BRISBANE WAREHOUSING AND DISTRIBUTION CARRIAGE AND WAREHOUSING OF GOODS STANDARD TERMS AND CONDITIONS 1. DEFINITIONS 1.1. Business Day means any day in which banks are open for business in Brisbane. 1.2. BWD means MRO Investments Pty Ltd ACN 112 406 407 and GPF Investments Pty Ltd ACN 112 405 437 trading as Brisbane Warehousing and Distribution. 1.3. Charges means fees and charges charged by BWD for the Services as provided in clause 3. 1.4. Conditions means these terms and conditions. 1.5. Customer means any person with whom BWD contracts under these Conditions to provide Services. 1.6. Goods means Goods accepted from the Customer and includes any container, packaging or pallets supplied by the Customer. 1.7. Services means the services of carrying and storing Goods and related services provided by BWD to the Customer as requested by the Customer in accordance with these Conditions. 2. CONDITIONS OF CARRIAGE BWD is not a common carrier and will accept no liability as such. BWD reserves the right to refuse the carriage or transport of goods for any person or any goods at its discretion. 3. CHARGES 3.1. Subject to clause 3.3, BWD will invoice the Customer monthly for fees, charges and any levies for Services provided during by BWD that month.
- 2-3.2. The Charges will be calculated based on BWD s normal and usual rates for the Services applying at the date of invoice and will be inclusive of GST. 3.3. BWD will review the Charges from time to time and not less than once annually in the first quarter of each calendar year. 3.4. In addition to the Charges BWD may charge a fuel levy in respect of any carriage services provided by it. The fuel levy will be reviewed monthly and the amount of the fuel levy will be increased or decreased, as the case may be, for any change in the preceding 30 days in the price of fuel of 5 cents or more per litre. 3.5. Where the Customer requests that BWD supply carriage services only, the Charges for such Services shall be due and payable as soon as the Goods are loaded onto BWD s truck (or where BWD has engaged a sub-contactor to perform the Services, when the Goods are loaded onto that sub-contractor s truck) and BWD may immediately thereafter invoice the Customer for the Charges for those Services. 3.6. The Customer must: 3.6.1. unless otherwise agreed by BWD in writing, pay BWD s Charges in Australian dollars within 21 days of BWD s invoice; 3.6.2. pay BWD s expenses and Charges to comply with any law or regulation, or any order or requirement made under them, or with the requirement of any market, harbour, dock, railway, shipping, customs, excise or warehouse authority or other similar person, including without limitation, all taxes, Customs duty, excise duty and costs, (including any fine or penalty) which BWD becomes liable to pay or pays in respect of the Goods, such amounts to be paid immediately on demand by BWD; 3.6.3. if at any time it becomes necessary, or the Customer requests that the Goods be repacked, requantified, reweighed or remeasured, pay any proportional additional Charges incurred as a consequence thereof; 3.6.4. if any Charges are not paid on the due date for payment, pay interest on the unpaid Charges from the due date at a rate 2% higher than the overdraft rate BWD is required (or if it has no overdraft would be required) to pay to its
- 3 - principal bank at the relevant time together with any legal and other fees and expenses on a full indemnity basis that BWD may be required to pay in order to recover from the Customer payment of any amounts due to BWD. 3.7. The Customer must advise BWD of any queries on any invoice within 30 days of the date of the invoice and if it fails to do so, the Customer is deemed to have accepted the accuracy of the invoice. 4. GST 4.1 In this Clause 4: 4.1.1 AGST@ means a tax in the nature of a supply or goods and services tax; 4.1.2 AGST Adjustment Rate@ means, in respect of each GST Review Date, the difference in the rate of GST in relation to the rate: 4.1.1.1 on the GST Date; or 4.1.1.2 if there has been a previous GST Review Date, on the immediately preceding GST Review Date; 4.1.3 AGST Date@ means the date on which BWD=s liability for GST on any supply under these Terms and Conditions first arises; 4.1.4 AGST Rate@ means the rate of GST on the GST Date; 4.1.5 AGST Review Date@ means any date that the rate of GST is changed so that the new rate of GST becomes the effective rate at which supplies made by BWD under these Terms and Conditions are taxed; 4.1.6 AExpenses@ means all Charges, costs, levies, expenses and similar outgoings which may be reimbursable by the Customer to BWD pursuant to these Conditions (except pursuant to Clause 4.4). 4.2 The Customer will pay to BWD the amount of any GST levied or imposed on or in respect of any supply made under or in connection with these Terms and Conditions for which
- 4 - consideration is a monetary payment in addition to the Charges payable under these Terms and Conditions. The GST payable under this Clause 4.2 will be payable at the same time as the consideration for the supply on which the GST has been imposed. 4.3 The Customer is taken to have requested BWD to provide a tax invoice (or any other documentation required by law to enable input tax credits to be claimed) to the Customer in respect of that supply at the time each taxable supply is made under these Terms and Conditions. The tax invoice or other documentation must be given to the Customer no later than 14 days after the occurrence of an event that causes the GST liability of BWD on any taxable supply made to the Customer to arise. 4.4 Despite the other provisions of these Terms and Conditions, the Charges payable by the Customer under these Conditions increases or decreases, as the case may be, on and from: 4.4.1 the GST Date by the GST Rate; and 4.4.2 a GST Review Date by the GST Adjustment Rate. The Customer must pay, or BWD must credit, any decrease or increase on the date the next invoice for Charges is due. 4.5 From the GST Date, the cost to BWD of each component of expenses is to be calculated as follows: (A-B) x (1 + C + D) where: A = B = C = D = the GST inclusive price of the component of expenses, being the amount paid by BWD; the GST input tax credit for which BWD is eligible on the component of expenses; the GST Rate expressed as a decimal; and the sum of all GST Adjustment Rates, if any, expressed as a decimal. 5. DANGEROUS GOODS 5.1. The Customer must not tender for carriage or storage any volatile or explosive Goods or Goods which are or may become dangerous, noxious, inflammable or offensive (including but not limited to radioactive materials) or which are or may become liable to damage any person or property without first presenting to BWD a full written description disclosing the nature of those Goods.
- 5-5.2. BWD shall be under no obligation to accept dangerous goods for carriage and storage but should it agree to do so: 5.2.1. The Customer must immediately provide to BWD written notice of the nature of the Goods, their name, label, classification and the method of rendering such Goods innocuous and such notice shall bear the certificate required by the applicable statutes or regulations to certify that the Goods are properly described, packed and marked and in proper condition for storage and/or transportation according to the regulations prescribed by any competent authority; and 5.2.2. The nature of the Goods must be distinctly marked on the outside of the containers, packages or pieces as required by applicable statutes or regulations. 5.3. If any Goods tendered for storage or carriage without previous written declaration and arrangement are or at any time become of the above mentioned nature, or prohibited by any law or regulations of any place of storage, loading or unloading, discharge or during transit, whether the Customer is aware thereof or not, such Goods upon discovery of their nature or at any time thereafter may be: 5.3.1. rendered innocuous; or 5.3.2. discharged; or 5.3.3. left at any place; or 5.3.4. otherwise surrendered or disposed of, at the discretion of BWD without any liability attaching to it and without prejudice to BWD 's right to freight and any other Charges payable under these Conditions. 5.4. The foregoing provisions shall also apply to any such Goods tendered for carriage with such previous declaration and arrangement and which in the opinion of BWD or any employee or agent or subcontractor of BWD have or are likely to become dangerous to any person or property. 5.5. The Customer shall be liable to indemnify BWD against any type of loss, damage, expenses, fines or liability, including consequential loss, directly or indirectly incurred by BWD which may be caused or result from such Goods or arising out of such Goods being tendered. Without limitation, any expenses shall include the costs of disposal of the
- 6 - Goods, cleaning, decontamination and environment restoration required to be undertaken by BWD. 5.6. BWD reserves the right, but shall have no obligation, to open any container or package in which the Goods have been packed by or on behalf of the Customer and to examine their contents and may arrange for storage or reconditioning as provided in this clause 5 at the discretion of BWD but at the Customer's risk and expense. 6. CUSTOMER S WARRANTIES AND INDEMNITIES 6.1. The Customer warrants: 6.1.1. that it has fully and adequately described the Goods, their nature, weight and measurements and advised BWD of any special carriage or storage requirements and complied with all applicable laws and regulations (including, without limitation, the Australian Code for the Transport of Dangerous Goods by Road and Rail, Civil Aviation Regulations and the International Maritime Dangerous Goods Code) about the notification, classification, description, labelling, transport, packaging and storage of the Goods and, given their nature, the Goods are packed in a proper way to withstand the ordinary risks of carriage and storage; 6.1.2. that it has in place, whether prior to or at the time of entering into these terms and conditions, adequate insurance cover over the Goods for the storage and/or carriage of the Goods and acknowledges and agrees that BWD does not take responsibility for such insurance; 6.1.3. the person delivering the Goods to BWD for carriage and storage, and/or accepting delivery is authorised so to do and to sign any documents reasonably required by BWD in relation to the provision of the Services; 6.1.4. it is either the owner or the authorised agent of the owner of the Goods and has full power and authority to deal with the Goods it accepts these conditions for itself and for any other person having an interest in the Goods;
- 7-6.1.5. that it will not and will procure that no other person will make an allegation or claim against BWD or any other person arising directly or indirectly out of the carriage or storage of the Goods. 6.2. The Customer indemnifies and keeps BWD indemnified from and against all actions, claims, demands, losses, damages, costs, expenses, penalties, fines or other liability which BWD may sustain or incur or for which BWD may be or become liable in respect of any loss or damage to property or death or injury however or wherever sustained which is caused by or contributed to, or incidental to the storage or carriage of the goods or which is occasioned or contributed to by the failure of the Customer or any employee, agent or other person claiming through or under the Customer to observe or perform any of these conditions. 6.3. The Customer acknowledges that BWD relies on the details of the description, items, pallet space, quantity, weight, quality, value and measurement supplied by the Customer and BWD cannot verify such details and does not admit their accuracy. 7. STOCKTAKE 7.1. If requested by the Customer BWD will carry out a stock take of the Customer s Goods stored with BWD on the following basis: 7.1.1. BWD will attend to the stock take within a reasonable time after a request from the Customer to carry out the stocktake; 7.1.2. The Customer must pay BWD its Charges for carrying out the stock take in accordance with BWD s standard hourly rates and charges. 7.2. The Customer may, with BWD s prior written consent, attend BWD s premises and access Goods stored on the Customer s behalf for the purposes of carrying out its own stock takes at reasonable times and on giving reasonable notice to BWD. Stock takes carried out by the Customer under this clause shall be subject to the following conditions: 7.2.1. the Customer may not carry out stock takes more than once each month; 7.2.2. while attending to a stocktake the Customer must, and must procure that employees, contractors or agents of the Customer complies with any reasonable
- 8 - requirements of BWD regarding the manner of carrying out such stocktake and cause as little inconvenience to BWD as is reasonably practicable in the circumstances; 7.2.3. the Customer must pay Charges incurred by BWD in relation to the Customer carrying out stocktakes, such costs to be calculated in accordance with BWD s standard hourly rates and charges. 8. BWD S RIGHTS 8.1. If any Charges are unpaid for 7 days, BWD may in its discretion at any time require the Customer to remove any Goods in storage. 8.2. If the Customer instructs BWD to use a particular route, method of carriage or storage in its discretion, BWD will give priority to that method but if BWD cannot conveniently adopt it BWD may use any route, method of carriage or storage in its discretion. 8.3. BWD has no obligation to make the Goods available to any person unless and until all Charges have been paid, a receipt is signed by or on behalf of the Customer, or where the person accepting delivery is not the Customer, such person tenders a proper authority signed by the Customer authorising delivery to such person. 8.4. If any identifying document in respect of, or mark on the Goods is lost, damaged, destroyed or defaced, BWD may open any document, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership. 8.5. BWD may consolidate the Goods with others. 8.6. BWD may as principal or agent arrange for carriage of or storage of the Goods by any subcontractor on any terms and the Customer hereby authorises any deviation from any usual route or manner of cartage or method or place of storage which may in the absolute discretion of the carrier or bailee be deemed necessary or desirable in the circumstances. 9. LIEN 9.1. BWD has a general lien on the Goods and all documents relating to such Goods for all monies due or which become due on any account to BWD.
- 9-9.2. The Customer shall indemnify BWD against all costs, fees and other charges including full indemnity costs incurred by BWD for any reason in respect of these Conditions and subject, in the case of stored Goods to the provisions of the Storage Liens Act 1973 (the Act), the general lien shall be available to cover all such cost in incurred by BWD. 9.3. Subject to the Act, where Goods are stored, and where Charges are not paid when they are due, or the Goods are not collected when so required or designated, BWD may, after serving notice in accordance with the Act in respect of such Goods and otherwise on the expiry of one month after the due date for payment of such Charges open and sell by public auction any of the Goods as BWD thinks fit and after deducting the costs in connection with the sale, retain and apply the residue of the proceeds to discharge the lien without being liable to any person for any loss or damage caused. 10. EXCLUSIONS AND LIMITATIONS 10.1. Subject to clause 10.8: 10.1.1. the Goods are carried and/or stored entirely at the risk of the Customer, and BWD accepts no liability for the Goods; 10.1.2. BWD excludes from these Conditions all conditions, warranties and terms implied by statute, general law or custom; 10.1.3. BWD excludes all liability to any person including the Customer, for acts or omissions of BWD, in tort, (including without limitation, negligence), contract, bailment or otherwise for loss of, damage to, or deterioration, or contamination of the Goods, or for any personal injury or loss or damage to any person, or delay generally, or their failure arising out of the carriage or storage or these conditions. 10.2. BWD shall not be liable for loss, damage or deterioration to the Goods caused by or arising directly or indirectly out of robbery, burglary or theft, floods, leakage or overflow of water, heat or fire, overflow or spillage from or of goods stored for other customers, pests or vermin, damp, moths, mildew or rust, strikes, labour troubles, or air accidents, or for loss, damage or deterioration in any article or substance of a perishable nature. 10.3. BWD will not in any circumstances be liable for any loss or damage arising from:
- 10-10.3.1. any act of God including adverse weather conditions; 10.3.2. any consequence of war, invasion, act of foreign enemy, hostilities (whether war be declared or not) civil war, rebellion, insurrection, military usurpation of power or confiscation, requisition, destruction of or damage to property or under the order of any governmental or public or local authority; 10.3.3. any seizure under legal process; 10.3.4. any act or omission of the Customer or those for whom it contracts or of the employees or agents of either; 10.3.5. any inherent liability caused by latent defect or inherent defect in the Goods; 10.3.6. inadequate packaging, cases or containers supplied by the Customer; 10.3.7. the inadequate or improper loading or unloading of the whole or part of the Goods; 10.3.8. any riots, civil commotion, lock outs, general strike or stoppage or restraint of labour from any cause; 10.3.9. poor road conditions and closure of roads by any relevant authority. 10.4. The exclusions, releases and indemnities in this clause extend to loss of profits, business or anticipated savings or any other indirect or consequential damage and to economic loss and even if BWD knows they are possible or otherwise foreseeable. 10.5. These conditions apply in all circumstances arising from a fundamental breach of contract or breach of a fundamental term. 10.6. BWD in addition to acting for itself also acts as agent of and trustee for each of its employees, agents and subcontractors so they are entitled to the full benefit of these Conditions, including any exclusions or limitation of liability, to the same extent as BWD. 10.7. Even if BWD breaches this contract or any of these Conditions, all the rights immunities and limitations of liability in these conditions continue to have their full force and effect in all circumstances. 10.8. These Conditions are subject to any applicable implied warranty in the Trade Practices Act 1974 which cannot be excluded, restricted or modified.
- 11-11. INSURANCE 11.1. No insurance will be effected by BWD and the Customer shall be solely responsible for insuring its Goods. 11.2. The Customer shall insure the Goods whilst in storage and/or in transit in its name and that of BWD against all risks which are normally covered in respect of the storage and/or transit of Goods of a like nature and shall provide a copy of such policy to BWD if requested to do so. 12. CLAIMS 12.1. Despite any other provisions in these Conditions, BWD shall in any event be discharged from all liability in respect of the Goods and no claim for loss or damage to the Goods or any part of the Goods may be made to BWD unless made in writing to BWD at as provided in Clause 16; 12.1.1. within 24 hours following any stock-take by or on behalf of the Customer as provided in Clause 7; 12.1.2. in the case of despatch by BWD using transport services retained by BWD within 48 hours of delivery or in the case of loss within 48 hours after the time the Goods allegedly lost should in the ordinary course have been delivered; 12.1.3. in any case of despatch where the Goods are released from storage and are to be delivered using transport services not retained by BWD before departure from the warehouse; 12.2. The failure to notify a claim within the time under clause 12.1 is evidence of satisfactory performance by BWD of its obligations.
- 12-12.3. Despite any other condition and except as provided in clause 10.8, BWD will be discharged from all liability for loss or damage or the carriage or storage of the Goods unless an action is brought within 6 months of the date of delivery or of removal of the goods from storage. 12.4. A claim by the Customer under this clause shall not be made a reason for deferring payment of any amount due to BWD in accordance with these provisions and the Customer shall not be entitled to set off any claim against any monies owed by it to BWD. 13. CONDITIONS REMAIN EFFECTIVE AFTER TERMINATION These Conditions and, without limitation, the limitations and exclusions of BWD s liability, shall continue to apply and be fully effective in all circumstances despite any breach or alleged breach by BWD of any of these Conditions. 14. ENTIRE AGREEMENT These Conditions embody all of the terms binding on the parties and there have been no representations, agreements or proposals, save for those specifically recorded in them. These Conditions may not be varied except in writing signed by the parties. 15. WAIVER AND VARIATION 15.1. BWD is not bound by any waiver, discharge or release of a condition or any agreement which varies these Conditions unless it is in writing and signed on behalf of BWD by a director of BWD. 15.2. If BWD waives a breach of any Condition the waiver does not operate as a waiver of another breach of the same Condition, or any other Condition or be deemed to be a continuing waiver of such breach. 16. NOTICES 16.1. Any notice to be given under this Deed must be in writing and may be given: 16.1.1. by delivering it to the address of the recipient on a Business Day during normal business hours; or 16.1.2. by sending it to the address of the recipient by pre-paid post; or 16.1.3. by sending it by facsimile transmission to the facsimile number of the recipient.
- 13-16.2. Notice shall be deemed to be given and received: 16.2.1. if delivered, on the day of delivery; 16.2.2. if posted, three clear Business Days after the day of posting; 16.2.3. if sent by facsimile, on the date of successful transmission provided that if the facsimile is sent after 5.00 pm notice shall be deemed to be given on the next Business Day. 16.3. The addresses of the Party shall in the absence of notice to the contrary be as set out as in any credit application completed by the Customer. 17. SEVERABILITY Every term of these Conditions will be deemed to be severable so far as may be reasonably possible from each other term of these Conditions. If any term of these Conditions is held to be void, illegal or unenforceable for any reason then that term will be deemed to be severed and omitted with such consequent amendment as may be necessary. These Conditions will otherwise remain in full force and effect. 18. GOVERNING LAW These Conditions are governed by Queensland Law. Any proceedings in relation to these Conditions will be commenced in any Court of competent jurisdiction in that State. The parties submit to the jurisdiction of those Courts and will be bound by and will give effect to any and each judgment or determination of those courts or of any further appellate court.