1. Agreement
    1. The Order and these Terms and Conditions form the entire agreement between the parties in relation to the supply of the Services (Agreement).
    2. By commencing the supply of the Services, the Supplier irrevocably accepts that the Agreement applies to the supply of the Services. No terms or conditions proposed by the Supplier apply to the supply of the Services (including terms stated by the Supplier in accepting or acknowledging an Order).
    3. Subject to clause 1.4, if there is any inconsistency, discrepancy or ambiguity between the Order and these Terms and Conditions then it will be resolved by giving precedence to the Order except to the extent otherwise agreed by the parties.
    4. If you have a written and signed agreement with RACQ that applies to the purchase or supply of the Goods or Services the subject of the Order, that agreement, and not these terms and conditions, will apply and is incorporated by reference into the Order rather than these terms and conditions.
  2. Standard of Service
    1. The Supplier must supply the Services to RACQ in accordance with the Agreement. The Supplier must ensure that the Services:

      (a) match their description in the Order;
      (b) are fit for the purposes for which services of the same kind are commonly supplied and for any other purpose specified in the Agreement or otherwise made known to the Supplier;
      (c) are provided in a thorough and professional manner in accordance with relevant professional principles, industry standards and best practice and in accordance with the Safe Work Practices;
      (d) are undertaken and completed with due care and skill, to the best of its knowledge and experience; and
      (e) are undertaken in accordance with applicable laws, regulations, licenses, approvals, permits and standards (including with respect to heavy vehicles, fatigue, modern slavery, safety, chain of responsibility and privacy).
    2. Without limiting clauses 2.1 and 2.3, the Supplier acknowledges and agrees that:

      (a) it will supply the Services expeditiously and without delay;
      (b) it must, at its own cost, supply all labour, tools, equipment and materials necessary for the supply of the Services;
      (c) minimum order requirements will not be applicable;
      (d) the Services will be performed by appropriately qualified and trained officers, employees or agents;
      (e) it will comply with all applicable laws, regulations, licenses, permits, approvals and standards applicable to the Services; and
      (f) it holds, and will maintain for the duration of the Services, and its employees, officers and subcontractors who perform the services will hold and maintain, at its own cost all requisite approvals, licenses and permits required in connection with the Services.
    3. The Supplier must ensure that it has appropriate systems and process in place, and provides adequate training to its officers, employees and agents, to ensure that it complies with its obligations in the Agreement including clauses 2.1 and 2.2.
    4. The Supplier must, within 24 hours of attending the vehicle for the purpose of performing Services, provide at least 2-time, date and geo-location stamped photographs which show the condition of the vehicle which is the subject of the Service upon collection and delivery. The photographs must show the registration plate of the vehicle in at least one photo, the condition of the vehicle including any existing damage to the vehicle (including the condition of glass and mirrors, upholstery, internal and external accessories, fittings and devices and the contents of the glove box, boot and storage compartments and, where applicable, the contents of the caravan or trailer). Such photographic evidence must be held by the Supplier for a period of 3 months after the date of completion of the Services.
  3. Completion
    1. Unless agreed by the parties otherwise, the Supplier must complete the Services by the Required Date.
    2. The Supplier acknowledges that it must, and must ensure that its subcontractors, give RACQ access to their respective premises and vehicles at all reasonable times and on reasonable notice in order to allow RACQ (or its nominee) to conduct audit and assurance activities with respect to the Supplier’s and its subcontractors’ compliance with their respective obligations under or in connection with this Agreement.
  4. Defective Services
    1. If any Services do not comply with any requirements of the Agreement (“Defective”), the Supplier must remedy the Defective Services (to the extent possible).
    2. The rights under clause 4.1 are in addition to any other rights of RACQ under the Agreement, at law or in equity.
    3. The Supplier must do all things to ensure that RACQ has the benefit of any warranties or undertakings given by any third parties in respect of the Services and must give RACQ all documentation relating to such warranties or undertakings. Such third-party warranties and undertakings are in addition to the warranties and undertakings of the Supplier.
    4. The Supplier agrees that RACQ is not liable for any inaccuracy, errors or omission in the information provided by an RACQ member to RACQ, and which is communicated by RACQ to the Supplier, provided that if such incorrect information would result in the Supplier’s costs of performing the Services increasing, the Supplier may notify RACQ prior to commencing the Services and the parties must act reasonably in seeking to agree an increase in the Price for the Services.
  5. Safety
    1. The Supplier acknowledges and agrees that it:

      (a) is responsible for providing safe systems of work, compliant, safe and appropriate plant and equipment (including PPE), competent supervisory personnel and training its personnel in connection with the Services;
      (b) must ensure compliance with any applicable legislation relating to the use of public roads and the Heavy Vehicle National Law Act 2012 (Qld), the Heavy Vehicle National Law (Queensland) or such equivalent in any other jurisdiction in which the Services are performed, the WHS Legislation and any other legislation applicable to the loading/unloading and safe transport of vehicles or the Services;
      (c) must ensure that all loading and unloading activities have primary and secondary controls in place to prevent the uncontrolled release of the motor vehicle;
      (d) must ensure that during transit the motor vehicle is secured with a minimum of 4 tie down points for each vehicle under transport;
      (e) must comply with the requirements of 3rd party providers when loading/unloading vehicles within the 3rd party work site; and
      (f) must, if requested, complete RACQ’s fatigue management undertaking most recently provided by RACQ prior to the commencement of this agreement; and
      (g) must ensure that each of its subcontractor is subject to, and complies with, the obligations in clause 5.1 in connection with the subcontracted Services.
    2. The Supplier warrants that:

      (a) in the three year period before the Commencement Date, the Supplier has not had any matters occur that could give rise to a breach of WHS Legislation by the Supplier, either directly or indirectly arising as part of its business or undertaking in providing any services that are the same as or are similar to the Services, including any:
      (i) investigation by a statutory authority into an accident or dangerous occurrence;
      (ii) prohibition or improvement notices issued by a statutory authority; or
      (iii) prosecutions or convictions for breach of WHS Legislation;
      (b) the Supplier has in place systems for identifying and managing work health and safety hazards and risks arising out of or connected with the delivery of the Services (including systems for receiving and considering information about incidents, hazards and risks and responding to that information in a timely manner), and that those systems will be maintained and applied as part of the provision of the Services;
      (c) the Supplier’s personnel hold the necessary experience and qualifications to perform the Services and the Supplier will provide to RACQ proof as to experience and qualifications held by the Supplier and its personnel as a condition of engagement and on an ongoing basis as required;
      (d) all systems used and products used by the Supplier arising out of or in connection with the performance of the Services must be manufactured and/or tested according to applicable Australian Standards;
      (e) the Supplier must make its own assessments, enquiries and analysis of the correct methods for performing the Services;
      (f) the Supplier must create and maintain records about compliance levels with all work health and safety obligations as contained in WHS Legislation, which are to be provided to RACQ as part of scheduled reviews and otherwise upon request, including after any identification of non-compliance by RACQ, and after any incident; and
      (g) the Supplier must provide contact details for the relevant member of its personnel for safety information to be communicated and to acknowledge receipt and confirm that this information has been disseminated to the Supplier’s personnel engaged to perform work for RACQ.
  6. Variation
    1. The parties may agree to amend, increase, decrease, omit or change the extent of the Services (“Variation”). No Variation will invalidate the Agreement, including a Variation which significantly increases or decreases the quantity of Services to be supplied.
  7. Price
    1. RACQ will, subject to the terms of the Agreement, pay the Supplier the Price specified in the Order unless otherwise agreed between RACQ and the Supplier. Unless otherwise specified in an Order, the Price is fixed and inclusive of all costs relating to the supply of the Services in accordance with the terms of the Agreement, including insurance, transport, delivery charges, taxes, duties or other charges payable.
    2. Where the Price is not specified in an Order or is variable, and the Supplier has failed to substantiate the Price, , the Supplier must provide RACQ with information to allow RACQ (acting reasonably) to substantiate the amount of the invoice.
  8. Invoicing and Payment
    1. The Supplier may invoice RACQ after completion of the Services or as otherwise agreed. All invoices must be addressed to RACQ, sent to the address in the Order and include the applicable Order number, a description of the Services, the Price payable for the Services and any other information reasonably required by RACQ.
    2. RACQ will pay the amount of invoices issued by the Supplier under clause 8.1 within 30 days from the end of the month in which the invoice was issued (or the information required to be supplied in accordance with clause 7.2 was provided), except where RACQ disputes the invoice, in which case RACQ will pay the undisputed part of the invoice (if any) and if the resolution of the dispute determines that RACQ is to pay an amount to the Supplier, RACQ will pay that amount on resolution of the dispute. RACQ will not be responsible for the payment of any amount to the Supplier’s subcontractors. The parties must act in good faith to resolve any such dispute within 30 days.
  9. GST
    1. If a Supply made under or in connection with the Agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:

      (a) the Recipient must pay the Supplier an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under the Agreement for that Supply); and
      (b) the Supplier must give the Recipient a Tax Invoice for the Supply.
    2. If either party has the right under the Agreement to be reimbursed or indemnified by another party for a cost incurred in connection with the Agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member or other similar person entitled to the Input Tax Credit (if any).
    3. Capitalised terms in this clause 9 have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  10. Indemnity
    The Supplier indemnifies RACQ and its officers, employees and agents from and against all liabilities, claims, actions, proceedings, costs, expenses, losses, damages and judgments (including costs and expenses incidental thereto) incurred in connection with loss of real or personal property or personal injury, death or inconvenience to any person whomsoever arising from or in any way connected with any act or omission of the Supplier, any of the Supplier’s subcontractors and any of their respective officers, employees or agents, except to the extent caused or contributed to by the acts or omissions of RACQ or its officers, employees or agents.
  11. Liability
    1. To the extent permitted by law, neither party will be liable to the other party for any indirect or consequential loss or damage, loss of profit, loss of revenue, loss of opportunity or costs of finance, whether or not such liability arises in contract, tort (including negligence), equity or statute, or any other cause of action (or by way of indemnity).
    2. The liability of a party (‘the party at fault’) for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage has been caused by the other party's failure to comply with its obligations and responsibilities under the Agreement and/or to the extent that the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party for breach of contract or for negligence.
    3. Subject to clauses 11.1, 11.2 and 11.4 to the extent permitted by Law, a party’s liability under the Agreement or any individual Order (including, in the case of the Supplier, liability under an indemnity) whether in contract, tort (including negligence), under statute or otherwise in respect of any one occurrence or a series of related occurrences arising from a single cause will be limited to two (2) times the Fees paid by RACQ to the Supplier in the twelve (12) calendar months immediately before the date of the event first giving rise to the liability in respect of services of a similar nature to the Services (including the Price for the Services).
    4. Subject to clauses 11.1 and 11.2, the liability limitations in clause 11.3 do not apply to a party’s liability for:

      (a) personal injury (including sickness and death);
      (b) loss of, or damage to, tangible property;
      (c) fines or penalties imposed by an authority for a failure to comply with a law as a result of the party’s failure to comply with the requirements of the Agreement, and any costs or expenses incurred in dealing with any actions, investigations, inquiries or proceedings by a governmental or regulatory body in respect of such failure or breaches;
      (d) a breach of any obligation of confidentiality, security matter or privacy; or
      (e) any breach of statute or any willfully wrong act or omission by the party, or its subcontractors or their respective officers, employees or agents.
  12. Insurance
    1. The Supplier must effect and maintain, and ensure that its subcontractors effect and maintain, the insurance policies commonly associated with providing the specified services set out below at its own cost and provide RACQ with evidence of such insurances whenever requested by RACQ:

      (a) public liability insurance for an amount not less than $20 million for each and every occurrence, from the date of the Order until completion of the Services;
      (b) comprehensive motor vehicle insurance (including a minimum legal liability limit of $20 million) for vehicles used to provide the Services;
      (c) on-hook, haulage or transit insurance for an amount not less $250,000 respectively for each and every occurrence, from the date of the Order until the completion of the Services provided that any such insurance provides full cover for any vehicle being loaded onto and transported by a vehicle used to provide the Services and includes damage to, misappropriation of and loss of contents and equipment in the vehicle being transported;
      (d) workers’ compensation insurance as required by law; and
      (e) professional indemnity insurance for not less than $10 million from the date of the Order until seven years after completion of the Services.
    2. The Supplier acknowledges and agrees that the Fee payable by RACQ to the Supplier under the Agreement includes an amount in consideration of the Supplier comply with the insurance obligations in this clause 12.
  13. Suspension and Termination
    1. Without limiting its rights at law, RACQ may terminate the Agreement in whole or in part with immediate effect if:
      (a) an Insolvency Event occurs in respect of the Supplier; or
      (b) the Supplier commits a material breach of the Agreement, and the breach is irremediable or (if such breach is remediable) fails to remedy that breach within 5 days after being notified in writing to do so.
    2. If RACQ terminates the Agreement under clause 13.1, the Supplier will be entitled to payment for the Services supplied to the date of termination.
    3. Without limiting its rights at law, the Supplier may terminate the Agreement in whole or in part with immediate effect if:

      (a) an Insolvency Event occurs in respect of RACQ; or
      (b) RACQ commits a material breach of the Agreement, and the breach is irremediable or (if such breach is remediable) fails to remedy that breach within 5 days after being notified in writing to do so.
    4. Termination of this Agreement will be without prejudice to the rights of any party arising prior to the date of termination.
  14. Confidential Information and Privacy
    1. The parties agree to keep confidential, and not to use or disclose, other than with the prior written consent of the of the disclosing party, Confidential Information and immediately notify the disclosing party if the receiving party becomes aware of any unauthorised use or disclosure of Confidential Information.
    2. The receiving party may disclose Confidential Information to its professional advisers and any of its personnel who have a need to know the Confidential Information for the receiving party to be able or as a result of a legal obligation or by order of a stock exchange or government agency, provided that the receiving party must to the extent practicable give the disclosing party prompt notice of the existence of such an obligation and must, at the disclosing party's cost, make a reasonable effort to otherwise protect the confidentiality of such information to perform its obligations under the Agreement, provided that the recipient agrees to keep the Confidential Information confidential.
    3. The Supplier acknowledges that it is aware of and has been provided with the RACQ Privacy Statement available on the RACQ website at: http://www.racq.com.au/privacy.
    4. The Supplier acknowledges that information provided to it by RACQ, including that pertaining to its customers or members, may be Personal Information and as such the Towing Operator agrees to be bound and to abide by the RACQ Privacy Procedures notified prior to this Agreement to the Towing Operator and relevant to any such Personal Information (as if those RACQ Privacy Procedures were the privacy procedures of the Towing Operator).
    5. All intellectual property rights in relation to Personal Information which is collected, collated or held by the Supplier (including such information provided to the Supplier by RACQ) in relation to the Services will belong to RACQ.
    6. The Supplier agrees only to deal with any RACQ Personal Information in accordance with the RACQ Privacy Procedures.
    7. Without limiting the generality of the foregoing, the Supplier agrees as follows:

      (a) the Supplier will take all reasonable steps to ensure that RACQ Personal Information is protected against misuse and loss or from unauthorised access, unauthorised modification, or unauthorised disclosure at least to the level as prescribed in the RACQ Privacy Procedures (and, if otherwise than as established in the RACQ Privacy Procedures, with the prior written approval of RACQ);
      (b) the Supplier will ensure that authorised personnel only will have access to RACQ Personal Information and that personnel will only be authorised for such access on a "need to know basis" where access to such RACQ Personal Information is essential in order for personnel to carry out their duties;
      (c) the Supplier will use RACQ Personal Information held only for the purposes of fulfilling its obligations under these terms (and without limiting the generality of the foregoing, the Supplier will not disclose any RACQ Personal Information for sale or profit or any other benefit). In instances where the Supplier uses such RACQ Personal Information in breach of this clause the Supplier will immediately notify RACQ upon the Supplier becoming aware of such breach;
      (d) the Supplier shall ensure that its Personnel are aware of the Supplier obligations under this clause and the Privacy Principles, Guidelines and the Privacy Act;
      (e) the Supplier may not disclose any RACQ Personal Information other than in accordance with these terms, without the written authority of RACQ. In instances where the Supplier discloses such RACQ Personal Information in breach of this clause the Supplier will immediately notify RACQ upon the Supplier becoming aware of such breach; and
      (f) the Supplier, upon receiving written notice from RACQ, must (as soon as possible and in any event within 3 Business Days) provide RACQ or its agent (duly appointed in writing) access to all RACQ Personal Information that the Supplier holds, including any record or opinion about a RACQ customer generated by the Supplier itself.
      In this clause dealing in relation to RACQ’s Personal Information includes the collection, use, storage, and/or disclosure of RACQ’s Personal Information.
    8. The Supplier must not, and must ensure that its Personnel do not, directly market or advertise to, or attempt to contact or communicate with any customers or members of RACQ introduced to the Supplier in relation for the purposes of performance of the Services other than as permitted by these terms. This clause 14.8 survives termination or expiry of these terms.
    9. Each party must implement and maintain a program for managing actual or suspected unauthorised disclosure or exposure of Personal Information. In the event of a suspected or actual Eligible Data Breach, a party must:

      (a) notify the other party immediately; and
      (b) co-operate with the other party and law enforcement agencies, where applicable, to investigate and resolve the Eligible Data Breach.
    10. In the event of any Eligible Data Breach that gives rise to an obligation to notify the Office of the Australian Information Commissioner or any customer of RACQ of such breach:

      (a) RACQ will be the party responsible for the notification and the Supplier may not, without RACQ’s written consent, notify or otherwise contact the Office of the Australian Information Commissioner or any customer of RACQ in relation to the Eligible Data Breach unless required by law to do so; and
      (b) if required by Law to do so, the Supplier will notify RACQ in advance of making notification to the Office of the Australian Information Commissioner and provide a reasonable opportunity to RACQ to correct any errors of fact or make the notification.
  15. General
    1. The Supplier must comply with all reasonable directions of RACQ related to the supply of Services.
    2. The Supplier performs its obligations as an independent contractor and not as an employee, agent or partner of RACQ.
    3. Where the Supplier comprises more than one person or entity, each of them will be jointly and severally liable for the full performance of the Supplier’s obligations under the Agreement.
    4. Where any provision of the Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in the Agreement.
    5. The Agreement will be governed by and construed in accordance with the laws in force in the State of Queensland.
    6. The failure of a party to require full or partial performance of a provision of the Agreement does not affect the right of that party to require performance subsequently.
    7. No obligation in the Agreement is waived unless it is waived in writing and signed by the parties. A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
    8. The Agreement may not be amended, altered, supplemented or cancelled without the prior written consent of both parties.
    9. The Supplier must not assign or subcontract its rights or obligation under the Agreement without RACQ’s written consent, which (if granted) may be granted with conditions. The Supplier remains responsible and liable for all its obligations under the Agreement regardless of whether it has engaged a subcontractor to perform the Services.
    10. The Agreement is not to be interpreted against the interests of RACQ merely because it proposed the Agreement or some provision in it or because it relies on a provision of the Agreement.
    11. The Supplier must comply with its obligations under the Modern Slavery Act including taking actions in accordance with its own compliant policies, procedures, systems and frameworks to identify and address the risks of modern slavery in its operations and supply chains.
    12. The Supplier will ensure its responses to RACQ’s Modern Slavery due diligence questionnaire and other enquiries are complete, accurate and provided in a timely manner.
    13. The Supplier will notify RACQ in writing as soon as reasonably practicable after it becomes aware of, or has a reasonable basis for suspecting:

      (a) instances of Modern Slavery in its operations or supply chain related to the provision of the Services; and
      (b) other instances of Modern Slavery in its operations and supply chain that may have a material and adverse impact on the RACQ; and
      (c) where such instances of Modern Slavery are related to the provision of the Services, within such reasonable timeframes as are agreed with RACQ, undertake, at its own cost, remediation actions to address those instances of Modern Slavery and provide regular status updates to RACQ on the progress of such remediation actions. Any remediation action related to the provision of the Services must address Modern Slavery occurrences to the reasonable satisfaction of RACQ.
    14. The Supplier must provide all reasonable assistance (including the provision of information and access to documents) that RACQ reasonably requires to enable it to comply with its obligations under the Modern Slavery Act.
    15. The notification obligations in this clause are continuing obligations, separate and independent from the other obligations of the Supplier and survive the termination of these terms.
    16. The Supplier must, in relation to the supply of any Services on RACQ’s request, provide written reports to RACQ in relation to:

      (a) the Supplier’s compliance with applicable requirements at Law or under these terms ;
      (b) any risk management systems implemented by the Supplier that are relevant to the supply of the Services;
      (d) any reporting of information required by RACQ under Law; and
      (e) any other matter reasonably required by RACQ.
      in a form reasonably required by RACQ.
    17. Each party agrees to not engage in conduct that (in the reasonable opinion of the other party) is prejudicial to the interests or operations of the other party.
  16. Interpretation
    1. In the Agreement unless the contrary intention appears:
      “Agreement” has the meaning given in clause 1.1.
      “Confidential Information” means any information relating to the business and affairs of the disclosing party, whether provided to or obtained by the receiving party prior to a contract being formed between RACQ and the Supplier, including any provision of the Agreement and information about the disclosing party’s customers and personnel, but excludes information in the public domain (other than due to breach of the Agreement) or information rightfully in the possession of the receiving party and not subject to an obligation of confidentiality at the time it was obtained by the receiving party.
      "Eligible Data Breach” has the meaning set out in section 26WE of the Privacy Act 1988 (Cth).
      “Insolvency Event” means any of the following events occurring in relation to a party:
      (a) a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth)), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the party;
      (b) the party is, or becomes unable to, pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth), or is presumed to be insolvent under the Corporations Act 2001 (Cth);
      (c) an application or order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party;
      (d) execution is levied against the party by a creditor; or
      (e) any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
      “Modern Slavery” has the meaning given to it in the Modern Slavery Act.
      “Modern Slavery Act” means the Modern Slavery Act 2018 (Cth).
      “Order” the order to which these terms and conditions are attached, which identify, among other things the Supplier, the Price, the Services (including the pick up and drop off details) and the Required Date accepted by the Supplier.
      "Personal Information” has the meaning set out in the Privacy Act 1988 (Cth).
      “RACQ” means RACQ Operations Pty Ltd ABN 80 009 663 414.
      “Required Date” means the drop off date and time specified in the Order.
      "Safe Work Practices” means the safe work practices notified to the Supplier by RACQ prior to the date of this Agreement.
      “Services” means the services described in the Order.
      “Supplier” has the meaning specified in the Order and includes, where appropriate, its subcontractors and employees.
      “WHS Legislation” means the Work Health and Safety Act 2011 (Qld) and any related work health and safety legislation or such equivalent in any other jurisdiction in which the Services are performed.
      Other capitalised terms in the Agreement have the meanings set out in the Order or the relevant clause.
    2. In the Agreement:

      (a) a reference to a party includes the party’s successors, permitted substitutes and permitted assigns;
      (b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
      (c) a reference to a document or agreement (including a reference to these Terms and Conditions) is to that document or agreement as amended, supplemented, varied or replaced;
      (d) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
      (e) if any day on or by which a person must do something under these Terms and Conditions is not a business day, then the person must do it on or by the next business day;
      (f) a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity; and
      (g) the words “include”, “includes” or “including” must be read as if they are followed by the words “without limitation”.