Please read these Terms of Use ("Terms", "Terms of Use") carefully before using the https://prestige3pl.com.au website (the "Service") operated by Prestige National Logistics ("us", "we", or "our").
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.
TERMS AND CONDITIONS OF TRADE
To the fullest extent legally possible all contracts, dealings and/or arrangements made between Prestige National Logistics, Customer relating to the Services are subject to the following Terms and Conditions of Trade unless otherwise agreed in writing.
1. Definitions:
In these Terms, unless the context otherwise requires:
(a) “Acknowledgement” has the meaning given to it at clause 3(b);
(b) “ACL” means Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (C’th);
(c) “ADGC” means the Australian Dangerous Goods Code;
(d) “Chain of Responsibility” has the meaning described in the Heavy Vehicle National Law;
(e) “Consequential Loss” means loss of revenue, loss of profit, loss of anticipated savings or business, loss of opportunity (including opportunity to enter into or complete arrangements with third parties), loss of data or goodwill, loss of reputation, or any indirect or consequential loss, whether arising in contract, tort (including negligence) or otherwise, in connection with this these Terms or any Contract;
(f) “Contract” means:
(i.) any contract to which these Terms are expressed to form part; and
(ii.) for the provision of Services pursuant to an Order, the contract (which includes these Terms) formed for the supply of the Services to the Customer upon an Acknowledgement or otherwise;
(g) “Customer” means the customer specified in the application for commercial credit that these Terms accompanies or if there is no such
application, the person or entity placing the Order, or on whose behalf the Order is placed, with PNL;
(h) “Dangerous Goods” means:
(i.) Goods classified as such by the DGR or the ADGC; or
(ii.) Goods that otherwise might injure or damage people, property or
the environment, and includes, without limitation, Goods that are or may become poisonous, corrosive, volatile, explosive, flammable or radioactive;
(i) “DGR” means the IATA Dangerous Goods Regulations;
(j) “Goods” cargo and/or product that is accepted from, or on behalf of, the Customer together with containers, packages, pallets, crates, cases and equipment for use in connection with the storage, handling and carriage of that cargo and/or product;
(k) “GST” means any tax imposed on the supply of any goods, services, real or personal property or other things or similar tax under any GST Law;
(l) “GST Law” at any present or future time means any GST Law as defined in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999, as affected or interpreted by any other applicable legislation and any public or private ruling of the Commissioner of Taxation, as at that time;
(m) “Heavy Vehicle National Law” means the Heavy Vehicle National Law Act 2012 and the regulations made under that act, associated State and Territory road transport acts and regulations, and includes subsequent amendments to any of those acts and regulations;
(n) “Order” includes any order, standing appointment, and/or engagement, for the supply of the Services;
(o) “Personnel” means a party’s officers, employees, agents or subcontractors;
(p) “PPSA” means the Personal Property Securities Act 2009 (C’th);
(q) “Privacy Act” means the Privacy Act 1988 (Cth);
(r) “Services” means all of the services and operations (including without limitation, cartage, transport, and storage) that Prestige National Logistics undertakes in any capacity (including without limitation, as forwarding agent, shipping agent, forwarder, carrier or bailee) for the Customer in respect of the goods;
(s) “SOLAS” means the SOLAS (Safety of Life at Sea) convention;
(t) “Prestige National Logistics” means Prestige National Logistics Pty Ltd ABN 15 626 976 332;
(u) “Prestige National Logistics” means Prestige National Logistics Pty Ltd and each of its subsidiaries, affiliates, associated companies and related entities;
(v) “Temperature Controlled Goods” means Goods which require temperature control; and
(w) “Terms” means these terms and conditions of trade;
(x) the terms “proceeds”, “security interest” and “verification statement” have the respective meanings given to them under, or in the context of, the PPSA.
2. Payments:
(a) Payments are to be made to Prestige National Logistics by the Customer without deduction or set-off of any kind and within 30 days of date of Prestige National Logistics’s invoice unless otherwise agreed in writing by Prestige National Logistics. If the Customer fails to make payment in accordance with this subclause, Prestige National Logistics may without limitation, exercise a general lien over, and power of sale of, the Goods in accordance with these Terms. The Customer is still required to make payment notwithstanding that Prestige National Logistics sells or otherwise disposes of the Goods.
(b) Prestige National Logistics may apply a payment received from the Customer to any amount owing by the Customer (including part payment of an invoice, administration, collection and other costs) in any order.
(c) The Customer must pay Prestige National Logistics interest on overdue accounts at a rate of 12% per annum calculated daily.
(d) Prestige National Logistics’s rates and charges will be deemed fully earned as soon as the Goods are loaded for carriage or transport, or accepted for storage by Prestige National Logistics (whichever is the first to occur), and will be payable and nonrefundable, whether the Goods are delivered or not, and whether damaged, lost, or otherwise.
3. Orders:
(a) To the extent permissible at law (including under the ACL), if any dispute arises concerning any Order (including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, email or computer generated order) the internal records of Prestige National Logistics will be conclusive evidence of what was ordered except in the case of manifest error.
(b) An Order can be made by the Customer in writing, orally, or electronic transmission and is accepted when:
(i.) the Customer receives an acknowledgment of the Order from Prestige National Logistics; or
(ii.) Prestige National Logistics collects part or all of the relevant Goods from the Customer, whichever first occurs (“Acknowledgment”).
(c) These Terms apply to every Order unless otherwise agreed in writing by Prestige National Logistics. Without limitation, acceptance of Goods by Prestige National Logistics is conclusive evidence that these Terms apply and are binding on the Customer.
(d) Prestige National Logistics may set specific terms from time to time in relation to Orders such as, without limitation, a requirement that the Customer pay a deposit, make full pre-payment in relation to an Order etc. even if Prestige National Logistics has previously agreed to extend the Customer credit.
4. Dangerous Goods and Temperature Controlled Goods:
(a) Unless prior and express agreement in writing is first obtained from Prestige National Logistics, the Customer must not deliver to Prestige National Logistics, or cause Prestige National Logistics to deal with or handle, Dangerous Goods or Temperature Controlled Goods.
(b) Where Prestige National Logistics has agreed under clause 4(a) to take delivery of Dangerous Goods or Temperature Controlled Goods, then:
(i.) the Customer must provide Prestige National Logistics with prior written notice and instructions regarding any special handling requirements (including without limitation, temperature) for the storage and transport of those Goods together with a full and accurate written description of them;
(ii.) the Customer must provide Prestige National Logistics with Material Safety Data Sheets in relation to those Goods; and
(iii.) if Prestige National Logistics or any other person forms the view that those Goods constitute a risk to property, health, or life, Prestige National Logistics may without notice or compensation to the Customer and without liability, destroy the Goods or otherwise deal with them in Prestige National Logistics’s absolute and sole discretion, at the expense of the Customer.
(c) If the Customer breaches clauses 4(a) and/or 4(b), then without limiting any other part of these Terms, the Customer will:
(i.) be liable to Prestige National Logistics for all loss or damage whatsoever; and
(ii.) defend, indemnify and hold harmless Prestige National Logistics against all claims, damages, costs and expenses whatsoever, arising in connection therewith the Goods and/or that breach.
5. Prestige National Logistics Not a Common Carrier:
Prestige National Logistics is not a common carrier and accepts no liability as such. The Services are provided by Prestige National Logistics subject to these Terms and Prestige National Logistics may refuse to handle, transport or store Goods for the Customer for any reason whatsoever and without Prestige National Logistics having any liability to the Customer by reason of that refusal.
6. Instructions:
The Customer must provide Prestige National Logistics with prior written notice and instructions regarding any special handling requirements for the storage and transport of Goods including a full and accurate written description of them.
7. Charges:
(a) Prestige National Logistics’s charges to not include (unless otherwise explicitly agreed in writing by Prestige National Logistics), and the Customer shall be and remain responsible for payment to Prestige National Logistics for, all its proper charges incurred for any reason, including taxes, GST, duties, levies, port fees, imposts, deposits or charges incurred in respect of carriage or storage of the Goods.
(b) The Customer is responsible for understanding Prestige National Logistics’s applicable rates and charges prior to placing an Order as they are subject to change at any time.
(c) All sales are made by Prestige National Logistics at its then current ruling price unless otherwise agreed in writing by Prestige National Logistics.
(d) Any discount offered by Prestige National Logistics is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms or in default in any of its dealings with Prestige National Logistics.
(e) Rates and charges are stated in, and payment must be made in, Australian dollars unless otherwise agreed in writing by Prestige National Logistics.
(f) Prestige National Logistics may impose waiting time charges in respect of loading or unloading delays in excess of 30 minutes. Such delay period shall commence upon Prestige National Logistics reporting for loading or unloading.
(g) Prestige National Logistics reserves the right to charge the Customer for demurrage at the rate charged to Prestige National Logistics directly or indirectly by any railway or shipping authority or by any other person, firm or company.
(h) Notwithstanding any other provision of these Terms, nothing will prevent Prestige National Logistics from amending an invoice at any time where it determines an error or omission exists.
(i) The Customer must give prior written notice to Prestige National Logistics if any of the Goods are liable to port charges or other supply chain costs and charges. The Customer must pay such charges or, if agreed in writing by Prestige National Logistics, reimburse Prestige National Logistics if it agrees to pay those costs and charges on behalf of the Customer.
8. Information and advice:
Any quotation, advice, representation or information provided by Prestige National Logistics to the Customer is done so solely on reliance upon the particulars provided by the Customer concerning the Goods and Prestige National Logistics will not be liable in tort, contract, statute or otherwise howsoever if that quotation, advice, representation or information is incorrect for any reason whatsoever.
9. Quotations:
The Customer agrees that:
(a) formal quotations will be writing unless otherwise agreed by Prestige National Logistics;
(b) Prestige National Logistics shall not be bound by any quotation if an order is placed outside the period of the quotation's validity noted thereon and in the absence of such period being noted, 14 days from the date of the quotation;
(c) prior to receipt of any order Prestige National Logistics may withdraw or amend a quote;
(d) Prestige National Logistics shall not be bound by any quote if:
(i.) it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; or
(ii.) the Customer is in breach of these Terms or any Contract; and
(e) a quotation is not be construed as an offer by, or an obligation on, Prestige National Logistics to supply Services.
10. Method of carriage:
(a) Subject always to clause 10(b), if the Customer instructs, or Prestige National Logistics has agreed, to use a particular method of:
(i.) handling or storing the Goods; or
(ii.) carriage, including without limitation by road, rail, sea or air, Prestige National Logistics will use its reasonable endeavours to give priority to that method.
(b) Notwithstanding clauses 6 and 10(a):
(i.) the method or methods of handling, storing and/or carriage of Goods adopted by Prestige National Logistics will remain at the sole discretion of Prestige National Logistics and the Customer hereby authorises Prestige National Logistics to adopt any method or methods other than the method instructed or agreed; and
(ii.) the Customer authorises any deviation from the usual route or carriage or place of storage of the Goods which may in the absolute discretion of Prestige National Logistics, be deemed desirable or necessary in the circumstances.
11. Provision of Services:
(a) The acceptance of the Goods by Prestige National Logistics for storage pending shipment shall not bind Prestige National Logistics to ship the Goods.
(b) To the extent permissible by law, Prestige National Logistics may suspend or stop indefinitely supplying the Services at any time on 7 days' notice.
(c) Prestige National Logistics will in no circumstances be liable for any delay in delivery out of the Goods or in the delayed supply of Services. On notification to the Customer, Prestige National Logistics reserves the right to extend the date for delivery out of the Goods and the supply of Services.
(d) Provision of labour to load and unload the Goods shall be the responsibility and expense of the Customer unless other arrangements have been made with Prestige National Logistics in writing.
12. Removal of Goods:
Prestige National Logistics may at any time by notice to the Customer, require the Customer to remove the Goods from their location of storage with the costs of such removal to be at the Customer's expense (whether in the case of nonshipment or otherwise). If the Customer fails to remove the Goods within 7 days of such notice, then without limiting any other right of Prestige National Logistics under these Terms or at law, the Customer will be liable to pay Prestige National Logistics’s reasonable costs of storage from the date of such notice until the date of their removal.
13. Delivery:
(a) The Customer authorises Prestige National Logistics to deliver the Goods at the address nominated to Prestige National Logistics by the Customer for that purpose.
(b) Subject to clause 13(c), Prestige National Logistics will be deemed to have delivered the Goods in accordance with these Terms and any Contract if at that address it obtains from any person a receipt or signed delivery docket for the Goods whether in writing, electronic form, or otherwise.
(c) If the nominated place of delivery is unattended or if delivery cannot otherwise be effected by Prestige National Logistics, then Prestige National Logistics may, at its option, deposit the Goods at that place or store the Goods. If the Goods are deposited, the deposit shall be deemed to be due delivery. If the Goods are stored by Prestige National Logistics, then the Customer must pay and indemnify Prestige National Logistics for all costs and expenses incurred for such storage, and Prestige National Logistics will be at liberty to re-deliver the Goods from the place of storage at the Customer’s expense.
(d) Where the Goods are accepted for forwarding by rail to an address in a town or to a place where Prestige National Logistics has no receiving depot, the Goods shall be deemed duly delivered, according to these Terms, if they are delivered to the nearest railhead.
14. Customer’s warranties:
The Customer warrants to Prestige National Logistics that:
(a) the Goods are not subject to sanctions, illegal, or contraband;
(b) it is either the owner of the Goods or the authorised agent of the owner of the Goods with authority to bind the owner to these Terms or otherwise has authority to arrange for the carriage and/or storage of the Goods under these Terms;
(c) the Goods will at all times be free of objectionable matter or odours that may affect other Goods in storage, unless such condition has previously been notified in writing to Prestige National Logistics and Prestige National Logistics has accepted the Goods in that condition;
(d) the Goods are sufficiently packaged to withstand handling, transport and storage and are properly labelled, except where Prestige National Logistics has accepted instructions to pack and/or label the Goods;
(e) the Customer has not asked Prestige National Logistics to handle, transport or store the Goods in any way that could be unlawful;
(f) the actual handling, transport or storage of the Goods in the usual course by Prestige National Logistics will not be unlawful;
(g) the Goods are received by Prestige National Logistics within the correct temperature range (if applicable);
(h) a compliant container weight declaration will be supplied where the Customer is to provide the consignment documentation;
(i) it has accurately described and clearly marked the Goods and has provided Prestige National Logistics all necessary instructions and information regarding the handling, care and control of the Goods having regard to the Goods nature and packaging; and
(j) it has complied with the requirements of all applicable laws relating to the condition, nature, packaging, handling, labelling, storage, and carriage of the Goods and that it will provide Prestige National Logistics (at the Customer’s cost) with all necessary assistance, information and documentation to enable Prestige National Logistics to comply with any of its obligations under such laws.
15. Heavy Vehicle National Law:
(a) The Customer acknowledges that Prestige National Logistics will not comply with any instruction by the Customer that:
(i.) might cause, or contribute to, a breach of the Heavy Vehicle National Law; or
(ii.) prevents Prestige National Logistics from taking all steps that it considers to be reasonably necessary to prevent any breach of the Heavy Vehicle National Law.
(b) The Customer agrees to meet its obligations under the Heavy Vehicle National Law Chain of Responsibility provisions.
16. Credit:
Prestige National Logistics can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.
17. Variation and Cancellation:
(a) Subject always to clause 17(b), variation or cancellation of any Order, Contract, dealing or arrangement must be on terms agreed in writing by Prestige National Logistics and terms which indemnifies Prestige National Logistics for any loss as a result of such cancellation.
(b) The Customer acknowledges and agrees that no servant or agent of Prestige National Logistics, nor any other person, has any power to waive or vary any of
the terms and conditions in these Terms, unless such waiver or variation is in writing and signed by an executive officer of Prestige National Logistics.
18. Insurance:
(a) It is the Customer’s responsibility to arrange for, and maintain, insurance in relation to the Goods for their full insurable value. Unless Prestige National Logistics otherwise expressly agrees in writing, the Goods are not insured by Prestige National Logistics and nor will insurance be arranged by Prestige National Logistics on behalf of the Customer.
(b) Prestige National Logistics has no responsibility to ascertain whether insurance has been effected by the Customer in relation to the Goods.
19. Entitlement to open and inspect:
Prestige National Logistics is entitled to open any document, package or other container in which any of the Goods are placed or carried to inspect the Goods to:
(a) render them safe;
(b) determine their nature;
(c) to determine their ownership;
(d) destination where any consignment note or identifying document or mark is lost, damaged, destroyed or defaced; or
(e) ensure that the Customer has complied with the Contract.
20. Preservation of Goods:
Prestige National Logistics may at the Customer's cost, expend any amount it considers necessary or desirable to preserve the Goods or to secure the safety, storage, carriage, or shipment of the Goods.
21. Port and shipping:
(a) It is the Customer’s responsibility to comply with all regulations or requirements of customs, port and other authorities.
(b) Where provision of the Services involves transport by air or sea, then the provision of such services is subject to the availability of shipping space on applicable vessels, force majeure and other factors and delivery times may vary from times quoted to the Customer.
22. Weight:
Prestige National Logistics may, at the Customer’s request, weigh Goods on behalf of the Customer. While Prestige National Logistics will take all care with respect to such
weighing, Prestige National Logistics does not warrant that the weights recorded or reported by it are accurate for the purposes of SOLAS Verified Gross Mass or otherwise and it is the Customer’s responsibility to independently verify that stated weights are correct.
23. Default and Recovery Costs:
(a) To the extent permissible at law (including under the ACL), default or breach by the Customer of these Terms, a Contract or in any dealings with Prestige National Logistics will entitle Prestige National Logistics to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease the provision of Services and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms, a Contract or at law.
(b) The Customer will pay (on a full indemnity basis) all costs and expenses of Prestige National Logistics, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms, a Contract or a breach of any dealings with Prestige National Logistics.
24. Guarantee:
Unless otherwise agreed in writing by Prestige National Logistics, the Customer agrees to procure each of its directors to execute an agreement to guarantee and
indemnify in favour of Prestige National Logistics and in the form approved by Prestige National Logistics. The Customer must return the signed agreement to guarantee and indemnify to Prestige National Logistics at the same time as it provides Prestige National Logistics with its signed credit application, or whenever otherwise requested by Prestige National Logistics.
25. Indemnity:
(a) To the extent permissible at law (including under the ACL), the Customer indemnifies Prestige National Logistics, and agrees to keep Prestige National Logistics indemnified against any claim or loss arising from or related in any way to any contract or dealing between Prestige National Logistics and the Customer or anything arising there from, or arising as a result of, or subsequent to, any breach of these Terms or any Contract by the Customer.
(b) The Customer indemnifies Prestige National Logistics from and against all claims, liabilities, costs (including legal costs on a full indemnity basis), damage, payments, fines, expenses, duties, taxes, imposts and other outlays arising in connection with any person other than the Customer being found to have any interest in the Goods.
26. Force Majeure:
(a) Prestige National Logistics will be released from its obligations under these Terms and any Contract to the extent that performance of the Services is delayed, hindered or prevented due to any event or circumstance beyond the reasonable control of Prestige National Logistics and whether foreseeable or not including, without limitation, weather, shipping delays, industrial action, breakdowns and accidents.
(b) Prestige National Logistics will not be obliged to place the Customer’s interests before Prestige National Logistics’s commercial interests.
27. General Customer Obligations:
The Customer must:
(a) at all times to act in utmost good faith with respect to Prestige National Logistics;
(b) not act in a manner which could adversely affect the reputation of Prestige National Logistics;
(c) promptly advise Prestige National Logistics of all significant complaints, correspondence or comments relating to the Services from any source;
(d) make sure that the Goods are ready for pickup so as to ensure that Prestige National Logistics is not delayed in performing the Services; and
(e) arrange at the Customer’s cost, all necessary labour and facilities to load and unload the Goods. The Customer must make sure that such loading and unloading complies with all relevant laws, Prestige National Logistics’s workplace and safety standards, and Prestige National Logistics’s reasonable directions.
(f) The Customer must use its best endeavours to provide accurate quarterly forecasts to the Company of expected volumes and seasonality and to immediately advise the Company, in writing, as soon as it becomes aware of significant (greater than 20%) changes to forecasted volumes.
28. Insolvency:
If the Customer commits or is involved in any act of insolvency as determined by Prestige National Logistics, it will be deemed in default under these Terms and
all Contracts. An act of insolvency includes without limitation, bankruptcy, liquidation, receivership, administration or the like and failure to pay in
accordance with these Terms or any Contract.
29. Privacy disclosure and consent:
The Customer irrevocably authorises Prestige National Logistics to:
(a) collect, use and disclose personal information of or relating to the Customer in accordance with the Contract and the Privacy Act;
(b) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in any an application for commercial credit with Prestige National Logistics completed by it and provided to Prestige National Logistics and from any other credit provider or credit reporting agency for the purpose of assessing its application, or in connection with any guarantee given by the Customer;
(c) use, disclose or exchange with other credit providers and other members of the Prestige National Logistics Group information about the Customer’s credit arrangements in order to assess its application for credit, monitor credit worthiness and collect overdue accounts; and
(d) disclose the contents of any credit report on the Customer to any related entities of Prestige National Logistics, and any of their solicitors, professional advisors or mercantile agents.
30. All Divisions:
The Customer agrees that these Terms will apply to all dealings between the Customer and Prestige National Logistics and any part or member of the Prestige National Logistics Group and will be deemed incorporated into all Contracts unless expressly agreed in writing otherwise by Prestige National Logistics.
31. Lien and Security:
(a) The Goods are accepted by Prestige National Logistics subject to a general and particular lien for all charges due, or which may become due, to Prestige National Logistics by the Customer in respect of the Services.
(b) Prestige National Logistics will have the right to sell the Goods (whether by public or private sale, auction or otherwise) without notice, for any unpaid amounts owing to Prestige National Logistics by the Customer on any account. If Prestige National Logistics sells or otherwise disposes of Goods pursuant to this clause 38(a), it does so as principal and not as an agent or trustee.
(c) Where Prestige National Logistics exercises its power of sale under clause 31(b), Prestige National Logistics may at its option:
(i.) remove such Goods or part thereof and store them in such place and manner as Prestige National Logistics determines at the risk and cost of the Customer;
(ii.) sell by public auction or private sale such Goods or part thereof upon such terms as it deems fit and apply the proceeds in or towards discharge of the lien without being liable to any person for any loss thereby caused; and/or
(iii.) dispose of abandoned Goods at the expense of the Customer in any way Prestige National Logistics deems fit and without compensation being payable to the Customer, and the Customer must indemnify Prestige National Logistics for all costs incurred by Prestige National Logistics in the exercise of these rights. The exercise by Prestige National Logistics of a right under subclause 31(c)(i.), (ii.) or (iii.) will not preclude it from exercising the same or any other rights under any of those subclauses.
(d) Prestige National Logistics’s lien:
(i.) extends to include all costs and expenses of Prestige National Logistics exercising it’s lien, including without limitation, the costs of sale; and
(ii.) together with other rights granted by this clause 31 will survive the delivery of the Goods and Prestige National Logistics will be entitled to retain the proceeds of sale of the Goods in respect of any outstanding amounts whatsoever owed to it by the Customer.
(e) From the time Prestige National Logistics, or its Personnel receive the Goods into its custody, the Goods, and all of the Customer’s present and future rights in relation to the Goods, are subject to a continuing security interest in favour of Prestige National Logistics for the payment of all amounts owing from time to time by the Customer to Prestige National Logistics. Such amounts include but are not limited for all freight, demurrage, container detention charges, fines, taxes, duties, penalties, debts, charges, expenses and all other sums due and owing by the Customer. In addition, the continuing security interest will cover all the costs and expenses of exercising the lien, including the costs of selling or otherwise disposing of the Goods, legal costs and administration costs.
(f) The Customer agrees that Prestige National Logistics may, at the Customer’s cost, register its security interest in the Goods, and all of the Customer’s present and future rights in relation to the Goods, on the Personal Property Securities Register established under PPSA.
(g) Prestige National Logistics is not required to give any notice to the Customer or any other person (including a verification statement) unless the notice is required to be given by the PPSA and cannot be excluded.
(h) Without limiting clause 31(g) the Customer:
(i.) and Prestige National Logistics agree pursuant to section 115 of the PPSA that Sections 125, 142 and 143 of the PPSA do not apply to these Terms; and
(ii.) pursuant to section 115 of the PPSA, waives its right to receive any notice, details or other document from Prestige National Logistics under Sections 95, 121(4), 130, 135, 132(3)(d) and 132(4) of the PPSA.
(i) The Customer and Prestige National Logistics agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 275(7) (b) to (e) of the PPSA. The Customer agrees that it will only authorise the disclosure of information under Section 275(7)(c), or request information under Section 275(7)(d), if Prestige National Logistics first approves in writing. Nothing in this subclause 31(i) will prevent, or be construed as preventing, any disclosure by Prestige National Logistics which in Prestige National Logistics’s sole discretion believes is necessary to comply with its obligations under the PPSA or law.
32. The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts:
(a) Nothing in these Terms or any Contract is intended to have the effect of contracting out of any applicable provisions of the Competition and
Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
(b) If the Customer is a consumer for the purposes of the ACL, nothing in these Terms or any Contract limits any remedy available for a failure
of the guarantees in sections 56 and 57 of the ACL.
33. Subcontracting and Personnel:
(a) Prestige National Logistics may subcontract the whole of any part of the Services.
(b) The Customer must not claim against any servant, sub-contractor or agent of Prestige National Logistics which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods or Services. Notwithstanding, if such claim is made by the Customer then the Customer undertakes to indemnify Prestige National Logistics against all consequences thereof.
(c) To the extent permitted by law, (including the ACL) every exemption, exclusion, or limitation in these Terms and any Contract of whatsoever
nature applicable to Prestige National Logistics, or to which Prestige National Logistics is entitled, will also be available and extend to protect Prestige National Logistics’s Personnel and all persons who are or might be vicariously liable for the acts or omissions of any such person. Prestige National Logistics will, for the purposes of this clause 33(c), be deemed to be acting as an agent on behalf of, and for the benefit of, all such persons and each of them, and all such persons and each of them, will to this extent be deemed to be parties to these Terms.
34. PPSA:
(a) The Customer must not register a security interest against Prestige National Logistics without first providing Prestige National Logistics with 7 days prior written notice.
(b) The parties agree that they will not disclose information of the kind noted in section 275(1) of the PPSA, except in circumstances required by sections 275(7) (b) to (e). The Customer agrees that it will only authorise the disclosure of information under section 275(7)(c), or request information under section 275(7)(d), where Prestige National Logistics has provided its prior consent in writing.
(c) Nothing in clause 34 will prevent Prestige National Logistics making any disclosure it believes is necessary in order to comply with its other obligations under the PPSA or pursuant to law.
35. Limitation of Liability:
(a) Nothing in these Terms excludes, restricts or modifies any guarantee, right or remedy conferred on the Customer by the ACL, including without limitation, provisions relating to unfair contract terms, or any other applicable law insofar as they cannot be excluded, restricted or modified by agreement.
(b) All:
(i.) warranties, representations, descriptions, guarantees or conditions, whether they are express or implied by law, trade, custom or otherwise; and
(ii.) specific conditions, even though such conditions may be known to Prestige National Logistics, are to the fullest extent expressly excluded subject always to clause 35(d).
(c) Goods will at all times be at the sole risk of the Customer and, to the maximum extent permitted by law, Prestige National Logistics accepts no responsibility, and will not be liable in tort (including negligence), contract, statute, or as bailee, for any loss, damage, injury, delay, incorrect delivery, deterioration, mis-delivery, non-delivery or loss of any nature in respect of the Goods, or arising out of or incidental to the provision of the Services, including any direct, indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, or loss of business opportunity, howsoever caused or arising, or whether as a result of an authorised or unauthorised act under the Contract, and whether caused by the negligence, recklessness or misconduct of Prestige National Logistics, employees, agents, contractors or otherwise.
(d) If the exclusions of liability in clauses 35(b) or (c) are in any way reduced, void or not available, then Prestige National Logistics’s liability for any delays, loss, cost, liability, or expense arising out of these Terms or a Contract (including without limitation liability for breach of these Terms or a Contract, in negligence, in tort or for any other common law or statutory action) will at Prestige National Logistics’s election be limited to:
(i.) the supplying of the Services again;
(ii.) the payment of the cost of having the Services supplied again; or
(iii.) the value of the Goods the subject of the Services at the time the Goods were received by Prestige National Logistics, whichever is the lower.
36. Time Limitation on Claims:
(a) To the extent permissible by law (including the ACL), Prestige National Logistics will not be liable to the Customer for any claims in relation to the Goods or the Services, and Prestige National Logistics shall be considered discharged of all such liability unless:
(i.) Prestige National Logistics receives written notice of such claim within 14 days after the date specified in clause 36(b) (or within a reasonable time after that date if the Customer proves that it was impossible to so notify within that period); and
(ii.) legal proceedings are brought in the proper forum and written notice of the same received by Prestige National Logistics within 6 months after the date specified in clause 36(b).
(b) For the purposes of clause 36(a), the applicable dates are:
(i.) the date of delivery of the Goods (in the case of loss or damage to Goods);
(ii.) the date that the Goods should have been delivered (in the case of delay or non-delivery of the Goods); and
(iii.) the event giving rise to the claim (in any other case).
37. No other warranties, representations etc.:
Except as expressly set out in these Terms or a Contract, no other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Prestige National Logistics is made or given except where done so in writing and signed by an authorised officer of Prestige National Logistics.
38. No Consequential Loss:
Prestige National Logistics will not be liable to the Customer or any other person for Consequential Loss.
39. Pallets:
Unless agreed in writing by Prestige National Logistics, Prestige National Logistics does not accept transfer of pallets onto Prestige National Logistics’s account. All pallets are the responsibility of the Customer and Prestige National Logistics is under no obligation to facilitate their return or otherwise.
40. Entire Agreement:
(a) The Contract for the supply of Services pursuant to an Order constitutes the entire agreement between Prestige National Logistics and the Customer with respect to that Order. All prior negotiations, proposals, previous dealings, correspondence, trade custom and/or trade usage are superseded by and will not affect the interpretation of that Contract.
(b) Any terms and/or conditions sought to be imposed by the Customer upon Prestige National Logistics will not apply unless expressly agreed in writing by Prestige National Logistics as overriding or replacing these Terms.
41. No solicitation of Prestige National Logistics employees:
For period commencing on the date of the first provision of Services by Prestige National Logistics to the Customer under a Contract and ending 2 years after the date of the last provision of Services by Prestige National Logistics to the Customer pursuant to a Contract, the Customer must not, and must ensure that its related body corporates (as that term is defined in the Corporations Act 2001 C’th) do not, solicit the employment of any employee or officer employed or engaged by Prestige National Logistics with whom the Customer has had contact in respect of the Services or attempt to entice any such person to leave their employment or engagement with Prestige National Logistics. Nothing in this clause 41 will restrict or prohibit the Customer or its related body corporates from soliciting the employment of a person who:
(a) responds to a general advertisement or bona fide recruitment campaign that is not targeted at the person; or
(b) contacts the Customer or its related body corporates on his or her own initiative without any solicitation from the Customer or its related body corporates.
42. General:
(a) Notices: Any notice under these Terms or any Contract must be in writing, and may be delivered, emailed or posted to a party at their address or email address last notified by them to the other party. A party may change its address or number for notices by notifying the other party.
(b) Waiver: If Prestige National Logistics elects not to exercise any rights arising as a result of breach of these Terms or a Contract, it will not constitute a waiver of any rights relating to any subsequent or other breach.
(c) No Merger: Termination of these Terms, a Contract and/or dealings between the Customer and Prestige National Logistics will not end those provisions of these Terms that are capable of surviving termination.
(d) Severability: If a provision of these Terms or a Contract would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms and Contract.
(e) Trusts: The Customer agrees that these Terms and all Contracts bind it not only in its own capacity, but also as the Trustee of every trust of which it is a trustee.
(f) Set-Off: Prestige National Logistics will be entitled to set off against any money owing to the Customer amounts owed to Prestige National Logistics by the Customer on any account whatsoever. However, the Customer may not set off any amounts owing by Prestige National Logistics to it against any amount due by it to Prestige National Logistics. (g) Jurisdiction: All contracts made with Prestige National Logistics will be deemed to be made in the State of New South Wales and the parties submit to the nonexclusive jurisdiction of the appropriate Courts in that State.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
If you have any questions about these Terms, please contact us.
