To the fullest extent legally permissible all dealings between the customer (including all related and/or associated companies and/or other entities, all successors and/or assigns and in its own capacity and as trustee of each and every trust of which it is a trustee) [jointly “the Customer”] and ColdXpress Refrigerated Transport Vic Pty Ltd ACN 164 317 097 (and/or any related and/or associated companies, trusts and/or other entities and/or any successors and/or assigns) whether trading as “Cold Xpress” and/or otherwise [“CX”] relating to any goods and/or services [the “goods” and/or the “services”] are subject to the following terms and conditions [“these Terms”] unless otherwise expressly agreed in writing:
Terms & Conditions
1. Payment: a) Payment shall be made by cash, cheque, bank cheque or EFTPOS, without deduction and within the credit period stipulated in each invoice or statement.
If no credit period is stipulated, payment shall be made within 30 days from the date of invoice. b) The Customer agrees to pay an administration fee of 2% as the liquidated processing cost on credit card payments and/or on payments made outside
the credit period stipulated in each invoice or statement.
2. Interest: Interest shall be charged on overdue accounts at the Penalty Interest Rates Act 1983 (Vic) Interest rate plus 2%.
3. Rates and Charges: a) In the absence of a binding quotation all sales are made at the price nominated by CX at the time of delivery. b) All government imposts (including any GST or equivalent) and/or fines levied by emergency service providers
shall be to the Customer’s account. c) CX reserves the right to charge the Customer for any additional expenses associated with the provision of services including but not limited to: (i) any additional costs caused by the Customer providing incorrect details
regarding goods to be carried; (ii) storage costs; (iii) unpacking and/or repacking costs; and/or (iv) any delay of more than 5 minutes in either loading or unloading any goods to be carried.
4. Insurance: a) CX is not a common carrier and accepts no liability as such. b) The Customer acknowledges that it should maintain its own insurance for carried goods and that CX does not maintain insurance for loss and/or damage of any of the Customer’s goods in its possession, power or control or otherwise. c) Risk of all of the Customer’s goods is the responsibility of the Customer at all times.
5. Property: a) The Customer agrees that these Terms constitute a “security agreement” for the purposes of the Personal Property Securities Act 2009 (Cth) [“PPSA”], that CX has and/or will have a “security interest” in respect of all services
for the purposes of the PPSA and that PPSA Sections 95, 118, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 134, 135, 137 & 157 shall not apply to any such security interest. b) Immediately on delivery the Customer accepts liability for the safe
custody of goods and indemnifies CX for any related losses. c) Nothing in this clause is intended to create a charge and this clause shall be read down to the extent necessary to avoid creating any charge. d) The Customer agrees a certificate signed
by an officer of CX and stating certain facts for the purposes of this clause shall be conclusive evidence of each fact stated 6. Consumer Guarantees & ACL: The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www.consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and
which shall otherwise apply to the fullest extent legally permissible.
7. Limitation of Liability: To the extent permitted by the ACL: a) the Customer agrees to limit any claim to the re-supply of services (or cost thereof); b) CX shall not be liable for: (i) any claim, loss or expense which is made after 7 days from the date
of provision of services – after which there shall be deemed to have been unqualified acceptance; (ii) any consequential loss and/or any special and/or punitive damages through any fault of CX or otherwise; and/or (iii) any claim in any way caused and/or
contributed to by the Customer and/or any third party.
8. Cancellations and Returns: The Customer agrees: a) not to cancel any order without CX’s prior approval; b) CX does not give cash refunds. Any claim by the Customer for any account credit from CX must be received no later than 7 days after
9. Quotations: The Customer agrees that: a) quotations must be in writing; b) CX shall not be bound by any quotation if an order is not placed within 14 days from the date of quotation; c) CX may prior to receipt of any order amend any quotation and notify the Customer accordingly without ramification; d) CX shall not be bound by any quotation if CX reasonably forms the view that circumstances have substantially and/or materially changed; e) the Customer shall pay any additional charges CX
levies for holding any goods referred to in any quotation pending placement of an order.
10. Placement of Orders: The Customer agrees that: a) if any dispute arises concerning any order (including any question of identity, authority or any phone, fax or computer generated order) the internal records of CX shall be conclusive evidence
of what was ordered; b) each order placed shall be and be deemed to be a representation by the Customer made at the time that it is solvent and able to pay all of its debts as and when they fall due; c) when placing any order the Customer shall inform CX of any facts which might reasonably affect acceptance of the order by CX and/or any grant of credit and any failure to do so by or on behalf of the Customer shall be deemed to create an inequality of bargaining position, be deemed to constitute the taking of an unfair advantage of CX and to be unconscionable, misleading and deceptive; d) CX may refuse the carriage, storage, packaging, warehousing and/or handling of any goods at its discretion and may engage on the Customer’s behalf any other third party or parties to provide services to the Customer; e) the Customer has beneficial if not legal ownership of all goods transported by CX
and/or is authorised by the legal owner to request the services provided by CX; and f) the Customer shall be solely responsible for packing all goods in a manner adequate to withstand the ordinary risks associated with storage and carriage.
11. Customer Warranties: The Customer warrants that goods for carriage are not or will not become: a) dangerous goods within the meaning of the International Air Transport Association’s Dangerous Goods Regulations and/or the Australian Dangerous Goods Code; b) poisonous, corrosive, volatile, explosive, flammable and/or radioactive; and/or c) offensive and/or otherwise illegal goods by reason of their nature, packaging, labelling and/or otherwise.
12. International Goods: The Customer: a) appoints CX as its agent in relation to conducting customs clearance and entry and doing anything necessary in connection with such an appointment; b) agrees that CX may remove any packaging and open and inspect any goods for any reason at any time; c) agrees that the provisions of the Warsaw Convention may apply to any air carriage where the ultimate destination of goods is not located in the country of departure; d) acknowledges that the Warsaw Convention may limit CX’s liability and/or prescribe time limits for the notification of any claim for damage
13. Supply and Delivery: a) CX may supply by instalments and/or withhold or cancel supply without ramification where: (i) CX has insufficient resources to fulfil orders; (ii) goods are not available to supply; (iii) the Customer is in breach of these Terms; (iv) CX
has any safety concerns; and/or (v) CX considers it appropriate whether because of any minimum invoice policy or otherwise. b) The Customer agrees that: (i) CX may elect to arrange delivery at its discretion and without any liability and at the Customer’s cost and
responsibility in all things; (ii) the Customer shall be deemed to have accepted delivery and liability for goods on being notified by CX that goods are ready for collection and/or on goods being delivered to a carrier or to the Customer’s business premises or
nominated site whether attended or not; (iii) a certificate purporting to be signed by an officer of CX confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket; and (iv) CX shall not be liable for delay, failure or inability to
deliver any goods. c) The Customer agrees: (i) to pay for so much of any forward order as CX invoices from time to time; (ii) that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment;
(iii) to pay CX for any demurrage or other costs and expenses in handling and/or holding any goods once ready for delivery and/or collection; and (iv) CX may supply an excess or deficiency of goods up to 5% of the volume or weight of the amount ordered
and the Customer shall pay for the amount so supplied and shall not make any claim against CX for the amount over or under supplied.
14. Variations: To be binding any variation or cancellation of these Terms or any order must be approved by CX in writing.
15. Exclusions: To the extent permitted by the ACL: a) the Customer shall rely on its own knowledge and expertise in selecting services for any purpose and any advice and/or assistance given by or for CX shall be at the Customer’s risk and shall not be or
be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer; b) CX shall not be responsible nor liable for paying and/or obtaining any necessary judicial, statutory, government and/or utility fees,
expenses, orders, approvals, permits and/or licences; c) CX shall not be liable for services made or performed to designs, drawings, specifications and/or procedures etc.
which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; and d) the Customer agrees to: (i) check all goods to be carried for compliance with all applicable laws, standards and/or guidelines before use, on-sale
and/or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by CX and/or by any manufacturer; and (iii) act in accordance with good practice at all times.
16. Default: a) On default or breach of any part of these Terms by the Customer the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable (save to the extent that CX expressly directs otherwise in writing) and CX may
inter alia terminate any contract, retain all monies paid, cease further deliveries and/or provision of services, recover all lost profits and/or at its discretion take immediate possession of any goods not paid for without prejudice to any other rights and without
being liable in any way to any party. b) The Customer agrees not to commence or continue or permit to be commenced or continued through it any suit or CX against CX while the Customer is in default under any part of these Terms or in any of its dealings
with CX. c) The Customer agrees to indemnify CX for all fees and expenses payable to solicitors, mercantile agents and other parties acting on behalf of CX in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods or otherwise (including all legal costs on an indemnity basis).
d) CX may apply any payment in reduction of fees, interest and/or any principal debt in such order of priority as CX in its discretion deems appropriate. e) The Customer irrevocably authorises the payment directly to CX of any debt due to the Customer by
any debtor of the Customer in reduction of any amount due to CX under these Terms or otherwise.
17. Indemnity: The Customer fully indemnifies CX against any claim or loss arising from or related in any way to any dealing between CX and the Customer.
18. Intellectual Property: The Customer agrees all intellectual property shall be and remain the sole property of CX regardless of Customer contribution.
19. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon CX shall apply.
20. Jurisdiction: The Customer agrees that these Terms and any claim or dispute between CX and the Customer shall be governed by the law applicable in the State nominated by CX and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by CX in the capital city of that State. If no State is nominated then Victoria shall be deemed to be the nominated State.
21. Credit Limit: Any credit facility or credit limit is an indication only of the intention of CX at the time. CX may vary or withdraw credit at any time at its discretion and without any liability to the Customer or any other party. Upon breach of any of these Terms all monies owing by the Customer shall become immediately due and payable.
22. Waiver: An election by CX not to exercise any rights on any breach of these Terms shall not constitute a waiver of any rights relating to any other breach.
23. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately upon adoption by CX and regardless of actual notice.
24. Security For Payment: The Customer hereby grants to CX a general lien over all property of the Customer until payment in full of all monies owing to CX.
25. Force Majeure: CX shall not be in default or in breach of any contract with the Customer as a result of Force Majeure including any strike or lock-out.
26. Insolvency: The Customer shall be in default of these Terms if it commits an act of insolvency, appoints an insolvency practitioner and/or calls a formal meeting of creditors.
27. Containers, Pallets and Stands: The Customer agrees to return all containers, pallets, stands, reusable packaging and/or displays to CX and indemnifies CX for the full replacement cost of any such equipment not returned or damaged.
28. Severability: Any part of these Terms shall be capable of severance without affecting any other part of these Terms.