CHARTERED SERVICES - Terms and Conditions

 

1. BACKGROUND

   1. SCT holds operator accreditation under the Transport Operations (Passenger Transport) 1994 (Qld) and is authorised to operate public passenger services in Queensland, including Chartered Services.

   2. The Customer has engaged SCT to operate the Chartered Services pursuant to the terms and conditions of this Agreement.

2. FORMATION OF AGREEMENT

   1. The provision of Chartered Services by SCT for the Customer comprises of:

      1. the Quotation; and

      2. the terms and conditions contained in this document,
         (collectively referred to as the ‘Agreement’).

      3. The parties agree that each Quotation accepted by the Customer will constitute a separate agreement for the supply of Chartered Services specified in that Quotation and will incorporate the terms and conditions set out in this Agreement.

      4. Unless otherwise agreed to by SCT in writing, SCT will not be bound by any amendments requested by the Customer to the Agreement (including, but not limited to, these terms and conditions).

3. DEFINITIONS

   1. Agreement has the meaning given in clause 2.1.

   2. ASIC means the Australian Securities and Investments Commission.

   3. Booking has the meaning given to that term in clause 6.1. Bookings has the same meaning.

   4. Business Day means a day on which banks are open for retail banking, other than a Saturday, Sunday or public holiday, in Ipswich, Queensland.

   5. Cancellation Notice has the meaning given in clause 8.1.

   6. Chartered Services means the provision of privately contracted chartered bus services by SCT to the Customer’s required specification.

   7. Claim means any claim, notice, demand, action, proceeding, litigation, investigation, judgment or cause of action, whether based in contract, tort (including negligence), under common law, equity or statute.

   8. Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.

   9. Corporations Act means Corporations Act 2001 (Cth).

   10. Customer means the person identified as the customer in the Quotation.

   11. Default Event means any of the following:

       1. a party suffers an Insolvency Event;

       2. the Customer fails to pay any monies payable under this Agreement (or any other agreement with SCT) on the due date and the default continues for more than 10 Business Days;

       3. the Customer, or any Passenger of the Customer, does not comply with SCT’s codes of conduct for Chartered Services;

       4. a party commits a material breach of this Agreement and fails to remedy that breach within 10 Business Days of written notice from the other party.

   12. Dispute Notice has the meaning given in clause 18.2.

   13. Driver means the person that is engaged by SCT to drive a Vehicle on a Chartered Service.

   14. Fees means the fees specified in the Quotation and payable by the Customer in accordance with clause 7.

   15. Force Majeure Event means any of the following events, circumstances or combination of events and circumstances:

       1. an act of God, lightning, storm, explosion, flood, cyclone, landslide, bush fire, tsunami or earthquake;

       2. an act of terrorism, war (declared or undeclared), blockade, revolution, riot, insurrection, or civil commotion;

       3. any pandemic or epidemic;

       4. a state wide or nationwide shortage of bus drivers;

       5. supply chain disruptions which impact the delivery of Chartered Services;

       6. industry action in relation to the bus industry or involving any staff of SCT;

       7. any action, inaction, demand, order, restraint, restriction, requirement, prevention, frustration or hindrance by or of any government authority; or

       8. the unavailability of any essential equipment, fuel, public utilities (such as electricity or water) or other materials necessary for the operation of the Vehicles.

   16. GST has the meaning given by the GST Law.

   17. GST Law has the meaning given to “GST law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

   18. Insolvency Event means, in respect of a person, the occurrence of any of the following in respect of that person (as applicable):

       1. an order is made, or an effective resolution is passed for the winding up, dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) or deregistration of that person;

       2. a receiver, receiver and manager, judicial manager, liquidator, administrator or like official is appointed or expected to be appointed over the whole or a substantial part of the undertaking or property of that person;

       3. a holder of a Security Interest takes possession of or exercises any other rights arising from the Security Interest over the whole or any substantial part of the undertaking and property of that person, or indicates an intention to do so;

       4. the person becomes insolvent or any circumstance exists or arises which would require a court to presume that that person is insolvent;

       5. that person enters into or takes any steps to enter or proposes to enter into any arrangement, compromise or assumption with or assignment for the benefit of its creditors or a class of them;

       6. that person receives a deregistration notice under section 601AB of the Corporations Act or any communication from ASIC that might lead to such notice;

       7. that person stops, suspends or threatens to stop or suspend paying its debts as and when they fall due;

       8. that person becomes an “insolvent under administration” within the meaning given in section 9 of the Corporations Act, or any steps are taken or any order is made to cause that person to become an insolvent under administration, as defined;

       9. the party (being an individual) becomes bankrupt, or commits an act of bankruptcy; or

       10. any analogous event under the laws of any applicable jurisdiction.

   19. Loss includes any loss, liability, expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.

   20. Passenger means each individual passenger onboard the Vehicle operating the Chartered Service (excluding the Driver). Passengers has the same meaning.

   21. PPSA means the Personal Property Securities Act 2009 (Cth).

   22. PPSR means the Personal Property Securities Register established under the PPSA.

   23. Quotation means the quotation issued by SCT to the Customer in accordance with clause 5.

   24. SCT means Southern Cross Transit (QLD) Pty Ltd ACN 097 130 615 as trustee for G. Oliveri Family Trust (QLD) ABN 38 159 258 432.

   25. Security Interest includes any mortgage, charge, lien, pledge, hypothecation, title retention arrangement, trust arrangement, encumbrance, contractual right of set off, any security arrangement in favour of any person or any security arrangement which is deemed to be a security interest for the purposes of the PPSA.

   26. Vehicle means the passenger vehicle used to deliver the Chartered Services. Vehicles has the same meaning.  

   27. Vehicle Equipment means any equipment or electronic or manual devices installed inside a Vehicle, including, but not limited, to TVs/DVD/CD players, radios, public announcement systems, and other audio/visual equipment.

4. SUPPLY OF CHARTERED SERVICES

   1. SCT agrees to provide Chartered Services for the Customer in accordance with the terms and conditions of this Agreement.

   2. The Customer warrants to SCT that it is authorised to enter into this Agreement for the Chartered Services on behalf of all Passengers.

   3. Where more than one Customer is specified on the Quotation, the Customers will be jointly and severally liable to SCT for the performance of the Customer’s obligations under this Agreement.

5. QUOTATIONS

   1. Each Quotation issued to the Customer:

      1. is prepared by SCT on the shortest trafficable route for the Vehicle to perform the Chartered Service based upon the information provided by the Customer and anticipated travel times;

      2. is valid for, and capable of acceptance by the Customer within, 28 days after issuance to the Customer; [MCW1] 

      3. will contain estimated charges including a minimum 2-hour engagement and variable hourly rates based on the time and day of supply of the Chartered Service; and

      4. are exclusive of any road toll charges, parking charges, venue admission charges, meal allowances, and accommodation charges, unless otherwise stated.

   2. SCT may, subject to SCT’s capacity to meet the requirements of the Customer, agree to extend the currency of a Quotation upon request by the Customer. In such a case, SCT reserves the right to increase the Fees on the extended Quotation to allow for any price variations.

   3. Prices in a Quotation are exclusive of GST unless otherwise stated in the Quotation.

   4. SCT reserves the right to vary a Quotation at any time prior to acceptance by the Customer.

   5. The Customer acknowledges that each Quotation is subject to the availability of Vehicles and Drivers which can only be confirmed upon acceptance of the Quotation.  

6. CHARTER BOOKINGS

   1. A booking for Chartered Services is only confirmed by SCT when:

      1. the Quotation has been accepted by the Customer; and

      2. the Customer receives a charter confirmation notice from SCT,
         (known as the ‘Booking’).
         If the Customer requests a variation to a Booking, the parties agree that:

         1. all variations must be made by the Customer in writing and not later than 48 hours prior to the departure of the Chartered Service;

         2. the variation can only be accepted by SCT subject to availability of its drivers and Vehicles; and

         3. SCT’s reserves the right to levy additional reasonable charges payable by the Customer for all requested variations.

7. FEES AND PAYMENT TERMS

   1. The parties agree that Fees are to be paid as follows:

      1. if the Customer does not have a credit account with SCT – the Customer must pay the Fees in advance and within 3 Business Days of the departure date of the Chartered Service; or

      2. if the Customer has a credit account with SCT – the Customer must pay the Fees to SCT by the date for payment in the invoice for that Chartered Service.[MCW2] 

   2. SCT reserves the right to cancel a Booking (including any future charter bookings of the Customer) if any Fees or other money owing are not paid to SCT within the timeframe specified in clauses 7.1.

   3. All Fees and money owing payable to SCT must be made without any set-off or counterclaim and without deduction or withholding whatsoever.

   4. SCT reserves the right to charge the Customer an additional fee to cover its reasonable costs for:

      1. any additional waiting time not included in the Quotation;

      2. cleaning any waste or mess left onboard a Vehicle by a Passenger;

      3. repairing any damage to a Vehicle caused by a Passenger (as determined by SCT acting reasonably).

8. CANCELLATION PROCESS AND CHARGES

   1. In the event that the Customer cancels a Booking prior to performance of that Chartered Service:

      1. the Customer must notify SCT of the cancellation in writing as soon as practicable after becoming aware of circumstances necessitating that cancellation (Cancellation Notice); and

      2. the Customer acknowledges and agrees that SCT may (in its discretion) charge the Customer a cancellation fee in accordance with clause 8.3.

   2. If a Cancellation Notice is received at least 4 hours before the departure time of the Chartered Service, the Customer may elect to:

      1. obtain a refund the Fees paid for that Chartered Service; or

      2. rebook the Chartered Service with SCT for another time in accordance with the provisions of clause 6.

   3. Cancellation fees may be levied by SCT, and become immediately payable by the Customer, as follows:

      1. ​Time the Cancellation Notice is given
         - 4 hours or more prior to the departure time - No charge
         - Less than 4 hours but more than 2 hours prior to the departure time - $50
         - 2 hours or less prior to the departure time - 100% of the Fees payable for the Chartered Service

9. VEHICLE USE AND CAPACITY

   1. The use of the Vehicle when not delivering the Chartered Services is at the sole discretion of SCT and the Customer should not assume that the Vehicle will remain at any point between the outward and return journeys, or that it is available for use when parked at such points.

   2. The use of any Vehicle Equipment by Passengers on a Chartered Service is at the sole discretion of SCT.

   3. The Customer acknowledges that all Vehicles are subject to passenger capacity and loading restrictions in accordance with all applicable laws.  

   4. The Customer agrees that:

      1. the Driver has the sole discretion to accept or refuse luggage carried onto the Vehicle by a Passenger;

      2. the Driver may refuse to permit the carriage of any item which is deemed to be unsafe or dangerous for carriage onboard the Vehicle; and

      3. it is solely responsible for all luggage, carry-on bags and personal items brought onto a Vehicle.

   5. SCT disclaims all liability for any damage to, theft or loss of any luggage belonging to a Passenger.

   6. Any items or property left onboard a Vehicle will be available for collection by the relevant Passenger from SCT’s office during ordinary business hours.

10. PASSENGER BEHAVIOUR AND PROHIBITED ITEMS

    1. The Customer must ensure that each Passenger onboard a Vehicle:

       1. complies with all reasonable directions of the Driver;

       2. does not smoke or use e-cigarettes/vapes;

       3. does not consume food, alcohol or illegal drugs or other prohibited substances;

       4. remains seated while the Vehicle is in motion; and

       5. wears seatbelts as required by law.

    2. The Customer acknowledges that the Driver has the right to refuse to carry Passengers who:

       1. in the Driver’s reasonable opinion, are affected by alcohol or drugs;

       2. are abusive or unruly to the Driver or other Passengers;

       3. are observed smoking or attempting to smoke on board a Vehicle, including any onboard toilet facility; or

       4. fail to comply with any reasonable direction of the Driver or any applicable laws and regulations.

    3. The Customer acknowledges that the Driver has the right to immediately cease performance of a Chartered Service without any liability to the Customer if the behaviour of any Passengers adversely affects the safe operation of the Vehicle.

    4. The Customer:

       1. remains responsible for the acts and omissions of all Passengers onboard a Chartered Service; and

       2. without limiting clause 10.4(a), is liable to SCT for any damage sustained to a Vehicle and caused by a Passenger (as determined by SCT acting reasonably).

11. SUBCONTRACTING

    1. SCT reserves the right to subcontract the provision of all or part of the Chartered Services to another operator.

    2. In the event that SCT subcontracts any part of the Chartered Services, SCT will remain responsible for the acts and omissions of its subcontractors in the course of providing the Chartered Services as if they were SCT’s own acts or omissions.

12. LIMITATION OF LIABILITY

    1. To the maximum extent permitted by law, SCT’s liability to the Customer is limited as follows:

       1. SCT will not be liable to the Customer for any Claim for any Consequential Loss whatsoever arising directly or indirectly from the Chartered Services;

       2. SCT will take reasonable steps to perform the Chartered Services but does not accept any liability for circumstances outside of its control, including, without limitation:

          1. delays to the pick up or departure time of the Chartered Service attributable to traffic congestion or road closures or changes in road conditions;

          2. mechanical failure of a Vehicle;  

          3. loss, damage or theft to property belonging to Passengers; or

          4. the occurrence of a Force Majeure Event;

       3. SCT’s liability to the Customer for a material breach of this Agreement is reduced to:

          1. the resupply of the Chartered Service; or

          2. a refund of the Fees paid by the Customer for the Chartered Service.

13. TERMINATION FOR DEFAULT

    1. Either party may immediately terminate this Agreement by written notice to the other party upon the occurrence of a Default Event.

    2. If SCT terminates this Agreement for the occurrence of a Default Event in accordance with clause 13.1, the Customer must:

       1. immediately pay all Fees and any other amount owing to SCT under any other agreement (including any interest up to the date of termination); and

       2. reimburse SCT for any unavoidable costs or expenses that SCT has reasonably incurred as a direct result of the termination and that SCT is not able to recoup or otherwise as a result of the Customer’s default.

14. FORCE MAJEURE

    1. If SCT is prevented in whole or in part from performing any part of its obligations under this Agreement because of a Force Majeure Event, SCT must, as soon as practicable and no later than 48 hours after the occurrence of that event, provide the Customer with notice of:

       1. full particulars of the Force Majeure Event including its nature and likely duration;

       2. the obligations affected by the Force Majeure Event and the extent to which performance of those obligations is affected; and

       3. the steps taken or proposed to be taken to rectify the Force Majeure Event.

    2. SCT’s obligations are suspended to the extent that they are affected by a Force Majeure Event from the date that SCT notifies the Customer under clause 14.1 until the cessation of the Force Majeure Event.

    3. Where a Force Majeure Event no longer prevents SCT from performing its obligations under this Agreement, SCT must:

       1. notify the Customer that it is no longer prevented from performing the relevant obligations; and

       2. recommence performance of those affected obligations under this Agreement.

15. INDEMNITY

    1. The Customer indemnifies, and must keep indemnified, SCT from and against any Claim or Loss (excluding Consequential Loss), arising out of, or in connection with, any one or more of the following:

       1. any breach of this Agreement by the Customer;

       2. any damage to the Vehicle or any other property or goods that is caused by or contributed to by the Customer or any Passenger;

       3. any negligence, recklessness or other wrongful act or omission of the Customer or any Passenger;

       4. any injury to persons, including resulting in death caused or contributed to by the Customer or any Passenger,
          howsoever arising from, or in connection with, the performance of the Chartered Services.
          The Customer liability to indemnify SCT under clause 15.1 is reduced proportionally to the extent that the act or omission of SCT or its Drivers, caused or contributed to the Claim or Loss.

16. PRIVACY AND PERSONAL INFORMATION

    1. Where SCT is in possession of Personal Information of the Customer, SCT will:

       1. not use Personal Information other than for the purposes of performance of the Chartered Services, unless required or authorised by Law;

       2. not disclose Personal Information without the consent of the Customer, unless required or authorised by law;

       3. ensure that access to Personal Information is restricted to those of its Personnel who require access to perform their duties;

       4. ensure that its Personnel do not access, use or disclose Personal Information other than in the performance of their duties; and

       5. ensure that any subcontractors who have access to Personal Information abide by the same obligations under this clause 16.

    2. The Customer irrevocably authorises, and consents to, SCT obtaining a credit report for the Customer from a third party provider.

17. PPSA SECURITY INTEREST

    1. If either party believes that a Security Interest arises under this Agreement in connection with the Chartered Services, that party must notify the other party within 5 Business Days of becoming aware of such Security Interest.

    2. Either party must take such steps as the other party reasonably requires to perfect or otherwise ensure the enforceability and first ranking priority of any Security Interest granted to it under this Agreement, including:

       1. containing and giving consents;

       2. producing and providing receipts;

       3. attending to the signing of documents or procuring the signing of documents;

       4. facilitating the registration of any Security Interest on the PPSR;

       5. facilitating the giving of notice to any person, including any person who also has, or appears to have, a Security Interest; and facilitating the exercise of the secured party’s right to enforce any Security Interest.

18. DISPUTE RESOLUTION

    1. The parties agree not to commence any legal proceedings in respect of any dispute arising under this Agreement, which has not been resolved by informal discussion, until the procedure provided by this clause 18 has been followed.

    2. The parties agree that any dispute arising during the course of this agreement will be dealt with as follows:

       1. the party claiming that there is a dispute will send the other a written notice setting out the nature of the dispute (Dispute Notice);

       2. the parties will try to resolve the dispute through direct negotiation, including by referring the matter to persons who have the authority to intervene and direct some form of resolution; and

       3. if within 10 Business Days from the date of the Dispute Notice being issued:

          1. there is no resolution of the dispute;

          2. there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure; or

          3. there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within fifteen 10 Business Days of the submission, or such extended time as the parties may agree in writing before the expiration of the 10 Business Days,
             ​then either party may commence legal proceedings.

       4. ​Despite the existence of a dispute, both parties must continue to perform their respective obligations under this Agreement.

19. GENERAL

    1. This Agreement embodies the entire agreement between the parties and supersedes all previous agreements, understandings, negotiations, warranties and representations on the subject matter of this Agreement.

    2. This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.

    3. The following provisions survive termination of this Agreement:

       1. rights accrued to a party up to the date of termination of this Agreement; and

       2. indemnities and obligations of confidence given by a party under this Agreement.

    4. If any provision of this Agreement will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.

    5. The terms and conditions of this Agreement will prevail to the extent of any inconsistency with any other document or agreement between the Customer and SCT.

    6. The parties agree that this Agreement is governed by the laws of, and subject to the jurisdiction of the courts, of Queensland, Australia.

    7. SCT reserves the right to review and amend this Agreement from time to time and must give notice to the Customer of any changes to this Agreement in writing.

    8. The failure by SCT to enforce any provision of this Agreement will not be treated as a waiver of that provision, nor will it affect SCT’s right to subsequently enforce that provision.

    9. A written notice to be provided under this Agreement may be provided by:

       1. handing the notice to the person, or an employee or officer of that person;

       2. by leaving it at the address stated in a Quotation;

       3. by sending it by registered post to the address stated in the Quotation; or

       4. by email to the last known email address of that person.