Terms and Conditions: InterCentral Logistics

  1. DEFINITIONS:

In these terms and conditions capitalised terms mean the following:

  1. Additional Services means if applicable, the services the Company will provide to the Customer as specified in an Order;
  2. Agreement has the meaning given to it in clause 3;
  3. Business Day means a day which is not a Saturday, Sunday, a public holiday or a bank holiday in the place where the Services are undertaken;
  4. Claim means all actions, suits, applications, causes of actions, complaints, allegations, losses or liabilities of any nature or description, claims, counterclaims, demands, damages, debts, arbitrations, obligations, costs, determinations, verdicts and judgments, whether arising in contract or tort, at common law or in equity or under any law or legislation; or otherwise present, current, future, prospective, anticipated, threatened, potential, foreseen or unforeseen, direct or indirect, actual or contingent, or liquidated, unliquidated or otherwise wherever arising out of or in connection with the matters in the Agreement;
  5. Company means InterCentral Logistics Pty Ltd (ICL);
  6. Commencement Date means the date of commencement of the Services as specified in the Service Level Agreement or as otherwise agreed by the Parties in writing;
  7. Confidential Information means:
    1. all information (whether oral, graphic, written, electronic or in any other form) of or used by the Disclosing Party relating to their assets, business, affairs transactions, operations and affairs;
    2. all other information treated by a Disclosing Party as confidential;
    3. matters not generally known outside the Disclosing Party including “know-how”, technical information, strategies, plans and projects;

 

    1. the existence of this Agreement and its terms; and
    2. all notes, data, reports and other records (whether or not in tangible form) based on, incorporating or derived from information referred to in the above paragraphs of this definition;
    3. all copies (whether or not in tangible form) of the information, notes, reports and records referred to in the above paragraphs of this definition,

that is not public knowledge (otherwise than as a result of a breach of a confidentiality obligation of a party)

  1. Customer means the person who signs the Service Level Agreement and for whom any of the Services and Additional Services are performed;
  2. Dangerous Goods means any Goods classified under various categories, including explosives, flammable liquids, toxic substances, and corrosives which are to be handled, stored, and transported in accordance with the terms of this Agreement and any regulations and guidelines relating to Dangerous Goods including but not limited to the Australian Code for the Transport of Dangerous Goods by Road and Rail (ADG Code);
  3. Delivery Address means the address specified in the Service Level Agreement where the Goods are to be delivered or any other address agreed by the parties in writing;
  4. Disclosing Party means a party who discloses any Confidential Information to the other party including any disclosure made through the Disclosing Party’s officers, employees, legal representatives, accountants, auditors or any other agents;
  5. Fees means the Company’s fees for the Services as specified in the Service Level Agreement and any other additional costs reasonably incurred by the Company in connection with the provision of the Services or Additional Services, and as varied by clause 12(c);
  6. Force Majeure Event means any circumstance beyond the reasonable control of the affected party, including:

 

 

    1. any act of God or act of nature, fire, flood, storm, explosion, sabotage, riot, act of war (whether declared or not), requirement or restriction of governmental authorities; or
    2. any industry wide strikes, lockouts, work stoppages or other industry wide industrial disputes,

but excluding an event arising out of any act or omission of either party’s employees, agents or Subcontractors or their employees or agents;

  1. Goods means the chattels, articles or items for which the Services and/or Additional Services by the Company directly apply;
  2. Government Authority means any government body, authority, agency or department which exercises jurisdiction in any nation, state, port or airport at which the Services and Additional Services are provided;
  3. Law means any applicable law including legislation, ordinances, regulations, by-laws and other subordinate legislation;
  4. Loss means any damage, demand, action, proceeding, expense, cost or liability of any kind and includes any indirect, consequential or incidental loss or damages;
  5. Order means any subsequent agreement between the Customer and Company for Additional Services;
  6. Parties means the Company and Customer;
  7. Perishable Goods means Goods that will (either in fact or by Law) deteriorate in quality and/or value and includes but is not limited to, fruits, vegetables, dairy products and meat;
  8. PPSA means the Personal Property Securities Act 2009 (Cth);
  9. Receiving Party means a party who directly or indirectly receives any Confidential Information from a Disclosing Party;
  10. Renewal Term means if specified in the Service Level Agreement , the duration for which the Term of the Warehousing may be extended in accordance with clause 9(k);

 

  1. Security Interest has the same meaning given to it under the PPSA;
  2. Service Level Agreement means the document provided and executed by the Customer which sets out the Term, Fees, nature of the Goods and other particulars of the Services to be provided to the Customer;
  3. Services means the Services the Company will provide to the Customer as they have been specified in the Service Level Agreement;

(aa) Subcontractor means any third party and includes their employees, agents and contractors whom are engaged by the Company to provide all or part of the Services and/or Additional Services;

(bb)  Supplier means any third party who sells or provides the Goods to the Customer;

(cc)  Term means, if any is specified in the Service Level Agreement, the period that the Company will provide Warehousing to the Customer and where applicable includes any Renewal Term exercised in accordance with the Agreement;

(dd) Termination Date means the earlier of the date that the Services and Additional Services are taken to be complete in accordance with the Agreement or when the Agreement is terminated in accordance with clause 20;

(ee)  Valuables means Goods requiring a high-standard of handling and level of security, including but not limited to gold, banknotes, jewellery and artwork;

(ff) Warehouse means the premises specified in the Service Level Agreement where the Goods will be stored in accordance with clause 9; and

(gg) Warehousing means the service of storing the Goods at the Warehouse.

  1. INTERPRETATION

In this Agreement, unless the context requires otherwise:

  1. words denoting the singular number shall include the plural and vice versa;

 

  1. words importing persons shall include corporations and other entities recognised by Law and where a person is referred to as the trustee of any Trust or Settlement the reference is to that person in his capacity as such;
  2. headings are for convenience only and shall not affect interpretation;
  3. references to clauses are references to clauses of this Agreement and references to sub clauses are references to sub clauses of this Agreement;
  4. references to this Agreement shall be deemed to include references to this Agreement as amended novated supplemented varied or replaced from time to time;
  5. references to any Party to this Agreement shall include its transferees, successors or permitted assigns;
  6. words denoting any gender shall include all genders;
  7. each Schedule (if any) to this Agreement is hereby incorporated into this Agreement, provided that if there is any inconsistency between any such Schedule and the provisions of this Agreement, the provisions of this Agreement shall prevail;
  8. reference to “$” and “dollars” are to Australian currency;
  9. it is the intention of the Parties that this Agreement shall take effect as an agreement;
  10. a reference to an Act of Parliament, ordinance, code or other Law includes regulations and other statutory instruments under it and shall include any amendment, consolidation, modification or re-enactment thereof or any replacement legislation;
  11. a reference to a Party binds if a corporation it’s Parties, liquidators, controllers, receivers, managers and administrators; and if an individual their executors, administrators, trustees and beneficiaries;
  12. no provision of this Agreement will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of this Agreement or that provision; and
  13. where a word or phrase is defined any other part of speech or other grammatical form of that word or phrase has a corresponding meaning if commencing with a capital letter.

 

  1. THE AGREEMENT
  1. The Parties shall execute a Service Level Agreement which shall set out the Parties and the commercial terms.
  2. If Company agrees to provide the Customer with Additional Services, an Order must be placed by the Customer (which can be via email, messaging or any form of written communication accepted by the Company).
  3. These terms in combination with the Service Level Agreement and Order (where applicable), set out the entire agreement between the Company and the Customer in relation to the supply or delivery by the Company of the Services and Additional Services (‘Agreement’). Any terms or conditions contained in any other document issued by the Customer or correspondence or documents passing between Company and the Customer:
    1. have no effect, and will not affect the Agreement between Company and the Customer; and
    2. does not constitute an offer or a counter-offer by the Customer.
  4. The Parties agree that notwithstanding anything else in these terms, that in the event that anything set out in the Service Level Agreement or Order contradicts these terms, the Service Level Agreement and Order shall prevail and these terms shall be read down to the minimum extent necessary to enforce the content set out in the Service Level Agreement and Order.
  5. By accepting or agreeing to the Service Level Agreement or placing an Order or receiving the Services, the Customer is deemed to have accepted these terms and to have agreed that they apply to the exclusion of all others.
  6. For the avoidance of any doubt;
    1. theService Level Agreement will prevail over any subsequent Order unless the Order expressly indicates that the Order is to prevail; and
    2. each Order is to be treated separately by the Company and constitutes two (or more) separate and distinct agreements.

 

  1. THE SERVICES AND ADDITIONAL SERVICES
  1. In connection with the provision of the Services and any Additional Services, the Company agrees to;
    1. in accordance with the terms of the Agreement using reasonable skill and care;
    2. furnish at its own expense sufficient personnel, equipment and other accessories necessary to perform efficiently and safely the Services and Additional Services;
    3. act in an ethical and socially responsible manner and adopt behaviours that are reasonably expected of companies of a similar size and nature to the Company; and
    4. ensure that all statements made by the Company, including notices, reports and other communications, accurately reflect the actual activities and transactions between the Company and the Customer.
  2. The Customer acknowledges and agrees that any times or dates for completion, delivery, carriage or provision of the Services and Additional Services are estimates only and are subject to change.
  3. The Customer authorises the Company to;
    1. carry out the Services and Additional Services using methods chosen by the Company in its complete, unfettered discretion; and
    2. deviate from any standard or commonly used methods for the Services and Additional Services which is deemed in the discretion of the Company reasonable or necessary in the circumstances.
  4. The Company will use reasonable endeavours to meet the Key Performance Indicators (KPI’s) set out in the Service Level Agreement, subject to any Force Majeure event occurring or otherwise any event out of the reasonable control of the Company.
  5. Any proposal by either the Company or the Customer to vary the Services must be agreed in writing and any agreement to undertake Additional Services must be agreed in an Order.

 

  1. The Parties agree that the Company has complete, unfettered discretion to reject any variation to the Services or reject any Order proposed by the Customer.
  2. The Company reserves the right to refuse or reject any request for Services and/or Additional Services at its complete, unfettered discretion.
  1. NON-EXCLUSIVITY

Nothing in this Agreement;

  1. confers on the Company any exclusive rights or prohibits the Customer from sourcing the Services or Additional Services (or services equivalent or similar to the Services or Additional Services) from any alternative supplier of the Services or Additional Services; or
  2. obliges the Customer to engage the Company for any, or any particular quantity of the Services or Additional Services.
  1. TRANSPORT AND DELIVERY OF THE GOODS
  1. The Customer must notify the Company in writing prior to delivery of the Goods whether the Goods must be signed for by the Customer or a representative of the Customer or whether the Goods can be left at the Delivery Address without obtaining a signature.
  2. Subject to sub-clause (c), the Company’s delivery obligations under this Agreement will be deemed complete when the Company leaves the Goods at the Delivery Address in the manner required by sub-clause (c).
  3. If a person at the Delivery Address cannot or refuses to accept the delivery of the Goods, the Customer authorises the Company to deal with the Goods in its unfettered discretion, including but not limited to any alternative Warehousing, disposal or returning of the Goods to the Supplier.

 

  1. PALLET PACKAGING
  1. It is the sole responsibility of the Customer to ensure that the containers, packaging and pallets on which the Goods are placed conform to any transport and packaging requirements by Law.
  2. The Customer agrees to bear all and any costs incurred by the Company if the Customer is unable to comply with any transport and packaging requirements by Law in respect of any containers, packaging and pallets associated with the Goods.
  1. DEALING WITH THE GOODS
  1. The Customer acknowledges and agrees to specify in the Service Level Agreement or Order (as applicable) whether the Goods are Dangerous Goods, Perishable Goods and/or Valuables and the Company may in its unfettered discretion expressly agree in writing to provide the Services or Additional Services in respect of such Goods.
  2. The Customer authorises the Company to, at any time, in its unfettered discretion;
    1. open any pallet or package containing the Goods in circumstances where it is reasonably necessary for the Company to perform the Services or Additional Services;
    2. determine in the Company’s reasonable opinion that any Goods in its possession are Dangerous Goods, Perishable Goods or Valuables; and
    3. if deemed Dangerous Goods, Perishable Goods or Valuables by the Company, provide immediate written notice to the Customer and if the Customer does not respond to the notice in writing within two (2) Business Days, deal with or destroy such Goods as the Company sees necessary without notice or compensation to the Customer.
  1. WAREHOUSING
  1. If the Services or Additional Services include the Warehousing of the Goods, the Warehousing will commence on the Commencement Date and will continue until the Termination Date.
  2. The Customer acknowledges that;

 

 

    1. the Company has unfettered discretion to refuse Warehousing of the Goods; and
    2. subject to any Law, the Goods are Warehoused at the Customer’s sole risk and the Company will not be responsible for any Loss, damage or deterioration of the Goods unless otherwise expressly agreed by the Parties in writing.
  1. Without limiting sub-clause (a), the Company may, upon providing written notice to the Customer, takes steps it considers are reasonably necessary to protect the Goods, including but not limited to relocating all or part of any of the Goods to another premises.
  2. In addition to sub-clause (c), upon taking control or possession of the Goods, the Company may inspect the Goods for apparent damage. Any pallets which in the discretion of the Company, are broken, water damaged, punctured crushed or otherwise imperfect shall not be accepted by the Company for Warehousing and the Company may advise the Customer of the nature of the problem and set the damaged pallets or Goods aside for further, examination and reasonable instructions from the Customer in respect of dealing with such Goods.
  3. If the Customer fails to provide reasonable instructions to the Company within seven (7) Business Days in accordance with clause 9(d), the Company may deal with the Goods in accordance with 9(j) or otherwise continue charging the Customer Fees for the Warehousing of such Goods.
  4. The Company agrees to maintain records and inventories of the Goods, enter data in electronic systems in connection with the Warehousing and provide such data to the Client upon reasonable written request.
  5. The Customer will be liable for all additional Warehousing Fees which are connected to any delay, non-delivery, damage to or failure to collect the Goods.
  6. The Customer must provide at least 48 hours written notice to the Company if the Customer wishes to have the Goods delivered to or from the Warehouse. The Customer acknowledges and agrees that the Company operates the Warehouse during 7:00am to 4:00pm on Business Days and has complete, unfettered discretion in arranging a suitable time to have the Goods delivered or set out for delivery.
  7. Notwithstanding clause 9(h), the Company may, upon written request of the Customer, agree to have the Goods delivered to or from the

 

Warehouse out of normal working hours, including weekends, at an additional Fee to the Customer.

  1. On or before the Termination Date, the Company may in its discretion, without reason and upon giving reasonable notice to the Customer in writing, request that the Customer remove the Goods from the Warehouse. If the Customer fails to do so, the Customer acknowledges and agrees that the Company may sell or dispose of any Goods after a second notice has been given to the Customer by the Company.
  2. If the Service Level Agreement specifies a Renewal Term for the Warehousing, the Company and Customer may agree in writing at least three (3) months prior to the Termination Date to extend the Agreement for the Renewal Term on terms agreed by the Parties in writing.
  3. If the Parties do not comply with sub clause (k), the Agreement will terminate on the Termination Date unless as otherwise agreed by the Parties in writing.

 

  1. COMPLETION OF THE SERVICES

The Services and/or Additional Services will be taken to completed when;

  1. the Goods are delivered;
  2. if the Services or Additional Services being provided include Warehousing, at the end of the Term or Renewed Term; or
  3. on termination under clause 20,

unless the Customer notified the Company within 72 hours that the Services or Additional Services have not been completed in accordance with the Agreement.

  1. BANKRUPTCY OF CUSTOMER:

If the Customer becomes insolvent, placed under external administration or bankrupt the Customer must provide immediate written notice to the Company. The Customer acknowledges and agrees that the Company is authorised to return the Goods to the Supplier without notice to or consent from the Customer.

 

  1. QUOTATION AND PAYMENT OF FEES
  1. Any quotation of Fees provided by the Company to the Customer will be valid for a period of 30 days from the date it is given and will expire thereafter.
  2. Any quotation is taken to be accepted from the date that the Customer signs the Service Level Agreement or otherwise through the commencement of the Services or Additional Services.
  3. The Customer acknowledges and agrees that;
    1. the Fees may change due to variations in freight, insurance, fuel charges and any other charges in connection with the Services and Additional Services that were not reasonably foreseeable by the Company at the time the quotation of Fees was given to the Customer;
    2. the Company may notify the Customer of any variations to the Fees in writing within seven (7) Business Days of becoming aware of the variation; and
    3. the Fees will be reviewed annually on 1st July, and will be subject to a price increase being the lesser of 5% per annum or the Annual CPI inflation published by ABS.GOV,AU
  4. As consideration for the Company providing the Services and Additional Services, the Customer must pay the Company the Fees and any other amounts due and payable under this Agreement within 30 days of receiving a valid tax invoice from the Company or as set out in the Service Level Agreement.
  5. The Fees are exclusive of GST. The Customer is responsible for the payment of GST in connection with the Fees and any other monies payable to the Company under this Agreement.
  6. If the Customer fails to pay the Fees and any other amounts owing in accordance with clause 12(d), the Company has complete, unfettered discretion to suspend the Customer’s account and pause any Services and Additional Services which were to be provided to the Customer or otherwise deal with the Warehoused Goods in accordance with clause 9(j).
  7. If the Customer disputes the whole or part of an invoiced amount, the Customer may only withhold payment of the specific amount in dispute

 

until the dispute is resolved, provided that the Customer has given written notice of the dispute to the Company within five (5) Business Days of receiving the invoice with reasonable supporting details.

  1. The Customer will not be liable to pay interest on any overdue amount if the amount is reasonably disputed in accordance with clause 12(g). Interest will otherwise be charged and payable on any amounts not paid within 7 Business Days of the due date calculated at the commercial overdraft rate charged by the Company’s bank plus 1%.
  2. At the Customer’s request, the Company will supply the Customer with copies of any documents relating to and evidencing the Fees or any other expenses incurred by the Company in providing the Services and Additional Services which have been invoiced to the Customer.
  1.   LIEN
  1. The Customer acknowledges and agrees that the Company has;
    1. a particular and general lien on all Goods (“the Lien”) as security for all Fees and other payments (if any) due and payable by the Customer to the Company under the Agreement; and
    2. the right exercise the Lien without notice to the Customer and to sell the Goods by either auction or private sale (at the Company’s unfettered discretion) and use the proceeds of sale to cover any Fees owed by the Customer to the Company and refund any balance of the proceeds to the Customer (if any is remaining).
  2. The Lien will also cover any costs incurred by the Company arising from the exercise of the Lien, the auction or private sale of the Goods and the Company’s legal fees.
  3. The Company’s rights arising out of the Lien will survive the delivery of the Goods.
  1. PERSONAL PROPERTIES SECURITY
  1. The terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA.

 

  1. The Customer and Company acknowledge and agree that;
    1. this Agreement constitutes a security agreement for the purposes of the PPSA;
    2. once the Goods are in the Company’s physical possession, the Company holds a continuing Security Interest in its favour for the Customer’s performance of its obligations under this Agreement;
    3. the Company has a right to register the Company’s Security Interest under the Agreement in accordance with the PPSA; and
    4. the Customer will not grant any other Security Interest to any other person in respect of the Goods.
  2. The Customer acknowledges and agrees that the Company is not obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
  3. The Customer consents to the waiver of the requirement for notice under this clause and waives any rights it has to receive a notice under sections 95, 118, 121(4), 130 and 157 of the PPSA.
  4. To the extent that chapter 4 of the PPSA would otherwise apply to enforcement by the Company of any Security Interest in the Goods, the Parties agree that:
    1. to the extent permitted by section 115(1) of the PPSA, the Company need not comply with sections 95, 118. 121(4),125

and 130;

    1. sections 142 and 143 of the PPSA are excluded; and
    2. to the extent permitted by section 115(7) of the PPSA, the Company need not comply with sections 132 and 137.
  2. The Customer consents to the waiver of the requirement for notice under any other provision of the PPSA that the Company may notify to the Customer after the date of the Agreement and waives any rights it has to receive that notice.

 

  1. SUB CONTRACTORS

The Customer acknowledges and agrees that;

  1. the Company may subcontract all or part of the Services and/or Additional Services to a Subcontractor, agent of the Company or a third party service provider;
  2. any Subcontractor, agent or third party service provider engaged to provide the Services and/or Additional Services will be entitled to the same rights as the Company under this Agreement;
  3. all exclusions and limitations of liability of the Company under clause 17 extends to any Subcontractor, agent of the Company or third party service provider engaged to provide the Services and/or Additional Services;
  4. it will have no right to bring a claim against any Subcontractor or third party service provider under this Agreement; and
  5. it is responsible for making payment of all Fees paid by the Company to any engaged Subcontractor, agent or third party service provider and the Company may exercise the Lien in accordance with clause 13 if the Customer fails to make payment of such Fees
  1. CONFIDENTIAL INFORMATION
  1. All Confidential Information shall be kept confidential and not made available by the Receiving Party or its representatives to any party except as expressly permitted by this Agreement or in the course of the performance of this Agreement, without the prior written consent of the Disclosing Party.
  2. This clause shall not apply to any disclosure:
    1. that is required by law;
    2. required to be made by any applicable stock exchange listing rules;

 

    1. made in good faith (on a need to know basis) to officers, employees, legal and other advisors or auditors of a party under a duty of confidentiality;
    2. required by this Agreement or necessary for or incidental to the performance of the obligations and duties contained in this Agreement;
    3. where information is already public knowledge (otherwise than as a result of a breach of a confidentiality obligation of a party); or
    4. that is made with the prior written explicit consent of the Disclosing Party.
  1. If either party becomes aware of a breach of this clause, including a breach by its employees, directors, agents or representatives with respect to the other party’s Confidential Information, the party must:
    1. give notice to the other party as soon as it becomes aware of the breach; and
    2. promptly provide the other party with any information or assistance which it may reasonably request in order to minimise the loss or damage the party may suffer as a result of the breach.
  2. To the extent not prohibited by law, each party must destroy or return all Confidential Information disclosed to it by any other party (including any Confidential Information which it disclosed to any other person) within ten (10) Business Days of a written request to do so by the other party.
  3. This clause 16 continues to apply for a period of two (2) years from the later of the date of termination or completion of the Services or Additional Services.
  1. LIABILITY AND INDEMNITY
  1. The Company is not a common carrier and accepts no liability or responsibility as such.
  2. Notwithstanding clause 17(c), the Customer indemnifies the Company, its directors, officers and employees against all liability, Loss, Claims, damages, costs and expenses arising from;

 

    1. a breach of any provisions of the Agreement by the Customer, including the warranties under clause 18;
    2. the Company acting in accordance with any instructions from the Customer;
    3. any act or omission of any carrier, Subcontractor or other third party engaged by the Company to carry out the some or all of the Services;
    4. the Services; or
    5. the Additional Services.
  1. The Company indemnifies the Customer for any Loss, Claims, damages, costs and expenses arising from the Company’s fraud or negligence in carrying out the Services and/or Additional Services. The Customer acknowledges and agrees to act reasonably to mitigate the Loss it suffers or incurs, and this indemnity will not apply to the extent any Loss was caused or contributed to by the Customer. The Customer agrees to provide reasonable written substantiation of the indemnified Loss suffered or incurred. This clause applies notwithstanding anything in the trading terms of the Customer which might otherwise purport to exclude or limit such liability.
  2. The Customer indemnifies the Company from and against all and any duty, GST or any other fees and taxes incurred in connection with the Services, Additional Services and Goods and must pay on demand the amount payable to the relevant Government Authority.
  3. Notwithstanding this clause 17, the Company continues to be subject to any implied warranty under the Competition and Consumer Act 2010 (Cth) (“the Act”) and any other warranties, terms and consumer guarantees implied by Law to the extent the Act is applicable to the Agreement.
  1. CUSTOMER WARRANTIES

The Customer warrants to the Company that;

  1. it is either the owner of the Goods or the authorised agent of the owner of the Goods and has the capacity to enter into the Agreement;

 

 

  1. the Goods are free from any encumbrance, charge, lien or registered security (other than those given under the Agreement);
  2. all information provided to the Company by the Customer is accurate and complete, including but not limited to the nature, description, weight, measurements, quantity, value and condition of the Goods;
  3. it has complied with all applicable Laws and regulations (inclusive of the Australian code for Transport of Dangerous Goods by Road and Rail and Civil Aviation Regulations and the International Maritime Dangerous Goods Code) including in connection with the packaging, labeling, classification, notification and transportation of the Goods;
  4. it has taken out adequate insurance coverage over the Goods;
  5. it will not procure the Company to breach any Law in performing the Services and Additional Services;
  6. it will provide the Company with all assistance, information and documentation reasonably necessary to enable the Company to carry out the Services and Additional Services;
  7. it has an ongoing obligation to provide any information or changes to the Customer’s circumstances which may materially affect the Company’s obligation to provide the Services and Additional Services, including but not limited to any change to the Delivery Address;
  8. all applicable duties, taxes or costs in connection with the Goods that are due and payable have been fully paid by the Customer or a representative of the Customer;
  9. the Goods are not Dangerous Goods, Perishable Goods or Valuables, unless it has been expressly agreed in writing by the Company to provide the Services or Additional Services in respect of such Goods, and in any event, the Customer has fully disclosed to the Company such Goods which are distinctly marked; and
  10. it will not make any Claim or allegation against the Company, a Subcontractor, third party provider or agent of the Company in respect of the Goods, Services and/or Additional Services.
  1. COMPANY WARRANTIES

The Company warrants to the Customer that;

 

  1. it has complied with all applicable laws and Regulations in carrying out the Services and Additional Services;
  2. to the extent reasonably possible and subject to clause 4(b), the Services and Additional Services will be provided in a prompt and timely manner;
  3. the Company will procure and maintain all licenses, permits and authorisations necessary for the supply of the Services and Additional Services;
  4. in providing the Services and Additional Services, the Company will comply with, and not do anything which would directly cause the Customer to contravene, any applicable laws; and
  5. the Company will use reasonable endeavours to co-operate with any of Customer’s other third party service providers as reasonably necessary in connection with the Services and Additional Services.
  1. TERMINATION
  1. Either party may terminate this Agreement immediately on giving written notice in accordance with this Agreement if the other party;
    1. commits any serious or repeated breach of this Agreement and fails to remedy the breach within 30 days of being requested in writing to do so by the non-defaulting party;
    2. has an administrator, receiver, receiver and manager, controller or liquidator appointed;
    3. is unable to pay its debts in the ordinary course of business or enters into liquidation or becomes bankrupt or insolvent, or is placed in the control of a receiver or trustee, whether compulsorily or voluntarily, or any similar such event; or
    4. commits an act of bankruptcy within the meaning of the

Bankruptcy Act 1966 (Cth).

  1. The Customer may terminate this Agreement immediately if the Company fails to meet the same KPI on three (3) or more occasions during any twelve (12) month period.

 

  1. In addition to clause 12(a), the Company may terminate the Agreement if the Customer fails to pay any outstanding Fees within fourteen (14) days of being given notice by the Company that such Fees were outstanding.
  2. Either party may terminate this Agreement at any time by giving 120

days’ written notice to the other party.

  1. In the event that neither of clauses 20(a), (b) (c) and (d) apply, the Agreement is otherwise terminated upon completion of the later of the Services or Additional Services in accordance with clause 10.
  1. On termination of this Agreement, the Company may:
    1. cease performing the Services and Additional Services;

(ii) act in accordance with clauses 8(b)(iii) and 9(j); and/or

(iii) subject to the Customer’s payment of any outstanding Fees, return all Goods and other property belonging to the Customer in the Company’s possession or control, in accordance with the Customer’s reasonable directions and at the sole cost of the Customer.

  1. On termination of this Agreement, the Customer will pay to the Company all removal costs and the costs of all Services and Additional Services properly performed under the relevant instructions to the date of termination and any reasonable additional expenses incurred where the Company has financial commitments that cannot be reasonably avoided.
  2. Any provisions of the Agreement that are intended to operate after termination will continue to apply to the parties, including but not limited to the obligation of the Customer to make payment of any Fees.
  1. CLAIMS AND INSURANCE
  1. The Customer acknowledges and agrees that the Company will not be liable to arrange insurance in respect of the Goods and Services for the Customer.
  2. Notwithstanding sub-clause (a), the Company will;

 

    1. maintain all required statutory insurances as required by Law; and
    2. take out the insurance set out in the Service Level Agreement.
  1. If the Customer is not satisfied with the delivery of the Services or Additional Services by the Company, the Customer must lodge a notice of Claim with the Company within seven (7) Business Days of the date of completion of the Services or Additional Services, delivery of the Goods, non-delivery or any other circumstances giving rise to such Claim.
  2. If the Customer does not give notice in accordance with sub-clause (c), satisfactory delivery of the Services and Additional Services by the Company will be deemed to have occurred.
  1.   FORCE MAJEURE

Neither party will be liable for any Loss and damage resulting from its failure or delay in performing its obligations under the Agreement to the extent that such failure or delay arises from a Force Majeure Event beyond the reasonable control of the party affected provided that the affected party:

  1. promptly gives written notice to the other describing the Force Majeure Event and how performance of its obligations have been prevented or delayed;
  2. uses its best endeavours to restore its ability to perform its obligations; and
  3. investigates the effects of the Force Majeure Event and continues to perform such obligations as are not affected by the Force Majeure Event.
  1. GENERAL
    1. Nature of Obligations
      1. Any provision in the Agreement which binds more than one person binds all those persons jointly and each of them individually.

 

      1. Each obligation imposed on a Party by the Agreement in favour of another is a separate obligation.
    1. Entire Understanding
      1. The Agreement contains the entire understanding between the Parties concerning the subject matter of the Agreement and supersedes all prior communications between the Parties.
      2. Each Party acknowledges that, except as expressly stated in the Agreement, that Party has not relied on any representations, warranty or undertaking of any kind made by or on behalf of the other Party in relation to the subject matter of the Agreement.
    2. No Waiver

A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by the Agreement does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under the Agreement. A waiver of a breach does not operate as a waiver of any other breach.

    1. Successors and Assigns
      1. The Agreement binds and benefits the Parties and their respective successors and permitted assigns.
      2. Electronic Signing Pursuant to the Electronic Transactions (Victoria) Act 2000 (Vic), this Agreement may be wholly or partly electronically executed and if applicable, remote witnessed by audio visual link, and each person signing this document, including the signatory and its witness, may sign a separate counterpart of this document.
    2. Counterparts

If the Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same document.

    1. Non Merger

A term or condition of, or act done in connection with, the Agreement does not operate as a merger of any of the rights or remedies of the Parties under the Agreement and those rights and remedies continue unchanged. Each term

 

of this Agreement that has not been carried into effect at the termination of the Agreement survives the termination.

    1. Governing Law and Jurisdiction

The Agreement is governed by and must be construed in accordance with the Laws of the State of Victoria. The Parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters or things arising out of this Agreement.

    1. Remedies Cumulative

The rights, powers or remedies provided for in the Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by Law or in equity independently of the Agreement.

    1. Invalidity and Severability

If any provision of the Agreement offends any Law applicable to it and is as a consequence illegal, invalid or unenforceable then:

      1. where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
      2. in any other case the offending provision must be severed from the Agreement in which event the remaining provisions of it operate as if the severed provision had not been included.
    1. Further Assurances

Subject to the Agreement, each Party will promptly perform all such further acts and execute and deliver all such further agreements, documents and instruments as shall be necessary to give effect to the terms of the Agreement.