1.1 “CFS” shall mean Customised Freight Solutions Pty Ltd and its successors and assigns or any person acting on behalf of and with the authority of Customised Freight Solutions Pty Ltd.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting CFS to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Sub-Contractor” shall mean and include:
(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
(b) any other person or entity with whom CFS may arrange for the carriage or storage of any Goods the subject of the contract; or
(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clauses 1.2(a) and 1.2(b).
1.4 “Consignee” shall mean the person to whom the Goods are to be delivered by way of CFS’ Services.
1.5 “Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of CFS’ Services, or for storage by CFS.
1.6 “Dangerous Goods” means any goods which are or may become of a dangerous, noxious, explosive, inflammable, radio-active or damaging nature and include goods likely to harbour or encourage vermin or other pests.
1.7 “Services” shall mean all services supplied by CFS to the Customer (including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or fumigating, transhipping, or otherwise handling the Goods, or anything else done in relation thereto including the offering of any advice or recommendations.
1.8 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between CFS and the Customer in accordance with clause 7 below.
1.9 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. The Commonwealth Competition and Consumer Act 2010 (CCA) and Fair Trading Acts
2.1 Nothing in this contract is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Customer purchases Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
2.3 Liability of CFS arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Competition and Consumer Act 2010 or howsoever arising, is limited to any of the following as determined by CFS:
(a) rectifying the Services; or
(b) supplying the Services again; or
(c) paying for the Services to be supplied again.
2.4 If CFS is required to rectify, re-supply, or pay the cost of re-supplying the Services under clause 2.3 or the CCA, but is unable to do so, then CFS may refund any money the Customer has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Customer which were not defective.
3.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Services provided by CFS.
3.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and CFS.
3.3 These terms and conditions are to be read in conjunction with CFS’ quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by CFS to the Customer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
4. Electronic Transactions Act
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales & South Australia), the Electronic Transactions Act 2001 (Australian Capital Territory), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions Act 2003 (Western Australia), the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania), (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
5. Errors and Omissions
5.1 The Customer acknowledges and accepts that CFS shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by CFS in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by CFS in respect of the Services.
5.2 In the event such an error and/or omission occurs in accordance with clause 5.1, and is not attributable to the negligence and/or wilful misconduct of CFS; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
6. Change in Control
6.1 The Customer shall give CFS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, change of trustees, or business practice). The Customer shall be liable for any loss incurred by CFS as a result of the Customer’s failure to comply with this clause.
7. Price And Payment
7.1 At CFS’ sole discretion the Price shall be either;
(a) as indicated on invoices provided by CFS to the Customer in respect of Services supplied; or
(b) CFS’ quoted Price (subject to clause 4.2 & 4.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 CFS may by giving notice to the Customer increase the Price of the Services to reflect any increase in the cost to CFS beyond the reasonable control of CFS (including, without limitation, foreign exchange fluctuations, or increases in taxes, customs duties, insurance premiums, or warehousing costs).
7.3 The Carrier may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
7.4 Unless, otherwise stated at the time of the quotation, the following shall apply:
(a) freight charges by sea will be based on one (1) cubic meter equals one thousand (1000) kilograms; and
(b) road, rail or air cubic allowance will be as specified by the quotation supplied by CFS; and
(c) un-crated machinery will be measured to minimum height of two point forty-four (2.44) meters;
(d) Goods with individual measurements exceeding twelve (12) meters in length, two point four (2.4) meters in width, two point two (2.2) meters in height or twenty-four (24) tonne will be subject to special quotation; and
(e) freight is payable upon the gross measurement including pallets; and
(f) allowances have been made for truck waiting time at the wharf and for the unloading/loading of cargo at the shipper/consignees premises. Truck detention charges will be applied for periods over these allowed times at a rate consistent with vehicle type.
7.5 Unless specified these rates are for NON-HAZARDOUS Goods. Goods deemed to be Dangerous Goods nature will be subject to a surcharge.
7.6 Pallets remain the responsibility of the Customer at all times and will not be exchanged unless prior arrangements have been made.
7.7 The Customer’s hired pallets will not be accepted for credit against any account due.
7.8 Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by CFS, which may be:
(a) the date specified on any invoice or other form as being the date for payment; or
(b) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by CFS.
7.9 If a freight invoice charge is reversed an administration fee of twenty dollars ($20.00) will apply.
7.10 Payment will be made by electronic/on-line banking, or credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and CFS.
7.11 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by CFS nor to withhold payment of any invoice because part of that invoice is in dispute.
7.12 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to CFS an amount equal to any GST CFS must pay for any supply by CFS under this or any other contract for the sale of the Goods or the provision of Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7.13 Receipt by CFS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then CFS’ ownership or rights in respect of the Services, and this contract, shall continue.
8. CFS Not Common Carrier
8.1 CFS is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by CFS subject only to these conditions and CFS reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
9. Customer-Packed Containers
9.1 If a container has not been stowed by or on behalf of CFS, CFS shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.
10. Nomination Of Sub-Contractors
10.1 The Customer hereby authorises CFS (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as CFS. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled CFS shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
11. CFS’ Servants or Agents
11.1 The Customer undertakes that no claim or allegation shall be made against any servant or agent of CFS which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify CFS and any such servant or agent against all consequences thereof.
12. Method Of Transport and Route Deviation
12.1 If the Customer instructs CFS to use a particular method of carriage whether by road, rail, sea or air CFS will give priority to the method designated but if that method cannot conveniently be adopted by CFS the Customer shall be deemed to authorise CFS to carry or have the Goods carried by another method or methods.
12.2 The Customer shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of CFS be deemed reasonable or necessary in the circumstances.
13. Charges Earned and Demurrage
13.1 CFS’ charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and dispatched from the Customer’s premises.
13.2 The Customer will be and shall remain responsible to CFS for all its proper charges incurred for any reason. A charge may be made by CFS in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of CFS. Such permissible delay period shall commence upon CFS reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Customer or Consignee.
14. Dangerous Goods
14.1 Unless otherwise agreed in advance in writing with CFS the Customer or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Customer shall be liable for and hereby indemnifies CFS for all loss or damage whatsoever caused by any Dangerous Goods.
15. Consignment Note
15.1 It is agreed that the person delivering any Goods to CFS for carriage or forwarding is authorised to sign the consignment note for the Customer.
16. Customer’s Responsibility
16.1 The Customer expressly warrants to CFS that the Customer is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Customer accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Customer is acting.
17.1 CFS is authorised to deliver the Goods at the address given to CFS by the Customer for that purpose and it is expressly agreed that CFS shall be taken to have delivered the Goods in accordance with this contract if at that address CFS obtains from any person a receipt or a signed delivery docket for the Goods.
17.2 CFS may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.
17.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery for the purposes of this contract.
17.4 It is the Customer’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.
17.5 Any time specified by CFS for the delivery of Goods is an estimate only and CFS will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that CFS is unable to deliver the Goods as agreed solely due to any action or inaction of the Customer then CFS shall be entitled to charge the Customer any additional costs incurred by CFS as a direct consequence of any resultant delay or rescheduling of the delivery.
18. Loss Or Damage
18.1 Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):
(a) CFS shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of CFS or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
(b) the Customer will indemnify CFS against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by CFS in connection with the Goods.
19.1 The Customer acknowledges that:
(a) the Goods are carried and stored at the Customer’s sole risk and not at the risk of CFS; and
(b) CFS is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility to ensure that the Goods are insured adequately or at all; and
(c) under no circumstances will CFS be under any liability with respect to the arranging of any such insurance and no claim will be made against CFS for failure to arrange or ensure that the Goods are insured adequately or at all.
20.1 Notwithstanding clauses 18 and 19 in the event that the Customer believes that they have any claim against the Carrier then they must lodge any notice of claim for consideration and determination by the Carrier within seven (7) days of the date of delivery, or for non delivery within seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
20.2 The failure to notify a claim within the time limits under clause 20.1 is evidence of satisfactory performance by the Carrier of its obligations.
21. Default & Consequences Of Default
21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at CFS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Customer owes CFS any money the Customer shall indemnify CFS from and against all costs and disbursements incurred by CFS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CFS’ contract default fee, and bank dishonour fees).
21.3 Further to any other rights or remedies CFS may have under this contract, if a Customer has made payment to CFS, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by CFS under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
21.4 Without prejudice to CFS’ other remedies at law CFS shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to CFS shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to CFS becomes overdue, or in CFS’ opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
22.1 CFS shall have a right to take a particular and general lien on any Goods the property of the Customer or a third party owner which are in the possession or control of CFS (and any documents relating to those Goods) for all sums owed at any time by the Customer or a third party owner to CFS (whether those sums are due from the Customer on those Goods or documents, or on any other Goods or documents), and CFS shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Customer. CFS shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
22.2 Notwithstanding clause 22.1 nothing shall prejudice CFS’ rights to use any of CFS’ other rights and remedies contained in this contract to recover any outstanding charges or fees payable in respect of the Goods that were not recovered out the sale of the Goods in accordance with clause 22.1 and no exception shall be taken upon the grounds that the Price realised is less than the full market value of the Goods.
23. Personal Property Securities Act 2009 (“PPSA”)
23.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
23.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to CFS for Services – that have previously been supplied and that will be supplied in the future by CFS to the Customer or any Goods owned by the Customer over which CFS may have invoked a lien.
23.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CFS may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 23.2(a)(i) or 23.2(a)(ii);
(b) indemnify, and upon demand reimburse, CFS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of CFS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of CFS.
23.4 CFS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
23.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
23.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
23.7 Unless otherwise agreed to in writing by CFS, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
23.8 The Customer shall unconditionally ratify any actions taken by CFS under clauses 23.2 to 23.5.
23.9 Subject to any express provisions to the contrary (including those contained in this clause 23) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
24. Security And Charge
24.1 Despite anything to the contrary contained herein or any other rights which CFS may have howsoever:
(a) where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to CFS or CFS’ nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer acknowledges and agrees that CFS (or CFS’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should CFS elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify CFS from and against all CFS’ costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint CFS or CFS’ nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 24.1.
25. Privacy Act 1988
25.1 The Customer agrees for CFS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by CFS.
25.2 The Customer agrees that CFS may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
25.3 The Customer consents to CFS being given a consumer credit report to collect overdue payment on commercial credit.
25.4 The Customer agrees that personal credit information provided may be used and retained by CFS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
25.5 CFS may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
25.6 The information given to the CRB may include:
(a) personal information as outlined in 25.1 above;
(b) name of the credit provider and that CFS is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and CFS has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of CFS, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
25.7 The Customer shall have the right to request (by e-mail) from CFS:
(a) a copy of the information about the Customer retained by CFS and the right to request that CFS correct any incorrect information; and
(b) that CFS does not disclose any personal information about the Customer for the purpose of direct marketing.
25.8 CFS will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
25.9 The Customer can make a privacy complaint by contacting CFS via e-mail. CFS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au
26.1 Without prejudice to any other remedies CFS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) CFS may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. CFS will not be liable to the Customer for any loss or damage the Customer suffers because CFS exercised its rights under this clause.
26.2 CFS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Customer shall repay to the Customer any sums paid in respect of the Price. CFS shall not be liable for any loss or damage whatever arising from such cancellation.
26.3 In the event that the Customer cancels the delivery of Goods or the provision of any Services then the Customer shall be liable for any loss incurred by CFS (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.
27. Service of Notices
27.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
27.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
28.1 If the Customer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not CFS may have notice of the Trust, the Customer covenants with CFS as follows:
(a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) The Customer will not without consent in writing of CFS (CFS will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
29.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
29.2 These terms and conditions and any contract to which they apply shall be governed by the laws in which state or territory the Services were provided by CFS to the Customer however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the courts in the state of Victoria in which CFS has its principal place of business.
29.3 Subject to clause 2, CFS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CFS of these terms and conditions (alternatively CFS’ liability shall be limited to damages which under no circumstances shall exceed the Price).
29.4 CFS may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
29.5 The Customer cannot licence or assign without the written approval of CFS.
29.6 The Customer agrees that CFS may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for CFS to provide Goods to the Customer.
29.7 Where CFS is unable, wholly or in part, by reason of any fact, circumstance, matter or thing beyond the reasonable control of CFS, including but not limited to any act of God, war, terrorism, strike, civil commotion, lock-out, general or partial stoppage, restraint of labour, industrial action, fire, flood, storm, etc. (“Force Majeure”) to carry out any obligation under this contract and CFS gives the Customer prompt notice of such Force Majeure with reasonably full particulars thereof and, insofar as is known, the probable extent to which it will be unable to perform or be delayed in performing that obligation and uses all reasonable diligence to negate or remove that Force Majeure as quickly as possible, that obligation is suspended, so far as it is affected by Force Majeure, during the continuance thereof. The requirement that any Force Majeure shall be negated or removed with all reasonable diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of CFS.
29.8 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.