordance with this contract if at that address Newman obtains from any person a receipt or a signed delivery docket for the Goods.
19.2 Newman may deliver the Goods by separate installments (in accordance with the agreed delivery schedule). Each separate installment shall be invoiced and paid for in accordance with the provisions in this contract.
19.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery for the purposes of this agreement.
19.4 It is the Customer’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.
19.5 The Customer acknowledges and accepts that Newman shall comply with the National Heavy Vehicle Accreditation Scheme and the required standards.
19.6 Any time specified by Newman for the delivery of Goods is an estimate only and Newman will not be liable for any loss or damage incurred by the Customer as a result of delivery being late or where the Goods are detained by any statutory authority. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that Newman is unable to deliver the Goods as agreed solely due to any action or inaction of the Customer then Newman shall be entitled to charge the Customer any additional costs incurred by Newman as a direct consequence of any resultant delay or rescheduling of the delivery.
19.7 Newman shall be indemnified from any loss, mis-delivery or damage of the Goods (including concealed damage) that results from, but is not limited to:
(a) the inherent liability to wastage in bulk or weight, latent defect or inherent defect, inherent vice or natural deterioration of the Goods;
(b) fraud by the Customer;
(c) compliance by Newman with the Customer’s instructions;
(d) the lack of, or defective condition of packing being either insufficient or improper packing;
(e) handling, loading, stowage or unloading of the Goods by the Customer;
(f) damage to or deterioration, contamination, evaporation, breakdown or malfunction of any refrigeration or cooling equipment which is outside Newman’s control.
20. Conditions of Storage
20.1 All Goods that are to be stored under this agreement shall be tallied into and out of storage and if the Customer (or the Customer’s representative) is not present at the time of receipt or delivery of those Goods, as the case may be, then Newman’s tally shall be accepted as final.
20.2 The Customer acknowledges and agrees that (unless specifically advised to Newman) the quality, quantity and condition of the contents of any packages tendered for storage are generally unknown to Newman.
20.3 The Customer shall ensure that all Goods (and/or containers in which the Goods are packaged) tendered for storage shall be clearly, distinctively, and indelibly branded.
20.4 The Customer shall immediately notify Newman of any change of the ownership of any Goods which are stored on the Customer’s behalf under this agreement.
20.5 Newman reserves the right at any time to require the removal of any Goods held in storage on the Customer’s behalf by giving not less than one (1) weeks’ notice to the Customer that they wish them to do so.
20.6 The Customer shall on request by Newman provide samples of the signature(s) of any person(s) entitled to uplift the Goods from storage.
20.7 The Customer agrees to give Newman at least forty-eight (48) hours’ notice of their intent to remove the Goods from storage. In the event, the Customer fails to give such notice then Newman may at its sole discretion agree to facilitate the immediate removal of the Goods but shall be entitled to charge the Customer an additional fee for so doing.
20.8 An inward receipt in relation to Goods stored by Newman shall not constitute a document of title to those Goods, or be negotiable, nor shall any right of the Customer storing the Goods be assignable.
20.9 Newman shall store the Goods in bulk or in assorted lots at the convenience of Newman unless the Customer furnishes Newman, prior to, or at the time of the receipt of the Goods, a manifest showing marks, brands or sizes to be kept and accounted for separately and the class of storage desired in which case the Customer shall be liable for all additional costs incurred by Newman in facilitating the particular method of storage chosen.
20.10 The Customer shall be liable to Newman on demand and at any rate before removal of the Goods from storage, for all charges or fees in connection handling, loading or unloading, palletising, re-palletising, re-packing and/or delivery of the Goods, as the case may require, which charges and fees shall be in accordance with Newman’s standard Price list, as amended from time to time, and in addition to any storage fee.
21. Loss or Damage
21.1 Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):
(a) Newman shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of Newman or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
(b) the Customer will indemnify Newman against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by Newman in connection with the Goods.
22.1 The Customer acknowledges that:
(a) the Goods are carried and stored at the Customer’s sole risk and not at the risk of Newman; and
(b) Newman is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility to ensure that the Goods are insured adequately or at all; and
(c) under no circumstances will Newman be under any liability with respect to the arranging of any such insurance and no claim will be made against Newman for failure to arrange or ensure that the Goods are insured adequately or at all.
22.2 Where Newman agrees to effect insurance on the Customer’s behalf (which shall be at the Customer’s expense), should the Customer fail to specify the class of any insurance to be effected, Newman may effect that class of insurance which Newman, in its sole discretion, considers to be the most appropriate. Furthermore, any insurance effected under this clause, such insurance shall exclude:
(a) all claims resultant from wear, tear, moths, vermin, damp, mildew or loss of market;
(b) all claims resultant from loss, damage or expense proximately caused by delay;
(c) strikes, riots, civil commotions or malicious damages of the Goods insured;
(d) gradual deterioration, rust or oxidation unless due to or consequent upon fire, collision, overturning and other accident of the conveyance; or
(e) any other exclusion advised by the Customer to Newman prior to the effecting of such insurance.
23.1 Notwithstanding clauses 21 and 22 in the event that the Customer believes that they have any claim against Newman then they must lodge any notice of claim for consideration and determination by Newman within seven (7) days of the date of delivery, or for non-delivery within seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
23.2 The failure to notify a claim within the time limits under clause 23.1 is evidence of satisfactory performance by Newman of its obligations.
24. Default and Consequences of Default
24.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at Newman’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
24.2 If the Customer owes Newman any money the Customer shall indemnify Newman from and against all costs and disbursements incurred by Newman in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Newman’s contract default fees, and bank dishonour fees).
24.3 Further to any other rights or remedies Newman may have under this contract, if the Customer has made payment to Newman, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Newman under this clause 24 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
24.4 Without prejudice to Newman’s other remedies at law Newman shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to Newman shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Newman becomes overdue, or in Newman’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer has exceeded any applicable credit limit provided by Newman;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
25. Carrier’s Lien
25.1 Newman shall have a right to take a particular and general lien on any Goods the property of the Customer or a third party owner which are in the possession or control of Newman (and any documents relating to those Goods) for all sums owed at any time by the Customer or a third party owner to Newman (whether those sums are due from the Customer on those Goods or documents, or on any other Goods or documents), and Newman shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Customer. Newman shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
25.2 Notwithstanding clause 25.1 nothing shall prejudice Newman’s rights to use any of Newman’s other rights and remedies contained in this agreement to recover any outstanding charges or fees payable in respect of the Goods that were not recovered out the sale of the Goods in accordance with clause 25.1 and no exception shall be taken upon the grounds that the Price realised is less than the full market value of the Goods.
26. Personal Property Securities Act 2009 (“PPSA”)
26.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Customer and Newman by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
26.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA, and creates a security interest in:
(a) all Goods being transported, carried or handled by Newman, over which Newman invokes a lien; and
(b) all the Customer’s present and after acquired property being a charge, including anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Customer to Newman for Services – that have previously been provided and that will be provided in the future by Newman to the Customer.
26.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Newman may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 26.3(a)(i) or 26.3(a)(ii);
(b) indemnify, and upon demand reimburse, Newman for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Newman;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Newman.
26.4 Newman and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
26.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
26.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
26.7 Unless otherwise agreed to in writing by Newman, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
26.8 The Customer shall unconditionally ratify any actions taken by Newman under clauses 26.3 to 26.5.
26.9 Subject to any express provisions to the contrary (including those contained in this clause 26), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
27. Security and Charge
27.1 In consideration of Newman agreeing to supply Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
27.2 The Customer indemnifies Newman from and against all Newman’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Newman’s rights under this clause.
27.3 The Customer irrevocably appoints Newman and each director of Newman as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 27 including, but not limited to, signing any document on the Customer’s behalf.
28. Privacy Act 1988
28.1 The Customer agrees for Newman to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by Newman.
28.2 The Customer agrees that Newman may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) 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; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
28.3 The Customer consents to Newman being given a consumer credit report to collect overdue payment on commercial credit.
28.4 The Customer agrees that personal credit information provided may be used and retained by Newman for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
28.5 Newman may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
28.6 The information given to the CRB may include:
(a) personal information as outlined in 28.1 above;
(b) name of the credit provider and that Newman is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) 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);
(f) 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 Newman has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Newman, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
28.7 The Customer shall have the right to request (by e-mail) from Newman:
(a) a copy of the information about the Customer retained by Newman and the right to request that Newman correct any incorrect information; and
(b) that Newman does not disclose any personal information about the Customer for the purpose of direct marketing.
28.8 Newman will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfill the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
28.9 The Customer can make a privacy complaint by contacting Newman via e-mail. Newman will 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.
29.1 Without prejudice to any other remedies Newman may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Newman may suspend or terminate the provision of Services to the Customer and any of its other obligations under the terms and conditions. Newman will not be liable to the Customer for any loss or damage the Customer suffers because Newman exercised its rights under this clause.
29.2 Newman may cancel any contract to which these terms and conditions apply, or cancel delivery of Goods at any time before the Goods are delivered, by giving written notice to the Customer. On giving such notice Newman shall repay to the Customer any sums paid in respect of the Price. Newman shall not be liable for any loss or damage whatever arising from such cancellation.
29.3 In the event that the Customer cancels the delivery of Goods, or the provision of any Services, then the Customer shall be liable for any loss incurred by Newman (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.
30.1 Any written notice given under this contract shall be delivered by handing the notice to the other party, in person, leaving it at the address of the other party as stated in this contract, or by sending it by registered post to the address of the other party as stated in this contract.
30.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post the notice would have been delivered.
31. Force Majeure
31.1 Where Newman or the Customer is either wholly or in part is unable by reason of, an Act of God, strike, lockout, or other interference with work, war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, insurrection, military or usurped power or confiscation, requisition, destruction of or damage to property by or under the order of any government, public or local authority, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint or embargo, unavailability or delay in availability of Goods, or transport, inability or delay in obtaining government approvals, or any other cause which is not reasonably within the control of the affected party (i.e. a force majeure event), to carry out any obligation under this agreement and that party:
(a) gives the other party prompt notice of that force majeure with full particulars of the probable extent to which it will be unable to perform, or be delayed in performing its obligations under this agreement; and
(b) uses all possible diligence to remove that force majeure as soon as possible; then
those obligations shall be suspended so far as it is affected by the force majeure event and during its continuance provided that:
(c) an obligation to pay money is never excused by force majeure; and
(d) the requirement that any force majeure event shall be removed with all possible diligence shall not require the settlement of strikes, lockouts, or other labour disputes, or claims or demands by any government, on terms contrary to the wishes of the party affected.
32.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
32.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state or territory being whichever state or territory the Services were provided by Newman to the Customer, however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Caboolture in the state of Queensland in which Newman has its principal place of business.
32.3 Subject to clause 2, Newman shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Newman of these terms and conditions (alternatively Newman’s liability shall be limited to damages which under no circumstances shall exceed the Price).
32.4 Newman may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
32.5 The Customer cannot licence or assign without the written approval of Newman.
32.6 Newman may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Newman’s sub-contractors without the authority of Newman.
32.7 The Customer agrees that Newman may amend these terms and conditions at any time. If Newman makes a change to these terms and conditions, then that change will take effect from the date on which Newman notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Newman to provide Services to the Customer.
32.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
32.9 This contract contains the entire understanding of the parties as to its subject matter. There is no other understanding, contract, warranty or representation whether express or implied in any way defining or extending or otherwise relating to these provisions or binding on the parties with respect to the storage and carriage or the matters to which this contract relates.
32.10 The Customer acknowledges and agrees that any reference to an Act of Parliament or Code or section or schedule of the Act or Code shall be read as if the words “or any statutory modification or re-enactment thereof or substitution therefore” were added to the reference and includes all statutory instruments issued under that Act or Code as at the date of this contract.