Terms & Conditions of Trade

These contractual conditions apply to the Services provided by Thomas Logistics and are applicable from the date Services are first provided by Thomas Logistics to the Customer.

These conditions may entirely change, reduce or exclude rights that you might otherwise have.

You should read these conditions carefully.

1. Definitions and interpretation

1.1 Definitions

In this agreement

Agreement means these Terms and Conditions, together with any credit application completed by the Customer.

Business Day means Monday to Friday and excludes any day which is declared a public holiday in Melbourne, Victoria.

Business Hours means between 9:00am and 5:00pm on a Business Day.

Consequential Loss means any loss or damage which:

(a) does not arise naturally or in the usual course of things; or

(b) constitutes, or arises from or in connection with, a loss in revenue, profit or opportunity or a loss of goodwill or business reputation, even if such loss or damage arises naturally or in the usual course of things.

Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.

Customer means any persons that;

  • accepts a quotation provided by Thomas Logistics; or, in the absence of a quotation
  • requests Thomas Logistics to perform the Services.

Dangerous Goods means any Goods which are, or may become, hazardous, volatile, explosive, flammable, radioactive, likely to harbour or encourage vermin or pests, or capable of posing a risk or causing damage to any person or property.

Fees means the fees listed in any quotation provided by Thomas Logistics or otherwise notified to the Customer. If it is not reasonably possible for Thomas Logistics to notify the Customer of the fees, Thomas Logistics will charge its advertised or reasonable fees for the Services.

Goods means the goods, including packaging, pallets or containers, the subject of the Services.

Government Authority means any government agency, authority, department or body, exercising jurisdiction in any nation, state, port or airport.

Law means any law, regulation, rule or international convention.

Loss means any loss, cost, damage, expense, claim, demand, action, proceeding or liability of any kind, (including legal costs on an indemnity basis) and whether actual, prospective or contingent and whether ascertained or unascertained.

Perishable Goods means any Goods liable to waste, deterioration or spoilage, and includes without limitation fruit, vegetables, dairy products, meat, and animals.

PPSA means the Personal Property Securities Act 2009 (Cth).

Services means the services performed by Thomas Logistics in relation to the Goods, including storage, warehousing, transport and supply chain services, together with any ancillary acts for those purposes.

SOP means a standard operating procedure agreed by the Parties which sets out how, or the parameters for how, the whole or part of the Services, are to be performed.

Stocktake means a count of the physical holding of the Goods reconciled against Thomas Logistics’ stock records including receipts, issues and inventory balance.

Subcontractor means a third party (and their employees, agents and contractors) engaged to provide all or part of the Services.

Systems means the computer systems of a Party which are made available to the other Party to use, access, send to or receive data from in connection with the performance of the Services including all software, hardware, equipment, communications services and websites operated by a Party.

Terms and Conditions means these terms and conditions.

Thomas Logistics means Thomas Logistics Pty Ltd ABN 78 124 336 714 of 82-88 Mills Road, Braeside, Victoria, 3195

Transport Document includes a consignment note, or similar carriage document.

Warehouse means any storage facility utilised by Thomas Logistics to perform the Services.

Warehouse Hours means between 8.00am and 5.00pm on Business Days unless otherwise notified.

A reference to Thomas Logistics’ Fees includes any taxes, including goods and services tax, payable in respect of the Services.

1.2 Interpretation

In this agreement:

(a) headings and clause numbers are for convenience only and do not form part of the document or affect its interpretation;

(b) the singular number includes the plural and vice versa, unless the context requires otherwise;

(c) a reference to “includes” or “including” means “includes, without limitation” and “including, without limitation” respectively;

(d) a reference to the whole includes a part of the whole;

(e) a reference to a party includes that party’s executors, administrators, trustees, successors and permitted assigns;

(f) a reference to a person includes an individual, corporation, unincorporated association, partnership, joint venture or government body;

(g) a reference to any statute, ordinance or other law includes all regulations and other instruments under it and all consolidations, amendments, re-enactments or replacements of it;

(h) money references are in Australian dollars, unless otherwise provided; and

(i) if a party is a corporation, a reference to that party’s authorised officer includes an “officer” of the corporation as defined in the Corporations Act 2001 (Cth), or any other person authorised to act on its behalf.

2. Term

The Agreement will commence when Services are first provided to the Customer and continue until either Party terminates the Agreement by giving not less than 90 days’ written notice of termination to the other Party.

3. Services

Performance

3.1 Thomas Logistics will provide the Services to the Customer subject to the terms of this Agreement.

3.2 Thomas Logistics is not a common carrier. Thomas Logistics will not be liable as a common carrier. The Goods are at all times at the risk of the Customer. The Customer is advised to take out their own insurance for goods in storage and in-transit.

3.3 Thomas Logistics will use reasonable endeavours to perform the Services in accordance with any SOP agreed between the Parties. If there are no SOPs in place and Thomas Logistics has a variety of options available in which to perform the Services, Thomas Logistics will, acting reasonably, have complete discretion in electing how the Services will be performed. If Thomas Logistics believes it is necessary or desirable, Thomas Logistics may deviate from the usual route or method of transport or take any action which it reasonably believes is necessary to protect the Goods.

3.4 Thomas Logistics may agree or refuse to provide Services at its discretion.

3.5 The Customer irrevocably appoints Thomas Logistics with the power and authority to take any action and execute any document in the name of and on behalf of the Customer as required by Thomas Logistics to provide the Services.

3.6 The Customer authorises Thomas Logistics to open any package containing Goods, and do any other thing in order to inspect or weigh the Goods.

3.7 The Customer agrees that when arranging transport performed by third parties:

(a) the value of the Goods will not be declared or inserted into a Transport Document or contract for the purpose of extending a carrier’s liability unless the Customer provides express written instructions to Thomas Logistics to do so, and if required, the carrier agrees;

(b) where a Subcontractor’s or carrier’s charges may be determined by the extent of liability assumed by the Subcontractor or carrier, no declaration of value will be made for the purpose of extending the liability of the Subcontractor or carrier, and the Goods will be dealt with at the Customer’s risk for minimum charges, unless the Customer provides written instructions to the contrary to Thomas Logistics;

(c) Thomas Logistics reserves the right to not make any declaration or take any action in respect of the Customer’s Goods unless the Customer has provided Thomas Logistics with sufficient notice, written instructions and the documents necessary to take that action in relation to those Goods.

Dangerous goods

3.8 At any time, Thomas Logistics may, acting reasonably, deem that certain Goods are Dangerous Goods.

3.9 Thomas Logistics at its reasonable discretion may destroy or otherwise deal with any Goods Thomas Logistics considers are Dangerous Goods, without notice or compensation to the Customer.

Delivery

3.10 Thomas Logistics’ delivery obligations are satisfied if Thomas Logistics delivers the Goods to the delivery address instructed by the Customer, and a person at that address provides a receipt or signs a delivery docket, or if authorised by the Customer, the Goods are left at the delivery address without obtaining a receipt or signed delivery docket.

3.11 If a person at the delivery address cannot or refuses to take delivery of the Goods, or the Goods cannot be delivered for any other reason, the Customer authorises Thomas Logistics to deal with the Goods at Thomas Logistics’ reasonable discretion, including storing, disposing of, or returning the Goods.

3.12 Despite clause 3.10, Thomas Logistics can in its reasonable discretion adopt a procedure of contactless delivery under which delivery is performed by leaving the Goods at the nominated delivery address without obtaining a signed delivery docket.  Thomas Logistics will in such cases take reasonable steps to obtain evidence of delivery.

4. Services – Warehousing

4.1 Where the services involve storing the Goods, the primary storage location will be the Warehouse.  However, the Goods may be stored at any place at the absolute discretion of Thomas Logistics at the Customers’ expense.

4.2 The Goods may be consolidated, stored in bulk or separate lots at the discretion of Thomas Logistics.

4.3 When Thomas Logistics stores the Goods, Thomas Logistics may require that the Customer remove the Goods from storage by giving reasonable notice delivered to an address provided by the Customer to Thomas Logistics.

4.4 Services performed at the Warehouse will be performed during the Warehouse Hours.

4.5 The Customer may request to access the Warehouse to inspect the Goods during Business Hours.

4.6 All Goods will be tallied into Thomas Logistics’ register upon receipt by Thomas Logistics.  Goods will not be taken as received by Thomas Logistics unless the person delivering the Goods obtains written receipt from Thomas Logistics.

4.7 All Goods will be tallied out of Thomas Logistics’ register on delivery by Thomas Logistics or when collected from the Warehouse at the direction of the Customer.

4.8 Any tallying in or out of Goods by Thomas Logistics will be accepted as final unless the client or representative is present and objects to Thomas Logistics’ tally.

4.9 The Customer will provide Thomas Logistics with a monthly forecast of the volume of Goods to be delivered to the Warehouse.  The forecast shall be provided at least 2 months prior to the commencement of the month the subject of the forecast.  The Customer will update Thomas Logistics if the forecast changes by more than 10%.

4.10 The Customer will provide a minimum of 24 hours’ notice for any deliveries of Goods to the Warehouse arranged by the Customer.

4.11 Thomas Logistics will provide the Customer with its electronic record of inventory of the Goods on request.

4.12 The Customer may on 30 calendar days’ notice to Thomas Logistics:

  • require Thomas Logistics to provide to the Customer, or a representative of the Customer, access to a Warehouse for the purpose of conducting a Stocktake and, at the Customer’s cost, give all reasonable assistance required by the Customer in connection with the conduct of any such Stocktake; or
  • require Thomas Logistics to conduct a Stocktake at the Customer’s cost, not being a Stocktake required to be undertaken pursuant to the Services.

5. Customer Obligations

5.1 The Customer will provide Thomas Logistics with all assistance, information and documentation necessary to enable Thomas Logistics to provide the Services, and punctually comply with any Law or request from a Government Authority.

5.2 The Customer is under a continuing obligation to provide any information which may materially affect the capacity of the Customer to perform its obligations under the Agreement including advising of any dangers associated with the Goods or if the Goods require storage and/or transport at a particular temperature.

5.3 The Customer will keep confidential the Fees or charges and any waiver, discount, release or indulgence provided by Thomas Logistics in relation to the provision of the Services.

5.4 The Customer will comply with all reasonable directions of Thomas Logistics in relation to the provision of the Services.

5.5 Unless expressly agreed by Thomas Logistics, the Customer will not during the Term and for a period of 12 months after the end of the Term solicit, or attempt to solicit any of Thomas Logistics’ employees involved in the provision of the Services, either directly as an employee or as a contractor or subcontractor.

5.6 The Customer will take reasonable precautions to ensure that any containers and pallets loaded or transported by or on behalf of the Customer will be loaded, secured and transported in a manner that complies with the Schedule to the Heavy Vehicle National Law Act 2012 (Qld) and any other Heavy Vehicle National Laws or Chain of Responsibility Regulations.

6. Instructions

6.1 Any instructions given by the Customer must be in writing in English and be legible.

6.2 Thomas Logistics has the discretion to refuse to accept the Customer’s instructions.

6.3 Sufficient notice of instructions must be given by the Customer to Thomas Logistics to enable Thomas Logistics to follow those instructions. If insufficient notice is given and Thomas Logistics attempts to adopt the Customer’s instructions, Thomas Logistics is not deemed to have accepted the instructions.

6.4 If Thomas Logistics accepts the Customer’s instructions on one occasion, Thomas Logistics will not be bound by those instructions when providing Services in the future.

6.5 If Thomas Logistics accepts the Customer’s instructions to perform the Services in a particular way, it will give priority to that method, but may depart from that method at its reasonable discretion.

7. Fees/Charges

7.1 In consideration for the provision of Services, the Customer will pay the Fees/Charges to Thomas Logistics.

7.2 Thomas Logistics’ fees/charges are earned on the earlier of the commencement of the performance of the Services (or part thereof), or when the Goods are delivered to Thomas Logistics or its subcontractors.

7.3 The Fees/Charges may include any disbursements and other amounts that Thomas Logistics is required to pay third parties in connection with the Services. Thomas Logistics at its discretion may vary its Fees if the amount of any such disbursements change.  Where an amount charged by Thomas Logistics is described as a disbursement (or otherwise describes an amount paid to a third party), such amount may also include Thomas Logistics’ handling and administration fee in respect of the disbursement and that fee is not required to be separately disclosed.

7.4 The Fees/Charges must be paid immediately on receipt of an invoice or as otherwise agreed in writing (i.e Due Date).

7.5 Thomas Logistics at its discretion may determine its Fees/Charges, including by weight, measurement or value, including without limitation, by volumetric conversion.

7.6 Thomas Logistics may re-weigh, re-measure or re-value the Goods at any time, and amend its Fees/Charges at its reasonable discretion.

7.7 Any information contained in a quotation provided by Thomas Logistics in relation to the Fees/Charges applies to the specific item, weight and volume quoted, designated Services and standard of Services, and is only valid until the earlier of 14 days after being provided, the quote being withdrawn or the quote expiring.

7.8 Unless otherwise stated, Thomas Logistics’ Fees/Charges are exclusive of goods and services tax.

7.9 The Customer remains responsible for the payment of Fees/Charges:

(a) even where an arrangement is made for the Fees/Charges to be paid by another person;

(b) whether or not the Goods are delivered or damaged or the Services performed as instructed.

7.10 If the Fees/Charges are not paid in full within 7 days of the Due Date then, without limitation to its rights, Thomas Logistics may charge interest on the late payment at the published business overdraft rate of the Commonwealth Bank of Australia +2%.

7.11 The Customer will not defer, set-off or withhold payment of any amount payable to Thomas Logistics by reason of any claim the Customer has, or claims it has, against Thomas Logistics.

7.12 Any credit terms provided by Thomas Logistics may be terminated at any time by Thomas Logistics.

7.13 The Customer agrees that Thomas Logistics may receive and retain for its own account allowances, brokerages and commissions from shipping and forwarding agents, shipping lines, insurance brokers, airlines and any other person with whom Thomas Logistics deals and that Thomas Logistics is not require to disclose the receipt and retention of such amounts to the Customer, even, without limitation, if acting as agent for the Customer.

7.14 Thomas Logistics is not required to perform the Services if in its reasonable opinion it considers that the financial standing or creditworthiness of the Customer is such that the Customer is not likely to be able to meet its payment obligations.

7.15 Thomas Logistics may at any time request from the Customer security for the performance of the Customer’s obligation under this Agreement including payment upfront, a guarantee, cash deposit, bank guarantee, letter of credit.  A refusal to provide the requested security will entitle Thomas Logistics to terminate any credit terms and refuse to perform the Services.

7.16 The Customer must provide written notice of any dispute or discrepancy with an invoice within 14 days of receipt of the invoice. All invoice amounts will be deemed to be correct unless notice of any dispute or discrepancy is given within this timeframe.

7.17 Despite the Customer raising a dispute with an invoice or part of an invoice, the Customer is not permitted to withhold payment of any non-disputed invoice or portion of the invoice

8. Warranties

8.1 The Customer warrants to Thomas Logistics that:

(a) it is the owner of the Goods, or is the authorised agent of the owner of the Goods and is authorised to complete and sign documentation related to the Goods and the Services;

(b) it enters into the Agreement on its own behalf, or in its capacity as the authorised agent of the owner of the Goods;

(c) it has fully and adequately described the Goods, their nature, weight and measurements and that, given their nature;

(d) has complied with all Laws relating to the Goods, including the nature, condition, packaging, handling, storage and carriage of the Goods;

(e) in engaging the Services from Thomas Logistics, it will not procure Thomas Logistics to perform any act in breach of any Laws;

(f) it will observe all Laws and requirements of Government Authorities;

(g)  all information and documentation provided by the Customer to Thomas Logistics is accurate and complete, it has not omitted to provide any requested or material information;

(h) the Goods are packed to endure the ordinary risks of handling, storage and the Services, having regard to the nature of the Goods;

(i) the Goods are not Dangerous Goods, unless Thomas Logistics has agreed in writing to provide the Services in respect of those particular Dangerous Goods, and in which case, warrants that it has made full disclosure of Dangerous Goods and such Goods are distinctly marked;

(j) it will fully disclose all valuable and/or fragile goods including without limitation bullion, coins, precious stones, jewellery, valuables, antiques and pictures; and

(k) all Goods are adequately and accurately marked, labelled or branded.

9. Subcontractors

9.1 The Customer authorises Thomas Logistics to:

(a) subcontract all or part of the Services to a Subcontractor; and / or

(b) as the agent of the Customer, contract with a third party service provider on behalf of the Customer on any terms whatsoever, including terms that limit or exclude the liability of the third party service provider.

9.2 The Customer authorises a Subcontractor to subcontract all or part of the Services.

9.3 All exclusions or limitations on the liability of Thomas Logistics in this Agreement extend to protect:

(a) all Subcontractors;

(b) the agents, employees and servants of any Subcontractor or Thomas Logistics; and

(c) any person engaged to provide all or part of the Services.

9.4 The Customer undertakes that it will not make any claim against, or impose any liability upon, any Subcontractor in connection with the provision of the Services or the Goods.

9.5 The Customer undertakes that it will indemnify any Subcontractor from and against any Loss if a claim is made against a Subcontractor by any party (including the Customer) in connection with the provision of the Services or the Goods.

9.6 For the purpose of clauses 9.3 and 9.5, Thomas Logistics acts as trustee on behalf of and for the benefit of any Subcontractor, and to this extent each Subcontractor is deemed to be a party to this Agreement.

10. Liability

10.1 Thomas Logistics is not liable for Consequential Loss suffered by the Customer, regardless of whether or not Thomas Logistics had knowledge that such damage may be incurred.

10.2 To the extent permitted by Law, Thomas Logistics excludes all liability in respect of any claim made against Thomas Logistics, its employees, agents and Subcontractors, including without limitation, liability for fundamental breach of contract, or a negligent, unlawful, reckless or wilful act or omission.  Without limitation, the exclusion of liability in this clause include liability for loss or damage to the Goods, delay in delivery, incorrect delivery, incorrect packing or labelling and deterioration or contamination of Goods.

10.3 Thomas Logistics excludes from this Agreement all conditions, warranties, terms and consumer guarantees implied by Laws, general law or custom except any the exclusion of which would contravene any Laws or cause this condition to be void (Non-Excludable Condition).

10.4 Thomas Logistics’ liability for any breach of a Non-Excludable Condition is limited, at Thomas Logistics’ option, to supplying the Service the subject of the breach again, or the cost of supplying that Services again.

10.5 Where the liability of Thomas Logistics is not excluded by the Agreement, Law or otherwise, the liability of Thomas Logistics is limited to the lesser of $100 or the value of the Goods at the time the Goods were received by Thomas Logistics.

10.6 Without limitation to any other clause of the Agreement, Thomas Logistics will be discharged from all liability in connection with the performance of the Services or the Goods unless:

(a) notice of any claim is received by Thomas Logistics within 7 days of the earlier of the delivery of Goods, the date the Goods should have been delivered, or where the claim does not relate to loss or damage to Goods, the event giving rise to the claim; and

(b) suit is brought and written notice is received by Thomas Logistics within 9 months of the earlier of the delivery of the Goods, the date the Goods should have been delivered, or where the claim does not relate to loss or damage to Goods, the event giving rise to the claim.

10.7 Thomas Logistics will not be liable for any delay or failure to perform an obligation under the Agreement caused by an event beyond the control of Thomas Logistics.

11. Indemnities

11.1 The Customer indemnifies Thomas Logistics from and against (and must pay on demand for) all Loss arising directly or indirectly from or in connection with the Goods or the performance of the Services in a manner directed by the Customer (including Consequential Loss) except to the extent that such Loss is caused by the negligent actions or breach of contract by Thomas Logistics.

11.2 Without limitation to clause 11.1 the Customer indemnifies Thomas Logistics from and against (and must pay on demand for) any Loss arising from

(a)  a failure to return any container or transport equipment involved in the performance of the Services by the date required or within the free time specified by the supplier of that container or transport equipment to the extent that the failure is caused by contributed to by the Customer;

(b) any claim against Thomas Logistics by a person who claims to have an interest in the Goods;

(c) breach of this Agreement, including any warranty provided by the Customer;

(d) any Loss, cost or liability incurred or suffered by Thomas Logistics as a result of releasing or delivering the Goods to the Customer or at the direction of the Customer.

11.3 The Customer indemnifies Thomas Logistics from and against (and must pay on demand the amount of) all duty, GST, and any other fees and taxes incurred in connection with the Goods payable to a Government Authority.

11.4 The Customer indemnifies Thomas Logistics from and against (and must pay on demand for) all costs payable to third parties in relation to the carriage, storage, treatment or entry of the Goods.

11.5 The indemnities in this Agreement continue whether or not the Goods are stolen, lost or destroyed.

12. Lien

12.1          Thomas Logistics has:

(a) a particular and general lien on all Goods and documents relating to the Goods; and

(b) a right to sell those Goods and documents by public auction or private sale (at Thomas Logistics’ discretion) without notice and apply the proceeds of sale;

in respect of all sums due and owing from the Customer or a related body corporate of the Customer.

12.2 Where reasonably possible, Thomas Logistics will provide the Customer with notice before selling Goods under clause 12.1.

12.3 The lien will also cover Thomas Logistics’ reasonable costs and expenses relating to the exercise of its lien and right of sale, including Thomas Logistics’ reasonable legal fees.

12.4 For the purposes of the lien, Thomas Logistics will retain constructive possession of the Goods and the lien and rights granted by this clause will survive delivery of the Goods. Thomas Logistics is entitled to retain the proceeds of sale of the Goods in respect of all sums due and owing from the Customer.

13. PPSA

13.1 Terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA.

13.2 Without limitation to other rights of Thomas Logistics, the Customer grants to Thomas Logistics a continuing security interest in favour of Thomas Logistics for the payment of all amounts due and owing by the Customer under the Agreement over:

(a) the Goods from the time the Goods are in the possession of Thomas Logistics or a Subcontractor;

(b) all other current and future personal property of the Customer.

13.3 The Customer acknowledges and consents to Thomas Logistics’ registration and perfection of Thomas Logistics’ security interest under the Agreement for the purposes of the PPSA.

13.4 The Parties agree that Thomas Logistics has possession of the Goods within the meaning of section 24 of the PPSA, even if the Goods are in the possession of Thomas Logistics’ subcontractors, servants or agents.

13.5 The Customer will not grant a security interest to another person, or allow any encumbrance to arise, in respect of the Goods other than in the ordinary course of business.

13.6 To the extent permitted by law, the Customer irrevocably waives any right it may have to:

(a) receive notices or statements under sections 95, 118, 121(4), 124(4), 125, 130, 132(3)(d) 132(4) and 135 of the PPSA; and

(b) redeem the Goods under section 142 of the PPSA;

(c) reinstate this Agreement under section 143 of the PPSA; and

(d) receive a verification statement.

13.7 The Customer will do all things and execute all documents reasonably necessary to give effect to the security interest created under this Agreement or comply with any reasonable request by Thomas Logistics in connection with the PPSA.

14. Uncollected Goods

14.1 Thomas Logistics may at its reasonable discretion sell or otherwise dispose of Perishable Goods where the Goods cannot be identified, delivered or delivery of the Goods is refused.  Thomas Logistics will give notice of the sale or disposal to the Customer unless it is not reasonably practicable or the Goods will deteriorate or suffer material loss in value while attempting to give notice.

14.2 Without limitation to clause 14.1, on the giving of 21 days written notice to the Customer, Thomas Logistics may at its reasonable discretion sell or return Goods that are insufficiently or incorrectly addressed, are not identifiable or where being delivered by Thomas Logistics, are uncollected or where the Customer fails to pay any cost or do any action reasonably necessary for Thomas Logistics to deliver the Goods.

14.3 Where Thomas Logistics sells Goods under this Agreement;

(a) it does so as principal, not as agent, and is not the trustee of the power of sale;

(b) the Customer must pay all reasonable costs, charges and expenses incurred by Thomas Logistics in connection with the storage, sale or return of the Goods, which may be deducted from the proceeds of the sale of the Goods;

(c) Thomas Logistics is entitled to recover any deficit from the Customer where the proceeds of sale of the Goods do not satisfy the amounts payable to Thomas Logistics.

15. Systems and data

(a) Thomas Logistics and the Customer will provide each other with access to their Systems to the extent necessary for Thomas Logistics to perform the Services.

(b) Each Party agrees that it will only access the Systems of the other Party for the purpose of performing the Services and will do so in a manner that does not damage the Systems of the other Party.

(c) Each Party must follow the reasonable instructions of the other Party when accessing the Systems of the other Party.

(d) The Parties must ensure that their Systems are of a sufficient standard, grade and quality to enable the other Party to access the System, input data into the System and receive data from the System.

(e) Each party is responsible for the remedial and preventative maintenance of their own Systems.

(f) A Party must notify the other as soon as possible of any virus, data corruption or System security issue which may impact on the other Party’s System or allow unauthorised third party access to Confidential Information of the other Party.

16. Insurances

16.1 The Goods are at all times at the risk of the Customer and Thomas Logistics will not arrange insurance in relation to the Goods.

16.2 The Customer agrees that it will obtain insurance to the full value of the Goods that covers loss or damage to the goods during the period the Goods are subject to the Services.

16.3 On request by Thomas Logistics, the Customer will provide evidence of compliance with clause 16.2.

17. Termination

17.1 Termination not to affect claims

Termination by notice does not affect any Claim either Party has against the other arising out of the terms of this Agreement at the date of the termination.

17.2 Return of property at termination

Upon termination of this Agreement for any reason, the Customer agrees to make arrangements to collect all Goods held by Thomas Logistics on its behalf on or before the date of termination of this Agreement, failing which Thomas Logistics shall be authorised to pack, load and deliver all Goods held on behalf of the Customer, at the rates prevailing under this Agreement, to the Customer.  The Customer shall make payment for any packing, loading and delivery in accordance with this clause prior to delivery being completed or as otherwise agreed. This clause does not affect any right of Thomas Logistics to exercise a lien over the Goods in accordance with this Agreement.

18. Default

18.1 Events of default

Each of the following is an event of default (Event of Default):

(a) a Party breaches this Agreement, the breach is capable of remedy and the Party in breach does not remedy the breach within 14 days after written notice to that Party requiring it to be remedied;

(b) a Party breaches a material provision of this Agreement that is not capable of remedy;

(c) an Insolvency Event occurs in relation to either Party;

(d) any other event occurs or circumstance arises which, in the reasonable opinion of Thomas Logistics, is likely to materially and adversely affect the ability of the Customer to perform all or any of its obligations under or otherwise to comply with the terms of this Agreement.

18.2 Termination on default

If an Event of Default occurs in relation to a Party (Defaulting Party), the other Party may terminate this Agreement on written notice to the Defaulting Party.

19. Dispute resolution

19.1 If a dispute or difference arises in respect of any fact, matter or thing arising out of, or in any way in connection with, this Agreement, or the conduct of a Party in relation to the subject matter of this Agreement at any time, any Party may give a notice in writing to the other Party specifying:

(a) the dispute or difference;

(b) particulars of the dispute or difference; and

(c) the position which the Party believes is correct.

(Dispute Notice).

19.2 If a Dispute Notice is given, the Parties must procure that their respective chief executive officers (or similar) meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference specified in that Dispute Notice.

19.3 If a dispute remains 20 Business Days after the date of the Dispute Notice, the Parties must mediate the dispute within 50 Business Days after the date of the Dispute Notice.  The mediation will be in Melbourne Australia and if the Parties cannot reach agreement, the mediator will be appointed by the President of the Law Institute of Victoria.  The cost of a mediator and venue hire will be shared equally by the parties.19.4 Subject to subclause 5 of this clause, a Party must not commence legal proceedings in respect of the dispute or difference without first complying with the procedures set out in this clause.

19.5 Nothing in this clause prevents the Parties from obtaining any injunctive, declaratory or other interlocutory relief that may be urgently required from a court of appropriate jurisdiction.

20. Force majeure

20.1 The obligations of either Party under this Agreement (except for the payment of Fees) are to be suspended for the duration of any event resulting in either Party being prevented from or delayed in performing any obligation under this Agreement where the causal event is not within the reasonable control of the affected Party, including without limitation:

(a) an act of God, force of nature or climatic conditions, unavoidable accidents;

(b) war, revolution, riot, insurrection, terrorism, vandalism, sabotage or any other unlawful act against public order or authority;

(c) governmental restraint;

(d) a computer software or hardware defect, problem or virus that materially interrupts the business of a Party;

(e) equipment or vehicle breakdown or malfunction;

(f) pandemic, epidemic or Government measure relating to a pandemic or epidemic; and

(g) an industrial dispute;

(Force Majeure Event)

provided that in any of these circumstances the Party seeking to rely on the benefit of this clause must use its reasonable endeavours to put itself in a position where it is able to meet its obligations under this Agreement as soon as possible.

20.2 If the Force Majeure Event persists for more than 14 days either party may terminate this Agreement on 5 Business Days’ notice.

20.3 For the avoidance of doubt, the Customer will be liable for storage costs even where a Force Majeure Event prevents or limits access to the Goods or prevents or limits the removal or delivery of the Goods from the Warehouse.  This includes storage charges incurred after the Agreement is terminated pursuant to clause 20.2.

21. General

21.1 This Agreement takes priority over and will prevail to the extent of any inconsistency with any credit application made by the Customer, the Customer’s terms and conditions or other document issued by the Customer, and any terms and conditions set out in any Transport Document, except a Transport Document issued by Thomas Logistics.

21.2 The Agreement is governed by the laws of Victoria, Australia. Thomas Logistics and the Customer submit to the jurisdiction of the courts of Victoria and of the Federal Court of Australia.

21.3 A variation of this Agreement will only be valid if in writing and signed by each party or signed by a person with the authority to bind each party.

21.4 Thomas Logistics may assign its rights and obligations under the Agreement without the Customer’s consent. The Customer must not assign its rights and obligations under the Agreement without Thomas Logistics’ written consent.

21.5 Any notices under this Agreement must be in English and in writing and delivered to the other Party.

21.6 All rights, indemnities and limitations of liability contained in this Agreement will have their full force and effect, despite:

(a) any breach of term or condition of this Agreement, the Agreement, or any collateral agreement by Thomas Logistics;

(b) the performance of the Services;

(c) the delivery of the Goods; or

(d) the expiry or termination of the Authority.

21.7 Without limiting the effect of clause 21.6, clauses 7.11, 8, 9, 10, 11, 12, 14 and 19 of this Agreement will survive termination.

21.8 If a condition or part of a condition of this Agreement is unenforceable, it must be severed from and does not affect the rest of the Agreement.

21.9 Thomas Logistics is not bound by any waiver, discharge or release of a condition or any agreement which purports to change this Agreement, unless it is in writing and signed by or for Thomas Logistics.

21.10 Nothing in this Agreement constitutes the relationship of employer and employee, partnership or joint venture between Thomas Logistics and the Customer. It is the express intention of the Parties that any such relationships are denied.

21.11 The Customer agrees that Thomas Logistics retains all copyright and intellectual property subsisting in all documents and things created by, or for, Thomas Logistics in connection with the performance of the Services, including copyright and intellectual property that now exists or that later comes into existence.

21.12 A reference in this Agreement to any law includes any statutory modification, substitution or re-enactment of it.

21.13 If the Customer is a trustee of a trust, the Customer:

(a) will provide Thomas Logistics with a copy of the trust deed and any documents amending that trust deed;

(b) notify Thomas Logistics of any change in trustee of the trust;

(c) agrees that these Conditions apply to, and all requests for Services placed by the Customer with Thomas Logistics are placed by, the Customer in its personal capacity and as trustee of the trust.

21.14 Any party that enters this Agreement as a disclosed or undisclosed agent agrees to be joint and severally liable for the debts, liabilities and obligations of the principal under this Agreement.

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