Terms and Conditions of Trade – Logica Logistics Pty Ltd

1. APPLICATION

1. 1.1  These Terms, including any Quote, will become binding on the Client on the earlier of the date that a) the Client indicates their acceptance to the terms (such as by accepting a Quote); b) the Client instructs the Supplier to proceed with any Services; or c) the Client pays any amount to the Supplier in respect of the Services.
2. 1.2  These Terms apply to all Services provided by the Supplier to the Client and will continue until terminated.
3. 1.3  No invoice, terms or other document issued by or on behalf of the Client (including the terms on any warranty or other agreement given to the Supplier) will vary or form part of these Terms unless otherwise agreed by the Supplier in writing. These Terms replace and supersede any invoice, terms or other document given by the Client to the Supplier whether

   before or after the time that these Terms are supplied to the Client.

4. 1.4  Unless otherwise agreed all Quotes are valid for 7 days from the date of the quotation, and will only become binding on

   the Supplier when the Supplier expressly acknowledges acceptance.

2. CLIENT WARRANTIES

2.1 The Client warrants that:

1. (a)  it is the owner of the Cargo or the authorised agent for the Cargo or otherwise is entitled to possess and part with

   possession of the Cargo as contemplated by these Terms;

2. (b)  the information provided to the Supplier, including descriptions, items, quantity, weight, volume, values and other

   particulars for customs and other purposes related to the Cargo is accurate, true and correct and it has disclosed

   all relevant information to the Supplier;

3. (c)  the Cargo is properly and adequately packed and that all packing material, crates, pallets, and dunnage complies

   with applicable laws and all requirements of any port, dock, railway, shipping, customs, warehouse or other

   relevant authority;

4. (d)  it has the legal right and power to enter into these Terms;
5. (e)  the execution, delivery and performance of these Terms by the Client has been duly and validly authorised by all

   necessary corporate action on its part and by persons owning or having any interest in the Cargo;

6. (f)  these Terms are a valid and binding agreement on the Client, enforceable in accordance with its terms;
7. (g)  it has complied with all laws and regulations in relation to the carriage of the Cargo;
8. (h)  it will immediately notify the Company if the Client becomes aware of any breach of anticipated breach of the

   obligations in these Terms; and

9. (i)  it has the capacity to make the payment in accordance with these Terms.

3. NEGATION OF LIABILITY AS A COMMON CARRIER

3.1 The Client acknowledges that the Supplier is not a common carrier and will accept no liability as such. All Cargo is carried and all storage and other services are performed by the Supplier subject only to these conditions and the Supplier reserves the right to refuse the carriage of Cargo for any person or goods at its discretion.

4. FEES & PAYMENT TERMS

1. 4.1  Subject to the other terms of this clause, the fees will be as set out in the Quote (Services Fee).
2. 4.2  The Client is solely responsible for payment of any duties, taxes, fines, penalties, transport and port charges, insurance

   costs and any import/export duties, taxes and GST in respect of the Cargo and the Services, except those included in

   the Services Fee.

3. 4.3  The Supplier will issue a tax invoice to the Client for the Services Fee plus all costs on the completion of the Services,

   and the Client agrees to pay such tax invoice within 14 days of the date specified on the tax invoice.

4. 4.4  The Supplier reserves the right to increase the Services Fee in the event of an increase in any component of cost (including without limitation, increases to freight rates, insurance rates, transport and packaging costs, wages and other costs and charges relating to the goods and services). All increases in costs and additional costs set out under clause

   4.3 will be passed onto the Client, and the Client agrees to pay such costs.

5. 4.5  Subject to any applicable laws, all payments made are non-refundable.
6. 4.6  Unless expressly stated otherwise, the consideration for any supply under or in connection with these Terms is exclusive

   of GST and the Client must pay GST on the fees at the same time as payment of the fees is due.

5. INSURANCE

1. 5.1  Unless otherwise agreed by the Supplier in writing, the Client acknowledges that the Supplier is not required to affect any insurance in respect to the Client’s Cargo. Adequate insurance of the Cargo is solely the responsibility of the Client.
2. 5.2  In the event the Supplier has agreed to affect insurance over the Cargo, then:
   1. (a)  such insurance will be at the cost of the Client;
   2. (b)  the Client agrees to provide all required information to the Supplier to affect such insurance (including without

      limitation a declaration of value);

   3. (c)  the Supplier will not be required to affect separate insurance policies for each consignment; and
   4. (d)  the Client shall have recourse against the insurers only (and not against the Supplier).

6. FREIGHT TERMS

6.1 Except where specifically agreed to in writing by the Supplier:

1. (a)  the Client must ensure that the Cargo provided for freight does not contain any noxious, dangerous, hazardous,

   or inflammable or explosive goods which are capable of causing damage or injury to any person, property, store,

   vessel or other conveyance in which or with which such Cargo may be loaded;

2. (b)  the Company accepts all Cargo on the basis that no refrigeration or unusual arrangements are required;
3. (c)  the Supplier will not make any declaration of value or other document on behalf of the Client for the Cargo.

7. DELIVERY AND RELEASE OF CARGO

1. 7.1  The Services will be performed in the manner as set out in the Quote and on and from the date as specified in the Quote, or where no date is specified, then from a date as agreed between the parties.
2. 7.2  Although the parties may have agreed on the delivery schedule, the parties acknowledge and agree that:
   1. (a)  any times provided by the Supplier to the Client in respect of the provision of the Services are variable and estimates only and are non-binding on the Supplier. Whilst the Supplier attempts to provide all Services at the agreed times, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered

      by the Client in the event of delay; and

   2. (b)  failure of the Supplier to meet any delivery date will not constitute a breach of these Terms by the Supplier or

      entitle the Client to any damages or other remedy.

3. 7.3  The Supplier is not responsible for any delays of freight services provided by third parties.
4. 7.4  Notwithstanding anything to the contrary express or implied in these Terms, the parties agree that the Supplier will not

   release the Cargo to the Client until all fees for the Services and all other amounts owing in respect of the Services are paid to the Supplier notwithstanding:

   1. (a)  the ownership of the Cargo remaining with the Client; and/or
   2. (b)  the risk of the Cargo remaining with the Client.
5. 7.5  The Client acknowledges and agrees that the Client grants to the Supplier a general lien over the Cargo for any sum owing under these Terms at any time by the Client. The parties agree that the lien attaches to Cargo when the Cargo is accepted by the Supplier.
6. 7.6  Without prejudice to the other rights the Supplier may have, if charges are not paid when due, or the Cargo is not collected when so required, the Supplier may, without notice:
   1. (a)  remove all Cargo and store them as the Supplier seems fit at the Client’s risk and expense; and/or
   2. (b)  sell the Cargo (by auction or private contract) and apply the proceeds to discharge the lien and costs of sale.
7. 7.7  If the Client fails to collect perishable goods, or does not otherwise mark or make them identifiable, then the Supplier may sell such perishable goods or dispose of them without notice to the Client. The tender of the proceeds of sale to the Client (after deduction of the Services Fee and other charges to the Supplier) shall be the equivalent to delivery and the Supplier will not be liable for any Loss as a result of such actions.
8. 7.8  Any Cargo stored with the Supplier shall be stored for a period of up to 21 days. Following expiry of the 21 day period, the Cargo may either be sold or returned to the Client at the Supplier’s option. The Client will be responsible for all expenses for the return or sale.
9. 7.9  The risk of refusal of the Cargo by a governmental authority is solely that of the Client. If Cargo is refused entry at the transhipment point, if any, or the port of discharge, the Client agrees to pay for the carriage of the Cargo either to the next port of discharge where the Cargo can be accepted or to the port of loading.

8. INDEMNITY

1. 8.1  Except to the extent caused or contributed to by the breach of these Terms by the Supplier, the Client indemnifies the Supplier against, and holds the Supplier harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Supplier arising out of or in connection with:
   1. (a)  the Client’s breach or negligent performance or non-performance of these Terms, including any failure to pay any fees on time;
   2. (b)  the Client’s violation of any Applicable Law;
   3. (c)  any claim made against the Supplier or the Client by a third party arising out of or in connection with the provision

      of the Services or these Terms, the reliance by the Client or a third party on the Services or any defective Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of these Terms, or the acts or omissions of the Client; and

   4. (d)  any reliance by the Client or a third party on the Services or any advice, information or deliverable provided in connection with the Services.
2. 8.2  The Client must make payments under this clause in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law.

9. EXCLUSION AND LIMITATION OF LIABILITY

9.1 The Supplier provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by law.

2. 9.2  The Client’s Cargo is freighted and stored at the Client’s own risk and the Supplier shall not be liable for:
   1. (a)  any loss or damage or deterioration occasioned to the Client’s Cargo at any time (including while the Cargo is

      under the possession or custody or control of a third party);

   2. (b)  the delivery, delay in delivery or non-delivery of any freight services;
   3. (c)  any loss or damage or deterioration occasioned to the Client’s Cargo caused by an act, omission or circumstance

      over which the Supplier could not reasonably have exercised control.

3. 9.3  Without limiting the generality of clause 9.2, the Supplier expressly excludes any liability in contract, tort or otherwise for

   any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:

   1. (a)  any act or omission of the Client, including any delay caused by the Client;
   2. (b)  any act, omission or default of third parties.
4. 9.4  Subject to the other terms of this clause, the Supplier’s total maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with the supply of services under these Terms, including any breach by the Supplier of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the costs of the resupply of the relevant Services to which the liability relates or the payment of the costs of resupply of the relevant Services.
5. 9.5  Without limitation to the other terms of these Terms, the Supplier excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential Loss arising under or in connection with these Terms.
6. 9.6  The Supplier is not liable in respect of a claim unless the Client has notified the Supplier of the claim within seven days after (the earliest of) the delivery being affected, or the Client becoming aware of the claim.
7. 9.7  The Supplier will not be liable for any claim under or in relation to or arising out of these Terms including a breach of any warranty unless:
   1. (a)  the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
   2. (b)  that claim has been denied in whole or partly by the relevant insurer.
8. 9.8  If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of

   these Terms and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of these Terms.

10. CANCELLATION & TERMINATION

1. 10.1  The Supplier may cancel all or part of any order to which these Terms apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client.
2. 10.2  The Supplier may in its absolute discretion, by written notice to the Client, immediately terminate these Terms or one or more Quotes (and shall have no liability for any Loss suffered by the Client due to the termination):
   1. (a)  if the Client breaches these Terms or a Quote and fails to rectify the breach within 7 days of being given a notice

      to do so; or

   2. (b)  in the event of force majeure (such as if there are issues with the weather and the Supplier is unable to supply

      the agreed Services).

3. 10.3  The Client may terminate these Terms if the Supplier breaches the terms of these Terms and fails to rectify the breach

   within 14 days of being given a notice to do so. The Client may not otherwise terminate these Terms.

11. GENERAL

11.1 These Terms is governed by the law in force in Victoria. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.

12. DEFINITIONS

12.1 In these Terms unless inconsistent with the context or subject matter the following terms have the corresponding definitions:

1. (a)  “Client” means the Client identified in the Quote, and if there is more than one Client is a reference to each Client jointly and severally;
2. (b)  “Cargo” means any goods to be freighted, as set out in a Quote, or other goods in which the Client has requested the Supplier to supply Services for;
3. (c)  “Loss” any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
4. (d)  “Quote” means the quote, offer, tender or proposal provided by the Supplier to the Client and as attached to these Terms;
5. (e)  “Services” means services supplied by the Supplier to the Client from time to time, as contemplated under these Terms;
6. (f)  “Supplier” means Logica Logistics Pty Ltd ABN 77 660 880 311;
7. (g)  “Terms” means these Terms and Conditions of Trade.