1  Application of Terms

1.1   These Terms govern our supply of Services to you, including supplies on a cash basis. We only accept Consigned Goods in accordance with these Terms.

1.2   If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.

1.3   It is not our practice to otherwise review terms and conditions on documents that you issue to us.

1.4   Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.

2  No liability as a common carrier

2.1   We are not a common carrier and accept no liability as a common carrier.

2.2   We may refuse to handle, store, warehouse, or transport any goods (or any class of goods) for any reason (and without any requirement to provide any reason).

3  Quotations

3.1   Each quotation that we issue:

(a)    is an estimate only;

(b)    is not an offer or obligation to provide any Services;

(c)    is exclusive of GST;

(d)    remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn or varied by us at any time before a Contract is formed; and

(e)    contains a price on the basis that all Services are provided during Business Hours,

unless the quotation states otherwise.

3.2   A quotation may include additional terms or conditions, which will supplement these Terms.

3.3   Should you wish to have services provided outside Business Hours please let us know as additional charges may apply.

4  Formation of contract

4.1   We are not obliged to supply any Services until after a Contract is formed.

4.2   A Contract is formed, and you have accepted these Terms, when:

(a)    you have placed an Order with us; and

(b)    we have received any deposit we have required from you in respect of the Order before progressing it; and

either we have:

(c)    accepted your Order in writing; or

(d)    provided any Services following receipt of your Order.

4.3   If you revoke an Order:

(a)    prior to the formation of a Contract then:

(i)   we will refund you any deposit you have paid in respect of that Order; and

(ii)  you will not be required to pay any fee for the cancellation of the Order; or alternatively

(b)    after the formation of a Contract then unless we are in breach of the Contract:

(i)   you must pay all our reasonable costs associated with fulfilment of your Order; and

(ii)  we may apply any deposit you have paid towards those costs.

5  Price

5.1   The price payable for the Services will be:

(a)    the price agreed in writing; or alternatively

(b)    the price by our prevailing price list/rates as when you place your Order.

5.2   We may charge freight by weight, measurement, or value and may at any time reweigh, revalue, or remeasure or require the Consigned Goods to be reweighed, revalued, or remeasured.

5.3   All uncrated plant, machinery, and equipment will be deemed to have a height of 2.6 metres and will be measured and charged accordingly.

5.4   Notwithstanding anything to the contrary in this clause 5, you must:

(a)    pay all costs and charges (where applicable) for demurrage or demurrage services that we facilitate;

(b)    if the Consigned Goods are under customs control, pay all customs duty, excise duty, quarantine restrictions, special handling, and costs (including any fine or penalty) which we become liable to pay (other than as a result of our negligence); and

(c)    supply or pay for labour or machinery (or both) to load or unload the Consigned Goods.

6  Price variations

6.1   This clause 6 applies where a Contract has formed and we have accepted your Order pursuant to clause 4.2(c).

6.2   Where you request or direct that any Consigned Goods or Services be supplied that are not strictly in accordance with your Order, then such Consigned Goods or Services shall constitute a price variation, unless otherwise agreed between the parties and clause 6.3 will apply.

6.3       You acknowledge and agree that:

(a)    all price variations under clause 6.2 must be agreed between the parties in writing prior to the Consigned Goods or Services being supplied; and

(b)    all price variations shall be, at our discretion acting reasonably, invoiced at the rate(s) specified in the quotation, as specifically quoted, or in accordance with our current prevailing rates (as amended from time to time).

6.4   Subject to clause 6.5, we reserve the right to vary the price or rates specified in the Order if:

(a)    there is any movement in the cost of supplying the Consigned Goods or Services specified in the Order (including, without limitation, any actual increase in the costs to manufacturing, procuring, warehousing, or transporting the Consigned Goods, foreign exchange fluctuation, currency regulation of duties, or significant increases in the cost of labour, materials);

(b)    additional Consigned Goods or Services are required due to the discovery of hidden or unforeseen problems (including, without limitation, issues, faults or problems identified upon further inspection) which have been discovered following the commencement of the Services;

(c)    the weight, measurements, or value of the Consigned Goods differs from the weight, measurements, or value you have given us;

(d)    the Consigned Goods or Services specified in the Order are varied from the Consigned Goods or Services specified in the quotation;

(e)    you request:

(i)   the Consigned Goods or Services be rendered outside our usual business hours;

(ii)  different Consigned Goods or Services to be supplied to the Order; or

(iii)        that we delay provision of the Consigned Goods or Services for sixty (60) days or more; or

(f)      otherwise as provided for in these terms and conditions.

6.5   Where we vary the price or rates payable for the Consigned Goods or Services pursuant to clauses 6.5, we will notify you of the new price or rates. Thereafter you may reject the new price or rates within seven (7) days and terminate the contract without further cost, or any penalty to you, otherwise you agree that the new price or rates will apply to the contract. For clarity, any termination of the contract under this clause will be without prejudice to any Consigned Goods or Services supplied prior to termination.

7  Consignor’s warranties

You warrant and represent to us that:

(a)    you have complied with all laws and regulations relating to the nature, conditioning, classification, description, labelling, and packaging of the Consigned Goods, including the ADG Code;

(b)    the Consigned Goods are accurately described in writing, whether on a consignment note or otherwise, and accurately detail the nature and value of the Consigned Goods, as well as the requirements of any relevant authority and any other relevant information we may reasonably require (including the weight and measurements of the Consigned Goods);

(c)    the Consigned Goods are, given their nature, packed in a proper way to withstand the ordinary risks of handling, storage, and transport;

(d)    subject to clauses 8.1 and 8.2, the Consigned Goods are not Dangerous Goods;

(e)    you are either:

(i)   the owner of the Consigned Goods; or

(ii)  the duly authorised agent of the person who owns, or has an interest in, the Consigned Goods and are authorised to tender the Consigned Goods for the Services;

(f)      you have in place, and will maintain, an insurance policy to cover any and all loss, damage, or deterioration to the Consigned Goods (however so caused) at all times.

8  Dangerous Goods

8.1   You acknowledge and agree you must not tender for Services any Dangerous Goods without our prior written and fully informed consent.

8.2   If we agree to accept any Dangerous Goods for the Services:

(a)    such Dangerous Goods must be accompanied by an accurate written declaration that details the nature and value of the Dangerous Goods, as well as the requirements of any relevant authority and any other relevant information we may reasonably require; and

(b)    you warrant and represent to us that you have complied with all laws and regulations in relation to the nature, conditioning, classification, description, labelling, and packaging of the Dangerous Goods, including the ADG Code.

8.3   If, in our reasonable opinion, the Dangerous Goods we accept for the Services are liable to become dangerous, inflammable, explosive, volatile, offensive, or damaging in nature (whether to persons or property), we may, at any time and at your sole expense, destroy, dispose of, abandon, or render harmless the Dangerous Goods, without any liability to you or the Recipient whatsoever.

9  Insurance

9.1   You acknowledge and agree that we are not an insurer of goods (either warehoused or in transit) and will not effect insurance in respect of the Consigned Goods, unless otherwise agreed writing (in which case such insurance will effected in your name and will be at your sole expense).

10  Delivery, route, and deviation

10.1        We will use reasonable endeavours to deliver the Consigned Goods at the time and place agreed for delivery.

10.2        You acknowledge and agree that:

(a)    time in respect of delivery is not of the essence; and

(b)    any timeframe or date for delivery is an estimate only and is not a contractual commitment,

unless the Contract expressly states otherwise.

10.3        You further acknowledge and agree that:

(a)    we may use any appropriate method to handle, transport, or store the Consigned Goods; and

(b)    you authorise us using such methods,

unless the Contract expressly states otherwise.

10.4        You acknowledge and agree that:

(a)    we may arrange and facilitate the collection and forwarding of any freight the subject of the Services; and

(b)    we are hereby expressly authorised to:

(i)   accept on your behalf Bills of Lading and the terms and conditions contained therein (or any other form or term of contract used by any carrier procured by us to carry the Consigned Goods; and

(ii)  to enter into such arrangements or agreements with any carrier to facilitate or secure payment for the Services.

10.5        You authorise us, if we believe it reasonably necessary or desirable, to deviate from the usual route or method of transport.

10.6        Delivery is deemed to occur, at the time we deliver the Consigned Goods to the delivery location stated in your Order (or to such other location as agreed in writing).

10.7        Your Consigned Goods the subject of freight shall be freighted at your risk. We shall not be liable for any loss, damage, or deterioration occasioned to the Consigned Goods at any time except to the extent that such loss, damage, or deterioration was directly caused by our gross negligence or wilful default.

10.8        Where:

(a)    (the delivery location is attended): we will endeavour to obtain a signed delivery docket or consignment note from the Recipient (or any person with apparent authority on their behalf); or

(b)    (the delivery location is unattended): we may:

(i)   deposit the Consigned Goods at the delivery location; or

(ii)  store the Consigned Goods on your behalf; or

(iii)        return the Consigned Goods to you.

10.9        If delivery of the Consigned Goods is deferred:

(a)    at your request; or

(b)    due to the Recipient being unable or unwilling to accept delivery of the Consigned Goods;

in circumstances where:

(c)    we are ready to deliver the Consigned Goods and a delivery date has not been agreed; or

(d)    the Consigned Goods are due to be delivered on an agreed delivery date,

then you will pay to us:

(e)    reasonable daily storage charges (which will continue to accrue until such time as the Consigned Goods are delivered); and

(f)      any costs associated with us attempting to re-deliver the Consigned Goods (where we have previously attempted to deliver the Consigned Goods).

10.10     You acknowledge and agree that we may deliver the Consigned Goods in one or more lots and may invoice you for pro rata progress in respect thereof.

11  Provision of Services

11.1        You must, prior to us commencing the Services:

(a)    obtain, at your expense, all relevant Approvals;

(b)    provide us with such information and documentation that we reasonably require to perform the Services; and

(c)    inform us of any special requirements pertaining to the installation (such as Site-specific policies or safety requirements).

11.2        You acknowledge and agree that:

(a)    unless the contract expressly states otherwise:

(i)   time in respect of completion of the Services is not of the essence; and

(ii)  while we will take reasonable endeavours to complete the Services by the estimated date for completion, any timeframe or date for completion is an estimate only and is not a contractual commitment; and

(b)    we may suspend or cease performance of the Services at any time by notice to you if, in our opinion (acting reasonably), we determine the Site to be unsafe.

11.3        If the commencement or the completion of the Services is delayed due to any event beyond our reasonable control, such as:

(a)    Goods unavailability;

(b)    your failure to:

(i)   select the Services or have Consigned Goods ready;

(ii)  have the Site ready for us to perform the Services; or

(iii)        notify us the Site is ready for us to commence the Services.

then you agree we may extend the time for commencement or completion of the Services (as the case may be) by a period of time equal to the delay.

11.4        You must at all reasonable times permit our Personnel to have free, clear, and unrestricted access to the Site to enable us to fulfil our obligations without unreasonable interruption, impediment, delay, or obstruction.

11.5        If you make available access to the Site, you warrant that the Site is safe and that it complies with all relevant work health and safety laws and standards.

12  Scheduled Services Contracts and Orders

12.1        Where a Contract requires us to perform ongoing or periodic Services over a period of time or for a specified duration (the ‘Scheduled Services Contract’), whether or not the Services are performed following written notice to us or according to our Schedule, then, unless otherwise agreed in writing:

(a)    the commencement date shall be the date of the first delivery or performance of the Services;

(b)    the Scheduled Services Contract will continue for the period of time set out in the Schedule or until such time as the final scheduled Service is delivered or performed (the ‘Term’); and

(c)    any amounts owing following expiry of the Term must be paid for in cash or cleared funds, subject to these Terms or the terms governing your Credit Facility. For the removal of doubt, expiry of the Term or early termination by agreement in writing of any Scheduled Services Contract will be without prejudice to our rights or any accrued rights of ours.

12.2        If, after the expiry of the Term, you place an Order with us and we accept your Order, each Order that we accept thereafter will:

(a)    will constitute a new Contract separate to the Scheduled Services Contract; and

(b)    will be subject to these Terms (as amended),

unless otherwise agreed in writing.

12.3        Unless otherwise agreed in writing (or as the context permits), any Orders that you place with us during the Term will not form part of a Scheduled Services Contract and will be deemed to be a separate Contract for Services subject to these Terms, as amended.

13  Storage, warehousing, and freight services

13.1        You acknowledge and agree that we may be required to warehouse, store, or otherwise hold the Consigned Goods at any reasonably secure place or places (pending their removal and freighting or delivery). Goods so held shall be held at your risk and expense, and any cost incurred by us shall constitute a charge leviable upon you as a charge for the Services.

13.2        You acknowledge and agree that:

(a)    we carry on a business as a facilitator or coordinator of, the freighting of Consigned Goods where the collection and carrying of those Consigned Goods is undertaken by another party;

(b)    you agree to comply with any terms and conditions of carriage or cartage imposed by any carrier procured by us; and

(c)    we may charge you the price and any outstanding amounts notwithstanding any failure by the Recipient to collect or deliver Consigned Goods for any reason whatsoever including without limitation:

(i)   the consignee of such goods refusing to pay any cost or expense to be paid by it or the consignee refusing to take delivery of Consigned Goods;

(ii)  delivery of the goods otherwise being frustrated by, inter alia, the death or insolvency of the consignee, a failure to locate the consignee or otherwise; or

(iii)        the Consigned Goods perish in transit.

14  Payment terms

14.1        Unless you have a Credit Facility with us which is not in default:

(a)    deposits we have requested must be paid before we accept the tender of any Consigned Goods for the Services;

(b)    you must pay for all Services on a progressive basis.

14.2        If you have instructed us that:

(a)    the Recipient will be responsible for the payment of any customs duty, excise duty, costs, or other charges; and

(b)    the Recipient fails to pay such sums within seven (7) days of the date of delivery; and/or

(c)    we pay such sums on your or the Recipient’s behalf,

then you agree to promptly pay such sums to us on demand.

14.3        Payment may be made by cash, cheque (if pre-authorised by us), electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.

14.4        We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.

14.5        You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.

14.6        You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.

15  Claims

15.1        Clauses 15.2 to 15.4 only apply if the Contract is not a Consumer Contract and not a Small Business Contract.

15.2        You must, within seven (7) days of the date of delivery:

(a)    give us notice in writing, with particulars, of any Claim that the Consigned Goods have not been delivered in good order (including any Claim the Consigned Goods were damaged or lost); and

(b)    at our request, provide us with photographic evidence (to our satisfaction) of any alleged damage to the Consigned Goods.

15.3        You must notify us in writing of any Claim within seven (7) days of the date of delivery which relates to the Consigned Goods the subject of your Claim.

15.4        If you fail to notify us in accordance with clause 15.2 and 15.3, then, to the extent permitted by law, the Consigned Goods are deemed to have been delivered in good condition and in accordance with the Contract.

16  Security interest

16.1        You grant us the following security interests in all Consigned Goods (and any relevant documentation including but limited to, Bills of Lading or other documents of title or chattel paper) the subject of the Services that are in our possession:

(a)    a consignment or bailment (whether or not a commercial consignment or bailment); and

(b)    a general lien.

16.2        For the avoidance of doubt, the security interests contemplated by clause 16.1 attach to the Consigned Goods at the time we take possession of the Consigned Goods.

16.3        You must reimburse us for any costs we incur in registering our interests (where applicable) on the Personal Property Securities Register (including registration fees).

16.4        You:

(a)    waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act;

(b)    agree that, to the extent permitted by the PPS Act:

(i)   sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and

(ii)  you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.

16.5        We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.

16.6        Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.

17  Consignor Material

17.1        You warrant and represent to us that all Consignor Material:

(a)    is accurate and correct; and

(b)    will not infringe the Intellectual Property Rights of any third-party.

17.2        You grant us a non-exclusive, non-transferrable, royalty free, perpetual, worldwide licence to use all Consignor Material for:

(a)    the purposes of supplying the Consigned Goods or performing the Services; and

(b)    marketing and advertising.

18  Intellectual Property Rights

18.1        All right, title, and interest in the Intellectual Property Rights in and to all Working Documents, and all Services sold or supplied by us are, and will at all times, remain our property.

18.2        All improvements, derivatives and modifications to the Intellectual Property Rights contemplated by clause 18.1 (the ‘Improvements’) vest in us immediately on creation. To the extent necessary to give effect to this clause 18, you assign to us all right, title, and interest in the Improvements.

18.3        You acknowledge and agree that:

(a)    you have no rights to use our Intellectual Property Rights under these Terms, except as expressly set out herein, unless otherwise agreed in writing; and

(b)    you must not modify, copy, clone, or reverse engineer any of our Goods (nor procure or permit any person within your reasonable control to do any of these things).

19  Property and title in the Equipment

19.1        You acknowledge and agree that we are the owner of the Equipment and retain title to (or are otherwise licensed to possess or use) the Equipment in all circumstances.

19.2        For the removal of doubt, neither payment of compensation nor any other event or circumstances will amount to, constitute, or result in any transfer of property or interest in the Equipment from us.

20  Confidentiality

20.1        You agree to keep confidential, and not use or disclose, other than for your internal business purposes, any Confidential Information provided to or obtained by you before or after your entry into a contract of which these Terms form part.

20.2        The obligations of confidence imposed on you by clause 20.1 do not apply to Confidential Information that is required to be disclosed by any applicable Law or under compulsion of a court, Government Authority, or the rules of any securities exchange (as long as you disclose the minimum amount required to satisfy the Law or rules, provide us with prior notice in writing, and take reasonable steps to maintain the confidence of such Confidential Information) or that is in the public domain otherwise than as a result of a breach of these Terms or other obligation of confidence.

20.3        Clauses 20.1 and 20.2 survive the termination or performance of a Contract.

21  Default

21.1        Clauses 21.2 to 21.6 apply if you fail to pay sums to us when they fall due.

21.2        We will have the right of a general lien on the Consigned Goods (and any relevant documentation including but limited to, Bills of Lading or other documents of title or chattel paper) in our possession to secure payment of all amounts due to us, without prejudice to our rights under these Terms.

21.3        Where we exercise the right of a general lien (or other applicable security interest) on the Consigned Goods subject to this clause 21, we may in our reasonable discretion:

(a)    store the Consigned Goods in such place and manner as we determine (including refrigeration or freezing of perishable goods);

(b)    open any package containing goods and sell such goods in the ordinary course of business (provided any such sale is at arm’s length and on market terms); and

(c)    apply the proceeds of any such sale in discharge of the lien or security interest, and the costs of sale.

21.4        We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 15% per annum.

21.5        We may suspend or cease the supply of any further Services to you.

21.6        We may require pre-payment in full for any Services which have not yet been supplied.

22  Indemnity

22.1        If you default in the performance or observance of your obligations under any Contract of which these Terms form part, then:

(a)    we will take steps to mitigate our loss and act reasonably in relation to any default by you; and

(b)    we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and

(c)    if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.

22.2        Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.

22.3        Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.

23  Limitation of liability

23.1        No party is liable to the other party for any Consequential Loss, including under clause 22, however caused arising out of or in connection with any Contract of which these Terms form part.

23.2        While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.

23.3        If the Contract is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:

(a)    us supplying the Services again; or

(b)    us paying you the cost of having equivalent Services supplied.

24  Termination

A party may, with immediate effect, terminate any Contract of which these Terms form part by notice in writing, if the other party:

(a)    commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or

(b)    has failed to pay sums due to the party within seven (7) days; or

(c)    has indicated that it is, or may become, insolvent; or

(d)    ceases to carry on business; or

(e)    comprises an entity which is the subject of the appointment of receivers or managers; or

(f)      comprises a natural person who:

(i)   has committed an act of bankruptcy; or

(ii)  has been made bankrupt;

(g)    comprises a corporation which:

(i)   enters into voluntary administration;

(ii)  is subject to a deed of company arrangement; or

(iii)        is subject to the appointment of liquidators or provisional liquidators.

25  Variation

We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further order.

26  Assignment

A party may only assign its rights under the Contract with the written consent of the other party.

27  Subcontracting

27.1        You acknowledge and agree that, given the nature of the Services, we reserve the right to reasonably subcontract the Services (or any part of those Services), however, doing so will not relieve us of any of our obligations to you.

27.2        Every exemption, limitation, condition, and right in these Terms of whatsoever nature applicable to us to which we are entitled will also be available and will extend to protect:

(a)    our subcontractors;

(b)    every employee or agent of our subcontractors; and

(c)    every other person who is engaged in the provision of the Services.

28  Conflicts and Inconsistencies

If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):

(a)    any terms governing your Credit Facility;

(b)    any additional terms or conditions contained in our quotation applicable to the provision of Services;

(c)    these Terms; and

(d)    any additional terms or conditions contained in our Services Schedule applicable to the provision of Services.

29  Severance

If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.

30  Governing law and jurisdiction

30.1        Our relationship is governed by and must be construed according to the law applying in the State of New South Wales.

30.2        The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New South Wales with respect to any proceedings that may be brought at any time relating to our relationship.

31  Definitions

In these Terms, unless the context otherwise requires, the following apply.

31.1        ADG Code means The Australian Code for the Transport of Dangerous Goods by Road & Rail (as amended or succeeded).

31.2        Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained or required or applying in connection with any contract of which these Terms form part.

31.3        Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.

31.4        Business Hours means between 09:00am to 5:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Services are, or are to be, supplied.

31.5        Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a Contract.

31.6        Confidential Information includes:

(a)    any information relating to our business and affairs;

(b)    any information that is by its nature confidential;

(c)    any information which is designated by us as confidential;

(d)    any information that you know, or ought to know, is confidential; and

(e)    all financial information, pricing information, and commercially valuable information of ours.

31.7        Consequential Loss includes any:

(a)    consequential loss;

(b)    loss of anticipated or actual profits or revenue;

(c)    loss of production or use;

(d)    financial or holding costs;

(e)    loss or failure to realise any anticipated savings;

(f)      loss or denial of business or commercial opportunity;

(g)    loss of or damage to goodwill, business reputation, future reputation, or publicity;

(h)    loss or corruption of data;

(i)      downtime costs or wasted overheads; or

(j)      special, punitive, or exemplary damages.

31.8        Consigned Goods means all plant, machinery, equipment, goods, livestock, articles, items, or cargo (together with any Pallets) that we:

(a)    accept for transportation from one location to another location by way of our Services; or

(b)    that we organise for freighting, storage, warehousing, or other transport from one location to another location by way of a third party’s services.

31.9        Consignor, you means the person or other entity who has engaged us to provide the Services.

31.10     Consignor Material means all information and documentation provided to us by you (or on your behalf) in the course of us supplying the Consigned Goods or Services.

31.11     Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.

31.12     Contract means a contract for the supply of warehousing, storage, transportation, freight, and other Services as constituted by our quotation (if any), your Order, and these Terms.

31.13     Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for our Services and associated charges.

31.14     Dangerous Goods means goods classified as ‘Dangerous Goods’ by the ADG Code and also includes:

(a)    goods that are (or may become) dangerous, noxious, flammable, explosive, or radioactive that may cause damage to property or injury or death to any person; or

(b)    goods that are, in our reasonable opinion, likely to cause damage to property or injury or death to any person.

31.15     Equipment means plant, machinery, vehicles, or equipment (including but not limited to, software that we have developed) that we own or are licensed to use, including manuals and logbooks, associated or attached tools, accessories and parts used by us to perform the Services.

31.16     Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.

31.17     Order means a written or oral order placed by you requesting that we provide Services (including but not limited to, email orders or customer-created consignments made via software that we own or are licensed to use).

31.18     Pallets means any pallets, drums, bearers, and any other containers, together with all packaging, supplied in conjunction with the Consigned Goods.

31.19     Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier, includes its subcontractors (and any employee of those subcontractors).

31.20     PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.

31.21     Recipient means the person to whom the Consigned Goods are delivered.

31.22     Services means all services offered or provided by us, as described on our quotation, invoice, or any other form issued by us, and includes:

(a)    packing, unpacking, road, rail, sea or air carriage, storage, freight forwarding, customs clearance, and de-consolidation of any Consigned Goods on your behalf; or

(b)    the organisation of packing, unpacking, road, rail, sea or air carriage, storage, freight forwarding, customs clearance, and de-consolidation of any Consigned Goods on your behalf.

31.23     Schedule means any schedule (or quotation where the context permits) provided in conjunction with these Terms.

31.24     Site means the location where the Services are to be performed.

31.25     Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.

31.26     Subcontractor means a person or other entity we arrange to provide the Services (or part of the Services).

31.27     Supplier, we, us means Trident Logistics Group Pty Ltd (ACN 663 466 475).

31.28     Working Documents means all plans, designs, specifications, and schedules created by us in the course of or in relation to any contract in which Intellectual Property Rights may subsist and all drafts, variations, alterations, and adaptations of such plans, designs, specifications, and schedules (whether currently existing or created in the future).

32  Interpretation

In these Terms, unless the context otherwise requires:

32.1        A time is a reference to the time zone of Perth, Australia unless otherwise specified.

32.2        $, dollar, or AUD is a reference to the lawful currency of Australia;

32.3        A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.

32.4        A right includes a benefit, remedy, authority, discretion, or power.

32.5        The singular includes the plural and vice versa, and a gender includes other genders.

32.6        “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.

32.7        If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.

32.8        Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.

32.9        A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.