AGREED TERMS AND CONDITIONS OF SALES AND SUPPLY
1 DEFINITIONS AND INTERPRETATION
1.1 (Definitions): Unless the context requires otherwise:
Airfreight Convention means either:
(a) the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28 May 1999; or
(b) the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw on 12 October 1929; either unamended or amended by the Hague Protocol 1955; at Guatemala City 1971, by the additional Protocol No 3 of Montreal 1975 and/or by the additional Protocol No. 4 of Montreal 1975,
whichever may be applicable.
Application means the ‘credit application form’ completed and submitted by the Client to the Service Provider.
Client means person or entity noted in the Application.
Carriage means the carriage, storage, warehousing, packaging, handling, packing, unpacking, consolidation, despatch, loading or unloading of any Goods or any Container or both, and includes any other service provided by the Company as forwarding, transport, customs or shipping agent of the Client, and any services ancillary to or connected with any of the above.
Confidential Information means the Order, any payment information provided by the Client to the Service Provider and the Product (to the extent information about the Product is not in the public domain).
Dangerous Goods means Goods which are volatile or explosive or which are or may become dangerous, flammable or offensive (including radioactive materials) or which may become liable to damage any person or property whatsoever and includes all Goods which fall or may fall within the definition of hazardous, dangerous, explosive, flammable or radioactive goods in any legislation, regulations, code or convention (whether or not legally enforceable) relevant to the Services.
Event of Default means in the case of either party:
(a) an Insolvency Event occurs; or
(b) a party commits a breach of its obligations under these Terms
(i) if capable of being remedied, is not remedied within five (5) business days of notice from the other party, specifying the breach and requiring it to be remedied; or
(ii) is not capable of remedy.
Goods mean the goods, chattels or other items which are the subject of carriage.
GST refers to the goods and services tax under A New Tax System (Goods and Services) Act 1999 (“GST Act”) and the terms used have the meanings as defined in the GST Act.
Guarantor means those person/s and/or entities who have agreed to guarantee the Client’s obligations under these Terms and
(a) if noted in the Application, those person/s and/or entities; or
(b) if not noted in the Application, then each of the directors and shareholders of the Client as they appear on public record at the time the Application is signed.
Insolvency Event means bankruptcy, administration, compromise, arrangement, amalgamation, reconstruction, winding up, dissolution and assignment for or compromise with creditors, not paying any debt as and when it falls due, and ‘Insolvent’ will be construed accordingly.
Order means a written request from the Client to the Service Provider for the provision of Services, submitted by the Client as a standing offer (until withdrawn by written notice to the Service Provider) for the purposes of the Service Provider determining whether to provide the Services to the Client in accordance with the Terms.
Premises mean any place or places where Goods are held, warehoused, stored or removed from time to time.
Quote means an email, proposal or other document of the Service Provider provided or otherwise submitted to the Client estimating a price for the provision of Services requested by the Client.
Services means Carriage of the Goods.
Service Provider means Lion Global Forwarding Pty Ltd ACN 626 399 942.
Terms means these ‘Agreed terms and conditions of sale and supply’.
1.2 (Interpretation): The following rules of interpretation apply:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) a gender includes all genders;
(d) where a word or phrase is defined, its other grammatical forms have a corresponding meaning
(e) a reference to a person includes a body corporate, an unincorporated body or other entity and vice versa;
(f) a reference to a clause, annexure or schedule is to a clause of, or annexure or schedule to this document;
(g) a reference to any party to this document or any other agreement or document includes the party’s successors and permitted assigns
(h) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this document;
(i) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(j) a reference to a right or obligation of any 2 or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
(k) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing;
(l) mentioning anything after include, includes or including does not limit what else might be included’ and
(m) these conditions (which shall only be waived in writing signed by the Service Provider) shall prevail over all conditions of the Client’s order to the extent of any inconsistency.
2.1 The Client seeks to engage the Service Provider to provide the Services subject to these Terms.
2.2 An Order made by the Client for the Services which is accepted by the Service Provider and the contract made by that acceptance (Supply Contract) are subject to these Terms.
2.3 The Supply Contract is not subject to any terms and conditions put forward by the Client, including those on any purchase order.
2.4 These Terms shall apply to each and every Supply Contract.
2.5 The Client warrants that the information provided in the Application is accurate, correct and complete and is supplied for the purposes of the Service Provider providing the Services.
2.6 Where more than one Client is named on the Application, the Clients and Guarantors shall be jointly and severally liable under these Terms.
2.7 These Terms may only be amended with the Service Provider’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Service Provider.
2.8 The Client shall give the Service Provider not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address or facsimile number). The Client shall be liable for any loss incurred by the Service Provider as a result of the Client’s failure to comply with this clause.
2.9 Any Quote is given on the basis of immediate acceptance and subject to the right of withdrawal or revision by the Service Provider. A Quote is valid only for the specified weight and volume ranges quoted and for the designated services and standard of services quoted.
2.10 This agreement applies to all past, present and future dealings with the Service Provider.
3 PRICE AND PAYMENT
3.1 Any information provided by the Service Provider to the Client, including a price list or rates sheet, does not constitute an offer to sell but constitutes an invitation to treat only, and is subject to the availability of the Services.
3.2 The Service Provider will charge the Client for the Services in accordance with each Order.
3.3 The rates in each Order are not fixed for any time period and may rise from time to time in accordance with industry custom, external influences or at the Service Provider’s absolute discretion.
3.4 Any increase to rates and charges applicable to any Order are deemed to be accepted by the Client from the date the change was notified to the Client, unless written objection to the increase is received by the Service Provider.
3.5 The Client must pay the Service Provider for the additional expenses as incurred by the Service Provider in providing the Services (Additional Charges). Additional Charges include:
(a) fuel surcharges;
(b) account keeping fees;
(c) minimum pick-up fees;
(d) excessive proof of delivery requests;
(e) late fees;
(f) costs and expenses associated with delays in loading or unloading;
(g) labour to load or unload the Goods;
(h) tariffs as may be imposed; and
(i) taxes, levies or other form of charge relating to carbon offset.
3.6 The Additional Charges are as published from time to time either: (a) directly to the Client;
(b) on the Service Provider’s website; or
(c) or as notified in writing to the Client.
If no figures are published or notified, then they are changed at cost plus 20%.
3.7 The Client may not withhold payment for:
(a) the Client making an insurance claim;
(b) the Client making a warranty claim;
(c) the Service Provider failing to provide a proof of delivery (POD); (d) transportation by other means than requested; or
(e) a cross-claim against the Service Provider.
3.8 These Terms are a bar to any proceedings being commenced against the Service Provider and as a bar to defence in proceedings commenced by the Service Provider while any payment for any account remains outstanding.
3.9 The Service Provider accepts pallets only on the condition that all charges pertaining to the pallets will be paid by the Client. The Service Provider accepts no responsibility for return of pallets.
3.10 Charges will be applied to freight based on measurements taken by the Service Provider’s dimensioner or the Service Provider’s employees if measured manually and not information supplied by the Client. A certificate signed by a director of the Service Provider as to the dimensioner’s reading or employee’s manual measurement for any freight is conclusive proof of the measurements for the freight described within that certificate.
3.11 Additional Charge information:
(a) Proof of delivery is available on the website. The Service Provider
can provide copies of PODs from time to time, however excessive requests (in the opinion of the Service Provider) will result in a service charge. The non-provision of a POD is not a valid reason to withhold payment.
(b) A redelivery charge will apply where an attempt to deliver fails due to receiver being unavailable or unable to sign for delivery.
(c) Where a specific delivery time is requested for a delivery, a pre-alert charge will apply.
(d) In some country and regional areas, on-forwarding charges will apply.
3.12 If any payment is not made when due the Client shall, whether or not any demand has been made, pay to the Service Provider interest on the amount outstanding at a rate of 1.5% per month calculated daily from the due date of the payment until payment is made in full. The Service Provider’s right to receive interest is in addition to all other rights which it has in respect of the Client’s default.
3.13 The Service Provider shall not be liable for demurrage or detention, delays in unloading inbound cars. Trailers or other containers or delays in obtaining and loading cars, trailers or other containers for outbound shipments unless the Service Provider has failed to exercise reasonable care.
3.14 The Client shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of the Goods (including but not limited to, containers).
3.15 Where the Service Provider for any reason becomes liable to pay customs duty, excise duty, costs, expenses or penalties in respect of or in connection with the Goods or any documents relating to the Goods, the Client shall forthwith indemnify the Service Provider in respect of all such sums, whether or not the liability on the Service Provider arose from the Service Provider’s negligence or breach of contract.
3.16 All amounts due to the Service Provider in Australia are payable in Australiandollars. The Service Provider is entitled to charge a currency conversion premium when converting receivables into Australian currency.
3.17 The Service Provider may be paid and retain all brokerages, commissions, allowances and other remunerations customarily retained by or paid to customs, shipping and forwarding agents and insurance brokers, whether declared or otherwise, and no such brokerage, commission, allowance or other remuneration shall be payable or allowable to the Client.
4.1 The Service Provider may cancel any Supply Contract to which these Terms apply at any time before the Service are complete by giving written notice to the Client. On giving such notice the Service Provider shall repay to the Client any sums paid in respect of the Supply Contract cancelled. The Service Provider shall not be liable for any loss or damage whatever arising from such cancellation.
4.2 In the event that the Client cancels any Supply Contract, for whatever reason, the Client shall be liable for any loss incurred by the Service Provider (including, but not limited to, any loss of profits) up to the time of cancellation.
5.1 Any dates or times specified for departure or arrival at the point of collection or delivery are estimates only and shall not bind the Service Provider.
5.2 Goods are deemed to be in transit even if the carriage of the Goods has been interrupted by the Service Provider or diverted from the usual route for the carriage.
5.3 Freight is considered earned as soon as the Goods are loaded and despatched.
5.4 Subject to express instructions in writing given by the Client and accepted by the Service Provider in writing, the Service Provider reserves to itself complete freedom to decide upon the means, route and procedure to be followed in the handling, storage and transportation of the Goods and is entitled and authorised to engage sub-contractors to perform all or any of the functions required of the Service Provider upon such terms and conditions as the Service Provider in its absolute discretion may deem appropriate.
5.5 The Service Provider may charge for frustrated delivery to cover the Service Provider’s costs and expenses.
5.6 The Client acknowledges that the Service Provider will use its best endeavours to provide PODs on request (surcharge may apply). The Service Provider accepts that PODs may not be available to the Client for all deliveries. The Client agrees that it has no right to demand a POD nor is the Service Provider liable to the Client for failing to provide a POD and that the non-provision of POD is not a reason to withhold payment. It is agreed that any of the following are conclusive proof of same even without a POD:
(a) a statement signed by the delivery driver that delivery was made
(b) driver’s run sheet
(c) Personal Data Authority confirmation
(d) signed acknowledgment of recipient;
(e) agent’s consignment note;
(f) signed label;
(g) POD run sheet; or
(h) driver run book of that delivery.
5.7 The Service Provider reserves the right to open all packages and containers and do any other thing necessary in order to inspect all Goods at its discretion and at the Client’s expense.
5.8 The Client agrees that:
(a) the value of the Goods shall not be declared or inserted in a Bill of Lading or a sea carriage document for the purpose of extending a ship or carrier’s liability under the Carriage of Goods by Sea Act 1991 (Cth) (COGSA) and the regulations prescribed by the COGSA except upon express instructions given by the Client;
(b) in the case of carriage by air, no option or declaration of value to increase air-carrier’s liability under
(i) Article 22 of Schedule 1A to the Civil Aviation (Carrier’s Liability) Act 1959; or
(ii) Article 22(2) of Schedule 1, 2, 4 or 5 to the Civil Aviation (Carrier’s Liability) Act 1959;
will be made except on express instruction given in writing by the Client;
(c) in the case of carriage by land, or any carriage ancillary to the carriage mentioned above and not expressly provided for under any contract within this agreement, under Convention or under any statute or Law, the Client agrees that the value of the Goods shall not be declared or inserted into a contractual document or as part of the trading terms for the purpose of extending the forwarder or carrier’s liability under any circumstance except upon express conditions agreed to in writing by the carrier or forwarder who expressly elect to waive that right
(d) in all other cases where there is a choice of charges by carriers, warehousemen, stevedores or others according to the extent of the liability assumed by the carriers, warehousemen, stevedores or others, no declaration of value (where optional) will be made for the purpose of extending liability, and the Goods will be forwarded or dealt with at the Client’s risk for minimum charges, unless express instructions in writing to the contrary are given by the Client; and
(e) the Service Provider shall have no obligation to take any action in respect of any Goods that may be recognisable as belonging to the Client unless it has received suitable instructions relating to such Goods together with all necessary documents. In particular, the Service Provider shall not be obliged to notify the Client of the existence or whereabouts of the Goods or to examine them or to take any other steps for their identification, protection or preservation or for the preservation of any claim by the Client or any other party against the carrier, insurer or any third party.
6.1 The Service Provider may make an additional charge in respect of any delay in connection with loading or unloading where the Service Provider considers that the delay is unreasonable given the nature and position of the Goods and any other relevant circumstances and where the delay arises otherwise than from the default of the Service Provider, such delay period commencing upon the Service Provider reporting for loading or unloading. Labour for loading and unloading shall be the responsibility, and at the expense of, the Client.
7 UNCOLLECTED GOODS
7.1 If goods are undeliverable for whatever reason the Service Provider will hold them in safe keeping for 3 months. The cost of the storage will be paid by the Client. The Service Provider will be entitled to retain the Goods until payment of the storage fees have been paid.
7.2 If after the period of storage noted in clause 7.1, the Goods are not collected (and regardless of whether the Service has been paid for and regardless of any notice being provided to the Client that the Goods are being held), the Client authorises the Service Provider to dispose of those Goods by way of public auction. The Service Provider may apply the proceeds firstly in payment of the storage and attempted delivery (if any) fees, secondly against any auction costs and any incidental costs of the Service Provider (including the costs of its employees or agents or solicitors in arranging the sale or disposal of the Goods). The balance will be paid to the Treasury under the applicable legislation of the State where the Goods are stored.
7.3 If, in the opinion of the Service Provider, the costs associated with the sale will exceed the proceeds to be obtained, the Service Provider may dispose of the Goods by any means after the period of 3 months, be that by donation to charity or otherwise.
8 COMMON CARRIER
8.1 The Service Provider is not a common carrier and will accept no liability as such. The Service Provider reserves the right in its absolute discretion to refuse the Carriage of Goods or any class of Goods for any person. The Service Provider carries on business as a customs and forwarding agent and is not the actual carrier unless the Goods are carried on an aircraft, ship or other conveyance owned or operated by the Service Provider. The obligations of the Service Provider are limited to arranging the Services by a reputable carrier. The Goods are carried at the Client’srisk and the Client authorises the Service Provider to act as its agent to enter into the terms and conditions in a transport document on behalf of the Client.
8.2 The Service Provider is authorised to arrange on any terms for the Carriage of the Goods by any subcontractor. Any arrangement made by the Service Provider shall be deemed to be accepted and agreed by the Client when the Client delivers the Goods to or has them collected by a subcontractor.
8.3 The Client agrees to indemnify the Service Provider against any claim or allegation made against the Service Provider by any person in connection with any liability arising out of or relating to the Goods or the Carriage of the same.
8.4 The Client warrants that it is either the owner or authorised agent of the owner of the Goods. By entering into this contract the Client accepts these terms and conditions on behalf of itself and all other persons having an interest in the Goods.
8.5 The Goods may, at the sole discretion of the Service Provider and at the Client’s risk and expense, be held at any Premises and may be moved from any Premises to any other Premises.
9 DANGEROUS GOODS
9.1 The Client shall not tender any Dangerous Goods for Carriage without first providing the Service Provider with a full written description of the Goods and the nature and degree of their volatility so they can be properly classified, described, packaged and labelled for Carriage in accordance with the provisions of all relevant laws, regulations, codes, customs and conventions. If the Client fails to do so, it shall be liable for any resulting loss or damage and shall indemnify the Service Provider against all claims, liability, loss, damage, penalties and expense which the Service Provider may suffer or incur. If the Goods are found to be explosive, flammable, noxious or otherwise dangerous, hazardous or likely to cause damage without having been described to the Service Provider as provided above, the Goods may be destroyed or otherwise dealt with by, and at the sole discretion of, the Service Provider or any other person in whose custody they may be at the relevant time without compensation to the Client and without prejudice to the Service Provider’s right to freight and charges. If such Goods are accepted under the arrangements previously made in writing, they may nevertheless be destroyed or otherwise dealt with if they become dangerous to any person, other goods or property.
10 EXCLUSION OF BAILMENT
10.1 To the fullest extent permitted by law, the obligations of a bailor are excluded. The Service Provider will not be responsible for any loss of, or damage to, or incorrect delivery of, or delay in the delivery of, any goods (including perishable goods). This applies:
(a) when such loss, damage, incorrect delivery, non-delivery or delay in delivery may be occasioned by the negligence of wrongful act of the Service Provider (whether intentional or not);
(b) to any loss or damage suffered by the Client or any other person, including loss of profit, indirect or consequential loss, howsoever caused or arising, whether an authorised or unauthorised act under these Terms, and whether caused by the negligence, recklessness or wilful negligence or misconduct of the Service Provider’s servants, agents, employees, subcontractors or otherwise;
(c) to any loss or damage resulting from or attributable to any Quote, statement, representation or information, oral or written, made or given on behalf of the Service Provider or its servants, agents employees or subcontractors as to the classification of, liability for, amount, scale or rate of custom duty, excise duty or other impost or tax applicable to any goods in carriage or subject of any Service.
10.2 The Client undertakes to indemnify the Service Provider in respect of any liability, cost (including legal and recovery costs on a solicitor and client basis) or expense whatsoever and howsoever arising in connection with the goods to any person who is found to have any interest in the Goods. The Client will indemnify the Service Provider for any claim, loss, damage, payment, fine, expense, duty, tax, impost, or other outlay whatsoever or howsoever caused, whether arising directly or indirectly or indirectly from any service arranged or performed by the company in respect of the Goods or in for any such cost incurred as a result of any breach of the terms, conditions or warranties in these Terms by the Client.
10.3 The Service Provider and the Client acknowledge that Goods moving by airfreight are subject to the applicable Airfreight Convention. The Client’s recovery of loss or damage, if any, is against the airline carrier and is limited in accordance with the Airfreight Convention or any other Conventions that may be applicable. In the event of any loss or damage suffered by the Client whilst the Goods are in the possession of the airline carrier, the Service Provider will seek to recover on behalf of the Client from the principal airline carrier amounts payable under applicable Conventions as they apply. The Client will indemnify, defend and hold the Service Provider harmless against any claims for loss or damage to their Goods incurred whilst they were in the possession of the airline carrier.
11 TITLE AND PERSONAL PROPERTY SECURITY ACT
11.1 The Client grants the Service Provider a security interest pursuant to the Personal Property Securities Act 2009 (Cth) (PPS Act) in all Goods the subject of the Services for each Supply Contract and held in the Service Provider’s possession.
11.2 To the maximum extent permitted bylaw, if the PPS Act applies, the Client irrevocably waives any rights the Client may have to:
(a) receive notices or statements under sections 95, 121(4), 125, 130,132(3)(d), 132(4) and 135 of the PPS Act
(b) redeem the Goods under section 142 of the PPS Act;
(c) reinstate this agreement under section 153 of the PPS Act; and
(d) receive a verification statement (as defined in the PPS Act).
11.3 The Client agrees to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed), at the cost of the Client, which the Service Provider asks and considers necessary for the purposes of:
(a) ensuring that the security interest created under these Terms and each Supply Contract is enforceable, perfected and otherwise effective; or
(b) enabling the Service Provider to apply for any registration, or give any notification, in connection with a security interest created under these terms and each Supply Contract so that the security interest has the priority required by the Service Provider, including anything the Service Provider reasonably asks the Client to do in connection with the PPS Act.
12.1 The Service Provider shall have a general and particular possessory lien upon all Goods (which in this clause includes any documents relating to those Goods) of the Client whatsoever which are in the possession or under the control of the Service Provider until all accounts due to the Service Provider by the Client, consignee or owner of such Goods are paid in full (including all costs and expenses incurred by the Service Provider in recovering or enforcing payment of such accounts). The Service Provider is entitled to detain any Goods and may decline to effect delivery even where accounts are not overdue for payment. The Service Provider may sell all or any of the Goods by public auction or private treaty without notice to the Client and apply the proceeds of sale in satisfaction of the unpaid accounts (including all costs of detaining and selling the Goods).
13 REPORTING OBLIGATIONS
13.1 The Service Provider (including its officers, employees, agents, subcontractors and representatives) has certain reporting obligations imposed upon it under the Customs Act 1901 (Cth) (Customs Act) in relation to Customs Related Laws. Such obligations include, inter alia, the mandatory reporting and disclosure of a breach or potential breach of any Customs Related Law as soon as practicable after becoming aware of such breach or potential breach.
13.2 The Service Provider (including its officers, employees, agents, subcontractors and representatives) is not in breach of any obligations to the Client in complying with such obligations.
13.3 No liability will arise to the Service Provider (including its officers, employees, agents, subcontractors and representatives) for loss or damage of any kind whatsoever by virtue of compliance with these reporting obligations arising under the law or conditions imposed on any licence the Service Provider holds in accordance with the Customs Act.
13.4 The Client must indemnify, and keep indemnified, the Service Provider (including its officers, employees, agents, subcontractors and representatives) from all costs and liabilities the Service Provider may incur as a result of the Service Provider complying with its reporting obligations arising under the law or conditions imposed on any licence the Service Provider holds in accordance with the Customs Act.
14 CLIENT WARRANTY
14.1 The Client warrants that it has complied with and will continue to comply with all laws, customs, conventions, codes and other regulations relating to the nature, condition, packaging, handling, storage and Carriage of the Goods and that the Goods are packed to withstand the ordinary risks of handling, storage and Carriage, having regard to their nature. The Client agrees to indemnify the Service Provider for all liability and for all costs incurred by the Service Provider as a result of or arising out of a breach of this warranty.
14.2 The Client shall provide to the Service Provider all such assistance, information, descriptions, valuations and documents as the Service Provider considers to be necessary or prudent to enable the Service Provider to comply with all relevant laws, customs, conventions, codes and regulations in a timely manner. The expenses and charges of the Service Provider in effecting such compliance, and compliance with the requirements of any harbour, dock, airport, railway, shipping, customs, warehouse or other authority shall be paid by the Client.
15.1 The Service Provider will not insure the Goods for the benefit of the Client or the owner of the Goods except upon the Client’s or owners express written instructions (which must include a signed declaration as to the value and nature of the Goods). Any insurance will be effected at the expense of the Client or owner and may be subject to such exceptionsand conditions as may be required by the insurance company or underwriter accepting the risk. The Service Provider may make an additional charge for arranging such insurance but shall have no liability or responsibility whatsoever (whether in negligence, contract or otherwise) in respect of any insurance policy. The Service Provider is not 19.2 the insurer and no deduction or set-off may be made from any charges or other moneys due to the Service Provider on any account pending settlement by the insurance company.
16 COMPETITION AND CONSUMER ACT 2010
16.1 Under applicable State, Territory and Commonwealth Law (including, without limitation to the Competition and Consumer Act 2010 (Cth) (CCA)), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
16.2 The Service Provider acknowledges that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.
16.3 Except as expressly set out in these Term or in respect of the Non-Excluded Guarantees, the Service Provider makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Services. The Service Provider’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.4 If the Client is a consumer within the meaning of the CCA, the Service Provider’s liability is limited to the extent permitted by section 64A of Schedule 2 CCA.
16.5 If the Service Provider is required to re-provide the Service under this clause or the CCA, but is unable to do so, the Service Provider may refund any money the Client has paid for the Service.
17 DEFAULT ON PAYMENT
17.1 (Credit facility): The Client acknowledges that completion of a Supply Contract, these Terms or any time, other than cash on delivery, noted on an invoice issued by the Service Provider does not form the basis of a credit facility. The Client further acknowledges any credit facility that may be deemed from any time to pay an invoice provided by the Service Provider for the Client may at any time be suspended or withdrawn for convenience by the Service Provider without notice. Any time to pay suspended or withdrawn by the Service Provider will result in the full sum, including costs and interest, being payable immediately to the Service Provider in the entire sum due plus costs and interest pursuant to these Terms.
17.2 (Interest): The Client acknowledges and agrees in respect of any amount as may from time to time be overdue to the Service Provider, will result in the full sum of account being due and payable to the Service Provider immediately. The Client acknowledges and agrees the Service Provider may apply interest calculated daily to any amount overdue at a rate of one and one half percent (1.50%) per calendar month.
17.3 (Costs and other expenses): The Client acknowledges and agrees to pay all expenses (including all and any fees, charges or commission charged by a collection agency, solicitor or consultant and all and any fees and charges charged by a solicitor on a solicitor/client basis) which the Service Provider may incur in the process of recovering any sum due and payable by the Client to the Service Provider.
18 PRIVACY ACT 1988
18.1 The Client and each Guarantor agrees for the Service Provider to obtain from or disclose to a credit reporting agency or third party a credit report containing personal information about the Client and Guarantors in relation to these Terms.
18.2 The Client and each Guarantor agrees that the Service Provider may exchange information about the Client with those credit providers named in a consumer credit report issued by a credit reporting agency for the following purposes: to notify other credit providers of a default by the Client; and/ or to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or to assess the creditworthiness of the Client.
18.3 The Client and each Guarantor consents to the Service Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Client and each Guarantor agrees that personal credit information provided may be used and retained by the Service Provider for the following purposes (and for other purposes as shall be agreed between the Service Provider, the Client and Guarantors or required by law from time to time): the provision of the Services; and/or the marketing of the Services by the Service Provider, its agents or distributors; and/or analysing, verifying and/or checking the Service Provider’s credit, payment and/or status in relation to the provision of the Services; and/or processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client.
18.5 The Service Provider may give information about the Client and each Guarantor to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Client and the Guarantors and/or allow the credit reporting agency to create or maintain a credit information file containing information about the Client and each Guarantor. The information given to the credit reporting agency may include: personal particulars (the Client’s or the Guarantor’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number); advice that the Service Provider is a current credit provider to the Client; advice of any overdue accounts, loan repayments, and/ or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; information that, in the opinion of the Service Provider, the Client or s Guarantor has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations); advice that cheques drawn by the Client or any Guarantor for one hundred dollars ($100) or more, have been dishonoured more than once; that credit provided to the Client by the Service Provider has been paid or otherwise discharged.
19 GUARANTEE AND INDEMNITY
19.1 Each Guarantor in consideration of the Service Provider agreeing to supply the Services to the Client (or continuing to the Services) and for any other valuable consideration unconditionally and irrevocably:
(a) guarantees the due and punctual payment to the Service Provider of all moneys which are now owing to the Service Provider by the
Client and all further sums of money from time to time owing to the Service Provider by the Client in respect of goods and services
supplied or to be supplied by the Service Provider to the Client or
any other liability of the Client to the Service Provider, and the due observance and performance by the Client of all its obligations contained or implied in any contract with the Service Provider, including these Terms.
(b) holds harmless and indemnifies the Service Provider on demand as a separate obligation against any liability (including but not limited to damages, costs, losses and legal fees calculated on a solicitor and own client basis) incurred by, or assessed against, the Service Provider in connection with:
(i) the supply of goods and/or services to the Client;
(ii)the recovery of moneys owing to the Service Provider by the Client including the enforcement of this Guarantee and Indemnity, and including but not limited to the (iii) Service Provider’s nominees costs of collection and legal costs; or moneys paid by the Service Provider with the Client’s consent in settlement of a dispute that arises or results from a dispute between, the Service Provider, the Client, and a third party or any combination thereof, over the supply of goods and/or services by the Service Provider to the Client.
19.2 Each Guarantor further acknowledges and agrees that if for any reason the Client does not pay any amount owing to the Service Provider the Guarantor will immediately on demand pay the relevant amount to the Service Provider.
19.3 This clause shall constitute an unconditional and continuing guarantee and indemnity and accordingly shall be irrevocable and remain in full force and effect until the whole of moneys owing to the Service Provider by the Client and all obligations herein have been fully paid, satisfied and performed.
19.4 No granting of credit, extension of further credit, or granting of time and no waiver, indulgence or neglect to sue on the Service Provider’s part (whether in respect of the Client or any one or more of any other Guarantor(s) or otherwise) and no failure by any named Guarantor to properly execute this Guarantee and Indemnity shall impair or limit the liability under this Guarantee and Indemnity of any Guarantor. Without affecting the Client’s obligations to the Service Provider, each Guarantor shall be a principal debtor and liable to the Service Provider accordingly.
19.5 If any payment received or recovered by the Service Provider is avoided by law such payment shall be deemed not to have discharged the liability of the Guarantor, and the Guarantor and the Service Provider shall each be restored to the position in which they would have been had no such payment been made.
19.6 The term “Guarantor” shall, if there is more than one person named as Guarantor, mean and refer to each of them individually and all of them together unless the context otherwise requires, and the other obligations and agreements on the part of the Guarantor contained in this Guarantee and Indemnity shall bind them jointly and severally.
19.7 Each Guarantor irrevocably authorises the Service Provider to obtain from any person or company any information which the Service Provider may require for credit reference purposes. Each Guarantor irrevocably authorises the Service Provider to provide to any third party, in response to credit references and enquiries about the Guarantor or by way of information exchange with credit reference agencies, details of this Guarantee and Indemnity and any subsequent dealings that the Guarantor may have with the Service Provider as a result of this Guarantee and Indemnity being actioned by the Service Provider.
19.8 The obligations under this clause shall be a continuing guarantee and will not in any way waived or affected by any time or indulgence by the Service Provider to the Client.
20.1 Each party agrees that any Confidential Information disclosed to the other party will be kept confidential.
21.1 GST means the same as in the GST Law.
21.2 GST Law means the same as “GST law” means in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
21.3 Terms defined in the GST Law have the same meaning in clauses concerning GST.
21.4 Unless otherwise indicated, all amounts stated in this agreement are exclusive of GST.
21.5 If GST is payable on a taxable supply made by a party under this Agreement (the Supplier) to another party (the Recipient), the Supplier may recover from the Recipient of the supply the amount of that GST in addition to any consideration otherwise provided for.
21.6 The Recipient must make the payment of the GST amount referred to in clause 31(e) at the same time and in the same manner as it provides the consideration for the relevant supply subject to the Recipient receiving a valid tax invoice before the due date for payment.
21.7 The Supplier must issue an adjustment note to the Recipient as soon as it becomes aware of an adjustment event relating to the supply and must refund to the Recipient any overpayment of GST.
22.1 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These Terms and any Supply Contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
22.3 In the event of any breach of these Terms by the Service Provider the remedies of the Client shall be limited to damages which under no circumstances shall exceed the amount paid on a Supply Contract.
22.4 The Client shall not be entitled to set off against or deduct from any amount payment to the Service Provider any sums owed or claimed to be owed to the Client by the Service Provider.
22.5 The Service Provider may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.6 The Client agrees that the Service Provider may amend these Terms at any time. If the Service Provider makes a change to these Terms, then that change will take effect from the date on which the Service Provider notifies the Client of such change.
22.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
22.8 The failure by the Service Provider to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect the Service Provider’s right to subsequently enforce that provision.
22.9 The Client warrants that it has the power to enter into the Order and these Terms and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the Order and these Terms creates binding and valid legal obligations on it.
22.10 The Client acknowledges and agrees in the event of the Client being a trust
(a) that all assets of the trust and the trustee(s) of the trust shall be held personally liable for any sum due to the Service Provider including costs, fees and interest pursuant to this agreement; and
(b) that the trustee(s) have a right to be fully indemnified for their obligations under these Terms out of the property the trustee(s) hold on trust;
(c) that the Service Provider’s rights under these Terms have priority over the interest of the beneficiaries of the trust;
(d) that the trustee(s) of the trust of the Client will exercise or hold for the Service Provider, the trustee(s) right of indemnity from the trust fund and the beneficiaries when the Service Provider asks the trustee(s) to do so, so the Client can pay the Service Provider any monies owned under these Terms.
22.11 The Service Provider may at any time assign its rights under these Terms without the consent of the client.
22.12 The Client must not assign its rights or obligations under these Terms without the prior written consent of the Service Provider, such consent may be approved or refused with or without reasons in the discretion of the Service Provider.