CONCEPT LOGISTICS AUSTRALIA PTY LTD (ACN 095 239 008)

Terms of Service

1. SUPPLY OF SERVICES

1.1) Supply

(a) CLA will supply the Services and the Customer will
purchase the Services in accordance with this
Agreement.

(b) The Customer acknowledges and agrees that CLA may
refuse to provide any part of the Services or deal with
any Goods at its discretion.

(c) The Customer acknowledges and agrees that CLA may
adopt any method of performing any part of the
Services at the discretion of CLA.

1.2) Acceptance and Engagement
The Customer will be taken to have accepted this
Agreement if the Customer:
(a) executes this Agreement and returns it to CLA;

(b) executes any document that incorporates this
Agreement;

(c) otherwise communicates their acceptance to CLA
(whether in writing or verbally); or

(d) continues to instruct CLA in connection with the
Services.

1.3) Exclusion of all other terms and conditions

(a) This Agreement:

(i) applies to the exclusion of all other terms and conditions and supersedes all terms and conditions previously issued by CLA or otherwise agreed between CLA and the Customer, and all prior discussions, representations and arrangements relating to the supply of the Services;

(ii) applies to all Quotations and tenders submitted by CLA unless otherwise directed in writing by CLA; and

(iii) overrides any terms of purchase used by the Customer to request and purchase the Services.

(b) No variation of this Agreement is binding unless
expressly agreed in writing by an authorised
representative of CLA.

2. SERVICES

2.1) Price of Services

(a) CLA will advise the Customer of the Fees for the Services in a Quotation.

(b) Unless expressly stated otherwise, the Fees are exclusive of GST and all other taxes, duties or government charges levied in respect of the Services.

(c) Subject to clause 2.1(d), CLA reserves the right to change the Fees in its absolute discretion.

(d) Unless otherwise stated, a Quotation provided to the Customer by CLA will be valid for 30 days from the date of issue, or until earlier revoked.

2.2) Request
(a) Once accepted by CLA, Requests cannot be cancelled or varied by the Customer without the written approval of CLA. CLA reserves the right to charge a reasonable cancellation fee, which may include an amount for loss of profit.

(b) As the Fees have been calculated by CLA based on the quantities of Services to be supplied or designated to the Customer, if the Customer requests a change to the quantity or designation of Services, CLA has a right to adjust the Fees accordingly.

2.3) Customer Cooperation
To perform the Services successfully, CLA requires the Customer’s timely co-operation. Accordingly, the Customer must provide in a timely fashion all information, data, documents and instructions that CLA reasonably requires to enable CLA to provide the Services.
2.4) Information from the Customer

The Customer hereby represents and warrants to CLA that all documentation and information it provides to CLA is and will be:

(a) complete, true and accurate in all material respects; and

(b) not misleading in any material respect, nor rendered misleading in any material respect by any failure to disclose any other information.

2.5) Timeframe
Unless agreed otherwise in writing between CLA and the Customer, any estimate of time for the provision of the Services is intended for planning and estimating purposes only and is not binding. The timely completion of the Services requires the Customer’s co-operation and any estimates of time for completion of the Services are given on the assumption that such co-operation is provided. Any default or delay by the Customer in providing any necessary co-operation may result in additional fees.
2.6) Obligations owed to the Customer only
Unless agreed otherwise in writing between CLA and the Customer the Services will be provided solely for the benefit and use of the Customer and CLA accepts no liability or responsibility to any third party in respect of the Services.
2.7) No service guarantee
The Customer acknowledges and agrees that CLA has no obligation or responsibility to meet any service guarantee or docking time sought by or agreed with the Customer, other than to use all reasonable endeavours to meet any service guarantee or docking time.
2.8) No reliance
The Customer agrees that it has not relied on any representation, condition or warranty express or implied as to CLA’s skill, competence or efficiency in dealing with any Goods or providing any part of the Services.

3. INVOICING AND PAYMENT

3.1) Details in Invoice
All invoices issued by CLA will include details of the Fees and any other costs and charges payable by the Customer in accordance with this Agreement and the payment terms.
3.2) Payment of Fees
(a) Subject to clause 3.2(b), payment is due 7 days or as otherwise agreed in writing from the date of the invoice following completion of the Services.

(b) If CLA has agreed to supply the Services on credit, the Customer must pay the Fees, without deduction, by the end of the month immediately following provision of the Services.

3.3) Payment in cleared funds
Payment by cheque or other negotiable instrument is not regarded as received until funds are cleared.
3.4) Interest
Without in any way limiting CLA’s right to require payment in full in accordance with clause 3.2, CLA may at its sole discretion charge interest on overdue accounts at the rate under the Penalty Interest Rates Act 1983 (Vic) plus 3%.
3.5) Recovery
(a) The Customer authorises CLA to sell or otherwise dispose of any Goods in its possession, custody or power, after the expiration of 21 days after written notice to the Customer of CLA’s intention to do so. CLA may apply the net proceeds of any such sale or disposition towards any monies owed by the Customer and the Customer indemnifies CLA in respect of any loss, damage or liability as a result of exercise of any of the rights arising under this clause 3.5(a).

(b) The Customer must pay all costs and expenses incurred by CLA, its advisers, mercantile agents and any other person, in respect of any action instituted or considered against the Customer, whether for debt, repossession of Services or otherwise.

3.6) No right to offset
No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by the Customer to CLA may be offset against any Liability whether present, future, actual, contingent or prospective of the Customer to CLA under this Agreement or on any other account whatsoever.
3.7) GST
(a) In this clause expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law.

(b) Unless expressly indicated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this Agreement has been determined without regard to GST and must be increased on account of any GST payable in accordance with this clause.

(c) If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the supply (Receiving Party) must pay to CLA (Supplier) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this Agreement.

4. GOODS

4.1) Customer warranties The Customer warrants that:
(a) all Goods are either owned by the Customer or the Customer is authorised to deal with them;

(b) all Goods will comply at all times with all requirements of the consignor, the consignee and all applicable Laws and with the requirements of all relevant authorities including any armed forces, police, security, and/ or any other authority, governmental or non-governmental, whether having the force of law or otherwise and whether relating to the nature, packaging, distribution, storage, notification, labelling, volumes, scheduling, identification or condition of the Goods, any part of any Services or otherwise;

(c) CLA is authorised to deal with any Goods in any way it deems fit, if any part of the Goods, including any documentation, labelling, packaging or warnings, fail to comply with any Laws, this Agreement or are damaged, defaced or illegible; and

(d) CLA is authorised to name the Customer as consignor in any document or Con Note and CLA is not and will not be deemed to be a consignor within the meaning of any Laws or otherwise.

(e) The Customer authorises CLA to store, warehouse and/ or hold any Goods at the Customer’s cost in respect of and/ or during the performance or attempted performance of any part of the Services as CLA, in its absolute discretion, deems necessary.

4.2) Use of Goods

(a) The Customer will ensure all Goods have been packed and marked in compliance with all relevant Laws. The Customer will also ensure that all Goods will be packed in a manner adequate to withstand the ordinary processes and risks involved in any applicable Services.

(b) The Customer acknowledges and agrees that CLA does not have any obligation to load, unload, package, repackage, repair or maintain any packaging or container associated in any way with any part of the Services or any Goods but may elect to do so at the Customer’s cost.
(c) Prior to CLA taking possession of or dealing in any way with any Goods, the Customer:

(i) will identify and fully describe Goods on or with every applicable document or dealing with CLA, including details of the name, nature and value of the Goods and specifying any Goods which are liquid, gaseous, noxious, dangerous, hazardous, flammable, Dangerous Goods or Prescribed Poisons. The Customer will also specify any Goods which are capable in any way of causing (whether alone or in conjunction with anything else) damage, injury or loss to any goods, person or thing; and

(ii) authorises CLA to destroy, dispose of, abandon or render harmless any Goods which in the opinion of CLA are, or are likely to become, dangerous or hazardous, at the Customer’s cost.
The Customer releases CLA for any and all Liabilities in relation to this clause 4.

(d) The Customer agrees to pay CLA:

(i) any duty, impost, GST, CGT, tax, excise, penalty
(Duties) in respect of any part of any Goods, the Services or relating to any loss, damage, expense, Liability or costs relating to any Goods or the Services;

(ii) except where the Customer notifies CLA in writing at least 30 days prior to a delivery and CLA authorises the delivery in writing prior to the delivery: any fines, penalties, damages or loss incurred by CLA if the Customer or anyone at the request or direction of the Customer delivers to any CLA site Goods which are not permitted on site or which exceed or cause CLA to exceed the permitted or authorised limit of any such Goods at that site; and

(iii) all charges and expenses in respect of or consequent upon any delay or frustration in performance or attempted performance of any part of the Services, including any delay or frustration in pick-up or delivery.

(e) The Customer agrees to reimburse CLA for any costs incurred in making the Goods comply with or meet any Duties. The Customer acknowledges that CLA has no obligation to incur any costs referred to in this clause 4.1(d).

4.3) Delivery of Goods
CLA may, acting reasonably, deliver the Goods or any part thereof to places other than those specified, as it elects and with notice to the Customer. Anyone at any delivery address (whether specified or as elected by CLA) may accept delivery on behalf of the Customer. Any signature or initial purporting to acknowledge delivery for or on behalf of the Customer shall be deemed conclusive evidence of delivery.
4.4) Disclaimer
CLA will not be responsible for any Liabilities relating to any Goods resulting directly or indirectly from:
(a) the storage, transport or use of any Goods at the direction of the Customer;

(b) any modifications of the Goods made by the Customer that were not authorised by the relevant party;

(c) any direction of the Customer, by act or omission, resulting to a misuse of any Goods by CLA;

(d) inadequate or improper maintenance of the Goods by the Customer;

(e) any accident or incident involving any Goods or any part of the Services;

(f) any salvage, recovery or clean-up relating to any accident or incident involving any Goods or any part of the Services;

(g) any misdelivery, non-delivery, delay in delivery, concealed damage, deterioration, contamination, evaporation or diminution in value of any Goods; or

(h) a breach of this clause 4 by the Customer.

5. DANGEROUS GOODS

5.1) Prior to any dealings or acceptance by CLA of any Dangerous Goods and/ or Prescribed Poisons, the Customer will supply CLA with:
(a) all applicable material safety data sheets; and

(b) a written declaration, which is compliant with all relevant Laws, detailing the nature of the Goods and all procedures necessary for safe dealing with them at all time, including in the case of accident, fire, spillage, contamination or other incident.

6. LIABILITY FOR SERVICES

6.1) So far as permitted by Law, CLA’s liability to the Customer in relation to a failure of the Services to comply with an applicable consumer guarantee is limited at the option of CLA to:
(a) supplying the Services again; or

(b) the payment of the cost of having the Services supplied again.

6.2 To the extent permitted by law, CLA will not be liable for any Liability (including Consequential Loss) to any property or person resulting from the provision or delay in the provision of the Services.

7. APPORTIONMENT OF LIABILITY

If the Customer makes any claim against CLA for any Liability arising out of, or in connection with, the Services, Goods or this Agreement and some or all of that Liability was due to, or contributed to by the Customer or another third party, CLA will be liable only for that proportion of the Liability which its acts and omissions bear in relation to the total conduct of all persons causing or contributing to that Liability.

8. SECURITY

8.1) Lien
In addition to any existing general or specific lien:

(a) the Customer hereby grants to CLA a general lien over all Goods and any documents relating thereto, which are in CLA’s possession, custody or control from time to time until payment of all monies owed to CLA;

(b) the Customer authorises CLA in its absolute discretion to sell or otherwise dispose of any perishable Goods, Dangerous Goods or Prescribed Poisons which are in the possession, custody or power of CLA, without notice to the Customer or any other interested party, at the Customers cost. CLA is not liable to any party nor has any obligation or responsibility to do so;

(c) the Customer authorises CLA to sell or otherwise dispose of any Goods in its possession, custody or power, upon the expiration of 21 days after written notice to the Customer of CLA’s intention to do so;

(d) CLA may apply the net proceeds of any such sale or disposition towards any monies owed by the Customer; and

(e) the Customer indemnifies CLA in respect of any loss, damage or liability as a result of exercise of any of the rights arising under this clause 8.1.

8.2) Security and the Personal Property Securities Act 2009 (PPSA)

(a) Without limiting clause 8.1, CLA has a general law possessory lien over the Goods in CLA’s possession, custody or control in respect of any amounts the Customer owes to CLA. In addition, the Customer grants CLA as security for the performance of the Customer’s obligations under this Agreement or any contract, a chattel mortgage in CLA’s favour against
the Goods to secure all amounts payable by the Customer.

(b) If CLA determines that this Agreement, any contract or the chattel mortgage is or contains a security interest for the purposes of the PPSA, the Customer agrees to provide al assistance reasonably required to which CLA requests and considers necessary for the purposes of:

(i) ensuring that the security interest is enforceable, perfected and otherwise effective;

(ii) enabling CLA to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by CLA; or

(iii) enabling CLA to exercise its rights in connection with the security interest.
(c) If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with this Agreement, the Customer agrees that sections 95 and 130 (to the extent they require CLA to give notice to the customer), and section 96,
121(4), 123, 125, 129, 130(4), 132(3)(d), 132(4), 135, 142 and 143 of the PPSA will not apply to the enforcement of this Agreement.

9. WARRANTIES, GUARANTEES AND CONDITIONS

9.1 All implied guarantees, warranties and conditions, including warranties as to the quality or fitness for purpose of the Services, are excluded to the maximum extent permitted by Law.
9.2) To the maximum extent permitted by Law, CLA is not liable:
(a) for any Consequential Loss under or in connection with this Agreement; or

(b) for any loss or damage to the Goods resulting from any action or omission (including any negligent action or omission) on the part of CLA, or the employee, contractors or agents of CLA.

10. INDEMNITY

The Customer indemnifies CLA against any Liabilities which CLA suffers, incurs or is liable for as a result, directly or indirectly, of:
10.1 any breach of this Agreement by the Customer; or

10.2 any negligent act or omission by the Customer.

11. TERMINATION

11.1) Breach of agreement
CLA may terminate this Agreement with immediate effect by giving written notice to the Customer if:

(a) the Customer breaches any material provision of this Agreement (including without limitation any breach in respect of an obligation to pay money) and fails to remedy the breach within 7 days after receiving notice requiring it to do so; and

(b) the Customer breaches a material provision of the Agreement where that breach is not capable of remedy or any event referred to in clause 11.2 occurs

11.2) Termination events
The Customer must notify CLA immediately if:
(a) it disposes of the whole or any material part of its assets, operations or business;

(b) there is a change in ownership of the Customer;

(c) it ceases to carry on business;

(d) it ceases to be able to pay its debts as they become due;

(e) any step is taken by a mortgagee to take possession or dispose of the whole or part of its assets, operations or business;

(f) any step is taken to enter into any arrangement between it and its creditors; or

(g) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person in relation to the whole or part of its assets, operations or business.

12. AFTER TERMINATION

12.1) After termination
If the Agreement is terminated the Customer must, within 5 Business Days of termination, pay CLA all amounts it owes CLA irrespective of whether those amounts have fallen due and whether or not an invoice has been issued by CLA.
12.2) Surviving provisions
Clauses 1 and 5 to 9 inclusive continue to apply after termination of the Agreement.

13. FORCE MAJEURE

No party is liable for any failure to perform or delay in performing its obligations under this Agreement if that failure or delay is due to a Force Majeure Event. If that failure or delay exceeds 90 days, the other party may terminate the Agreement with immediate effect by giving written notice to the other party. This clause does not apply to any obligation to pay money.

14. ASSIGNMENT

CLA may in its absolute discretion sub-contract delivery of the Services or otherwise assign this Agreement. The Customer must not otherwise assign or deal with the Agreement or any rights under the Agreement without the prior written consent of CLA.

15. INSURANCE

The Parties agree that:
(a) CLA has no obligation to insure any part of any Goods or Services and any insurance is the responsibility of the Customer and at the Customer’s cost; and

(b) if the Customer does not insure its Goods, the Customer will be deemed to have self-insured and will have no recourse to claim any Liabilities from CLA.

16. GENERAL PROVISIONS

16.1) Words and headings
In this Agreement, unless expressed to the contrary:

(a) words (including defined expressions) denoting the singular include the plural and vice versa;

(b) the word ‘includes’ in any form is not a word of limitation;

(c) headings and sub-headings are for ease of reference only and do not affect the interpretation of this Agreement; and

(d) no rule of construction shall be applied to the disadvantage of the Party preparing this Agreement on the basis that it prepared or put forward this Agreement or any part of it.

16.2) Specific references
In this Agreement, unless expressed to the contrary, a reference to:

(a) a gender includes all other genders;

(b) any legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced and includes any subordinate legislation issued under it;

(c) a reference to any legislation, statutory instrument or regulation is construed in accordance with the Acts Interpretation Act 1901 (Cth) or the equivalent state legislation, as applicable;

(d) a person includes a firm, partnership, joint venture, association, corporation or other body corporate, governments and governmental and local authority and agency; and

(e) a person includes the legal personal representatives, successors and permitted assigns of that person, and in the case of a trustee, includes any substituted or additional trustee.

16.3) Notice

A notice to be given by a party to another party under the Agreement must be in writing and sent to the address previously nominated by that party and will be deemed to be duly given:

(a) in the case of hand delivery, on the day of delivery;

(b) three Business Days after the date of posting by prepaid registered post; or

(c) if sent by facsimile or email, when sent

16.4) Governing Law

This Agreement is governed by the Law applicable in the State of Victoria, and the parties consent to the exclusive jurisdiction of the courts of the State of Victoria.

16.5) Time
Time is not of the essence except in relation to payment.
16.6) Waiver
The failure of a party at any time to require performance of any obligation under the Agreement is not a waiver of that party’s right:

(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; or

(b) at any other time to require performance of that or any other obligation under the Agreement.

16.7) Confidentiality
The parties agree to keep the terms of this Agreement and all information provided between the parties in relation to the Agreement confidential.
16.8) Unenforceable provision
Where a clause in this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
16.9) Relationship between the parties
Nothing in this Agreement creates any fiduciary relationship, nor any partnership, joint venture or agency relationship between the parties.

17. DEFINITIONS

Unless otherwise inconsistent with the context :

17.1) Agreement means the agreement constituted by these Terms and Conditions of Trade and any associated Credit Application completed by the Customer and Guarantor.
17.2) CLA means Concept Logistics Australia Pty Ltd (ACN 095 239 008) and each of its subsidiaries, divisions, affiliates, and related entities and any successors, assigns, delegates, subcontractors or others related to CLA involved in the performance of the Services.
17.3) Code means the Australian Code for the Transport of Dangerous Goods by Road & Rail as amended from time to time.
17.4) Consequential Loss means any loss or damage suffered by the Customer or any other person which is indirect or consequential; or which is by way of loss of revenue, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity.
17.5) Customer means a customer provided or to be provided Services by CLA.
17.6) Dangerous Goods means any Goods so defined in the Code
17.7) Fees means the fees payable by the Customer to CLA for the Services.
17.8) Force Majeure Event means any failure or delay in the performance of a party’s obligations under this Agreement as a result of a national strike, lockout, work stoppage, labour dispute, material shortage, utility outage, delay in transportation, fire, flood, earthquake, severe weather, act of God, accident, trade sanction, embargo, act of war, act of terror, condition caused by national emergency, new or changed Law, pandemic, epidemic or any other act or cause beyond the reasonable control and without fault of the delayed party, and whether affecting that party or its contractors or suppliers, for as long as the event prevails.
17.9) Goods means any goods related to performance of the Services and provided by the Customer including any receptacle, container, package, packaging, pallet or thing in or with which the goods are stored or handled.
17.10) GST means any goods and services tax or similar tax.
17.11) GST Law means A New Tax System (Goods and Services Tax) 1999 (Cth).
17.12) Guarantor means the guarantor or guarantors named in the Credit Application and a reference to “Guarantor” includes all Guarantors
17.13) Law means any legislation, ordinance, regulation, bylaw, order, award, proclamation, direction and practice note of the Commonwealth, State or Territory or any government agency, certificate, licence, consent, permit, approval, qualification, registration, standard and requirement, or any other Law from which legal rights and obligations arise, including any International rule, regulation, convention, Standard or Code to the extent they are applicable to the performance of the Services.
17.14) Liabilities means all damages, losses, liabilities, costs, charges, expenses, outgoings or payments (whether direct or indirect, consequential or incidental) including any damages, losses, liabilities, costs, charges, expenses, outgoings or payments in respect of any damage to property or injury to, or death of, any person.
17.15) Prescribed Poisons means any substance referred to in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and its statutory equivalent in each State and Territory of Australia, in any relevant Laws and any Standard Uniform Schedule for Drugs and Poisons applicable or adopted in any part of Australia as applicable from time to time.
17.16) Quotation means a statement of price given by CLA to the Customer for supplying specified Services, which may include specified terms and conditions and may be in any form in CLA’s discretion.
17.17) Request means any request for Services by the Customer.
17.18) Services means any services provided to the Customer by CLA, including (inter alia) any loading, unloading, holding, handling, storage, decanting, picking, packing, distribution, forwarding, installation, assembly, erection, removal, discharge, cleaning, preparation, maintenance or conduct undertaken under this Agreement.