Terms and Conditions
TERMS OF TRADE AGREEMENT is made on the Commencement Date.
Whereas
The Parties have agreed that this Agreement operates as the terms of which the Services are provided to the Customer by the Company.
The Customer agrees to pay the Payment Amount to the Company in return for the Services.
The Customer agrees to grant the Company the Security Interest (in accordance with the PPSA) for payment of any amount due and payable by the Customer in accordance with the provisions of this Agreement.
The Guarantor agrees to guarantee the Customer’s obligations contained in this Agreement.
General terms and conditions
Operative part:
Interpretation
In this Agreement, unless the context requires otherwise:
a reference to one gender includes a reference to all other genders;
the singular includes the plural and vice versa;
headings to clauses are included for the sake of convenience only and do not affect the interpretation of the clauses to which they relate;
references to any statute or statutory provision includes that statute or statutory provision as amended, extended, consolidated, or replaced by subsequent legislation and any orders, regulations, instruments, or other subordinate legislation made under the relevant statute;
where a Party comprises two or more persons the rights and obligations of such persons pursuant to this Agreement will endure for the benefit of and bind all of them jointly and each of them severally; and
all amounts stated in this Agreement are amounts in Australian Dollars.
Definitions
In this Agreement unless the contrary intention appears:
Agreement means this Terms of Trade Agreement between the Parties.
Collateral means the Security Property to which the Security Interest is attached, and includes the Goods and in relation to Registration with respect to the Security Interest, includes the Security Property described by the Registration (whether or not the Security Interest is attached to the Security Property) and all other present and after-acquired rights and Interests in land and any other property, rights and interests that are not personal property.
Commencement Date means the date that this Agreement is entered into by the Parties and is the date the Customer requests or accepts Goods and/or Services from the Company.
Company means AEB Enterprises Pty Ltd ACN 614 446 034 trading as Muve Logistics ABN 30 614 446 034.
Completion Date means the date the Company completes the Services for the Customer.
Confidential Information means all confidential information belonging to a Party and includes confidential computerised or electronic systems and processes, written materials, custom written guides, financial information, new ideas, strategies, product and service plans, unpublished works, marketing plans and studies, forecasts, computer programs, databases, computer codes, concepts and designs, records, technical specifications, product design, and any document that is marked as being confidential.
Customer means the entity and person for whose benefit the Company is directly or indirectly engaged to provide the Services and/or that has requested the Company to provide the Services and for the purposes of the PPSA provisions in this Agreement includes the meaning given to “grantor” as defined in the PPSA.
Force Majeure Event means any action, cause or event beyond the reasonable control of a Party including but not limited to:
acts of God, fire, flood, lightning strike, severe storm, earthquake, natural disaster, landslide, bushfire, mudslide, tsunami, maritime disasters, heatwaves, inclement weather conditions and any other adverse weather conditions that affect the transportation of goods and cargo;
acts of war (whether declared or undeclared), acts of terrorism, riots, insurrections, civil or military disturbances, national or state-wide industrial disputes;
epidemic, pandemic or public health emergency, or any resulting governmental action including work stoppages, service, or workplace closures, full or partial lockdowns of affected areas, quarantines, border closures and travel restrictions;
cyber warfare, cyber attacks, ransomware attacks and cyber sabotage
accidents with respect to conveying vehicles, interruptions to power or fuel supplies, strikes, and boycotts.
Goods means any products including but not limited to customer cargo, packaging, pallets, and containers supplied to the Company by or on behalf of the Customer.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 as amended or updated.
Guarantor means the individual providing a guarantee and indemnity for the Customer’s performance of obligations of this Agreement as contained in the Company’s Terms of Credit Agreement.
Intellectual Property means any and all intellectual and industrial property rights throughout the world and owned by the Company including rights in respect of or in connection with the Services, any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks; and designs whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
Interest means the amount of interest payable on monies due and calculated in accordance with the rate specified in a suitable bank’s business overdraft reference rate, compounded daily, and calculated from the due date.
Monies Hereby Secured means all monies, including the Payment Amount, for which the Customer may now or hereafter be indebted or liable or contingently indebted or liable to the Company on any account or for any reason whatsoever either solely or jointly with any other person and whether as principal or as surety, including in particular but without limiting the generality of the foregoing:
any money which is now owing or hereafter becomes owing under the terms of any agreement between the Customer and the Company or under the terms of any security (including pursuant to this Agreement), and guarantee or indemnity given by the Customer or by the Guarantor to the Company; and
any money which the Company pays or becomes liable to pay to for or on account of or at the request of the Customer either alone or jointly with any other person either by direct advances or by reason of the Company accepting, endorsing, paying or discounting any order, draft, cheque, promissory note, bill of exchange, warrant or other instrument whether negotiable or not and whether it has matured or not, entering into any bond, indemnity, guarantee or letter of credit, confirming any order or otherwise incurring liabilities for or on account of or at the request of the Customer; and
any money which the Company or any receiver hereunder is required to pay or may in its or his discretion pay in pursuance or in defence or in aid of its or his rights and powers hereunder; and
any money and damages payable to the Company pursuant to any assignment by any person to the Company of a debt payable by the Customer or other transaction, including, without limitation, any assignment or other transaction to which the Customer is not a party and irrespective of whether the Customer consented to the assignment or other transaction or whether before that assignment or other transaction the payment of those monies was secured or unsecured, interest was payable by the Customer on that debt or any other thing; and
Interest upon all such monies as aforesaid calculated daily and in accordance with this Agreement.
Parties means the parties to this Agreement and includes the Guarantor (if any).
Payment Amount means the amount due and payable by the Customer to the Company as consideration and includes any amount stated in tax invoice(s) issued by the Company to the Customer.
PPSA means the Personal Properties Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 (Cth).
PPSR means the Personal Properties Securities Register as defined by the PPSA.
Privacy Act means the Privacy Act 1988 (Cth).
Registration means:
the same as defined in the PPSA; and
the registration of the Security Interest on the relevant register to enable the Security Interest to have priority in accordance with this Agreement.
Security Interest means the Purchase Money Security Interest, as that term is used and defined in the PPSA, granted by the Customer in the Security Property to the Company under this Agreement to secure payment of all money by the Customer and performance of all the Customer’s obligations under this Agreement.
Security Property means:
All the Customer’s present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) and/or all present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) in which the Customer has rights and includes all of the Collateral and any other assets, property and rights over which the Security Interest is permitted by law; and
All assets, property, and rights, real or personal of any nature whatsoever owned by the Customer and/or in which the Customer has rights, at present or in the future.
And, where applicable, includes:
the proceeds from the sale of any of the Security Property;
the Customer’s Security Interest in any Collateral; and
includes the Goods supplied by the Customer.
Services means the services provided by the Company in connection with transport, logistics and storage services.
Site means the address at which the Goods are stored for the purposes of this Agreement.
Commencement
This Agreement comes into force and operates between the Parties on and from the Commencement Date. The Customer is deemed to have accepted and agreed to the terms, rights, obligations, and conditions set out in this Agreement as a legally binding contract when the Customer requests the Company to provide Services and/or when the Customer receives Goods or Services from the Company.
Payment Terms
The Customer must pay the Payment Amount to the Company immediately upon that date specified in the tax invoice issued to the Customer by the Company.
The Company reserves the right to change the Payment Amount at its reasonable discretion including in the following situations:
if a variation to the Company’s quotation is requested or required;
to reflect any increases to the Company in the cost of providing the Services which are beyond the reasonable control of the Company; and/or
upon the occurrence of any other situation or circumstance that the Company deems reasonably necessary.
The Payment Amount must be paid by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as required by the Company.
If the Customer does not pay the Payment Amount in accordance with the credit terms as provided in this Agreement, or as agreed in writing by the Company from time to time, the Company shall be entitled to charge an administration fee of 4% of the amount of the tax invoice payable per year, or part thereof.
All prices will be quoted exclusive of GST unless otherwise stated in writing by the Company for the purposes of this Agreement. The Customer must pay GST on any taxable supply made by the Company to the Customer under this Agreement and/or in so far as the GST Act applies to this Agreement. The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.
If the Company becomes liable to pay any tax, duty, excise, or levy in respect of any amounts received from the Customer, then the Customer must pay the Company these additional amounts on demand.
The Customer must pay the Company all charges invoiced within the specific timeframe outlined. If any amounts are not paid within 14 days, the Company will exercise the right to charge Interest. Should the Customer completely refuse to pay charges, then the Company reserves the right to recover the loss incurred by any means necessary including but not limited to the auction of Goods. The Customer is liable for any further charges incurred by the Company in the recovery of payment of charges from the Customer.
An account fee of $9.50 + GST will be applied to all invoices unless another higher amount is applied by the Company.
If the Customer owes the Company any money, the Guarantor and the Customer jointly and severally indemnifies the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s contract default fees, and bank dishonour fees).
Delivery
Delivery of the Goods is taken to occur at the time that:
the Customer or the Customer's nominated agent, nominee, authorised person or nominated third party takes possession of the Goods; and/or
the Company (or the Company's nominated contractor, agent or representative) delivers the Goods.
The Company (in its absolute discretion) reserves the right to arrange transport by any means.
The unloading of the Goods at the delivery point is the Customer's responsibility irrespective of any third party that may unload the Goods and, at all times, all risk remains with the Customer. The Company may unload the Goods at the delivery point either at the Customer’s request or where the Customer is absent at the time of delivery. The Company is not liable for any claim, cause of action or liability arising out of the unloading of Goods at the delivery point.
The Company may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in this Agreement, unless otherwise required in writing by the Company.
Any time or date of delivery given by the Company to the Customer is an estimate only. The Company will not be liable for any losses, costs, damages, or expenses incurred by the Customer for any unavailability and delay in the delivery of the Goods. Where there is a delay in delivery, the Customer is not entitled to refuse the delivery of the Goods and must accept delivery of the Goods.
Where dangerous Goods and/or anything likely to encourage vermin or pests are accepted for carriage, the Customer warrants that the carriage thereof is not prohibited, and it has fully disclosed the following in writing to the Company before the Company or its representative(s) has taken possession of the Goods:
the full particulars and description of the Goods;
the nature and value of the Goods;
all requirements of lawful authorities for such carriage; and
all other relevant information as required for the protection of the Company and its representatives.
The Company is not a common carrier and is not liable for any liability arising from the loss or damage of the Goods during the provision of the Services. The Company reserves the right to refuse the provision of Services to any company or person. Should the Company refuse the provision of Services to a company or person, the Company is entitled to all payable commissions, allowances, and any other remunerations outstanding, if any.
Goods of a dangerous nature must not be shipped unless prior approval in writing is sought from the Company in writing. The Customer warrants otherwise that Goods provided for carriage are not dangerous, inflammable, or explosive and that it is not liable to cause damage to any person or property during the course of the carriage. The Customer indemnifies the Company from and against any claims, losses, or expenses that it suffers as a result of a breach of this warranty.
The Customer shall indemnify the Company from and against all losses, liabilities, claims and expenses in connection with the delivery of the Goods by the Company and during the period in which the Goods are in possession of the Company for the purpose of the provision of the Services to the Customer.
Storage
The Customer warrants that it has the full right, title, and interest to permit and authorise the Company to:
store Goods at the Site without limitation;
distribute, dock, store and pack the Goods without limitation;
The Customer warrants that:
it will collect any Goods stored at the Site immediately and in accordance with a request by the Company;
it is the lawful owner and/or has lawful possession of the Goods tendered for storage;
it has sole legal rights to store Goods tendered, to release Goods, and to instruct Company regarding delivery or disposition of the Goods; and
none of the Goods stored in the Site are hazardous, dangerous, flammable, explosive environmentally harmful, perishable, illegal, or stolen.
Risk in the Goods does not pass from the Customer to the Company and the Goods are stored at the sole risk and responsibility of the Customer who is, at all times, responsible for any and all theft, damage to, and deterioration of the Goods, and the Customer bears the risk of any and all damage caused by flood, fire, leakage or overflow of water, mildew, heat, spillage of material from any other space, removal or delivery of the Goods, pests, vermin or any other reason whatsoever except where the damage arises from the negligence or deliberate act of the Company.
PPSA
The Parties agree that this Agreement constitutes a security agreement for the purposes of the PPSA and the terms of this Agreement create a Security Interest.
The Customer, as legal and beneficial owner, and, if the Customer is the trustee of any trust, in its capacity as trustee of that trust, hereby charges in favour of the Company with the payment of the Monies Hereby Secured the whole of its undertaking and assets whatsoever and wheresoever both present and future including the goodwill of its business and its uncalled and called but unpaid capital including all premiums.
The Customer’s interest in any freehold and leasehold land, fixtures, plant, equipment and other fixed assets, intellectual property, documents evidencing title to or the right to possession of any property, the goodwill of its business and its uncalled and called but unpaid capital, including all premiums shall be a fixed charge, and all other assets hereby charged shall be a floating charge. Insofar as it is a floating charge, it shall not hinder or prevent any sale or other dealing by the Customer in the ordinary course of its business.
The Customer grants the Security Interest to the Company, to secure payment of the Monies Hereby Secured and performance of obligations by the Customer under this Agreement.
The Customer must, within the timeframe notified by the Company, sign all documents and do all things necessary, as notified by the Company to:
enable Registration with respect to the Security Interest and for that Registration to continue until such time as all of the Customer’s obligations under this Agreement have been satisfied, including providing the Customer’s details and any serial numbers required for Registration;
in accordance with the PPSA requirements and provisions, enable the Security Interest to be perfected and continue to be perfected until such time as all of the Customer’s obligations under this Agreement have been satisfied;
ensure that the Security Interest has priority over all other Security Interests in the Security Property, whether registered, perfected, or otherwise and whether created or arising before or after the creation of the Security Interest, except those Security Interests which the Company agrees will have priority over the Security Interest or which by law have priority over the Security Interest;
ensure that the Company is able to enforce the Security Interest until such time as all of the Customer’s obligations under this Agreement have been satisfied and the Customer does not do anything which affects the enforceability of the Security Interest;
make any changes to the Registration relating to the Security Interest as the Company may require from time to time, including to enable correction of any defects in the Registration;
in accordance with the PPSA requirements and provisions, enable any Security Interest that forms part of the Collateral to be perfected and continue to be perfected until such time as all of the Customer’s obligations under this Agreement have been satisfied;
in accordance with the PPSA requirements and provisions, ensure that the Company’s Security Interest in any Collateral has priority over all other Security Interests in the Collateral, except those Security Interests which the Company agrees will have priority over the Company’s Security Interest in the relevant Collateral;
in accordance with the PPSA requirements and provisions, ensure that a third person cannot acquire an Interest in any Collateral free of the Company’s Security Interest other than, where applicable, as a result of the Customer dealing with inventory in the ordinary course of business;
register a financing statement or financing change statement in relation to a Security Interest on the PPSR;
register any other document required to be registered by the PPSA for the benefit of the Company; and/or
correct a defect in a statement referred to in this clause (or part thereof) for the benefit of the Company.
The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the Security Agreement created by this Agreement.
The Customer waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
Subject to any express provisions to the contrary nothing in this Agreement is intended to have the effect of contracting out of any of the provisions of the PPSA insofar as apply for the benefit of the Company and this clause.
The Company may exercise its rights in relation to the Security Interest any time after the Customer fails to comply with its obligations under this Agreement including any failure by the Customer to pay the Payment Amount by the time required under this Agreement for such payment.
To the extent permitted by the PPSA or any other relevant laws, the Customer waives its rights to receive any notices required to be issued or which would ordinarily be issued, whether by the Company or any other person, to the Customer under the PPSA or the other relevant laws.
The Customer will be entitled to a release of the Security Interest when all its obligations under this Agreement have been satisfied.
Lien
· The Parties agree that the Company has a lien on any and/or all Goods owned by the Customer and in the possession or control of the Company (and any documents relating to those Goods) for all sums payable including the Payment Amount by the Customer to the Company.
The Company has the right to sell the Goods by public auction or private treaty after giving 7 days’ notice to the Customer for the purposes of recovering any monies owed by the Customer to the Company.
The Company is entitled to retain the sums due to it, including for payment of the Payment Amount.
Indemnity
The Customer indemnifies the Company in respect of all liabilities, costs, losses, claims, expenses, fines and demands incurred by the Company arising out of or incidental to the Customer’s breach or non-compliance with this Agreement and any third party claim arising out of or incidental to the Company’s provision of the Services to the Customer except where such liabilities, costs, losses, claims, expenses, fines and demands are the direct result of the Company’s negligence. This indemnity includes any legal fees and expenses incurred by the Company in order to enforce its rights against the Customer on an indemnity basis.
In the event that the Company is found liable for any loss or damage, including without limitation, the loss and damage set out in the immediately preceding clause, any and such liability will be limited to the re-supply of the Services by the Company to the Customer.
No claim and or allegation of loss, damage, expense, or cost can be made to the Company unless lodged in writing to the Company within 24 hours from receipt of Goods by the Customer. The Company will not be liable for any damages incurred by the Customer in connection with the Goods and holds the rights to reject or refuse any claim put forth regardless of the time in which it was placed.
The Company may require the Customer to obtain and maintain insurance in relation to the Goods. In the event that the Customer already maintains an insurance policy for the Goods, the Company may, at its discretion, request the Customer to provide it with a certificate of insurance which certifies that an insurance policy is in force in relation to the Goods. The Customer shall promptly comply with any such requests made by the Company.
The Company is under no obligation to arrange insurance of the Goods. For the avoidance of any doubt, it is the Customer’s responsibility to ensure that the Goods are insured adequately or at all.
Credit Rights and Information
The Customer undertakes to comply with any request by the Company to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application at the expense of the Customer within 7 days of a request by the Company.
If the Customer is a corporation (with the exception of a publicly listed company), it must advise the Company of any alteration to its corporate structure (for example, any change in directors or shareholders, or its constitution). In the case of a change of directors or shareholders, the Company may ask for new guarantors to sign a guarantee and indemnity.
The Customer agrees for the Company to obtain from a credit reporting body a credit report containing personal credit information (for example, name, address, date of birth, occupation, previous credit applications and credit history) about the Customer in relation to credit provided by the Company.
The Customer agrees that the Company may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
to assess an application by the Customer; and/or
to notify other credit providers of a default by the Customer; and/or
to exchange information with other credit providers as to the status of the Customer’s credit account, where the Customer is in default with other credit providers; and/or
to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding 2 years.
The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit.
The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):
the provision of Services; and/or
analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
enabling the collection of amounts outstanding in relation to the Payment Amount and this Agreement.
The Company may give information about the Customer to a third party for the following purposes:
to obtain a consumer credit report;
allow the Company to obtain or maintain credit information about the Customer including credit history information.
The information given to the Company may include:
personal information about the Customer as referred to in this Agreement or this clause above;
details concerning the Customer’s application for credit or commercial credit (for example, date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than 60 days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively, that the Customer no longer has any overdue accounts and the Company has been paid or otherwise discharged and all details surrounding that discharge (for example, dates of payments);
information that, in the opinion of the Company, the Customer has committed a serious credit infringement; and
advice that the amount of the Customer’s overdue payment is equal to or more than $150.
The Customer shall have the right to request (in writing) from the Company:
a copy of the information about the Customer retained by the Company and the right to request that the Company correct any incorrect information; and
that the Company does not disclose any personal information about the Customer for the purpose of direct marketing.
The Company will destroy personal information upon the Customer’s request (in writing) or if it is no longer required unless it is required in order to fulfil the obligations of this Agreement or is required to be maintained and/or stored in accordance with the law.
The Customer can make a privacy complaint by contacting the Company in writing. The Company will respond to that complaint within 7 days of receipt and will take all reasonable steps to make a decision as to the complaint within 30 days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
The Company may disclose information to, and about the Customer. The Customer hereby acknowledges that it consents to the disclosure of such information to the Company, its employees, subsidiaries, agents, and related bodies corporate, past, present, or prospective credit providers.
The Parties, and signatories on behalf of the Parties including in their personal capacity, agree to the terms of the privacy statement pursuant to the Privacy Act and the Parties agree to be bound and to comply with the obligations imposed by the Privacy Act.
Waiver
A waiver of any provision or breach of this Agreement by the Company must be made by an authorised officer of the Company in writing. A waiver of any provision or breach of this Agreement by the Customer must be made by the Customer's authorised officer in writing.
Set-off
All payments required to be made by the Customer under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
Any amount due to the Company from time to time may be deducted from any monies which may be or may become payable to the Customer by the Company.
Intellectual Property Rights
The Customer acknowledges that it will not acquire any rights whatsoever in respect of any Intellectual Property rights. The Customer further acknowledges that it will not, in any way, whether directly or indirectly, dispute or impugn the validity of any of the Intellectual Property rights, and the Customer must not assist any other person, firm or company so to do.
The Customer agrees to promptly inform the Company of it becoming aware of any threatened or actual or suspected infringement, imitation, unauthorised use, or misuse of any of the Intellectual Property rights.
The Customer must not the use any Intellectual Property rights except as expressly permitted by notice given to the Customer by the Company in accordance with this Agreement.
Notices
Any notice to be given by the Customer to the Company must be in writing and shall be sent to the Company’s address.
No notice shall be deemed to have been given to the Company until it is actually received at such address.
Any notice given to the Customer by the Company shall be deemed to have been given to the Customer at the time that the notice is sent to the Customer’s last known address.
Disputes and Mediation
Any dispute arising out of or in connection with this Agreement between the Company and the Customer shall in first instance be referred to mediation.
In the event that such mediation is unsuccessful at the reasonable discretion of either the Company or the Customer, then both the Company and the Customer shall be free to institute proceedings in any court within Australia deemed appropriate for the purposes of this Agreement.
Exclusion of Warranties
The Customer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into this Agreement or in connection with the supply of any Services by the Company under law, statute or custom or international convention are excluded.
The Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, the Customer is entitled:
to cancel this Agreement with the Company;
to a refund for the unused portion, or to compensation for its reduced value;
to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, the Customer is entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel this Agreement and obtain a refund for the unused portion of this Agreement.
Limitations on Liability
The Customer shall be liable for, and to the extent permitted by law hereby releases and indemnifies the Company against all claims, loss or expense including claims in contract, tort or otherwise whether arising out of, or in connection with or relating to any breach of this Contract, the performance or provision of the Services or any fact, matter or thing relating to the Services or error in information supplied to the Customer before or after the date of the Customer’s or use of or Services.
The Company will be under no liability whatsoever to the Customer for any direct or indirect loss, consequential loss, incidental loss, liquidated damages, loss of income or profit, loss of business opportunity, injury to persons or damage to property arising out of or incidental to this Agreement, whether contemplated by this Agreement, and whether actionable in contract, tort, statute or equity otherwise.
The Company has no obligations other than as expressly stated in this Agreement or as imposed by law and to the maximum extent permitted by law, the Company makes no, and excludes all, express or implied warranties in connection with the Services.
To the maximum extent permitted by law, in the absence of proven negligence or other fault by the Company while the Goods are in the physical custody of the Company, the Company has no liability to the Customer whatsoever for any loss, damage, expense or delay.
Force Majeure
The Company shall not be liable for any delay or failure in the performance of any of its obligations imposed upon it by this Agreement if the delay or failure is caused by or arises from a Force Majeure Event. Such delay or failure as a consequence of a Force Majeure Event is not a breach of this Agreement by the Company.
For the avoidance of any doubt, the Company is not responsible for any loss or damage caused to the Goods or the customer cargo by a Force Majeure Event.
Severance
If any part of this Agreement is invalid or unenforceable, that part is deleted, and the remainder of this Agreement remains in force.
Variation
The Customer agrees that this Agreement may be varied, added to, or amended by an authorised officer of the Company at any time by written notice to the Customer.
The Customer agrees that the purchase of any Services after the date of a notice of variation will be deemed to be an acceptance of such varied terms and conditions.
Any proposed variation to this Agreement by the Customer must be requested in writing. The Company may refuse any such request without providing reasons either orally or in writing.
Jurisdiction
This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.
The Customer acknowledges and agrees that any contract for the supply of Services between the Company and the Customer is formed at the address of the Company.