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Our Terms & Conditions of Trade
OPERATIVE PROVISIONS
Platinum and you, in consideration of the mutual promises contained in these Terms, agree that:
DICTIONARY AND INTERPRETATIONS
1.1 Dictionary
In these Terms:
Application means an application for a commercial credit account with Platinum;
Business Day means a day on which banks are open for business in Sydney, New South Wales, Australia, excluding a Saturday or Sunday;
Commencement Date has the meaning given to that expression in clause 3.1;
Confidential Information means information and material (whether oral, in writing or electronic) relating to a party that is not publicly available (other than by breach of these Terms), including strategic, corporate and financial information; the methods of operation of the business; the clients; suppliers; sales and pricing information; marketing and business plans; software and hardware; programming information and data; Intellectual Property; and other information which is by its nature confidential;
Goods means any of your cargo, chattels, articles or things including, without limitation, any container, packaging, pallet or other material provided by you, or on your behalf, to Platinum;
Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;
GST means any tax on supply (without regard to any input tax credit) imposed by or through the A New Tax System (Goods and Services Tax) Act 1999 and any related tax legislation;
Intellectual Property means all forms of intellectual property throughout the world (whether registered, unregistered or registrable) including, without limitation, copyright, patent, design, trade mark, trade names and confidential information including know-how and trade secrets;
Intellectual Property Rights means all proprietary rights owned by or licensed to Platinum, or any Moral Rights, whether registrable, registered or unregistered, in any one or more Intellectual Property, and any similar proprietary rights whether now known or in the future created, or any applications or rights to obtain, acquire, or apply for any of the foregoing from time to time related to any Intellectual Property.
Invoice means any Platinum invoice to you for Services;
Materials means any and all literature, brochures, circulars, manuals, pamphlets and other materials, relating to the Services, provided by Platinum to you;
Moral Rights has the same meaning as it has in the Copyright Amendment (Moral Rights) Act 2000 (Cth) and includes rights of integrity of authorship, rights of attribution of authorship and similar rights that may exists anywhere in the world;
Order means any order for Services, sent by any means, by you or on your behalf that is accepted by Platinum;
Parties means both Platinum and you;
Payment means receipt by Platinum of cleared funds;
Platinum means Platinum International Cargo Pty Ltd (ABN 32 118 900 619);
Quotation means a quotation, provided by Platinum to you, that incorporates these Terms;
Service Fee has the meaning given to that expression in clause 4.1;
Services means any services undertaken by Platinum in connection with the Goods including, without limitation, procuring or arranging the carriage, transport, storage, packing, unpacking, loading, unloading and customs clearance of the Goods;
Surcharge means any amount or amounts included in the Service Fee that are imposed or charged by a third party for services, that are a part of the Services, and are subject to change at by that third party and include, without limitation, the bunker adjustment factor, fuel surcharge and carrier’s surcharges;
Term has the meaning given to that expression in clause 3.1;
Terms means the terms and conditions in this Agreement; and
Works means all inventions, designs, drawings, plans, software, hardware, reports, documents, systems, computer codes, software program codes, improvements to any one or more Intellectual Property and other Materials or materials whatsoever as may be developed, designed, created, initiated or manufactured by Platinum, its officers, employees or contractors in performing the Services.
1.2 Interpretation
In these Terms, unless the context otherwise requires:
- words importing the singular include the plural and vice versa;
- other parts of speech and grammatical forms of a word or phrase defined in these Terms have a corresponding meaning;
- an expression importing a natural person includes a company, partnership, joint venture, association, corporation or other body corporate and a Government Agency;
- a reference to a thing includes a part of that thing;
- a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by law judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
- a reference to a party to a document includes that party's successors and permitted assigns;
- where the day on or by which something must be done is not a business day, that thing must be done on or by the following business day; and
- headings are for convenience only and do not affect the interpretation of these Terms.
2. OBLIGATIONS AND ACCEPTANCE
2.1 Platinum agrees to supply the Services and you agree to pay for the Services in accordance with and subject to these Terms.
2.2 You agree and acknowledge that Platinum is not a common carrier and shall not accept liability as such.
2.3 You agree that these Terms can be accepted by doing any of the following:
- signing these Terms;
- completing an Application;
- accepting terms and conditions that refer to these Terms;
- placing an Order after having received these Terms; or
- written or oral acceptance.
2.4 You agree that these Terms supersede and prevail over:
- any oral representations;
- any earlier terms and conditions; or
- any terms appearing in documentation provided by or on behalf of you or the person who provided the Goods to Platinum,
and constitute the entire agreement between you and Platinum for the provision of the Services.
2.5 Subject to these Terms, Platinum agrees to provide to you the Services specified in:
- your Order; or
- Platinum’s Quotation,
provided that Platinum has no obligation whatsoever to provide to you any Services in the event that Platinum refuses, at Platinum’s sole discretion, to:
accept any order placed with Platinum by you or on your behalf; or
provide you with a Quotation.
2.6 You agree that any Quotation is capable of acceptance within 30 days from the date the Quotation is issued by Platinum unless withdrawn earlier at Platinum’s sole discretion.
2.7 You acknowledge and agree that any information contained on or in any web site, brochure, or Materials provided by or on behalf of Platinum or any of its related bodies corporate (as that term is defined in the Corporations Act 2001) constitutes an invitation to treat and such information does not constitute an offer by Platinum to provide any Services.
2.8 Subcontracting, Principal or Agent
You agree and acknowledge that:
- Platinum, and any subcontractor of Platinum, may subcontract its obligations under these Terms on any terms at the sole discretion of Platinum.
- Platinum may arrange for the provision of the Services as your agent or as principal contractor at the sole discretion of Platinum. When performing Services as your agent you expressly authorise Platinum to create contractual relationships between you and third parties.
- Platinum, at all times, shall determine in Platinum’s sole discretion, the means, route and procedure to be followed in the handling, storage and transportation of Goods.
2.9 Loading and Unloading
You agree and acknowledge that you are responsible for the cost of and any arrangements for the loading and unloading of Goods onto any vehicle supplied by or on behalf of Platinum, in the course of the provision of the Services, and you agree that you are liable for any cost or expense incurred by Platinum due to any delay in such loading or unloading.
2.10 Delivery
You authorise Platinum to deliver the Goods to the consignee nominated by you or on your behalf and you agree that:
- in the event that the delivery address you have nominated is unattended or delivery can not be effected, Platinum may deposit the Goods or, at Platinum’s sole discretion, attempt delivery at a later time or date at your expense; and
- a receipt or signed delivery docket shall be deemed conclusive evidence that Platinum has delivered the Goods in accordance with these Terms.
2.11 Certain Goods
- You agree that your Goods shall not, other than as agreed in writing by Platinum, include Valuables, Perishable Goods, Dangerous Goods or Live Goods.
- Without limiting the generality of the indemnity in clause 10, you agree to immediately indemnify and keep indemnified Platinum and Platinum’s officers, employees, directors, agents and contractors from and against any claims, costs, expenses, penalties, fines or damage or loss to any person whatsoever arising from or in relation to a breach of clause 2.11(a).
- Subject to 2.11(a), in the event that Platinum agrees, or you cause Platinum, to accept Goods that include Valuables, Perishable Goods, Dangerous Goods or Live Goods, you shall be liable for all loss and damage whatsoever caused by or to or in connection with the Goods however arising and shall indemnify Platinum against all penalties, claims, damages, costs and expenses whatsoever arising in connection with the Goods and you authorise Platinum or any person in possession of the Goods to deal with the Goods in any way whatsoever at their sole discretion.
- In this clause 2.11:
- Valuables includes, without limitation, any valuables, bullion, coins, notes, precious stones, jewellery, antiques or works of art;
- Perishable Goods means any goods that are liable to deteriorate in quality or value including, without limitation, fruits, vegetables, dairy products or meat;
- Dangerous Goods means goods that are noxious, dangerous, hazardous or inflammable by nature or are capable of causing damage or injury to other goods or persons or to any thing in which those goods are loaded, carried, packed or stored; and
- Live Goods any living material or creature and includes, without limitation, livestock, plants and animals.
3. TERM AND TERMINATION
3.1 These Terms shall commence on the earlier of the first day on which Platinum provides Services to you or the date specified in Item 2 of Schedule 1 (Commencement Date) and, subject to these Terms, shall continue until the Services have been provided and you have paid for those Services in full or this Agreement is terminated in accordance with these Terms (the Term).
3.2 Platinum’s commitment to provide the Services to you extends for the duration of the Term. Platinum has no obligation to provide further Services to you after the expiry of the Term.
4. FEES
4.1 You agree to pay to Platinum the full amount of the fee specified by Platinum in a Quotation for the Services (Service Fee) provided that:
- in the event of any discrepancy between the fee specified in any Quotation for Services and the fee referred to in your Order for identical or materially the same Services, the fee specified in the Quotation shall prevail; and
- in the event that no fee is specified in a Quotation for the Services, you agree that Platinum’s standard fees, as varied from time to time at Platinum’s sole discretion, shall apply.
4.2 You agree that Platinum will provide you with an Invoice for the Service Fee and that the Service Fee is inclusive of GST.
4.3 Platinum reserves the right to vary the Service Fee from time to time without cause, upon giving you reasonable notice.
4.4 You agree and acknowledge that the Service Fee may include Surcharges and, in the event that any Surcharge is varied by the third party to whom the Surcharge is payable by Platinum, you agree that the Service Fee shall immediately be varied and increase by an amount equal to the sum of all increases to each and every Surcharge that has been included in the Service Fee and you agree to pay to Platinum the Service Fee as varied in accordance with this clause 4.4.
4.5 At your request, Platinum may provide services in addition to the Services and may charge an additional fee for providing such additional services. Such additional services will be subject to these Terms as if they were Services, unless otherwise agreed by the parties in writing.
4.6 You are liable for, shall pay to Platinum, and shall indemnify Platinum in respect of, all taxes, excluding GST, and all additional charges and Surcharges as are payable on the performance of the Services by Platinum, other than as expressly excluded by these Terms or the Quotation.
5. TERMS OF PAYMENT
5.1 You agree that Payment, in full and in cleared funds, of the Service Fee for any Services provided, or to be provided, by Platinum are due and payable and must be paid by you:
- in advance of the provision by Platinum of any Services for any amount or amounts of the Service Fee that the Quotation specifies are to be paid in advance; or
- on the terms specified in Item 3 of Schedule 1.
5.2 You agree that interest at the rate of ten percent (10%) per annum is due and payable to Platinum on any amount or amounts that are due and payable and have not been paid to Platinum.
5.3 Payment may be made by cheque, cash, credit card (for amounts up to $5,000.00) or direct deposit. You agree to pay to Platinum, in addition to any Service Fee, any fees or charges incurred by Platinum as a result of accepting payment by credit card.
6. LIEN AND OWNERSHIP
6.1 You agree that until Payment for all Services supplied to you has been received in full by Platinum:
- Platinum has a particular and general lien on the Goods and any documents relating to the Goods and any of your goods or chattels in, or that may come into, the possession or control of Platinum for all amounts payable by you to Platinum and for that purpose Platinum shall have the right, at the sole discretion of Platinum, to sell such goods or chattels by public auction or private treaty without further notice to you;
- you authorise and grant an irrevocable licence to Platinum and its authorised representatives to enter any premises where any Goods are kept to repossess the Goods and to use all reasonable force in doing so without any liability for any resulting damage;
6.2 If these Terms are terminated, the provisions of this clause 6 will survive that termination and continue such that Platinum may exercise the rights under these Terms to recover its property and any amount or amounts due to Platinum.
7. PROVISION OF SERVICES
7.1 You agree and acknowledge that Platinum:
- may engage employees, agents and contractors to provide the Services on Platinum’s behalf;reserves the right to select, remove or replace any employee, agent or contractor providing the Services; and
- reserves the right to provide the Services at any time for the duration of the Term.
7.2 You agree that you are responsible for ensuring the health, safety and welfare of Platinum’s officers, employees, agents and contractors, who are providing Services in accordance with these Terms, at your premises.
7.3 You agree that you shall not recruit or hire or retain any Platinum officers, employees, agents or contractors, either as an employee, independent contractor or otherwise, except through Platinum, during the duration of the Term and for a period of 6 months thereafter.
8. DEFAULT
8.1 You acknowledge and agree that if:
- you fail to pay when due any amount owing to Platinum;
- you fail to comply with any of these Terms;
- any step is taken to enter into any arrangement between you and your creditors;
- you cease to be able to pay your debts as they become due or you cease to carry on business;
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person over the whole or any part of the your assets or business; or
- in Platinum’s opinion, your credit standing has materially changed,
then Platinum may do any or all of the following (in addition to any other rights Platinum may have, including termination of these Terms) without liability:
- require you to immediately pay all amounts that are invoiced but unpaid and to pay in advance for any further supply of Services (even if specified otherwise in any Quotation, invoice or confirmation given to you by Platinum);
- commence proceedings to recover all amounts due and owing;
suspend or cease supplying Services to you (whether or not you have ordered Services that have not yet been supplied); or
cancel any other contract(s) with you or such parts as Platinum sees fit.
8.2 These rights are without prejudice to any other right or demand available to Platinum.
8.3 You will be liable to Platinum for all costs incurred by Platinum, including all legal costs on a full indemnity basis, in securing Payment of Service Fees or otherwise arising from or related to, directly or indirectly, non payment of any amounts.
9. WARRANTY AND LIMITATION OF LIABILITY
9.1 You warrant that:
- the person who delivers or provides the Goods to Platinum is authorised to act on your behalf and has the authority of the person who owns or has an interest in any part of the Goods;
- the Goods are accurately and correctly marked and described;
particulars provided or supplied by you or on your behalf to Platinum in relation to the Goods is accurate and correct;
- you shall comply, and ensure that any information provided to Platinum complies, with the laws and regulations any country through which the Goods may be carried in the performance of the Services; and
- Platinum and Platinum’s officers, directors, employees, agents and contractors shall not be in breach of any law or regulation to perform the Services.
9.2 Subject to clause 9.4, Platinum warrants that Platinum shall exercise due care and skill when providing Services provided that, to the fullest extent permissible by law, Platinum otherwise excludes all conditions and warranties implied by statute, general law or custom.
9.3 To the fullest extent permitted by law, you agree that Platinum is not liable for any pure economic loss or consequential loss incurred by you in any circumstances including, without limitation, delay. Platinum expressly excludes any warranty or undertaking whatsoever that the Goods shall arrive at the port of discharge or place of delivery at any particular time or to meet any particular requirement.
9.4 To the fullest extent permitted by law, Platinum’s liability in respect of any services or Services, preformed by or on behalf of Platinum, for any tort, breach of any express term of these Terms, or liability for breach of any statutory or regulatory condition, is limited to either:
- the supplying of the services or Services again; or
- the payment of the cost of having the services or Services supplied again,
at Platinum’s sole discretion, other than to the extent that statute prohibits such limitation.
9.5 To the fullest extent permitted by law, Platinum’s liability in respect of any goods for any tort, breach of any express term of these Terms, or liability for breach of any statutory or regulatory condition, is limited to either:
the payment of the costs of having the goods repaired; or
the payment of the cost of replacing the goods or acquiring equivalent goods,
at Platinum’s sole discretion.
10. INDEMNITY
10.1 Except to the extent to which Platinum has directly contributed to loss or damage, you agree to immediately indemnify and keep indemnified Platinum and its officers, employees, agents and contractors, from and against any and all claims, losses, damages, costs, judgments, expenses and liabilities of any kind (including, without limitation, reasonable legal costs) whether for personal injury or property damage by a third party arising directly or indirectly out of or in connection with:
- the Services;
- the performance by Platinum of any services or Services in relation to the Goods;
- any inherent defect, quality or vice of the Goods;
- any action, inaction, negligence or misconduct by you; and
- any breach of these Terms by you.
11. RISK AND INSURANCE
11.1 Subject to 6, all risk in and title to the Goods remains with you.
11.2 Platinum shall not provide insurance for the Goods unless requested in writing, and paid for, by you prior to delivery of the Products to you.
11.3 You must take out and maintain all policies of insurance for the Goods with a reputable insurer which a prudent business person in your position would reasonably maintain including, without limitation, product and public liability insurance which give coverage against all usual risks and for a reasonable amount.
12. ADVICE
12.1 Any advice, recommendation, information or assistance provided by Platinum in relation to Services or Products is given in good faith and is believed by Platinum to be appropriate and reliable. However, you agree and acknowledge that to the fullest extent permitted by law, any advice, recommendation, information, assistance or service provided by Platinum in relation to any Services is provided without liability or responsibility on the part of Platinum.
13. MATERIALS AND INTELLECTUAL PROPERTY
13.1 Platinum may provide you with Materials. Platinum reserves the right to direct you to discontinue use of any Materials at any time and may direct you to return all such Materials to Platinum. You agree to immediately return all such Materials, upon receipt of notice from Platinum to that effect.
13.2 Platinum or others own and reserve all Intellectual Property Rights in the Materials and any other materials notified or provided to you.
13.3 You acknowledge and agree that:
- all existing Intellectual Property Rights in the Materials are vested in Platinum and, upon their creation, all such future rights will vest in Platinum;
- all Works are the property of Platinum and Platinum may apply for any proprietary or other rights (including Intellectual Property Rights) relating thereto anywhere in the world;
- you shall not apply for or exercise any proprietary rights, whether registrable, registered or unregistered, or any proprietary rights the same or similar to the Intellectual Property Rights whether now known or in the future created, or any applications or rights to obtain, acquire, or apply for any of the foregoing, in or related to any Intellectual Property, or any Works, or both, anywhere in the world during the Term or at any time thereafter;
- you shall not licence or permit third parties to use any Intellectual Property (including Works) and shall take all steps reasonably necessary during the Term to prevent third parties from using such Intellectual Property (including Works);
- you must not use any Intellectual Property or Works, without the prior written consent of Platinum.
13.4 You will execute all documents and do all acts and things required or desirable to secure any Intellectual Property Rights for or on behalf of Platinum in any Intellectual Property, Works, or both and where necessary, will procure any of your employees, agents or subcontractors to do the same.
13.5 The parties acknowledge and agree that the provisions of clause 13 of these Terms shall survive and continue in full force and effect notwithstanding the termination of this Agreement or expiry of these Terms.
14. CONFIDENTIAL INFORMATION
14.1 Each party must treat as confidential and keep secret all Confidential Information of the other party and must not, during the Term and at all times after the expiry date, disclose to any third party any Confidential Information (whether directly or indirectly, knowingly or inadvertently), except:
- if such disclosure is required in the course of performing its obligations under these Terms and the person to whom the Confidential Information is disclosed warrants not to disclose the Confidential Information as if such person was a party to these Terms;
- with the prior written consent of the other party;
if that part of the Confidential Information which is to be disclosed is available in the public domain (other than as a result of a breach of these Terns); or
- if the disclosure is required by any applicable law or Court order.
15. PERSONAL INFORMATION
15.1 Any personal information, including personal financial information, that relates to you and is collected, used or disclosed by Platinum for the purposes of providing Services to you is treated as confidential and will only be collected, used or disclosed in the following manner:
- for the purposes of meeting Platinum’s obligations under these Terms;
- in accordance with the Terms of your Application, if any;
- to respond to any queries that you may have;
- to recover any money owing to Platinum;
- in accordance with the Privacy Policy of Platinum, if any, as varied by Platinum from time to time; or
- in compliance with the requirements of the Privacy Act 1988 (Cth).
16. DISPUTE RESOLUTION PROCEDURE
16.1 If a dispute arises out of or relates to these Terms, a party must not commence any court or other proceedings relating to the dispute unless it has first complied with the following procedure:
- the party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute;
- on receipt of that notice by that other party, the parties must endeavour in good faith to resolve the dispute using informal dispute resolution techniques, such as mediation, expert evaluation, arbitration or similar methods agreed by them;
- if the parties do not agree within five (5) Business Days of receipt of the notice (or such further period as the parties may agree in writing) on the:
- dispute resolution method and procedures to be adopted;
- timetable for all steps in those procedures; and
- selection and compensation of the independent person required for such method,
the parties must mediate the dispute in accordance with the MediationRules of the Law Society of New South Wales. The President of the Law Society of New South Wales or the President’s nominee will select the mediator and determine the mediator’s remuneration.
16.2 Notwithstanding the existence of a dispute, each Party must continue the performance of its obligations under the Terms.
16.3 Nothing in these Terms will prejudice the right of a party to institute proceedings to enforce payment due under the Terms or to seek urgent injunctive or declaratory relief in respect of a dispute or any matter arising under the Terms.
17. NOTICES
17.1 Platinum may give notice to you by email, facsimile or by mail to the addresses specified in your Order or otherwise provided to Platinum.
17.2 You may give notice to Platinum by email to accounts@platinumic.com.au or facsimile to +612 9667 1044.
18. FORCE MAJEURE
18.1 Notwithstanding any other provision in these Terms, Platinum shall not be liable for any loss or damage caused by its failure or delay to supply the Services due to anything outside the reasonable control of Platinum including but not limited to your acts or omissions, breakdown of plant or machinery, shortage of labour, strikes, lockouts, industrial disputes, fire or arson, storm or tempest, theft, vandalism, riots, civil commotions, terrorist actions, wars, government restrictions, intervention and control, transport delays, accidents or embargoes of any kind.
19. SEVERANCE
19.1 If any provision of these Terms is or becomes wholly or partly illegal, invalid or unenforceable then, from the date of the invalidity or unenforceability, if that provision can be read down to make it valid or enforceable it must be read down to the extent necessary to achieve that result and otherwise that provision must be severed from these Terms and the remaining provisions shall not be affected and operate as if the severed provision had not been included.
20. GENERAL PROVISIONS
20.1 You agree that Platinum is entitled to retain any and all allowances, brokerages or commissions paid in relation to the Services.
20.2 You must not assign or transfer the benefit of these Terms without the express written consent of Platinum.
20.3 No waiver by Platinum of any default or breach shall be deemed a waiver of any prior or subsequent default or breach.
20.4 Waivers or variations to these Terms will only have effect if made in writing and signed by a duly authorised officer of Platinum.
21. GOVERNING LAW
These Terms will be governed by and construed in accordance with the laws of the State of New South Wales, in Australia. The parties agree to submit to the non-exclusive jurisdiction of the Courts of New South Wales.
22. SIGNATORY SECTION
In consideration for the mutual promises contained in these Terms, you and Platinum acknowledge and agree that these Terms shall apply to any and all existing or future Services by Platinum to you unless Platinum and you agree, in writing, to vary these Terms.
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