General Terms and Conditions for Carriers
1.1 The following terms have the following meanings:
Agreement has the meaning given to it in clause 3.5.
Australian Road Rules means the National Transport Commission’s Australian Road Rules.
Austroad Registration and Licensing Task Force Requirements means any applicable requirements, codes or other standards or the Austroad Registration and Licensing Taskforce.
Carrier means the carrier detailed on the Transport Order engaged by Loadsmile to provide the Carrier Transport Services
Carrier Transport Services means the loading, unloading, Transport, Delivery, and other ancillary services provided by the Carrier with regards to the Goods.
Chain of Responsibility Legislation means the Heavy Vehicle National Law (NSW) and other equivalent State-based legislations applicable to the operation of Heavy Vehicles.
Confidential Information means confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including information which:
(a) is identified as confidential or ought to have been known to be confidential;
(b) relates to a Customer or Recipient; and
(c) which relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies of a party,
but does not include information which is in, or comes into, the public domain other than by a breach of this agreement, or which is independently known to the other party as evidenced by its written record.
Customer (being the consignor) means the entity that has engaged Loadsmile to provide certain transport services for the Goods, specified in either the Transport Order or according to Transport Order-related instructions of Loadsmile.
Delivery means actual and effected delivery of the Goods to the Recipient, evidenced by the completion of the Delivery Documents.
Delivery Documents means a receipt of delivery, a company stamp, an authorised signature of the Recipient (and/or an authorised representative of the Recipient), a date, unloading time, a consignment letter and/or any other documentation required by Loadsmile, a Customer and/or a Recipient to effect Delivery.
Driver means the driver undertaking the Transport using the Vehicle
Fatigue Laws means any applicable fatigue management laws, regulations, and necessary accreditations and/or licences applicable to fatigue-related Heavy Vehicles.
Food Safety Requirements means the Food Standards Australia New Zealand Act (Cth) 1991; the Food Standards Australia and New Zealand (FSANZ); the Food Regulation 2015; and any other applicable laws, regulations, and/or codes (including State and Federal) that are applicable to the transport of foods and perishable goods, including any such laws, regulations and/or codes that govern the types of vehicles in which foods and perishable goods can be transported, temperature management obligations, and hygiene standards.
Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:
(a) directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
(b) is beyond the reasonable control of that party.
Freight Charge means the fee payable to the Carrier by Loadsmile for the provision of the Carrier Transport Services
Goods (being the consignment) means the goods, packaging, pallets, containers, etc. of a Customer.
Heavy Vehicles has the meaning given to that term in section 6 of the Heavy Vehicle National Law (NSW)
Substances means any legal (eg prescription medication) and/or illegal drugs, alcohol, and/or other substances that affect or influence driving skills and/or are otherwise prohibited or restricted under any applicable Road Transport Legislation.
Laws means Fatigue Laws, Mass Management Requirements, Load Restraint Requirements, Privacy Laws, Road Transport Legislation, Food Safety Requirements and all other applicable laws, regulations and/or codes, including any laws regarding the use of Substances while driving and undertaking road transport activities.
Load Restraint Requirements means any applicable load restraint laws, regulations, standards, systems, requirements accreditations, and/or licences applicable to Heavy Vehicles and/or other vehicles under any applicable Laws.
Loadsmile App means the Loadsmile mobile application.
Mass Management Requirements means any applicable mass management laws, regulations, standards, systems, requirements accreditations, and/or licences applicable to Heavy Vehicles and/or other vehicles under any applicable Laws.
National Heavy Vehicle Regulator or NVHR means the independent regulator for all Heavy Vehicles, established in 2013 as a statutory authority pursuant to the Chain of Responsibility Legislation.
Privacy Laws means the Privacy Act 1988 (Cth) or any other applicable laws relating to the collection of personal information (as that term is commonly defined) as may be applicable in the jurisdiction where such personal information is collected.
Road Transport Legislation means together the Chain of Responsibility Legislation; the Australian Road Rules; the Austroad Registration and Licensing Task Force Requirements; the National Heavy Vehicle Regulator; and any other applicable laws, regulations, and/or codes (including State and Federal) that are applicable to road transport activities and the obligations of those involved in such activities, including drivers, carriers, loaders, transport operators, etc.
Recipient (being the consignee) means the recipient of the Goods specified in either the Transport Order or according to Transport Order-related instructions of Loadsmile.
Restraint Period means:
(a) a period of 12 months commencing after a Transport Order has been executed, or of if a court considers this is unreasonable;
(b) a period of 6 months commencing after a Transport Order has been executed, or of if a court considers this is unreasonable;
(c) a period of 3 months commencing after a Transport Order has been executed, or of if a court considers this is unreasonable; and
(d) a period of 1 month commencing after a Transport Order has been executed.
Site means the Loadsmile website located at the URL www.loadsmile.com.au.
Subcontractor has the meaning given to it in clause 8.
Terms means these general terms and conditions.
Transport means the Carrier’s actual carriage of the Goods between the pickup and delivery addresses in accordance with a Transport Order.
Transport Order means the order issued by Loadsmile to the Carrier for the provision of Transport Services.
Transport Documentation means the Transport Order, any applicable consignment bill, consignment note and, if applicable, the CMR consignment, commercial invoices, packing lists or other documentation related to the Transport Order.
Vehicles means the vehicles owned and/or operated by the Carrier and used for the provision of the Carrier Transport Services.
1.2 In this Agreement, unless otherwise indicated by the context:
(a) words importing the singular include the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation of this Agreement;
(c) a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
(d) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(e) an expression importing a natural person includes a body corporate, Partnership, joint venture, association or other legal entity;
(f) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
(g) a reference to a party to a document includes that party’s authorised representatives, successors and permitted assigns;
(h) a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally;
(i) a reference to a body, whether statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially succeeds to its powers or functions; and
(j) including and similar expressions are not words of limitation.
2. Terms and Carrier registration
2.1 These Terms shall apply between Digital Services Australia IV Pty Ltd (ACN 633 652 749) (Loadsmile, we, us or our) and the Carrier engaged to provide the Transport Services.
2.2 The Carrier must register and set up a profile on the Site to receive and accept Transport Orders. The Carrier is responsible for maintaining the confidentiality of its profile password and registration and is fully responsible for all activities that occur under the Carrier’s profile. The Carrier agrees to immediately notify Loadsmile of any unauthorised use of the profile or any other breach of security.
2.3 Prior to being considered for engagement to provide the Transport Services and/or having its registration to the Site accepted, the Carrier must satisfy certain minimum requirements and provide certain information. This includes:
(a) the Carrier’s details, including the Carrier’s registered address and Australian business number;
(b) evidence of all necessary training, accreditation, approvals, certifications; and
(c) any additional information and documentation required by Loadsmile.
2.4 Loadsmile reserves the right to request additional and/or updated information from the Carrier at any time and the Carrier will promptly provide such information.
2.5 Loadsmile will verify registrations and reserves the right to prohibit the creation of a Site profile or delete it. Loadsmile is under no obligation to accept a Carrier’s registration on the Site and/or engage a Carrier to provide the Transport Services and reserves the right, in its sole and absolute discretion, to reject a Carrier’s request for engagement, including where the Carrier does not satisfy the minimum requirements set out above.
2.6 The Carrier acknowledges and agrees that despite any other provision of this agreement:
(a) Loadsmile is not required to, and has no obligation to issue any Transport Order; and
(b) This is a non-exclusive agreement and Loadsmile may engage third parties to fulfil a Transport Order.
2.7 The Carrier warrants and represents that any and all information provided by it to Loadsmile is relevant, accurate, complete and current information.
2.8 In the case of inconsistencies between the:
(a) these Terms; and
(b) Transport Documentation,
the order listed above will be the order of precedence.
2.9 We may, on notice to the Carrier, vary these Terms. The Carrier’s continued acceptance of any Transport Orders following any changes indicates the Carrier’s acceptance of the changes.
3. Transport order(s) and formation
3.1 From time to time, Loadsmile will issue the Carrier with a transport order (Transport Order) requesting the Carrier’s provision of Carrier Transport Services.
3.2 The Transport Order will contain details regarding the collection/loading and delivery timeframe, loading address, delivery address, Goods specification, Freight Charge, and/or any other information necessary in regards to a Transport Order.
3.3 Each Transport Order will be individually agreed on a case-by-case basis between the Carrier and Loadsmile in writing (including via email or via the Loadsmile App). The Carrier warrants and represents that, prior to accepting a Transport Order, it has considered its schedule and the application, and the Carrier’s satisfaction, of any applicable Laws.
3.4 A Transport Order issued by Loadsmile is not binding until:
(a) the Transport Order has been accepted by the Carrier (which may include clicking an ‘Agree’ or similar box); and
(b) after such acceptance, the Transport Order is confirmed by Loadsmile.
3.5 Each time a Transport Order is accepted and confirmed in accordance with clause 3.4, an agreement is formed between the Carrier and Loadsmile consisting of:
(a) the Transport Documentation; and
(b) these Terms,
3.6 The Carrier may decline a Transport Order. In this case, the Carrier will promptly notify Loadsmile without delay. If a Transport Order is not accepted within a deadline set by Loadsmile, the Transport Order will be deemed declined by the Carrier upon expiry of that deadline.
3.7 The Carrier acknowledges and agrees that:
(a) Loadsmile is under no obligation to issue Transport Orders to the Carrier;
(b) the Carrier’s engagement by Loadsmile is not an exclusive arrangement; and
(c) that Loadsmile may issue Transport Orders to other third parties in its sole discretion.
3.8 Loadsmile is entitled to provide information about the Carrier and/or the Carrier’s Subcontractors to Customers for the purposes of the Carrier performing the Carrier Transport Services.
4. Carrier Transport Services
4.1 The Customer has to pack, load, stow, fasten, and unload the Goods into and out of the Carrier’s Vehicle safely and securely for the Transport.
4.2 The Carrier has to ensure an operationally reliable loading and surveillance. The adequacy of the surveillance is determined by the type and scope of the Transport Order. The Carrier must ensure compliance with work and safety regulations and all applicable Laws (including Load Restraint Requirements and Mass Management Requirements).
4.3 Clause 6 (provision of Vehicles by the Carrier) shall remain unaffected.
4.4 In consideration of the Freight Charge, the Carrier will provide the Carrier Transport Services in accordance with the Transport Documentation and deliver it to the Recipient.
4.5 In addition, the Carrier will provide any ancillary services, as required and set out under a Transport Order and/or these Terms.
4.6 The Carrier will comply with any Transport Order-specific instructions of Loadsmile.
4.7 Prior to commencing Transport, the Carrier must check the safety and completeness of the Vehicle’s equipment. The equipment required or specified in the Transport Order shall remain in place until the applicable Transport has ended.
4.8 Subject to clause 5, the Carrier must use best endeavours (at all times in accordance with all applicable Laws) to effect the Transport in the timeframes specified in the Transport Order.
4.9 After having completed the Transport and Delivery, the Carrier will transmit all Delivery Documents to the Principal, preferably via the Loadsmile App.
4.10 The Carrier will ensure that the electrical devices used for the Transport Order processing remain functional and that the Transport Data is protected in accordance with clause 26.
4.11 The Carrier will only use warehouse or transhipment premises/areas, as well as technical or other equipment suitable to each applicable Transport Order. The Carrier will ensure that, for such warehouse and/or transhipment premises/areas and equipment, all statutory or other applicable requirements are fulfilled and that the function of safety devices is not interfered.
5. Failed Delivery
5.1 If delivery fails and/or is delayed because:
(a) of an act or omission of a Customer and/or a Recipient, including where:
(i) a Recipient at the delivery address cannot or refuses to take delivery of the Goods;or
(ii) the Customer has provided inaccurate information with regards to the Good and/or the delivery site (for example access to the site),
the Carrier must immediately notify Loadsmile and, in the event of failed delivery, at Loadsmile’s direction, the Carrier will attempt redelivery the next business day (or such other day as advised by Loadsmile), and/or to otherwise deal with the Goods, including storing, disposing of, or returning the Goods. The Carrier will not be liable for any additional costs incurred as a result of such failed or delayed delivery in this instance.
(b) of an act or omission of the Carrier (and/or its Drivers), the Carrier must immediately notify Loadsmile and at Loadsmile’s direction:
(i) The unloading shall be carried out and Delivery finalised only if the Customer and/or the Recipient (as required) has provided their respective consent; or
(ii) The Carrier will attempt redelivery the next business day (and/or such other day as advised by Loadsmile), and/or to otherwise deal with the Goods, including storing, disposing of, or returning the Goods.
The Carrier will be liable for any additional costs (for example only, pallet docket, bill of lading and freight bills) incurred as a result of such failed or delayed delivery in this instance.
6. Customer claims
6.1 In the event that Goods are visibly damaged during the Transport, the Carrier acknowledges and agrees that the Customer may submit a claim to Loadsmile.
6.2 Where, in Loadsmile’s reasonable discretion, the evidence submitted by a customer in their claim reveals that such damage was a result of the Carrier’s acts or omissions, the Carrier will be liable for any costs and damages associated with such damage. Loadsmile will assess all claims and will determine the outcomes of a claim in its sole and reasonable discretion.
7. Carrier Vehicles
7.1 The Carrier shall provide the Vehicles and drivers in sufficient numbers and with sufficient load capacity to fulfil the Carrier’s obligations under each Transport Order.
7.2 The Carrier undertakes to provide the Vehicles in accordance with these Terms and each time on the dates specified in each Transport Order on time.
7.3 The Carrier be constantly reachable when a Transport Order is being executed, including when transport is occurring, via a mobile phone.
7.4 The Carrier will ensure:
(a) that its drivers are reliable, professionally trained and skilled (and in the case of dangerous Goods, have appropriate and applicable training certificates) for each Transport, including in accordance with the following requirements:
(i) valid, up to date and full (ie no learner or provisional licences) licences;
(ii) any necessary accreditations;
(iii) sufficient driving experience;
(iv) satisfaction of any:
(A) police or other background checks; and/or
(B) medical or other fitness assessments;
(v) are carefully selected and monitored for every transport;
(b) that the Vehicles used are:
(i) compliant with all applicable Laws, including all Food Safety Regulations and Road Transport Legislation;
(ii) registered and have all accompanying registration documentation available;
(iii) suitable and properly equipped for the delivery of the Goods designated for each Transport (including, without limitation maximum load capabilities in accordance with Mass Management Requirements);
(iv) cleaned to industry standards; and
(v) equipped with industry standard communication systems (Email, EDI and other IT capabilities)
(c) that only Vehicles and trailers, swap bodies/containers, cranes/lifting devices, and all other equipment (including ropes, straps) used for a Transport Order are suitable for the particular Transport;
(d) that only Vehicles and trailers with any necessary and/or required certificates (including by any Laws and/or HACCP certification) and temperature plotter are used when transporting temperature-controlled cargo, that the required temperature is recorded in the transport documentation, and that the driver is instructed to regularly check and document the temperature during transport;
7.5 The Carrier will ensure the safeguarding of the Vehicle and all related equipment against theft or robbery especially at night, on weekends and during holidays.
7.6 In the event of failure of the intended or used Vehicle, the Carrier shall, after prior notice to Loadsmile, immediately supply a suitable replacement Vehicle, regardless of whether the Carrier is responsible for the failure. If this is not possible, the Principal is entitled to provide a vehicle as replacement after expiry of a reasonable grace period previously set for the Carrier if and to the extent such setting of a grace period is required by law. In this case, the Principal is entitled to charge the Carrier for the costs arising from the provision of a replacement vehicle and to offset the freight charges with the respective transport fee payable to the Carrier as far as the Carrier is responsible for the vehicle failure.
8. Food Safety and Road Transport Legislation
8.1 The Carrier must at all times comply with all applicable Food Safety Regulations and/or Road Transport Legislation. The cost of compliance will be the sole responsibility of the Carrier.
8.2 Without limiting any other warranty or indemnity under these Terms, the Carrier:
(a) warrants and represents that:
(i) it will undertake the Carrier Transport Services at all times in compliance with all applicable Food Safety Regulations and/or Road Transport Legislation;
(ii) it will ensure that all Drivers have in place all required accreditation under the Road Transport Legislation;
(iii) it will ensure that all Vehicles adhere to all applicable requirements of any applicable Food Safety Regulations and/or Road Transport Legislation, both generally and also specifically as required for each Transport Order and the Goods being transported; and
(iv) it will immediately report any breach, notification of breach, or investigation, related to the Chain of Responsibility Legislation to Loadsmile.
(b) indemnifies Loadsmile against any action, proceeding, claim, demand or prosecution arising from or in connection with any loss, damage, expense, injury, illness or death to any person or property as a result of the Carrier’s breach or non-compliance with all applicable Food Safety Regulations and/or Road Transport Legislation.
9. Use of subcontractors by the Carrier
9.1 Subject to clause 9.2, the Carrier may use third parties to fulfil his obligations under the Transport Order and these Terms (Subcontractor).
9.2 In the event that the Carrier uses a Subcontractor:
(a) such Subcontractor must agree in writing to comply with, and be bound by, the terms and conditions of an agreement containing provisions that are consistent with Company’s obligations under this Agreement (ie these Terms and any Transport Documentation) and the Carrier shall be fully responsible and liable for such Subcontractors’ breach as if the breach were the Carrier’s own; and
(b) Carrier shall be and remain primarily liable for the acts and omissions of such Subcontractor and, except to the extent fully, properly and satisfactorily performed or provided by such Subcontractor, shall remain responsible for the due and proper performance of all obligations under this Agreement; and
(c) this clause does not relieve the Carrier of primary responsibility for any of its obligations under this Agreement.
10. Compliance with legal requirements
10.1 The Carrier must:
(a) comply with all applicable Laws; and
(b) have all necessary permits.
11. Instruction and information rights of the Principal
11.1 The instructions of the Customer must be followed, as provided by Loadsmile to the Carrier and/or directly by the Customer during loading or unloading the Goods for Transport. The Carrier shall inform Loadsmile of any obvious inaccuracy and impracticability such instructions.
12. Accidents or damage
12.1 In the event of an accident or of damage, the Carrier will immediately inform Loadsmile about any damages to and/or loss of Goods.
12.2 The following information (so far as it is actually relevant) must be immediately submitted to Loadsmile in writing (and/or in any form required by Loadsmile) and (if applicable) by means of photographic documentation – preferably via the Loadsmile App:
(a) the registration number and vehicle model of vehicles involved;
(b) the place, time and circumstances of the accident or damage event;
(c) name, address of the injured/dead;
(d) extent of product leakage;
(e) dispatch data;
(f) measures taken by Carrier;
(g) return possibilities, and
(h) pictures of the accident site.
12.3 The Carrier shall without undue delay notify any theft, robbery or any traffic accident with possible damage to and/or loss of the Goods to the nearest police station and Loadsmile.
12.4 Additionally, the Carrier will inform Loadsmile of any complaints by the Recipient regarding the condition of the Goods and ensure that the Recipient notes such complaints in writing on the applicable Delivery Documentation.
12.5 In case of damages to and/or loss of the Goods during Transport, the Carrier immediately notify Loadsmile and must take and transmit to Loadsmile (either via the Loadsmile App, email or as otherwise instructed by Loadsmile) pictures of the damage, and to obtain further instructions from Loadsmile.
13. Transport and Delivery Documents
13.1 Transport Documents and Delivery Documents may not be made available to or handed over to third parties – apart from official or other statutory controls.
13.2 The Goods, unless otherwise directed by Loadsmile, may only be handed over against receipt of all applicable Delivery Documents.
14. Freight Charge
14.1 The Freight Charge is agreed upon on a case-by-case basis for each Transport Order.
14.2 The Freight Charge is inclusive of all Carrier Transport Services and other applicable ancillary services outlined in the related Transport Order unless they are expressly marked as additionally chargeable or in a similar manner (eg "at cost" or "separately payable").
14.3 The Freight Charge includes all expenses incurred by the Carrier, in particular any road tolls or other road user charges and all foreseeable and normal services of the Carrier, in particular those of the loading and unloading, if agreed upon in the respective Transport Order, as well as the costs of the loading.
14.4 If any special expenses not anticipated at the time of formation of an Agreement, any charges for transport insurance or any other additional costs may be incurred, the Carrier must obtain approval from Loadsmile before such expenses are incurred. Where such expenses are approved by Loadsmile prior to being incurred, they will be incorporated into the Freight Charge.
15. Incorrect Transport Order(s)
15.1 In the event that Loadsmile provides incorrect information in a Transport Order the following applies:
(a) if the volume/weight is actually lower than stated in the Transport Order, the Carrier will receive the full Freight Charge.
(b) If the volume/weight (mass)/dimensions are actually higher than stated in the Transport Order, where such amended volume/weight (mass)/dimensions are such that the Transport Order can still be carried out under any applicable Laws, the Carrier will receive the corresponding adjusted Freight Charge.
(c) In case of an incorrect loading or delivery address, as well as the incorrect indication of a loading or delivery date, Loadsmile will be responsible for the costs of a second delivery up to the amount of the actual costs (and limited to the amount of the Freight Charge in the applicable Transport Order).
15.2 In the case that the Carrier incorrectly processes or executes a Transport Order, the following applies:
(a) Where the Carrier is unable to collect the Goods at the delivery times specified in the Transport Order and on first attempt (eg due to lack of space, lack of loading aids, etc.), the Carrier must remedy the situation by means of a second attempt (coordinated by Loadsmile with the Customer). In the event of a delay of pickup by more than three hours, Loadsmile is entitled to organise a replacement carrier at the expense of the Carrier; and
(b) without limiting any other liability of the Carrier under these Terms, the Carrier is liable for damages to the Customer, the Recipient and/or Loadsmile arising due to a delayed collection or Delivery and indemnifies Loadsmile from and against any claims from the Customer and/or the Recipient against Loadsmile.
16. Invoicing and due date
16.1 The Carrier will send Loadsmile proof (eg by fax, scan, or photo, and/or via the Loadsmile App) of Delivery by a delivery receipt issued by the recipient including a stamp and signature and a valid tax invoice setting out the applicable Freight Charge.
16.2 After Loadsmile :
(a) verifies delivery in its sole discretion (including that delivery has been completed to the Customer’s and Carrier’s satisfaction, including no disputes, correct delivery, delivered within the Transport Order time frame, no additional charges, Goods in condition as expected by Customer); and
(i) the Delivery Receipt; and
(ii) a valid tax invoice from the Carrier,
Loadsmile will make payment to the Carrier of the applicable Freight Charge to the bank account nominated on the valid tax invoice either:
(c) within 28 days of satisfaction of clauses 16.2(a) to 16.2(b)(ii); or
(d) within 7 days of satisfaction of clauses 16.2(a) to 16.2(b)(ii), subject to Loadsmile withholding 2.1% of the Freight Charge where the Carrier chooses this payment timeframe .
16.3 All amounts payable are in Australian dollars and are exclusive of GST unless otherwise indicated. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST. GST and Taxable Supply have the meaning given to them A New Tax System (Goods and Services Tax) Act 1999.
16.4 If Loadsmile wishes to raise a genuine dispute about an invoice, Loadsmile will notify the Carrier of the dispute before an applicable due date and pay the undisputed portion by the applicable due date.
16.5 The Carrier agrees that Loadsmile may receive and retain for its own account fees and commissions from third parties in relation to Loadsmile’s business and services and that Loadsmile is not required to disclose the receipt and retention of such amounts to the Carrier in any circumstances.
17. Cancellation of a transport order
17.1 A Customer or Loadsmile may cancel an order and as a result, Loadsmile may cancel a Transport.
In the case that a Transport Order is cancelled:
(a) up to 48 hours prior to the date of the Transport Order execution (being the date scheduled for commencement of the Transport of the Goods), the Carrier is not entitled to any remuneration (including the Freight Charge); or
(b) between 48 and 0 hours prior to the date of the Transport Order execution (being the date scheduled for commencement of the Transport of the Goods), the Carrier is entitled to one third of the agreed Freight Charge. The Carrier is not entitled to any further payments or remuneration.
18.1 The Carrier represents and warrants that:
(a) it has the full power and authority to enter into and perform its obligations under this Agreement and to carry out the transactions and services contemplated by this Agreement;
(b) there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this Agreement;
(c) it will provide the Carrier Transport Services to the highest industry standards and at all times with due care and skill;
(d) it will comply with all applicable laws, codes, and regulations (including the Road Transport Laws); and
(e) it will retain all documents or records in any manner required by any applicable laws, codes, and regulations.
19.1 The Carrier indemnifies and keeps indemnified Loadsmile, its officers, employees and agents (Indemnified Parties) in a damage, loss, cost, expense, liability, fine, penalty, sanction or legal expenses (on a full indemnity basis) incurred or suffered by the Indemnified Parties as a result of the Carrier’s:
(a) act or omission;
(b) breach of any terms of this Agreement; and/or
(c) breach of any applicable law, code, or regulation (include the Road Transport Legislation).
20. Liability of the Principal
20.1 To the extent permitted by law, Loadsmile will not be liable to the Carrier or any other person for any damage, loss, cost, expense, liability, fine, penalty, sanction or legal expenses:
(a) arising from or caused by the injury, illness or death of any person; and/or
(b) any other loss or damage of any kind, however caused and whether direct or consequential, including, but not limited to, negligence or breach of contract by Loadsmile, its employees, subcontractors or agents, that arises in whole or in part from, or in connection with, any services provided by Loadsmile.
20.2 To the extent permitted by law Loadsmile is not liable to the Carrier or any other person, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any economic loss, loss of revenue, loss of production, loss of profits, loss of income, loss of markets, loss of reputation, loss or impairment of goodwill, loss of business, loss of customers, loss of an opportunity or chance, loss of value, loss of use, loss of anticipated savings, increased costs of work or materials, or any consequential, indirect, incidental, punitive or special loss of any kind, or the cost of defending and settling any claim or any other form of indirect and/or consequential loss or damage arising from any act or omission of Loadsmile under this Agreement.
20.3 Loadsmile’s aggregate liability in connection with this Agreement whether in contract, tort (including negligence), statute or otherwise will not exceed the Freight Charges paid by the Loadsmile in the 6 months preceding any claim for any such liability.
21. Force majeure
Neither Party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in performance of any of its obligations under this agreement due to a Force Majeure Event.
22.1 The Carrier must take out and maintain the following insurance:
(a) workers compensation insurance (if applicable and/or required by law);
(b) freight insurance with a minimum coverage of $2 million;
(c) motor vehicle insurance and/or commercial motor vehicle insurance (as applicable);
(d) public liability insurance with a cover of $20 million in any one occurrence and in the aggregate; and
(e) professional indemnity insurance with a cover of $2 million in any one occurrence and in the aggregate,
each with an insurance cover that is common industry practice and reasonable with respect to each Transport Order.
22.2 Upon request, the Carrier must provide certificates of currency of an insurance policy. The insurance has to be maintained for each respective Transport Order and for a period of 2 years after.
23.1 During the Restraint Period:
(a) the Carrier will not solicit, engage or employ, either directly or indirectly, any person who is a Customer or Recipient; and
(b) if the Carrier breaches clause 23.1, he is obliged to pay to Loadsmile the higher of:
(i) 10% of the revenue generated by the Carrier from the applicable Customer; or
24.1 The Carrier shall prepare and maintain detailed, accurate and up-to-date records sufficient to enable Loadsmile to verify the Carrier’s compliance with this Agreement, including records of all permits, invoices, other corporate documentation, contracts, and other documents about, and related to, the Carrier Transport Services and the Carrier’s compliance with these Terms (Records).
24.2 Loadsmile shall have the right, at its sole expense, to examine and audit such Records to verify the Carrier’s performance under, and compliance with, the terms of this Agreement.
24.3 If an audit identifies that the Carrier has failed to perform its obligations under, and/or comply with, this Agreement, without prejudice to the other rights and remedies of Loadsmile (including any termination rights), the Carrier must take the necessary steps rectify such failure to perform and/or comply with its obligations within 30 days of being notified, at no additional cost to Loadsmile.
24.4 Where the Carrier does not undertake such rectification within the timeframe set out at clause 24.3, Loadsmile reserves the right to terminate this agreement, deregister the Carrier from the Site and to cease issuing the Carrier Transport Orders.
25. Credit information
25.1 Loadsmile reserves the right to perform credit checks on the Carrier to determine its credit worthiness, standing, history, capacity, and/or other necessary information. Loadsmile may refuse to issue Transport Orders to a Carrier due to the result of any credit check performed.
26. Data privacy
26.1 Both Parties will comply with all applicable Privacy Laws, including with regard to the use, disclosure, storage and processing of any Customer personal information.
27.1 Each party must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.
27.2 Neither party may use or disclose the Confidential Information except:
(a) to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this agreement;
(b) as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
(c) with the other party’s prior written consent.
28. Dispute resolution
28.1 Any party who claims to have a dispute against another party must issue a notice claiming a dispute has arisen, setting out the nature of the dispute and all other information relevant to the dispute (Dispute Notice).
28.2 Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
28.3 If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
28.4 Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
29.1 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this Agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
29.2 This Agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
29.3 The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions.
29.4 If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
29.5 This Agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
29.6 Unless otherwise expressly set out under this Agreement, the Carrier may not assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.
29.7 Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this Agreement.