SERVICES AGREEMENT: TERMS AND CONDITIONS BETWEEN
You Pack Logistics Pty Ltd trading as Moving Containers
ABN 69 619 272 632 of PO Box 106 Laverton VIC 3028 , 3/188 Dohertys Road Laverton North VIC 3026 (the “Contractor”)
AND
THE PARTY NAMED IN THE QUOTE (the “Customer”)
DEFINITIONS
• “Business Day” means any day that is not a Saturday, Sunday or a public holiday;
• “Container” means a container into which the Customer is to pack the Goods;
• “Fee” means the aggregate sum of the Service Fee, Fuel Surcharge and any applicable Storage Fee.
• “Fuel Surcharge” means the amount determined as such by the Contractor from time to time.
• “Goods” means the goods involved in the provision of the services described in clause 6.
• “GST” has the meaning it does in section 195-1 of the GST Act.
• “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 and any related or similar legislation.
• “Quote” means the document to which these terms and conditions are attached, which includes the Service Fee for the provision of the Services by the Contractor to the Customer.
• “Services” means the services required to be performed by the Contractor pursuant to clause 6.
• “Service Fee” means the amount specified as such on the Quote.
• “Storage Fee” means the fee payable by the Customer for storage of the Goods pursuant to clause 8.
• “Supply” has the same meaning it does in section 9-10 of the GST Act.
• “Term” means the period specified in clause 5.
• Terms defined in the Quote have a corresponding meaning in these Terms and Conditions.
VALIDITY OF QUOTE
• The Quote is valid for 30 days.
INVITATION
• By accepting the terms of the Quote, the Customer invites the Contractor provide the Services for the Term on the terms and conditions contained in this agreement (the “Invitation”).
REFUSAL AND ACCEPTANCE
• The Contractor may, in its absolute discretion, refuse the Invitation.
• The Contractor accepts the Invitation by:
• notifying the Customer in writing of its acceptance; or
• delivering the Container to the Loading Location.
TERM
The term of this agreement commences on the date on which the Contractor accepts the Invitation and terminates upon return of the empty container to Moving Containers of delivery of a customers owned container to site.
SERVICES
During the Term, the Contractor must provide to the Customer the transport and delivery services required by the Customer from time to time, including collecting goods from the Loading Location and delivering goods to the Delivery Location.
EQUIPMENT
• The Contractor must make available to the Customer any equipment necessary for the Contractor to adequately provide the Services, including a Container.
• The provision of the container is for the term of the agreement only and ownership remains with Moving Containers or the Hire company from which the container has been obtained by Moving Containers.
• The Customer must make the container available for pick up by Moving Containers at Moving Containers request, and shall not obstruct or restrict access to Moving Containers and/or its subcontractor’s.
STORAGE
• The Contractor may store the Goods packed in the Container until the Container is delivered to the Delivery Location if requested by the Customer.
• The Customer must pay a Storage Fee per day whilst the container is in storage.
• The Contractor may store the Goods packed in the Container until the Customer makes payment on their account in FULL prior to delivery. Container storage charges will apply.
INSURANCE
• Damage to Goods caused by the following events during transit is covered by insurance to a maximum value of $250,000:
o Fire or flood;
o Damage caused by collision or overturning of the vehicle transporting the container;
o Theft of the container carrying the Goods whilst in transit
o As a company we also have Public Liability insurance for $20 million dollars.
• The insurance will not cover damage to Goods resulting from Customers packing of the Goods into the Container or load shifting in the normal cause of transit (including but not limited to scrapes, rubbing, gouging etc). Insurance does not cover goods whilst in storage
CONDITIONS
• The Contractor may, in its absolute discretion, refuse to transport the Goods or any class of Goods.
• The Customer must ensure that the Goods comply with the requirements of any applicable laws, customs or government regulations relating to the nature, condition, packaging, carriage and delivery of the Goods and that the expense and charges of the Contractor in complying with the provisions of any such laws, customs or government regulations or with any corresponding order or requirement or with the requirement of any harbour, dock, railway, shipping, Customs warehouse or other authority or company must be paid by the Customer.
• The Customer warrants that except as shown in any accompanying certification, the Goods do not contain any explosive or volatile spirits or other cargo of a dangerous inflammable or offensive nature or cargo carriage of which by the Contractor would be illegal or prohibited by any law of regulation of any State, Territory or the Commonwealth due to its nature, packaging or labelling.
• The Customer indemnifies the Contractor in respect of the Contractor’s liability for death, bodily injury, loss or damage and against any loss or damage suffered by the Contractor as a result of the Customer’s failure to comply with clause 3.
• The Contractor shall be taken to have delivered the Goods to the Delivery Location upon obtaining a receipt or signed delivery docket for the Goods.
• The Customer expressly warrants that the Customer is either the owner or the authorised agent of the owner of the Goods.
FEE AND GST
• The Customer will pay the Fee to the Contractor for the provision of the Services.
• The Fee excludes GST.
GST To the extent that any Supply or Supplies under this agreement are subject to GST, the following applies:
• any amount payable by the Customer to the Contractor on account of GST for, or in connection with, a Supply under this agreement does not include any GST;
• the Customer must pay to the Contractor an additional amount (plus any general interest charge, fines or penalties assessed by the Australian Taxation Office or a court or tribunal) on account of GST equal to the amount payable by the Customer for the relevant Supply or Supplies multiplied by the prevailing GST rate;
• the Customer is required to pay the additional amount to the Contractor within 5 Business Days of any request from the Contractor; and
• if a payment is to be made under this clause 11.4, the Contractor must provide the Customer with a tax invoice which complies with the requirements of the GST Act
PAYMENT
• The Customer must pay as per agreed terms.
• The Contractor is not required to deliver the Container to the Delivery Location until the Customer has paid the Fee.
TERMINATION
Termination
• The Contractor may immediately terminate this agreement by giving the Customer written notice if at any time the Customer fails to make any payment due under this agreement or commits any other material breach of this agreement.
Consequences of Termination
• Any termination of this agreement does not relieve the Customer of any obligation remaining to be performed by it or capable of having effect after such termination and is without prejudice to any right or cause of action already accrued to the Contractor in respect of any breach of this agreement by the Customer.
LIABILITY AND INDEMNITY
No liability
• The Contractor shall not, in the absence of fraud, wilful default or gross negligence on its part or on the part of its employees or agents, be liable for any loss or damage which the Customer may sustain or suffer as the result, or in the course, of the performance by the Contractor of its obligations under this agreement.
Indemnity
• The Customer indemnifies the Contractor from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (other than those resulting from fraud, wilful default or gross negligence on its part, or on the part of its employees or agents, in performing its obligations under this agreement) which may be incurred by the Contractor in performing its obligations under this agreement or by reason of its acting as Contractor.
Survival
• a continuing, separate and independent obligation of the Customer from its other obligations and survives the termination of this agreement; and
• absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the Customer.
MISCELLANEOUS
Council Permits
• The Customer is required to obtain any council permits necessary for the Container to be left at the Loading Location and the Delivery Location.
Notices
• Any notice or other communication contemplated by this agreement must be in writing and signed by or on behalf of the sender, addressed to the recipient and delivered to the recipient’s address.
Further Action
• Each party must do or cause to be done all acts and things necessary or desirable to give effect to this agreement and refrain from doing all acts and things that could hinder performance by any party of this agreement.
Assignment
• Subject to clause 15.4(b) below, no party may assign or otherwise deal with its rights or obligations under this agreement without first obtaining the consent in writing of the other party.
• The Contractor may sub-contract any of its obligations to be performed under this agreement without obtaining the consent of the Customer.
No Waiver
A party’s failure to insist another party perform any obligation under this agreement is not a waiver of that party’s right:
• to insist the other party perform, or to claim damages for breach of, that obligation; or
• to insist the other party perform any other obligation, unless the
• waiving party acknowledges the waiver in writing.
No Merger
• The rights and obligations of the parties will not merge on completion of any transaction under this agreement and they will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
Title
• Title in the Goods does not pass to the Contractor.
Counterparts
• This agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument. An executed counterpart may be delivered by facsimile.
Entire Agreement
• The Quote and these Terms and Conditions are the entire agreement between the parties about their subject matter.
Variation
• Unless otherwise expressly contemplated by the terms of this agreement, any modification of this agreement must be in writing and signed by an authorised representative of each party.
Severance
If any provision or part of a provision of this Agreement is invalid or unenforceable in any jurisdiction:
• the provision must be read down for the purposes of the operation of that provision in that jurisdiction, if possible, so as to be valid and enforceable; or
• if the provision cannot be read down it must be severed if it is capable of being severed, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction and the parties must consult is good faith to determine whether any amendment or substituted provision is required.
Governing Law and Jurisdiction
• This agreement must be governed and construed in accordance with the laws applicable in Victoria.
• The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria.
