Below are Our Terms and Conditions upon which we enter into a contract with You. You should satisfy yourself that you agree with these conditions before you contract with us.
You are not able to vary them without our express permission nor are you able to assign any of your responsibilities to another person or entity without our express written permission.
1.1. This Agreement provides the only terms on which we supply services to You.
1.2. Please note that we are not a Common Carrier nor shall we accent any liability whatsoever as such or ascribed as such. In addition, notwithstanding any other clause in this Agreement, we may at our absolute and entire discretion, and for any reason, at any time, refuse to handle or convey and/or transport goods for You.
1.3. Although this is an Agreement between You and Us, we may sub-contract any part or all of our services and/or obligations on any terms as desired by Us. Please refer to the definitions below.
1.4. When You provide Us with oral or written instructions that conflict with this Agreement We shall not be bound by such instructions and this Agreement shall prevail
2.1. In this document the terms “Conditions” and “Agreement” are used interchangeably.
2.2. “You” refers to you personally or if you are a company or other entity, then that company or other entity and in the latter case then you as an authorised representative of such company or entity and You warrant that You are able and entitled to act on behalf of that company in accordance with the laws of Australia and all states of Australia or if applicable, under International Law. If You contract with Us on behalf of a company, then you are representing to Us that You have the legal capacity to do so and that we can rely upon the representations You make in any and all circumstances. If You lose or are disposed of that authority You must advise us immediately and without delay and You must nominate a person whom has the legal capacity to act on behalf of that company or entity. At all times, You must have the legal capacity to contract with Us.
2.3. “We” or “Us” or “the carrier” refers to J&A LOGISTICS AUSTRALIA PTY LTD, ABN 95 616 995 978 operating principally (but not exclusively) from 8 Maynard Drive, Epsom, VIC 3551, Australia.
2.4. “Goods” includes but is not limited to any and all items or things of whatsoever nature or form we collect or convey in any form from You or from another party on Your behalf. The term also includes but is not limited to any packaging, pallets or containers or any other receptacle/s surrounding goods for either decoration, protection or for any other purpose.
2.5 “Services” we include any and all services supplied to You by Us in any capacity, including but not limited to those pertaining as carrier, storer, bailee, customs agent, shipping agent and forwarding agent and same includes all administrative and cartage, storage, handling and related tasks pursuant to our services to You.
2.6. “Consignment note” includes any consignment note in physical form or any file in physical form and/or stored or created electronically by You or Us and provided to Us that particularises, details and otherwise contains information as provided by You to Us in relation to any service or prospective service You seek or intend to seek, or are provided with from or by Us.
2.7 “Subcontractor” shall include all companies which are subsidiaries of Us within the meaning of that expression as defined in Section 9 of the Corporations Act 2001 (Cth),or its successor, and may include any railways operated by the Commonwealth, any state of Australia and/or any other person or entity (including any private company) with whom We may arrange for the carriage of any goods, being the subject of this contract, and who is now or at the relevant time, a servant, agent, employee or subcontractor of any person or entity acting in those capacities by a subcontractor of Ours and We hold that on trust for them and can enforce it. Our Conditions cover and can be used by a Subcontractor.
2.8 “Dangerous goods” are those as are classified under the Australian Dangerous Goods code or in any appropriate legal Act, Regulation, Rule, Standard or Code and include goods that have the capacity to or in fact injure or damage people, animals, property or the environment, whether You are aware of its dangerous or hazardous nature. They include (but are not limited to) goods that are or may become poisonous, corrosive, volatile, explosive, flammable, noxious or radioactive. In addition to these, any employee or other authorised representative of Ours may determine that goods are dangerous and require labelling and adherence to the provisions herein. Note that Special Provisions exist in this Agreement relating to our service of such goods under a separate heading which you must read.
2.9 “Prohibited Items” are any Goods or materials which are prohibited to be carried by any law, rule or regulation of any State, the Commonwealth of Australia or any country in or over which the Goods travels.
Representations made by you to us
3.1. By providing Us with the Goods and Your continued instructions in relation to same, You accept these Conditions on behalf of Yourself and/or anyone else who has an interest in the Goods or the performance of Our Services irrespective of whether you signed Our Consignment Note and/or Quotation or not.
3.2. Representations made by You, may be relied upon by Us at any time before, during and after you have entered into this Agreement. It is Your responsibility and obligation to Us to be truthful, honest, diligent and to act in good faith towards Us at all times and we reserve the right to cancel or amend this Agreement on the basis of a reasonable or actual belief by Us, howsoever formed, that You are not dealing with Us in good faith, diligently, truthfully or honestly.
3.3. You warrant, represent, guarantee and irrevocably undertake to Us that:
(a) You alone own the Goods or if they are owned by a third party, You have specific authorisation to act as their agent and they agree and consent to our Services and agree to be bound by the terms provided in this Agreement, Consignment Note and Quotation.
(b) You have completed the Rate Agreement and Consignment Note in a detailed, accurate and legible manner, providing any and all information and instructions We require to provide the Service that You request from Us and in the event that You require additional physical space to record this information pursuant to these undertakings in this section, You will advise Us of same prior to Our provision of Services to You. In some circumstances, at our discretion, we may accept verbal instructions in relation thereto but at all times, subject to this Agreement, and then only with our express consent and authority.
(c) Any third party You engage sending or returning Goods has complied with 3.3(b) above.
(d) That the Goods are packaged to withstand handling, transport and storage appropriate to the circumstances of the service as provided by Us. Safe and adequate packaging throughout the duration of the journey, being that which is also fit for purpose in relation to our handling and storage of the goods is Your responsibility and you are advised and alerted to consider all reasonably foreseeable circumstances that accompany such transportation by the modes and method that we provide in relation to same
(e) You have complied with all appropriate and current laws of those States and the Commonwealth (or international laws as the case may be) in connection with the goods to ensure that they can be lawfully possessed, handled, transported, stored and otherwise dealt with by Us.
(f) You will take all such reasonable steps to ensure that the particulars relating to all goods as shown on the Consignment Note are accurate, legible and correct and that the goods are adequately labelled and addressed by either You or any third party acting on Your behalf so as to enable, facilitate and guarantee effective delivery by Us in accordance with this Agreement.
(g) You enter into this Agreement only on the basis of those indemnities provided herein and agree with those remedies as outlined herein or (if legal proceedings are commenced by either You or Us), as decided by a duly constituted and competent Court of Law in a jurisdiction as determined by these Conditions.
(h) You will ensure that You will be able to be contacted by Us in a prompt and timely manner with respect to any matter pursuant to our services, before, during and after services rendered to you by Us.
(i) The Goods do not contain Prohibited Items.
(j) You will seek your own insurance cover. You are put on notice that We will not affect any insurance on Your behalf except where express written instructions by You have been provided and only if We are licensed to do so pursuant to the applicable laws. Any insurance to be effected by Us is subject to the usual exceptions and conditions of the policy. We are not under any obligation to effect separate insurance on each consignment but may declare it on a general policy. If an insurer or underwriter disputes liability for whatsoever reason, You agree to not have any recourse against Us and any recourse you may have will be against the insurer or underwriter.
3.4. In the event that we determine, at our absolute and entire discretion, that You have failed to meet any, part thereof or all of those undertakings as described in this clause, we reserve those rights as ascribed to Us in this Agreement and You accept and acknowledge that we may act in accordance with those rights as so defined.
3.5. You undertake to us that you shall not permit any other person who has an interest in the Goods to bring a claim or action against us even though we may have been negligent or in default and if a claim or action is made you will indemnify us against all loss, damages and other consequences of the claim or action and the costs and expenses We incur in defending it.
3.6. If You expressly or impliedly instruct Us to use, or it is expressly or impliedly agreed, that we will use a particular method of handling or storing of Goods or a particular method of carriage whether by road or rail, sea or air, We shall give priority to that method but if it cannot conveniently be adopted by Us, You authorise Us, to handle and store or to carry or have goods carried by alternate method or methods at Our entire and absolute discretion.
3.7. You authorise us to deviate from the usual route or manner of carriage of goods when we deem same to be either reasonable or necessary by Us in the circumstances, and we reserve the right to service you in such manner as we deem appropriate in the circumstances.
We reserve the right (at our entire and absolute discretion) to rely upon any and all of the following indemnities:
4.1. Subject to law, You will indemnify Us entirely and absolutely from any and all loss or damage You or a third party sustains in connection with any conveyance, handling or transport or storage of Your goods by Us and in relation to any service we provide you with be it negligent, wilful or by wilful omission (this includes all subcontractors of ours as herein defined).
4.2. You will indemnify Us for any loss or damage caused to any third party whatsoever and entirely (be it physical or property loss) arising by Your own acts, negligence or omission in relation to Your engagement of Us for the services we provide.
4.3. You will indemnify Us for any loss or damage You sustain resulting from any reasonable delay by Us and You acknowledge that in the normal course of business, delays in delivery can be caused by factors beyond our direct control or those that are not reasonably foreseeable by Us, including but not limited to road works, accidents on or near road carriageways, acts of nature including rain, flood and fire, delays in third party terminals including airports, in connection to wharves, railway sidings and freight stations, traffic jams, public events including protests and sporting fixtures, with respect to regulatory body monitoring of heavy vehicles including weighing, break downs, laws pertaining to speed limits for vehicles, unforeseen delays with respect to administration, extraordinary staff situations (such as strikes or industrial action), an act of war and/or terrorism, or any other event including those related to collection and delivery points.
4.4. From time to time, misadventure, accidents or circumstances may occur that may render Us unable to deliver Your goods. In such cases, You agree to indemnify Us from any and all loss as sustained by You in relation to non-delivery that arises from such circumstances beyond Our direct control and influence. In such case, You may have remedies against other parties.
4.5. In any legal action commenced by You, You shall make payment into Court, a reasonable amount at Our or the Court’s discretion to secure Our legal costs of defending any and all legal proceedings brought by You or including You or Us as a joined party.
4.6. All services are supplied at Your own risk. We are not liable for any delay, loss or damage arising from supply or Our failure to supply services and this shall apply to any consequential losses including but not limited to loss of profits.
4.7. You will indemnify us for any loss or damages We may suffer or any costs, damages or expenses We incur either to You or to anyone else if We receive any written notice of claim in connection with the Goods and services.
Limitation of liability
5.1. To the extent permitted by law, We exclude all conditions, warranties and guarantees provided or implied by any State, Territory or Commonwealth law, including but not limited to any statutory consumer guarantees under the Competition and Consumer Act 2010 (Cth). If you are a “consumer” as defined in the Competition and Consumer Act 2010 (Cth), these Conditions do not affect your rights under that Act.
5.2. Our total liability for a breach of any conditions, warranties and guarantees provided or implied by statute is limited to the statutory consumer guarantees described in the Competition and Consumer Act 2010 (Cth) or similar remedies under any applicable State or Territory legislation.
5.3. Notwithstanding any other Clauses, We bear no liability for any loss You suffer:
(a) Arising from our services, including but not limited to any failure by Us to perform any services in connection with the Goods or other services, any mis-delivery, failure to deliver or delay in performing the services;
(b) Arising from any loss, damage or destruction to the Goods or any part thereof; and/or
(c) Arising from Your use of the Goods,
for any reason whatsoever including breach of contract, negligence, breach of duty as Bailee or wilful act or default.
5.4. Subject to Clause 5, Our maximum liability for all purposes in connection with the Goods and services provided is limited to the total amount of payments received by Us from You during a one (1) month period before a claim arises (less any amounts paid by Us under this Clause in respect of all or part of that period).
5.5. We will not be liable:
(a) For any loss of income, loss of profits, loss or markets, loss of reputation, loss of customers, loss of use, opportunity loss, loss of deterioration, loss of business, loss of goodwill even if We had the knowledge that such damages or losses might arise or for any other indirect, incidental or special damages or loss howsoever arising including without limitation Our breach of contract, negligence, wilful act or omission or default.
(b) If we do not fulfil any obligations under this Agreement as a result of circumstances beyond our control (including, but not limited to acts of god, force majeure, industry disruptions, latent defects, criminal acts), your acts or omissions, third parties acts or omissions, Goods consisting of prohibited items and/or Our refusal to make any illegal payments on Your behalf.
5.6. The Goods are at the risk of You and not Us and unless expressly agreed in writing, We shall not be responsible in tort or contract or otherwise for any loss or damage or deterioration of goods or missed delivery or failure to deliver or delay of goods including chilled, frozen, refrigerated or perishable goods either in transit or in storage whatsoever including without limiting the forgoing, the negligence or wilful act or default of the carrier or others and this clause shall apply to all such loss or damage or to deterioration of goods or missed delivery or failure to deliver or delay in delivery of goods as aforesaid whether or not the same occurs in the course of performance by Us of the contract or in events which are in the contemplation of Us or You or in the events which are foreseeable by You or Us which would cause a fundamental breach of contract or fundamental term hereof.
5.7. You agree that all of the rights, immunity, exemptions from liability granted to Us by this Agreement, shall have and continue to have, their full force and effect in all circumstances, whether or not, the same occurs in the course of performance by Us of the Contract or are in the contemplation of You and/or Us or are foreseeable by You or Us or would constitute a fundamental breach of the Agreement or any clause hereof.
6.1. If You ask Us to deliver goods which at Our discretion We regard as unacceptable, or which You have undervalued for Australian Customs purposes, We may contact You to determine whether You desire to continue with the delivery or return the subject goods to You. In that case, We may levy an additional charge upon You which You agree to pay as and when We request same. In addition, in absence of any further Agreement between You or Us, in the event that:
(a) We are unable, after reasonable attempts made by Us, to contact You to procure Your further instructions; or
(b) You do not immediately accept total liability for those additional expenses as when We advise,
We reserve the right to dispose or otherwise dispossess Us of those goods, at any time and in any manner at Our absolute and entire discretion and shall be entitled to procure from You any and all costs associated with such disposal or dispossession including those relating to any actual or prospective transporting of same to any location and administration. In such case those costs shall become immediately due and payable by You to Us as and when we invoice You.
6.2. Where You are going away or perceive that You will not be able to be contacted throughout the term of this Agreement and Our service to You, You must advise Us in advance and arrange an appropriate contact person who is authorised and has the capacity and desire to instruct Us on Your behalf.
7.1. We put you on notice that the following specific classes of Dangerous Goods will NOT be transported:
(a) Class 1 – Explosives.(without prior written consent)
(b) Class 6, Division 6.2 – Infectious Substances.
(c) Class 7 – Radioactive Material.
(d) Products listed as Security Sensitive Dangerous Substances.
(e) Products known as Waste Material.
If, in the absence of any notification by You, we determine that the Goods fall into any of the above named categories, We reserve the right to forward, return, dispose or store the Goods at our discretion and until further notice. You agree to pay us any costs we incur as a result of this Clause.
7.2. If the Goods constitute Dangerous Goods, You must:
(a) Advise Us in advance of our collection, if the Goods constitute Dangerous Goods;
(b) Provide Us with a full, accurate and detailed description of the Goods in the Consignment Note clearly labelling same as “DANGEROUS GOODS”;
(c) Attach appropriate documents for the transportation of such Goods; and
(d) Comply with all legal requirements regarding Dangerous Goods, including but not limited to the current Australian Dangerous Goods Code, where applicable.
7.3. You must comply with Clause7.2 prior to contracting with Us for the carriage of the goods so that our drivers and other relevant personnel are familiar with the nature of the goods, the risk they pose to life and property and the remedies available to Us and any and all authorities in the event of an accident, incident or if the goods otherwise escape or move beyond the confines of their designated container be it in transit, in storage or during handling.
7.4. You accept and agree that a Dangerous Goods surcharge, subject to Our discretion, will be invoiced to you upon acceptance of Your Goods.
7.5. You will also ensure that Our proposed transport arrangements including, but not limited to, type of vehicle, security and stowage therein and any and all storage and handling techniques for the goods are fit-for-purpose and at all times lawful. You will indemnify Us entirely and absolutely from any loss or damage either We or You or any third party incurs if you fail to comply with this Clause, including all consequential losses to any party.
7.6. We shall not be held liable for any loss suffered by You or Us with respect to our carriage of Dangerous Goods. You agree to indemnify Us entirely and absolutely in relation thereto against all claims arising from whatever source including but not limited to those claims by You, third parties and our employees and subcontractors.
7.7. Where in our opinion, based on reasonable grounds, the Goods represent an immediate or present danger, or a potential danger to property or life, we reserve the right to dispose or dispossess ourselves of such goods immediately and/or without notice to You or do anything to minimise or avoid injury or damage and You shall be responsible for paying our reasonable costs in relation thereto and You indemnify Us entirely and absolutely for any loss or damage You or any third party may incur as a result of same. This includes a situation where the Goods have not been packaged properly and any contents escape beyond their packaging, including but not limited to, any chemical spill requiring special clean-up operations and/or those that attract the provisions of Environmental and/or Pollution Acts.
7.8. By entering into this Agreement, You are on notice that all Goods in our possession may be subjected to security screening, x-ray, security and safety inspections and/or opened and contents inspected by Us or Our nominated representatives or a governmental authority, at any time. You are also on notice that We or a governmental authority may take any action regarding the Goods, that We consider necessary to verify the condition or nature of the Goods, the ownership or destination of the Goods or if We consider that the Goods may contain Prohibited Items or Dangerous Goods. You must advise Us in advance if any procedures listed above, that We may undertake, represent a threat or danger to property or life in advance of such measures and You shall be liable for any special arrangements We make with regards to undertaking same as well as any and all additional costs associated with same.
7.9. If, in the absence of any notification by You, we determine that the Goods are Dangerous Goods as defined within this Agreement, this section shall take effect notwithstanding any knowledge of same by You at that time and you explicitly authorise Us to act in reliance of this section in relation thereto. We further reserve the right to do all such things necessary to comply with Clause 7.2, forward, return, dispose or store the Goods at our discretion and until further notice. You agree to pay us any costs we incur as a result of this Clause
7.10. We reserve Our right to refuse the acceptance of any Goods now and in the future, if We have reasonable belief that the above warranties are not being met by You.
7.11. You ensure and certify upon completion of the Consignment Note or obtaining Our services that the Goods does not constitute a Prohibited Item. You will indemnify Us entirely and absolutely from any loss or damage either We or You or any third party incurs if you fail to comply with this Clause, including all consequential losses to any party. We do not accept Goods containing Prohibited Items.
8.1. You must pay Us as and when contracted for and in the event that You do not pay as and when payment falls due as determined by Us, We may take legal action against You at any time, in the appropriate legal jurisdiction. Apart from usual Court action We may use Bankruptcy or Winding Up proceedings as advised to Us by Our legal advisors.
8.2. Where We take legal action to recover Our costs, You may be liable for the debt due and interest at the relevant legal rate calculated daily thereon, as well as Our legal expenses. In that case, We may rely upon the terms of this Agreement and that information as contained in any invoice and/or Consignment Note as we deem fit.
8.3. We are entitled to retain and be paid in full all commissions, allowances and remuneration paid including those customarily paid by or to third parties, custom agents, forwarding agents, shipping agents, forwarders, stowers, carriers or bailees as the circumstances dictate.
8.4. In some circumstances, where freight is to be charged to the receiving or third party, then a valid account number of the paying party must be stated on the Consignment Note. Please note that Our charges are earned as soon as We collect the Goods from You or from the location as nominated by You.
8.5. Where you instruct us to collect Goods and undertake all such reasonable steps to collect such Goods and We find that they are:
(a) Not at the location you nominate;
(b) Not ready to be collected; or
(c) You re-direct Us to another address before, during or after collection,
We have the discretion to charge any additional charges that we may levy as a result of these new or unintended arrangements. Other charges may apply in accordance with these Conditions.
8.6. Our charges are a matter of our absolute discretion based upon the particulars of the circumstances of the service that we provide, but they are approximately based upon:
(a) The greater of the actual weight or cubic volume of the goods (for the purpose of calculating weight we round up to the nearest whole metric kilogram);
(b) Distance travelled; and
(c) Operational logistics as undertaken by us to service you.
8.7. We place you on notice that any and all quotes and/or estimates we provide to you and/or the accompanying resultant invoice/s may fluctuate or change during the performance of our contract with you as a consequence of changes to our operating costs. This includes, but is not limited to, circumstances which increases and/or decreases the cost of fuel and energy, insurance, wages, tolls, maintenance, compliance and any other relevant charges to us from third party suppliers. In these particular circumstances, we reserve the right to reasonably change (based on changes to our operating costs only), vary and/or amend our quote, estimate and/or actual issued invoice at any time to reflect those changes brought about by third parties. At all material times, it is an irrevocable and solemn term and condition of our contract with you that you acknowledge the prospect of and accept these fluctuations in quotes, estimated and/or invoices should they so arise and where you enter into a contract with us, agree to be bound by such changes in our quotes, estimates and/or invoices should they so arise.
8.8. The charges contained in this Agreement (including but not limited to any separately levied customs charges) are exclusive of any Goods and Services Tax, value added consumption tax or similar tax. If any such tax is applicable to any of the services supplied by Us, we may pass this tax onto You and You agree to pay such tax in addition to the charges and/or rates specified in this Agreement.
8.9. We retain the right to use all legal remedies to ensure that We are paid, this may include retention or disposal of Your goods and we reserve the right to sell same privately to any party or by public auction as determined by Us.
8.10. Where no time has been specified by You or Us in relation to your payment of any service We provide, all amounts are due and payable to Us within 14 days of being invoiced or of delivery, whichever date is earlier, without withholding, deduction, counter-claim or set off. Any late payment by You may be subject to additional fees by us related to administration of same as we determine.
8.11. Subject to Clause 8.10, if you do not contest Our invoice in writing within 14 days from the date of the invoice, You agree to waive all of your rights to challenge our invoices.
8.12. If You fail to make payment in accordance with this clause, J&A Logistics Australia Pty Ltd reserves the right to charge default interest at the rate of 15% per annum on all overdue amounts (including further charges and amounts other than the total sum) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment. The parties agree that such default is not a penalty but is a true measure of damages incurred by J&A Logistics Australia Pty Ltd. Payments received from You will be credited first against any default interest and all such charges shall be payable upon demand.
8.13. You acknowledge and agree that these Conditions constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) and creates a security interest in any Goods.
9.1. Where applicable, you are responsible for arranging the loading and unloading of the Goods, at your own cost, on and from the relevant vehicle. If You delay the loading or unloading of the Goods, You shall be liable for any losses incurred as a result of the delay and You will indemnify Us against any losses incurred by You or any other parties as a result of the delay. You warrant that you will provide adequate and suitable facilities and equipment for loading and unloading the Goods and that the Goods will be suitable for carriage in the relevant vehicle.
9.2. It is Your responsibility to ensure that You have provided Us with the correct address of the recipient and the recipient, at point of delivery:
(a) Has prior knowledge of Our arrival;
(b) Is equipped and prepared to take delivery of the Goods as delivered by Us; and
(c) Will readily and without grievance, accept the delivery of the Goods by Us.
9.3. Where no previous arrangements have been made between You and Us, and We deliver goods to a location as nominated by You and We form the view that:
(a) There is nobody present, suitable or authorised to take collection of the Goods;
(b) The delivery environment is unsuitable to take possession of the Goods; or
(c) Our access to that delivery location is frustrated physically in any way (including but not limited to poor or inadequate access, another vehicle blocking our path, absence or changed circumstances of loading dock or building or by verbal or written direction of authorised officer assigned to manage or with control of delivery area),
Then We reserve the right to take all such reasonable steps as We deem necessary to deal with Goods thereafter. This may include seeking Your further instructions, leaving the Goods at the point of delivery (even if unattended), returning the Goods to the collection point or elsewhere, storage of Goods at our facility or that owned by another person or entity, dispossession or even disposal of Goods. Where we leave the Goods at the point of delivery, their safety and security is Your responsibility and You indemnify Us entirely and absolutely from any theft or damage of the Goods as well as any loss You or any other party may suffer and all claims by any party as a result of our delivery of the Goods in this circumstance. Delivery is deemed to have occurred in accordance with this Agreement where We have complied with this clause.
9.4. Whilst we undertake to use all reasonable efforts to give effect to representations made by Us in relation to timing of deliveries, We note that any and all such representations by Us are made in approximate measures of time only. In certain circumstances including but not limited to those detailed in Clause 4.3, it may not be possible for Us or Our subcontractors to deliver at a particular time as represented to You. Further, We reserve the right to change or amend, expected collection and delivery times, at any time, at our entire and absolute discretion.
9.5. Where those circumstances arise in Clause 9.3, We reserve the right to levy any additional fees as We may reasonably incur relating to resources and efforts We have expended in remedying any unforeseen difficulties in delivery. These may include costs to third parties that You will be responsible for, that are not quantifiable at this time.
10.1. If You fail to comply with any of these Conditions or being a natural person or persons commits any act of bankruptcy or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any of Your property or assets or becomes liable to be wound up by reason of insolvency or if any petition is presented for Your winding up, or if a Liquidator or Provisional Liquidator is appointed, We may, in addition to exercising all or any rights against You, suspend any further services and immediately retain possession of any Goods for outstanding payments in accordance with the Conditions. We will not be liable for any loss or damage You may suffer as a result of Us exercising Our rights under this Clause.
Additional legal provisions
11.1. We reserve the right to change this Agreement at any time, without prior notice to You, at our discretion. Should You have queries with this regard, please contact Us prior to entering into this Agreement.
11.2. In this Agreement, the singular includes the plural and vice versa.
11.3. Headings to Sections are included for the sake of convenience only and shall not affect the interpretation of clauses to which they relate.
11.4. References to any statute or statutory provisions include 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.
11.5. The word “person” means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not.
11.6. This Agreement shall bind You or Our legal personal representatives, successors and assigns.
11.7. When a party comprises of two or more persons, the rights and obligations of such persons pursuant to this Agreement shall ensure for the benefit of and bind all of them jointly and each of them severally.
11.8. Any refusal, failure, or neglect by Us not to exercise any right or entitlement herein shall not constitute nor be construed as any acceptance or condonment by Us of any act of thing done by You, nor does it warrant nor compel Us to disregard any provision at our discretion.
11.9. In any event of any covenant or other provision of these Conditions being invalid, illegal or unenforceable, unlawful or otherwise being incapable of enforcement, all other clauses and covenants of this Agreement shall nevertheless prevail and remain in full force and effect and be valid and fully enforceable and no covenant or other provision hereof shall be construed to be dependent upon any covenant or provision unless so expressed herein and in the event that of any such provision being severed pursuant to this clause the parties shall endeavour and agree upon provisions substitution therefore which are not illegal and which substantially express the meaning of the severed provisions.
11.10. You undertake that no threat, promise or inducement has been made by Us with respect to your Agreement with these Conditions.
11.11. In the event of a dispute relating to this agreement, breach, termination, validity or subject matter thereof, or as to any related claim in restitution or at law, in equity or pursuant to any statute, you are invited and encouraged to contact us directly in an effort to resolve the dispute. However, if you choose not to contact us or if the dispute cannot be resolved informally, the parties to the agreement and the dispute expressly agree to endeavour to settle the dispute by mediation administered by an appropriate mediator before having recourse to arbitration or litigation. This clause will survive termination of this agreement.
11.12. Unless otherwise required by law, these Conditions shall be subject to and governed by the laws of VICTORIA. Each party irrevocably submits to the non-exclusive jurisdiction of the Court of VICTORIA.
11.13. Subject to law, We may plead this Agreement as a bar against proceedings generally.
11.14. If any term or part thereof of this Agreement is invalid or not enforceable in accordance with its term, all other terms or parts thereof which are self-sustained and capable of separate enforcement without regard to the invalid or unenforceable term or part thereof is and will continue to be valid and enforceable in accordance with its term.
11.15. Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction:
(a) Does not affect the validity, legality or enforceability of the provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction; and
(b) May be severed without affecting the enforceability of the other provisions of this Agreement.
11.16. This Agreement contains the entire agreement and understanding between the parties in connection with the transactions contemplated by this Agreement and there are no inducements, representations, warranties, covenants or undertakings which have been relied on to any extent by either party entering into this Agreement except as expressly contained in this Agreement.
11.17. No party may transfer or assign any of its rights under this Agreement without the prior written consent of each other party.
11.18. You must notify us promptly if you have a claim and you must notify us within 14 days. If we do not receive a written notice from you within 14 days, we will have no liability to you. Notwithstanding this, if you do not commence proceedings in court within 6 months after the date of delivery, we will have no liability to you.
While these terms and conditions are current at the time of production, management reserves the right, without notice, to vary, change, amend or delete any part thereof at any time for any reason. Prior to acting on reliance of these terms our valued customers are encouraged to confirm these as they are appear are current and in force. E & EO information correct as at 30 June 2016.