1. DEFINITIONS
In these conditions:
“Address” means the address given by the Customer to BTEL to where the Goods are to be delivered.
“Agreement” has the meaning provided in clause 2 of these Terms.
“BTEL” means Beginning To End Logistics Pty Ltd (ACN 600 782 947) its successors and assigns.
“Business Day” means a day on which the banks are open for trading in Perth (excluding weekends plus public holidays).
“Charges” means charges set by BTEL from time to time and payable by the Customer to BTEL in consideration of Services provided to the Customer, including but not limited to:
(a) costs for providing the Services;
(b) costs caused by delays that are not the fault of BTEL;
(c) taxes, fines and duties including customs and excise duties payable in respect of the Goods and the Services;
(d) any goods and services tax;
(e) all other costs and expenses incurred in the provision of the Services including demurrage at the rate charged by the relevant airport, railway or shipping authority;
(f) all other costs referred to in these Terms and payable by BTEL; and
(g) all costs incurred by BTEL in exercising or attempting to exercise its rights under these Terms including all legal fees.
“Customer” means the Person with whom BTEL contracts to provide the Services identified in a Purchase Order.
“Damage” means any loss of, damage to, deterioration of, or misdelivery of, or non-delivery of, or delay in Delivery of the Goods and includes consequential economic or ancillary
loss damage, expense or liability.
“Delivery” means delivery of the Goods to the Address in accordance with these Terms.
“Due date” means the due date for payment nominated on the relevant invoice and if none then Seven (7) days from the date of the invoice.
“Goods” means the goods accepted from the Customer, its officers, employees and agents together with any containers, packaging or pallets supplied by or on behalf of the Customer and used in relation to provision of the Services.
“Party” means a party to the Agreement and “Parties” has a corresponding meaning.
“Person” includes a natural person, firm, corporation, government authority or other body or organisation.
“Purchase Order” means a purchase order for Services placed by a Customer to BTEL and accepted by BTEL.
“Receiver” means the Person their officers, employees and agents to whom the Customer consigns, sends or directs the Goods.
“Services” means the whole or part of the operations and services undertaken by BTEL in connection with the Goods including but not limited to, the collection, loading, unloading, carriage, transportation, Delivery and storage of the Goods, as described in the relevant Purchase Order or otherwise agreed in writing by the Parties.
“Terms” means these terms of trade as may be amended from time to time in accordance with clause 18 of these Terms.
“Quote” means a written quotation for the Services and relevant Charges provided by BTEL to the Customer.
2. GENERAL
(a) These Terms apply to all transactions between the Customer and BTEL relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These Terms take precedence over terms of trade contained in any document of the Customer or elsewhere and all previous terms of trade supplied by BTEL.
(b) The variation or waiver of a provision of these Terms or a Party’s consent to a departure from a provision by another Party is ineffective unless in writing signed by the Parties.
(c) These Terms, together with:
(i) a Quote that has been accepted by the Parties;
(ii) a Purchase Order (accepted by BTEL);
(iii) an Invoice issued by BTEL to the Customer relating to the Services;
(iv) any other document agreed by the Parties;
form the Agreement between BTEL and the Customer for the provision of the Services.
3. QUOTES
(a) BTEL may provide the Customer with a Quote. Any Quote issued by BTEL is valid for Thirty (30) days from the date of issue, unless otherwise specified by BTEL on the Quote.
(b) Following provision of a Quote to the Customer, BTEL is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer completing an Order form and returning the form to BTEL.
(c) BTEL reserves the right to amend any Quote before the Purchase Order has been completed to take into account any rise or fall in the cost of completing the Purchase Order including (without limitation) foreign currency fluctuations. BTEL will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these Terms.
(d) An indication in a Quote of the time frame for the provision of the Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon BTEL.
4. PURCHASE ORDERS
(a) Every Purchase Order by the Customer for the provision of Services must be submitted in writing to BTEL. BTEL reserves the right to refuse to accept any Purchase Order at its absolute discretion.
(b) Purchase Orders must be signed by an authorised representative of the Customer.
(c) Placement of a Purchase Order by the Customer signifies acceptance by the Customer of these Terms and the most recent Quote provided by the BTEL relating to that Purchase Order.
(d) A Purchase Order cannot be cancelled without the prior written consent of BTEL. Where a Purchase Order is cancelled, the Customer indemnifies BTEL against any losses incurred by BTEL as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Purchase Order which is subsequently cancelled.
5. NOT A COMMON CARRIER
(a) BTEL is not a common carrier and accepts no liability as such. All Services are provided subject to these Terms and BTEL has discretion to refuse to provide Services to any Person or of any class of goods;
(b) BTEL relies on the details supplied by the Customer but does not verify or admit the accuracy of the details. A signature by BTEL is merely acknowledgement of the Goods received.
6. DELIVERY
(a) Subject to sub-clause (c), BTEL must deliver the Goods to the Address and Delivery occurs if at the Address BTEL obtains from any person a receipt or signed delivery docket for the Goods.
(b) If the Address is unattended BTEL may store and redeliver the Goods, and the Customer shall indemnify BTEL for all expenses incurred by storage and attempted or actual redelivery (including all legal fees).
7. METHOD AND ROUTE
(a) If the Customer instructs BTEL to use a particular method of or route for providing the Services, BTEL will give priority to that method and route but BTEL may provide Services by another method or route and the Customer is deemed to have authorised such method.
(b) BTEL may change the usual or directed route or method for provision of Services if BTEL believes it is necessary or desirable.
8. SUB-CONTRACTING AND ASSIGNMENT
(a) BTEL may have a sub-contractor or sub-contractors perform all or any part of the Services. BTEL shall act as the agent and trustee for sub-contractors who have the benefit of these Terms as if this Contract was entered into by the sub-contractor.
(b) BTEL has the right to assign to any Person all of its rights, title and interest obligations under the Terms provided the assignee agrees to assume any duties and obligations of BTEL owed to the Customer.
(c) The Customer may not assign its rights and interest under the Terms without the prior consent of BTEL.
9. PACKAGING
(a) Containers, packaging and pallets with the Goods must conform with BTEL’s requirements and normal industry standards, and the Customer is liable for any expense caused by non-conformance.
(b) If pallet weight is not included in the Goods weight nominated by the Customer, each pallet will be charged at a rate determined by BTEL.
10. DANGEROUS AND HAZARDOUS GOODS
(a) Except with the prior written consent of BTEL, the Customer must not tender any Goods containing:
(i) dangerous, hazardous or damaging goods, unless a full description disclosing the dangerous, hazardous or damaging character of those goods is presented to BTEL; or
(ii) goods if the carriage of those goods is illegal or prohibited by any law or regulation of a State, Territory or the Commonwealth.
(b) Details provided by the Customer are warranted by them as correct.
(c) The Customer is liable for all Damage caused wholly or partially by a breach of Condition 10(a) and must indemnify BTEL for death, bodily injury, loss or Damage (personal and property) incurred by any person as a result of the Customer’s breach.
(d) BTEL at the Customer’s expense, may return to the Customer or destroy, dispose or make harmless Goods that are tendered in breach of condition 10(a) or in breach of any law or regulation.
11. STORAGE
(a) the Customer must pay the Charges and remove the Goods stored by BTEL within the timeframe reasonably required by BTEL
(b) Where storage Charges in respect of the Goods are unpaid for One (1) month BTEL requires the Customer to pay the storage Charges within seven (7) days.
(c) The Customer warrants that it is the owner of the Goods and has the authority to deal with them.
(d) If the Customer fails to comply with conditions 11(a), 11(b) or 11(c), BTEL may deal with the Goods in any way it sees fit including, opening and selling the Goods at the Customer’s risk and expense and applying the proceeds of any sale to the Charges then in arrears. The Customer indemnifies BTEL in respect of any costs incurred, Charges which remain owing and any claims by any other party with an interest in the Goods.
(e) Whilst BTEL takes all reasonable precautions to keep the Goods safe and secure, Goods are stored at the Customer’s sole risk. BTEL accepts no responsibility for loss or damage to any Goods howsoever arising.
(f) The Customer is entitled to access its Goods at all reasonable times on 24 hours prior notice to BTEL.
(g) Storage charges do not include insurance which is the responsibility of the Customer.
12. CARRIER’S CHARGES
(a) The Customer will pay the Charges on the Due Date without deduction for any reason.
(b) Charges are considered incurred as soon as the Goods are loaded and dispatched. Cancellation fees apply.
(c) The Customer must pay interest at the rate of 12% per annum calculated on a daily basis on unpaid Charges from the Due Date until Charges are paid.
(d) A further Charge may be made for any delay exceeding One (1) hour from the time of reporting for loading or unloading.
(e) No Charges are refundable.
(f) Charges are exclusive of GST unless stated otherwise. The Customer will pay to BTEL the GST payable by BTEL for the Service at the same time as the Charge is payable.
(g) Charges may, at BTEL’s discretion, be calculated by weight or volume based on measurements taken by BTEL’s dimensions if measured manually.
(h) If at any time the Customer is outside of the payment trading terms contained in the Agreement, cancels a pickup or order, seeks or obtains an alternate service provider or is in breach of any other term of this Agreement then BTEL may suspend the credit account or cease Services as at that date, including where Goods are in transit or warehoused awaiting delivery. If the account is cancelled or suspended, BTEL will be at liberty to take steps to immediately recover all monies owing for Services provided or contracted without regard to credit terms.
(i) BTEL may increase or decrease the Customer’s credit limit at its sole discretion.
13. POSSESSORY LIEN AND SECURITY INTEREST
(a) BTEL has a possessory lien and general lien over the Goods and other property of the Customer in its possession or under its control from time to time with respect to any Charges due from the Customer or other Person to BTEL under the Agreement.
(b) BTEL may sell the Goods and apply the proceeds to pay Charges due after providing written notice to the Customer’s last known place of business or registered office of its intention to do so.
(c) The Customer indemnifies BTEL against claims by any party with an interest in the Goods.
(d) The Customer grants BTEL a security interest (as defined in the Personal Property Securities Act 2009) in all Goods the subject of the Services and held in BTEL’s possession or control.
14. INDEMNITIES AND EXCLUSIONS
(a) The Goods are at the risk of the Customer and not BTEL and, unless expressly agreed in writing, BTEL will not be liable for any Damage to the Goods, whether or not the Damage occurs in the course of performance by BTEL of the Services or when otherwise in the possession of BTEL pursuant to the Agreement, for any reason whatsoever including without limitation, negligence, breach of contract, bailment or wilful act or default of BTEL.
(b) The Customer indemnifies BTEL against any claim or allegation made against BTEL by or liability to any Person including but not limited to the Receiver and the bailor for any Damage, personal injury (including death or disease) or other loss or injury (personal or property) arising out of or in connection with the provision of the Services including solicitor-client indemnity costs incurred by BTEL, irrespective of any negligence, breach of contract, bailment or wilful act or default of BTEL.
(c) Subject to any implied warranty provided by the Competition and Consumer Act (2010), the Australian Consumer Laws or any other Act (as amended from time to time) which may not be excluded, no warranty, condition or representation is given on the part of BTEL and any express or implied warranty as to quality, fitness for purpose or otherwise of the Services is hereby excluded.
(d) To the extent that BTEL is subject to any implied warranties provided by the Competition and Consumer Act (2010) (as amended from time to time) BTEL limits its liability to the maximum extent allowed under that Act.
(e) If temperature control is required for the Goods the Customer acknowledges that variations can occur in relation to temperature control. Temperature records of BTEL will be sufficient evidence to prove the temperatures applying during the provision of the Services.
15. CLAIM FOR DAMAGE
Where by express written agreement BTEL becomes responsible for loss or damage relating to the Goods, no claim for loss or damage will be allowed unless:
(a) the claim is lodged in writing within Twenty-Four (24) hours after Delivery was given to an office of BTEL in the State or Territory in which delivery was effected; and
(b) the Customer substantiates the damage.
Failure to claim within Twenty-Four (24) hours is evidence of satisfactory performance of the Services. Time is of the essence in this clause 15.
16. INSURANCE
The Customer must take out its own insurance cover for the Goods. At the request of BTEL, the Customer will make BTEL a co-insured to the Customer’s insurance policy. BTEL will not arrange insurance on behalf of the Customer.
17. LAWS, CUSTOMS AND REGULATIONS
The Customer warrants that the Goods complies with all the applicable laws, customs and other government regulations of any Federal, State or Territory of Australia.
18. CUSTOMER ACCEPTS TERMS
(a) The Customer warrants that it is either the owner, authorised agent of the owner and of the Receiver.
(b) The Customer accepts the terms of this Agreement for the owner and Receiver and any other Person on whose behalf the Customer is acting.
19. ENTIRE AGREEMENT
The Agreement is the entire agreement between BTEL and the Customer relating to the Services. No purported variation or modification of the whole or part of the Agreement will have any effect unless it is in writing and signed by the Parties.
20. SEVERABILITY AND NON WAIVER
(a) If any part of the Agreement is unenforceable that part is severed from the Agreement with the rest remaining in full force.
(b) A right cannot be waived unless done so in writing by the Party seeking to waive the right.
21. PROPER LAW AND JURISDICTION
The Agreement is governed by the laws of Western Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Western Australia. Any proceedings against BTEL must be instituted within six (6) months of the cause of action arising. Time is of the essence for this Agreement.
22. UNCOLLECTED GOODS
(a) If Goods are undeliverable for whatever reason BTEL will hold them in safe keeping for [time, eg 3] months. The cost of the storage will be paid by the Customer. BTEL will be entitled to retain the Goods until payment of the storage fees have been paid.
(b) Subject to any relevant legislation relating to uncollected Goods, if after the period of storage noted in clause 22(a), the Goods are not collected (and regardless of whether the Services have been paid for and regardless of any notice being provided to the Customer that the Goods are being held), the Customer authorises BTEL to dispose of those Goods by way of public auction. BTEL may apply the proceeds firstly in payment of the storage and attempted delivery (if any) fees, secondly against any auction costs and any incidental costs of BTEL (including the costs of its employees or agents or solicitors in arranging the sale or disposal of the Goods).
(c) If, in the opinion of BTEL, the Costs associated with the sale will exceed the proceeds to be obtained, BTEL may dispose of the Goods by any means after the period of Three months, be that by donation to charity or otherwise.
23. FORCE MAJEURE
BTEL will not be liable and shall not be taken to have failed to perform its obligations to deliver the Goods as a result of a Force Majeure event.
24. CREDIT INFORMATION
(a) The Customer authorises BTEL to share credit information regarding the Agreement with any third parties and to conduct due diligence by contacting third parties to verify the information provided by the Customer, and investigate or make enquiries from time to time with those third parties as BTEL sees fit so to assess the credit worthiness at any point in time.
(b) The authority given in clause 24(a) is an irrevocable authority and this Agreement may be used as evidence of the Customer’s consent when contacting third parties.
(c) BTEL shall comply with the Privacy Act 1988 in relation to all personal information of a Customer.
25. DEFAULT BY CUSTOMER
(a) Each of the following occurrences constitutes an event of default:
(i) the Customer breaches or is alleged to have breached the terms of the Agreement for any reason (including, but not limited to, defaulting on any payment due) and fails to remedy that breach within 7 days of being given notice by BTEL to do so;
(ii) the Customer, being a natural person, commits an act of bankruptcy;
(iii) the Customer, being a corporation, becomes insolvent.
(b) Where an event of default occurs, except where payment in full has been received by BTEL, BTEL may:
(i) terminate the Agreement;
(ii) terminate any or all Purchase Orders and credit arrangements (if any) with the Customer;
(iii) refuse to deliver Goods or provide further Services;
(iv) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
(c) In addition to any action permitted to be taken by BTEL under paragraph 25(b), on the occurrence of an event of default all invoices will become immediately due and payable.
26. DISPUTE RESOLUTION
(a) If a dispute arises between the Customer and BTEL, the following procedure applies:
(i) A Party may give the other Party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause 26.
(ii) A Party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this clause 26.
(b) If a dispute is notified, the dispute must immediately be referred to the Parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 7 Business Days (or other period as agreed).
(c) Unless otherwise agreed by the Parties, any dispute that cannot be settled by negotiation between the Parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms. This paragraph survives termination of the Agreement.