1.1 In this Agreement, unless the context otherwise requires:
"Affiliates” means any person or entity which the parties or their respective stockholders or individual partners, directly or indirectly, through one or more intermediaries, controls, is in common control with, or is controlled by.
“Agreement” means this Agreement, including the Appendices and the Schedules.
“Applicable Laws” means any act, regulation or code applicable to the carrying out of the Services or undertaking any obligation of this Agreement including acts of parliament, legislation, ordinances, regulations, by-laws, other subordinate legislation and codes relating to occupational health and safety, driving hours, road safety and regulation, vehicle mass, vehicle maintenance and vehicle emissions.
“Australian Consumer Law” means means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Business Day” means any day other than a Saturday, Sunday or Public Holiday in Sydney, Australia.
“Chain of Responsibility Obligations” means any applicable federal, state, territory and local laws and regulations concerning the imposition of responsibilities, obligations or liabilities on any person who is regarded as having control over any element in the transport chain where goods or products have been transported in breach of any applicable road transport law (including those dealing with registration, licensing, speed, vehicle mass, dimensions or loading, driving hours or fatigue).
“Collection Point” means the place where the Carrier will collect the Goods as specified either in Schedule 2 or the Electronic Data Interchange for the purposes of performing the Services, or any other alternative place as agreed between the parties from time to time.
“Commencement Date” means the commencement date of Services, as specified in Schedule 1.
“Confidential Information” means, in respect of a party or its Affiliates, all trade secrets and know-how, financial information and other commercially valuable information and other non-public information of whatever description and in whatever form relating to the party including but not limited to all information relating to the Goods.
“Confirmation of Collection or CoC” means the notification by the Carrier to NGX by electronic means that the Carrier has collected the Goods from the designated Collection Point including the time and date of collection.
“Delivery Point” means the place where the Carrier will deliver the Goods, specified either in Schedule 2, or the Electronic Data Interchange for the purposes of performing the Services, or any other alternative place as agreed between the parties from time to time.
“Electronic Data Interchange” means NGX’s data collection and data sharing mechanism, including its web portal.
“Fuel Levy” means Fuel Levy which is calculated in accordance with clause 9.3.
“Force Majeure” means any event resulting in either party being prevented from or delayed in performing any obligation under this Agreement where the causal event is not within the reasonable control of the affected party, including without limitation, an act of God, force of nature or climatic conditions, pandemic, unavoidable accidents, war, revolution, riot, insurrection, terrorism, vandalism, sabotage or any other unlawful act against public order or authority; governmental restraint; a computer software or hardware defect, problem or virus that materially interrupts the business of NGX or the Carrier; equipment or vehicle breakdown or malfunction (except where caused by the Carrier’s lack of maintenance); an industrial dispute; and derailment, port or rail outage; provided that in any of these circumstances the party seeking to rely on the benefit of this clause must use its reasonable endeavours to put itself in a position where it is able to meet its obligations under this Agreement as soon as possible;
“Goods” means the specified quantity of specified Goods as set out in Schedule 2, as may be varied from time to time by agreement between the parties.
“GST” has the meaning given to it in the GST Act.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (as amended).
“KPI’s or Key Performance Indicators” means the key performance indicators as specified in Schedule 3.
“Modern Slavery” has the same meaning as it has in the Modern Slavery Act 2018 (Cth);
“Modern Slavery Laws” mean anti-slavery and human trafficking laws, including, without limitation, the Modern Slavery Act 2018 (Cth), Modern Slavery Act 2018 (NSW) and any applicable equivalent laws in Australian states and territories.
“National Pallet Process” means the process for dealing with empty pallets as set out in Appendix 1.
“Payment Terms” means the time within which invoices from Carrier will be paid by NGX as specified in Schedule 1.
"Proof of Delivery or PoD" means the Carrier’s delivery record, consignment note or equivalent written or electronic document as specified by NGX setting out the details of the delivery to a customer of Goods and which is signed or otherwise records the proof of delivery of the Goods.
“Rates” means the rates payable by NGX to Carrier for the Services specified in either Schedule 2, the Electronic Data Interchange or through another method agreed between the parties and as may be amended from time to time in accordance with this Agreement.
"RCTI” means Recipient Created Tax Invoice.
“Services” means the domestic transportation services provided by the Carrier to NGX, including picking up the Goods from the Collection Point and delivering them to the Delivery Point.
“Special Terms” means the additional terms to this Agreement as agreed between the parties, as set out in Schedule 4, if any.
“Vehicle” means any vehicle and or equipment used by Carrier or subcontractor of Carrier in the provision of the Services.
2.1. Carrier’s obligations: The Carrier will provide the Services to NGX on the terms and conditions set out in this Agreement and will:
(a) supply the Services in a timely manner using appropriate standards of skill, diligence, prudence, foresight and care as a reasonable, experienced and prudent operator providing similar services in Australia and shall comply with all reasonable and lawful directions given by or on behalf of NGX;
(b) supply the Services to a standard which meets or exceeds the Key Performance Indicators;
(c) unless otherwise agreed, provide at its own cost and expense all equipment including Vehicles, facilities, materials, licences and registrations, and labour necessary or desirable to perform its obligations under this Agreement and ensure that all such equipment including Vehicles, facilities, materials, licenses and registrations, and labour are in good working order, repair and condition, and up to date at all times and fit for the purpose of providing the Services;
(d) supply the Services in accordance with all Applicable Laws; comply with the Carrier’s Chain of Responsibility Obligations in respect of the Goods transported;
(e) notify NGX immediately if the Carrier receives a notice of regulatory noncompliance or is the object of any governmental or regulatory action which affects or may affect the supply of the Services;
(f) when at a Collection Point or a Delivery Point, comply with all security, health and safety requirements, site rules, codes of conduct and induction programmes applicable to that site that are communicated in writing or otherwise to the Carrier and any lawful and reasonable requests of any site managers;
(g) work co-operatively with, and at all times act in a courteous manner to, all other contractors appointed by NGX and with which the Carrier interacts in providing the Services;
(h) keep NGX informed of all matters of which it reasonably ought to be made aware or which may affect the way in which NGX manages its affairs in connection with this Agreement;
(i) ensure that all personnel who perform the obligations under this agreement are competent to provide the Services, properly supervised and trained in the necessary skills and appropriately qualified and licensed (where necessary) to perform the Services undertaken by them;
(j) comply with the Environmental Sustainability, Social and Governance Policy available here.
(k) comply with any policies or procedures of NGX or NGX customer (as may be amended from time to time), notified to the Carrier in writing (which may include policies or procedures in relation to chain of responsibility or safety).
2.2. Vehicles: The Carrier shall ensure that it provides and maintains, at its own cost and expense, all Vehicles, labour, equipment, and materials required for the performance of the Services. The Carrier shall ensure that:
(a) only Vehicles maintained to the highest industry standards, well presented, safe and kept in first-rate working order and condition and appropriately licensed and/or certified and which are suitable for the purpose for which they are intended will be allocated for the transportation of Goods;
(b) only experienced and currently and fully licensed drivers with good safety records, are made available for driving duties; and
(c) that all Vehicles comply with applicable regulations.
2.3. Service failure: If the Carrier becomes aware that any Services (whether provided or not, in whole or in part) do not meet the relevant specification or other requirements of this Agreement:
(a) the Carrier must notify NGX as soon as reasonably practicable; and
(b) without prejudice to any other rights or remedies NGX may have, NGX may by notice in writing to the Carrier require the Carrier to rectify such failure. Upon receiving such written notice, the Carrier will immediately rectify such failure, subject to clause 12, at its own cost.
(c) If the Carrier fails to rectify such failure within a reasonable time following written notice by NGX then, without prejudice to any other rights or remedies NGX may have, NGX may itself rectify the failure or commission any other person to rectify the failure and the Carrier will be, subject to clause 12, responsible for all reasonable costs incurred by NGX arising from such rectification.
2.4. Delivery of Goods: The Carrier will ensure delivery of the Goods in accordance with the requirements of this Agreement.
2.5. Supporting Information: The Carrier must provide the following documents, where relevant, to NGX within 24 hours of actual delivery of the Goods using the Electronic Data Interchange, except where an alternative means of provision of such documents is agreed in writing between the parties:
(a) a signed Confirmation of Collection;
(b) a signed Proof of Delivery;
(c) GPS location information;
(d) temperature control records;
(e) any information validating change to Services; and
(f) any such other reference codes and consignment note summaries as NGX may reasonably require.
2.6. Payment will not be made for deliveries with no Proof of Delivery. Payment for deliveries where a Proof of Delivery is completed after 48 hours of actual delivery of the Goods may be paid later than the payment date referred to in clause 9.6.
2.7. Empty Pallet Process: The Carrier shall adhere to the National Pallet Process as set out in Appendix 1 in the course of performing the Services.
2.8. Special Terms: If the parties have agreed any Special Terms amending this Agreement, such Special Terms are set out in Schedule 4.
3.1. For the purpose of ensuring compliance by the Carrier with this clause 3, NGX may, subject to giving the Carrier reasonable notice:
(a) inspect, take copies of and/or conduct audits of any premises or vehicles used by the Carrier or any sub-contractor to the Carrier for the purpose of storing, delivering, or handling Goods; and
(b) inspect, review, take copies of and/or conduct audits of any health and safety and other compliance manuals, policies, documented procedures and drug and alcohol policies used by the Carrier in its business; and
(c) request any other information reasonably required by NGX to confirm performance of the Carrier’s obligations under this Agreement;
provided such inspections shall be during the Carrier's normal business hours and shall be conducted in accordance with Carrier's reasonable directions as to health and safety and security. During any such inspection NGX must not interfere with or delay the Carrier or the Carrier’s employees and sub-contractors from undertaking their normal work activities and meeting their obligations under this Agreement.
3.2. Furthermore, under no circumstances will NGX be entitled to access the Confidential Information of the Carrier or any of its Affiliates without the express consent of the Carrier or its Affiliates. Any Confidential Information that becomes known to NGX under this clause 3 shall be dealt with in accordance with clause 13.
3.3. The Carrier warrants that it will not approach, solicit or communicate directly with or permit their Affiliates, representatives, subcontractors or personnel to approach, solicit or communicate directly with, any customer of NGX for which the Carrier is undertaking or has undertaken Services for, other than where necessary for the Carrier to comply with their obligations under this agreement. A breach of this clause shall constitute a material breach in accordance with clause 16.3(b).
4.1. Carrier shall:
(a) implement and maintain a health and safety system which complies with NGX's health and safety policies;
(b) implement and maintain satisfactory procedures for the monitoring, testing and remedying of unsafe work practices (including drug and alcohol testing, Vehicle driver skill, fitness and behaviour), and shall take all necessary steps to monitor and improve such procedures and ensure that they comply with all legal requirements;
(c) maintains all equipment used in the performance of the Services in a safe condition immediately cease to use such equipment if it considers that such equipment is unsafe;
(d) comply with:
i. all Applicable Laws;
ii. comply with the Carrier’s Chain of Responsibility Obligations; and
iii. any reasonable safety instructions given by NGX from time to time (including an instruction for a driver to undergo a drug and alcohol test).
4.2. When carrying out any of its obligations under this agreement at any of the Service Areas, comply with all health and safety rules and requirements of NGX’s customer or the occupier of the Service Area (as the case may be).
4.3. Carrier and NGX will each notify the other as soon as possible of any incident it becomes aware of resulting from or relating to performance of the Services at any Service Area involving any of NGX’s customer's equipment, NGX’s equipment, or that of any sub-contractor or other service provider and shall each provide the other with such assistance as it may require to conduct an incident investigation.
4.4. Carrier shall take all practicable steps to ensure that no act or omission by any personnel under Carrier’s employ or control, or any of the invitees, visitors or licensees of Carrier:
(a) causes a hazard or harm to any employee, contractor, invitee or licensee of NGX or NGX’s customers, or any person lawfully at any Service Area; or
(b) is a breach of any duty or obligation of a Carrier or NGX or NGX’s customers under any Applicable Laws.
4.5. Each of Carrier and NGX will promptly notify the other as soon as possible of any relevant hazards or potential hazards relating to any Service Area which may be identified during the Term.
4.6. Carrier shall be responsible for ensuring that any personnel under its employ or control, and any invitees, visitors or licensees are kept aware of the health and safety rules, requirements and policies notified to it by NGX, including details of any changes to such rules, requirements, and policies.
5.1 In carrying out the Services and its obligations under this agreement Carrier shall comply with:
(a) all Applicable Laws;
(b) all relevant environmental policies and procedures of NGX as communicated to the Carrier from time to time.
6.1. Forecasts: NGX shall use its reasonable endeavours to provide accurate forecasts to the Carrier of expected volumes, based on the information it has at the time of forecasting, and shall notify the Carrier as soon as any forecast becomes materially out of date. Any forecasts given are estimates only and are not binding on NGX.
6.2. Electronic Data Interchange: NGX and the Carrier will ensure that all Electronic Data Interchange systems including web portal, mobile portal content, and any other applicable content specified by NGX is maintained to ensure timely transfer of information to and from the Carrier and NGX.
6.3. Documentation: NGX will fully complete all consignment notes and any other necessary transportation documentation in a timely manner, ensuring that all details are legible, complete, correct, and accurate to the best of its knowledge.
6.4. Freight: NGX will ensure that the Goods are available at the Collection Point and are provided in a safe and secure state for transportation, and that the Goods are loaded properly in accordance with all Applicable Laws, and the Carrier’s safety, loading and freight guidelines that the Carrier has notified to NGX.
6.5. Chain of Responsibility: NGX acknowledges and agrees to comply with its legal obligations under chain of responsibility and Applicable Laws including such laws relating to dangerous goods. In particular, NGX acknowledges that it is responsible for the tasks it undertakes prior to and when providing the Goods to the Carrier for transportation and ensuring those tasks are undertaken in compliance with Applicable Laws, including, but not limited to:
(a) compliant and accurate packaging;
(b) labelling and marking of the Goods;
(c) providing accurate and full documentation including accurate weight and cubic declarations, all applicable dangerous goods declarations and load plans;
(d) the loading of Goods in a secure and correctly segregated manner; and
(e) complying with all gross load weight limitations and any other load restrictions and requirements.
7.1. The Carrier may subcontract the supply of any of the Services, provided that the Carrier:
(a) advises NGX in writing of its third-party subcontractors that are providing Services;
(b) is not discharged from its obligations under this Agreement by entering into a subcontract;
(c) remains responsible for ensuring the suitability, and for the performance or lack thereof, of the subcontractor and personnel of the subcontractor;
(d) is liable to NGX for the acts and omissions of the subcontractor and personnel of the subcontractor when providing the Services as if they were the acts or omissions of the Carrier;
(e) must procure that each subcontractor supplies the Services in a manner that is consistent with, or more stringent than, the Carrier’s obligations under this Agreement;
(f) must ensure that each subcontractor holds and maintains in good standing all licences, registrations, permits, authorisations, consents, and approvals that are necessary to provide the relevant Services in the same manner as required of the Carrier.
7.2. Owner Drivers: For the purpose of clause 7, any owner driver under contract solely to the Carrier is approved to perform the Services.
7.3. NGX may (acting reasonably) notify the Carrier that it requires the Carrier to suspend or cease using a subcontractor in relation to the Services if in NGX’s opinion the subcontractor’s performance is deficient or the conduct of the subcontractor constitutes or contributes to a breach of this Agreement.
8.1. All Goods managed by the Carrier under this Agreement remain the property of NGX (or its Affiliates, customers, or product suppliers, as applicable) at all times and at no time will title in the Goods pass to the Carrier.
8.2. The Carrier is not granted nor entitled to any lien, charge, or security interest in respect of the Goods.
9.1. Rates: NGX shall pay the Carrier the Rates for the Services in accordance with this agreement.
9.2. All Rates shall be adjusted for Fuel Levy as set out below.
9.3. Fuel Levy (Fuel Levy):
(a) Fuel Levy will be calculated monthly (each a “Calculating Month”) based on the average price of diesel over the previous month prior to the Calculating Month and applied for the month period following the Calculating Month.
(b) Fuel Levy shall be calculated by NGX using its own calculating mechanism as communicated by NGX to the Carrier from time to time. The calculating mechanism NGX uses is subject to change and may be varied in accordance with NGX’s customer requirements. NGX’s calculation of Fuel Levy shall be at NGX’s sole discretion and its calculation for any given period shall be final.
(c) Any change to the Fuel Levy calculation mechanism or NGX’s customer specific Fuel Levy methodologies will be communicated to the Carrier in writing at least 3 months prior to such change or a new NGX customer calculation methodology being applied.
(a) Any expression used in this clause 9.4 which is defined in the GST Act has the same meaning as in the GST Act.
(b) Unless otherwise stated, any Taxable Supply made under this Agreement are exclusive of GST.
(c) If GST is imposed on any Taxable Supply under this agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply. Payment of the additional amount will be made at the same time as payment for the Taxable Supply is required, subject to the provision of a Tax Invoice by the Supplier to the Recipient.
(d) GST shall be calculated by NGX and added to the RCTI delivered by NGX to the Carrier.
9.5. Invoices: NGX shall generate a RCTI at least monthly for the Services provided in the preceding month. Carriers should not raise tax invoices to NGX unless prior arrangement had been made with NGX.
9.6. Payment: Invoices are payable by NGX to Carrier in accordance with the Payment Terms set out in Schedule 2.
9.7. Payment by Customers: NGX is not obliged to pay the Carrier for the performance of any particular Service until NGX has received the corresponding payment for that Service from the customer for whom that Service was performed. NGX will use all reasonable endeavours to ensure such payment is received from the customer on the due date, or as soon as reasonably possible thereafter.
9.8. Right of Set-Off: The Carrier agrees that NGX may set-off or deduct from any monies otherwise due to the Carrier under this Agreement, any amounts which are payable by the Carrier to NGX or any claim to money which NGX may have against the Carrier (whether under this Agreement or otherwise).
10.1. Measured and reported monthly: The KPI measurements will exclude the impact of the following:
(a) Force Majeure events;
(b) The actions of NGX or its Affiliates employees, agents, contractors or customers that adversely impact on the Carrier’s ability to perform the Services;
(c) Operational requests from NGX for the Carrier to perform services beyond the Services or out of hours etc;
(d) Lack of or inadequate advice or information from NGX.
10.2. Party Representatives: Each of NGX and the Carrier shall appoint a representative (“Relationship Manager”) whose responsibility shall be to manage and monitor the provision of the Services, the achievement of KPIs and regularly liaise with the other party.
10.3. Regular Meetings: Each party’s representative appointed under clause 10.2 may communicate regularly to review issues or concerns arising out of the provision of the Services and to discuss the Carrier’s performance against the KPI’s.
10.4. Reporting: The Carrier must provide to NGX quarterly reports on its performance against each KPI in accordance with clause 10 and provide these to NGX on a regular basis, at least every six months.
10.5. Performance measurement tools: The Carrier must implement and maintain appropriate measuring, monitoring and management tools and procedures to enable it to measure its performance against the KPIs and to:
(a) detect and prevent a potential failure to provide the Services to NGX or to meet the KPIs;
(b) detect, minimise, and promptly rectify a failure to provide the Services to NGX or to meet the KPIs; and
(c) provide to NGX the reports on its performance against each KPI in accordance with clause 10.4.
10.6. Review of the KPIs: The Carrier’s performance will be measured against the levels for each KPI specified in Schedule 3.
10.7. Meeting or failing to meet the Critical KPIs: Without limiting any other rights or remedies of NGX under this Agreement, if a Carrier repeatedly fails (in the sole opinion of NGX, acting reasonably) to achieve a KPI target, NGX may terminate this Agreement in accordance with its terms.
11.1. The Carrier must ensure that it and any subcontractors, during the Term and for a period of two years following termination or expiration of this Agreement hold and keep current the following insurance cover with an insurer approved by NGX:
(a) Carriers’ liability insurance to cover the Carrier’s liability under clause 7 and with regard to the supply of Services under this Agreement;
(b) Motor vehicle insurance for an amount not less than $5,000,000 against any third-party damage or loss; and
(c) Public liability insurance for an amount of not less than $20,000,000.
11.2. The Carrier must at all times pay all premiums payable by it for any insurance in relation to its employees and deemed employees.
11.3. The Carrier shall upon request provide NGX with evidence of currency of such insurance cover and the payment of premiums.
12.1. Goods Acceptance & Delivery: Carrier must check and make note of damage to the Goods before acceptance of the Goods at the Delivery Point and Collection Point (such note should be made on the consignment note countersigned by the despatch personnel at Collection Points and or receiving personnel at Delivery Points).
12.2. Loss of or damage to Goods: If any Goods are damaged or lost during the course of the Carrier providing the Services, the Carrier will:
(a) promptly provide NGX with details of any damage to or loss of any Goods occurring during the course of providing the Services;
(b) if required by NGX, promptly return, at the cost of the Carrier, the damaged or lost Goods to NGX or take any other such action as directed by NGX; and
(c) pay to NGX the cost of the damaged or lost Product. For clarity, any payment made to NGX under this clause does not transfer title to the relevant Goods to the Carrier.
12.3. Indemnity: The Carrier and its Affiliates shall be responsible for and indemnify NGX and its Affiliates from and against any direct or indirect liability, loss and claim arising as a result of or caused by the negligence of the Carrier, its Affiliates, its employees, agents or sub-contractors, including loss of or damage to Goods, Product or property, which may arise out of or in connection with the Carrier’s provision of the Services, except to the extent that any such liability, loss or claim is caused or contributed to by any acts or omission or negligence of NGX, its employees, agents or contractors.
12.4. NGX shall indemnify and keep indemnified the Carrier from all direct costs, damages, fines, penalties, loss and expense incurred or suffered by the Carrier arising as a result of or caused by the negligence of NGX, its employees, contractors or agents, including loss of or damage to property, except to the extent that any such liability, loss or claim is caused or contributed to by any acts or omission or negligence of the Carrier, its employees, agents or contractors.
12.5. Exclusions: Except as provided under clause 12.3, neither party shall be liable to the other or to any other person for any consequential or indirect loss, loss of profits or loss of opportunity.
12.6. The Carrier’s liability: Except for the indemnity in clause 12.3, the total liability of the Carrier and its Affiliates, for any claims whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly for any breach of its obligations under this Agreement or otherwise is, to the fullest extent permitted by law, limited to the lesser of:
(a) the actual loss or damage suffered by NGX or its Affiliates; or
(b) $10 million per annum.
12.7. NGX’s liability: NGX and its Affiliates maximum liability to the Carrier, whether in tort (including negligence), contract or otherwise arising out of all claims under this Agreement, including clause 12.5, or relating to the Services will not in any circumstances exceed $1 million in aggregate.
12.8. For the purposes of clause 12.6 and 12.7, “claims” shall mean any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind) under or in connection with this agreement or the Services, whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all.
12.9 Demurrage: Unless otherwise agreed in writing, NGX shall not be liable for any demurrage claims unless the Carrier submits the demurrage claims to NGX in accordance with the guidelines set out in Schedule 5.
13.1. Acknowledgement: The parties acknowledge and agree that all Confidential Information provided by one party to the other party intentionally or otherwise is confidential, of substantial value to, and the property of the disclosing party. The party receiving Confidential Information will not have any claim, right or title in the Confidential Information it receives.
13.2. Obligations: Both parties agree and acknowledge that, except as expressly provided in this Agreement the receiving party of Confidential Information will:
(a) only use Confidential Information of the disclosing party to the extent necessary to perform its obligations and exercise its rights under this Agreement;
(b) restrict access to Confidential Information of the disclosing party to personnel (including subcontractors and professional advisors) who need to know the information in order to perform or otherwise advise in respect of the obligations of the receiving party under this Agreement. Such personnel shall be made aware of the confidential nature of the Confidential Information and the receiving party will remain responsible for any failure by such personnel to observe the obligations of confidentiality in this Agreement.
13.3. Exclusion: The parties will not be obliged to comply with the obligations in this clause to the extent that:
(a) the disclosure of the Confidential Information is required by law or the rules of any recognised stock exchange; or
(b) the Confidential Information becomes available in the public domain without breach by any party of its confidentiality obligations under this clause or at law.
(c) Sub-Contractors: The Carrier must ensure that any sub-contractor is fully aware of and bound by these obligations of confidentiality and the Carrier will be responsible for any breach by its sub-contractor.
13.4. Survive: The obligations created under this Agreement to preserve the confidentiality of the Confidential Information survive termination of this Agreement.
14.1. Force Majeure event: Neither party will be liable to the other for any delay in meeting, or failure to meet or perform any of its obligations under this Agreement, to the extent that such delay or failure has been caused by an event of Force Majeure. A party prevented from meeting its obligations under this Agreement due to an event of Force Majeure must immediately give notice to the other party of the circumstances and its effects on the party's ability to perform. Notice must also be given when the event of Force Majeure ceases.
14.2. Resumption of Services: Performance under this Agreement will resume to the extent possible by the end or amelioration of the Force Majeure event. If the Force Majeure event continues for more than 30 consecutive days NGX may terminate the affected route or this Agreement by written notice to the Carrier.
15.1. The Carrier must:
(a) comply with Modern Slavery Laws;
(b) not engage in, and must use reasonable endeavours to ensure that the Carrier’s employees, agents or contractors do not engage in Modern Slavery;
(c) implement appropriate policies, measures and processes to ensure compliance with its obligations under this clause, and to identify and address the risks of Modern Slavery in its operations and supply chains; and
(d) notify NGX as soon as reasonably practicable of any instance of Modern Slavery identified in the Carrier’s operations or supply chains, and any steps the Carrier has taken, or proposes to take, in response to the instance of Modern Slavery.
15.2. The Carrier agrees to provide NGX upon request evidence confirming the Carrier’s compliance with clause 15.1.
15.3. Information: The Carrier must:
(a) subject to any restrictions under any Applicable Laws by which it is bound, provide to NGX, within 30 days of a request by NGX, any Information and other assistance, as reasonably requested by NGX, to enable the NGX to meet its obligations under the Modern Slavery Laws and associated regulatory requirements, including:
i. cooperating in any Modern Slavery audit undertaken by NGX (including by a third party on behalf of NGX)
ii. providing reasonable access to NGX’s auditors to interview Carrier’s Personnel; and
iii. so far as these matters are known to Carrier, disclosing the source, place and country of origin of goods and services being supplied
(b) notify NGX in writing as soon as it becomes aware of either or both of the following:
i. a material change to any of the Information it has provided to NGX in relation to Modern Slavery; and
ii. any actual or suspected occurrence of Modern Slavery in its operations or supply chains (or those of any entity that it owns or controls).
15.4 The Carrier may provide any Information or report requested by NGX in the form of a previously-prepared statement or re-purposed report provided that such statement or report provides generally the same Information as that sought by NGX.
15.5 For the purpose of clauses 15.3 and 15.4 “Information” may include (as applicable) information as to any risks of, actual or suspected occurrences of, and remedial action taken in respect of, Modern Slavery but excluded “personal information” as defined in the Privacy and Personal Information Protection Act 1998 (NSW) or information which tends to identify individuals.
16.1. Term of Agreement: This Agreement commences on the Commencement Date and will continue until terminated in accordance with this Agreement.
16.2. Termination: This Agreement may be terminated by either party by giving 30 days’ written notice of termination to the other party.
16.3. Termination for default: A party may (in addition to any other legal remedies) terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party materially breaches any provision of this Agreement and fails to remedy the breach within 10 Business Days after receiving written notice requiring it to do so;
(b) the other party breaches a material provision of this Agreement where that breach is not capable of remedy;
(c) the other party is subject to an insolvency event listed in 15.4 that is not remedied within 20 Business Days;
(d) the Carrier is convicted for any criminal offence;
(e) upon evidence of any act of fraud or dishonesty by the Carrier or any intention to commit fraud or failure to account to NGX for money due to NGX and received by the Carrier within 24 hours of receipt of that money; or
(f) upon evidence of consumption by the Carrier or any driver working for the Carrier of intoxicating liquor or drugs other than those prescribed by a registered medical practitioner at any time either during the performance of this Agreement or while the Carrier's Vehicle is being operated; or
(g) upon failure by the Carrier to obtain or retain a goods service licence; or
16.4. Insolvency events: Each party must notify the other party immediately if:
(a) that party ceases or threatens to cease to carry on business;
(b) that party ceases to be able to pay its debts as they become due;
(c) any step is taken by a mortgagee or creditor to take possession or dispose of the whole or part of that party' s assets, operations or business;
(d) any step is taken to enter into any arrangement between that party and its creditors; or
(e) any step is taken to appoint a receiver, a trustee and manager (or either of them) including a statutory manager, a provisional liquidator, a liquidator, an administrator, or other like person of the whole or part of that party's assets, operations, or business (other than for the purposes of a solvent reconstruction or amalgamation).
16.5. Payment for Services: Within 30 Business Days of termination or expiration of this Agreement, NGX will pay the Carrier:
(a) any undisputed outstanding tax invoices delivered in accordance with this Agreement; and
(b) for all Services, undisputed in progress (being Services completed in accordance with this Agreement but not billed) as at the date of termination or expiration of this Agreement, provided that such Services have been performed in accordance with the terms and conditions of this Agreement.
16.6. Transitional services: Following termination or expiration of this Agreement:
(a) NGX agrees to make arrangements to collect all Goods held by the Carrier on its behalf on or before the date of termination or expiry of this Agreement, failing which the Carrier will be authorised to pack, load and deliver all Goods held on behalf of NGX, at the Rates, or if no applicable Rate exists, at the Carrier’s normal commercial rates, to NGX. Subject to receipt of a valid invoice, NGX will make payment for any packing, loading and delivery in accordance with this clause; and
(b) the Carrier will provide NGX with such assistance as may be reasonably required by NGX for a transitional period of up to three months after the termination or expiry of this Agreement (or such other transitional period as the parties may agree) to enable the orderly transfer of the supply of all or any of the Services to any third party or parties selected by NGX. Any costs reasonably incurred by the Carrier in providing this transitional assistance will be payable by NGX, provided that the parties will use their reasonable endeavours to agree the relevant costs prior to the Carrier providing the transitional services.
16.7. Accrued rights: Termination or expiration of this Agreement will not affect any rights or remedies each party may have accrued before the date of termination or expiration, including completing delivery of shipments loaded with Goods unless otherwise requested by NGX. For the purposes of this clause, "accrued" will include matters arising prior to termination or expiration but not discovered until after termination or expiration.
16.8. Carrier's Obligations on Termination: Upon termination of this Agreement the Carrier agrees to return to NGX all manuals, materials, in-truck-tablets, and any other items provided to the Carrier by NGX (without taking copies), cease using the Electronic Data Interchange, and where necessary, to immediately discontinue the use of NGX's fleet colour on the Carrier's Vehicle and remove from the Carrier's Vehicle all logos, signage and forms of advertising indicative of the Carrier's association with NGX. This will be done solely at the Carrier’s expense.
16.9. Customer Contract: The Carrier’s right to perform any particular Service automatically terminates when NGX no longer has the right to perform that Service for its customer.
16.10. Survival: The provisions of clauses 8, 11, 12, 13 and any other provision expressed or implied to continue, shall continue to apply notwithstanding termination of this Agreement.
17.1. Disputes Generally: If a dispute arises between the parties in connection with this Agreement (“Dispute”), the parties must use their best efforts in good faith to reach a reasonable and equitable resolution of the Dispute.
17.2. Notice: If a party claims a Dispute has arisen, it must, as soon as reasonably practicable, give the other party written notice specifying the nature of the Dispute (“Dispute Notice”).
17.3. Resolution: Each party’s Relationship Manager appointed under clause 10.2 shall meet to discuss the Dispute within 10 Business Days of receipt of a Dispute Notice, with a view to achieving a resolution of the dispute.
17.4. Refer to Mediation: If the Relationship Managers fail to resolve the Dispute within 20 Business Days of a Dispute Notice being provided (or such longer period as the parties may agree), the Dispute must be referred to mediation. The mediator will be appointed by mutual agreement between the parties and the costs of the mediator shall be shared by the parties equally.
17.5. In the absence of agreement between the parties on the appointment of a mediator, a mediator will be appointed on the application of one or both parties to and by the President of The Law Society of New South Wales.
17.6. The parties agree to co-operate with the mediator in all procedural steps necessary to constitute the mediation and to participate in bona fide discussions with the assistance of the mediator in seeking to agree on a resolution of the Dispute.
17.7. Dispute not Resolved: In the event the Dispute is not resolved by mediation within twenty (20) Working Days of the Dispute being referred to mediation, either party may take such legal action, including the commencement of legal proceedings, as is deemed appropriate or necessary to resolve or determine the dispute.
17.8. The provisions of this clause 17 shall not limit or affect the right of either party to apply to a court at any time for any interim or preliminary relief in respect of the Dispute.
18.1. Notices etc. in writing: Every notice, demand, certification, process or other communication given under, or in connection with, this Agreement must be in writing in English and may be delivered to a party using the address and/or email address stated in Schedule 1.
18.2. Method of delivery: A notice may be given by being:
(a) personally delivered;
(b) left at the party's current address for notices;
(c) sent to the party's current address for notices by pre-paid mail or, if the address is outside Australia, by pre-paid airmail; or
(d) sent by email.
18.3. Delivery of notices: A notice is given:
(a) if personally delivered, at the time of delivery;
(b) if posted within Australia to an Australia Address, five Business Days after posting
(c) if posted in any other case, fifteen Business Days after posting; or
(d) if sent by email, will be deemed to have been received by the recipient when an acknowledgement of receipt of email has been sent by the recipient to the sender.
18.4. Time of delivery: If a notice is given:
(a) after 5.00pm; or
(b) on a day which is not a Business Day.
19.1. No Partnership: Nothing in this Agreement will create, constitute or evidence any partnership, joint venture, agency, trust, employer/employee relationship or agency or fiduciary relationship between the parties and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party will not have the authority to act for, or to incur any obligation on behalf of, any other party, except as expressly provided for in this Agreement.
19.2. Amendment: This Agreement may only be varied by the written agreement of the parties.
19.3. No Assignment: The Carrier may not assign its rights and obligations under this Agreement without first having obtained the written consent of NGX. Such consent may be withheld in NGX’s absolute discretion. For the purpose of this Agreement a transfer of shares in the Carrier whereby there is a change in effective control is deemed to be an assignment.
19.4. No Waiver: No waiver of any term of this Agreement is binding on a party unless it is in writing and signed by or on behalf of that party. Any such waiver is not a waiver of any other breach.
19.5. Further Assurance: Each party must promptly sign all documents and do all things that the other party from time-to-time reasonably requests to effect, perfect or complete this agreement and all transactions incidental to it.
19.6. Severance: If any provision in this Agreement is held invalid or unenforceable in whole or in part then such provision shall be severed from this Agreement and the remainder of the Agreement shall continue unaffected.
19.7. Counterparts: This Agreement may be executed in any number of counterparts (including by facsimile or pdf transmission copies) and, provided that both parties have executed a counterpart of this Agreement, the counterparts together shall constitute a binding and enforceable agreement between the parties.
19.9. Entire Agreement: This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes any prior agreement or arrangement in respect of the Services.
19.10. Governing Law: This agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.
19.11. Rights of third parties: The provisions of this Agreement are for the benefit of, and are intended to be enforceable by, NGX and any Affiliates (and its and their successors). Any reference to NGX in this agreement shall, if the context so requires in order to give effect to this principle, also be deemed to include a reference to any or all Affiliates of NGX.
19.12. Authorised Representatives: Each person signing this Agreement warrants that they are duly authorised to do so by the party on whose behalf they are signing and to bind that party.