Terms of Trade (Australia)

1. Definitions
   
   1. In theses:Carrier means a carrier that provides Freight Services.
      

      Freight Services means the freight services provided to you by a Carrier, with those services being available to be booked using the System.

      Intellectual Property means all intellectual property, including (but not limited to) copyright, software,

      trademarks, or any other intellectual property prepared or created by GoSweetSpot in relation to the Products or Services.

      Products means products supplied by us to you.

      Proposal has the meaning given at clause 4.3.

      Services means services supplied by us to you, including the online provision the System, together with

      maintenance and full training in relation to the System.

      System means GoSweetSpot’s freight optimisation software which enables you to book and manage Freight

      Services, and to monitor the status of those Freight Services.

      GoSweetSpot, we, our, or us means GoSweetSpot Pty Limited.

      You or your means the customer we supply Products and/or Services to under these terms.

2.    Acceptance 

1.  These terms, and our Proposal, apply to our current and future supply of Products and Services to you except to the extent we agree with you otherwise in writing. You will be deemed to have accepted these terms, and our Proposal, by continuing to order Products and Services from us.

 3.    Account

1.  You will be required to create an account in order to access the System.

2.  During the registration process, you will be required to provide us with certain required information. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. GoSweetSpot reserves the right to suspend or terminate a Customer’s account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.

3.   You are responsible for:

1.  Safeguarding your password(s); and

2.   ensuring that only appropriate and authorised individuals are given access to your account.

4.    If GoSweetSpot has reason to suspect that you are in breach of these terms, or that there has been unauthorised access to your account, we reserve the right to immediately terminate, cancel or suspend your account and the application of these terms.

4.    Services and Product orders

1.      We agree to provide the Services in accordance with these terms.

2.    You may order Products from us via your online account or any other method agreed with us.

3.    An agreement relating to the initial performance of the Services and/or supply of any Products will only be formed once GoSweetSpot has provided its pricing proposal (Proposal) to you in relation to the relevant Products or Services.

5.  Services

5.1  GoSweetSpot will provide the Services in accordance with these Terms and any applicable Statement of Work, Order Form, Software Services Rate Card and/or Partner Rate Services Rate Card made available by GoSweetSpot to the Customer or otherwise agreed between the parties from time to time. 

5.2  Customer acknowledges that the supply of services is dependent on a number of factors outside GoSweetSpot’s control. For example, communication links are the property and responsibility of third parties and are subject to suspension without notice due to events beyond GoSweetSpot’s control.

5.3  Except for any payment obligations, neither party is liable for any delay or failure to perform any of it’s obligations under these terms to the extent that the delay or failure is caused by reason of Force Majeure.

5.4  GoSweetSpot will perform the Services with all skill and diligence and in compliance with all applicable Laws.

5.5  GoSweetSpot makes no representation or warranty that:

(a) the Services will be defect or error free;

(b) Customer’s use of the Services will be uninterrupted;

(c) any Services will be fit for Customer’s purpose; or

(d) use of any Service will improve the financial performance or profitability of Customer or any other party. 

 6.    Freight Services

a.   You acknowledge and agree that you will be bound by, and will comply with, the relevant Carrier’s terms and conditions of carriage in relation to any Freight Services requested by you on the System, provided that payment for the Freight Services will be collected by us in accordance with our terms.

b.   The terms and conditions of carriage for our partner Carriers can be found here.

 

c.    To the extent that there is any conflict between a Carrier’s terms and conditions of carriage and these terms, these terms will prevail.

d.   By booking Freight Services using our System, you will be deemed to have accepted the relevant Carrier’s terms and conditions of carriage.

e.   We will not be liable to you for any reason relating to the Freight Services performed by the Carrier and you cannot reduce or withhold payment to us because a Carrier has not carried out its obligations to you in relation to the Freight Services.

f.    If you have any concerns in relation to the provision of Freight Services by a Carrier, these concerns must be raised directly with the Carrier.

7.     Price

a.    The price for the Services, Freight Services, and Products will be specified in the Proposal. GoSweetSpot reserves the right to amend its prices from time-to-time. Changes to the prices will be effective when notified to you using the email address that we hold on file for you.

b.    Certain surcharges may be payable by the Customer in addition to the Partner Rate Service Fee. When a surcharge is payable, it may be charged directly to the payment method used by the Customer to make the initial order. By making a booking on GoSweetSpot, the Customer consents to this payment method being charged directly for relevant surcharges.

c.    An Annual General Increase applies usually around August for Couriers Please and TNT.  1st Jan for FedEx. These dates may change time-to-time.

d.    All prices are in Australian dollars, unless stated otherwise.

e.    GST will be added on all applicable transactions.

f.      A delivery charge may be payable in addition to the price of the Products.

8.    Payment

a.    We will invoice you for the:

                                                                            i.     fees for the Services and Freight Services on a weekly basis.

                                                                          ii.     price of the Products and any delivery charges on receipt of your order.

                                                                         iii.     Credit card fees that may apply.

b.    You must pay our invoice in full within 7 days following the date of our invoice.  However, we may withdraw this provision of credit and withhold the delivery of Products to you until payment has been made if we consider at any time that your creditworthiness is unsatisfactory.

c.    In the event that these terms are terminated (for any reason) in accordance with clause 12, then any unpaid invoices must be paid within seven days of the date of termination.

d.    If you do not pay any invoice when due, then (without prejudice to any other rights we may have) we may:

                                                                            i.     charge the greater of:

1.      interest at the rate of 3% of the outstanding amount (charged fortnightly) until payment is made in full; or

2.     $50 (charged fortnightly) until payment is made in full;

                                                                          ii.     charge you any collection costs and legal costs on a solicitor/own client basis; and/or

                                                                         iii.     suspend the supply of further Products or Services to you under clause 13.1a.

e.    For the avoidance of doubt, any claim you have or may have against a Carrier in relation to the Freight Services does not relieve you of your obligation to make payment of our invoices in accordance with this clause 7.

f.      If any invoice is disputed in good faith by Customer, Customer must give written notice to GoSweetSpot of the dispute, which must include the reasons for the dispute (Dispute Notice), within 14 (fourteen) calendar days after the date of the invoice. After this date, all invoices will be final. All paid invoices will be treated as final. 

g.    If Customer has issued a Dispute Notice by the due date for payment, Customer may withhold only those amounts that are directly related to disputed elements of the invoice.

h.    The parties will use reasonable endeavours to resolve the dispute within thirty (30) days after the Dispute Notice is issued. Any payment to be made following resolution is to be paid within seven (7) days after such resolution.

i.      If the parties are unable to resolve the dispute within thirty (30) days, the dispute is to be resolved in accordance with the procedures set out in clause 22.

9.    Customer Information

a.    GoSweetSpot will only use the personal information of the Customer’s clients for purposes required by law or permitted by our agreements with you. We will treat all personal information of Customer’s clients as confidential.

b.    The parties agree that, if a Customer’s client becomes a registered user of the GoSweetSpot mobile app or website, nothing in these terms will prohibit GoSweetSpot from contacting or engaging directly with that client (including, but not limited to, in relation to their registration on our mobile app and/or website, transactions that the client undertakes through our mobile app and/or website and for promoting our services).

1.   Delivery and Risk

1.      All Products supplied by us will remain our property until all amounts owing under these terms have been paid in full.

2.    We will endeavour to dispatch, or procure the dispatch of, the Products to the physical address supplied by you as soon as possible once your order is complete.

3.    If we provide you with an estimated delivery date, we will not be liable for any loss or damage suffered by you or any other person for failure to deliver the Products by that date.

4.    Risk of any loss or damage to the Products passes to you once the Products have been delivered to the address supplied by you.

2.    Warranty

1.      The Products purchased by you may be covered by a manufacturer warranty (Warranty).

 

2.    If the Products purchased by you are covered by a Warranty we will provide you with a Warranty certificate.

 

3.    We will notify you of the specific inspection requirements for the Products purchased by you when we provide you with the Warranty certificate.

3.    Intellectual Property

1.      You agree that all Intellectual Property shall be and remain owned by GoSweetSpot at all times, including following the termination of these terms.

2.    You grant to GoSweetSpot a licence to use your name and logo in relation to our provision of Services. This may include displaying your logo on our website.

10.    Customer Responsibility

10.1 Customer must:

(a) hold all authorisations, permits and licences required to be held by Customer under applicable law to receive and utilise the Services;

(b) comply with the requirements of all laws of any kind applying to Customer and the receipt and utilisation of the Services;

(c) not withhold any information in its possession which might adversely affect the supply of the Services; and

(d) not direct GoSweetSpot to do anything which may cause GoSweetSpot to breach any Laws.

10.2 The Customer must ensure that no malicious or harmful code is transmitted to GoSweetSpot in connection with its use of the Services.

10.3 The Customer cannot use the Services in order to send Prohibited Items. Customer acknowledges that Prohibited Items could be subject to non-collection or return, in which case no refund of carriage will be given and return charges may be applicable. No claim for loss or damage can be made on a Prohibited Item and in addition, the Customer will be liable for any damages caused in transit to other shipments or property resulting from sending Prohibited Items.

10.4 Customer acknowledges that a failure to declare any dangerous goods and/or Prohibited Items can lead to prosecution and that the responsibility for this rests solely on the Customer.

10.5 Customer is responsible for checking that its contents can be shipped, including that the contents do not contain any Prohibited Items and/or dangerous goods.

11. Taxes

11.1 Customer must reimburse GoSweetSpot for all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under these Terms, excluding income taxes on profits which may be levied against GoSweetSpot.

11.2 Without limiting clause 11.1, all consideration provided for any taxable supply under these Terms and each Order Form or SOW is exclusive of GST unless the contrary is clear.  The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply.  The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due or, if the supplier has to pay (or allow credit against) the relevant GST before then, the additional amount must be paid at that earlier time.

 12.    Liability

a.    If you are a ‘consumer’ (as that term is defined in Australian Consumer Law), then nothing in these terms limits any rights you have in relation to the supply of Products or Services to you under Australian Consumer Law.

b.    To the extent permitted by law:

                                                                            i.     If we are liable to you for any reason our liability will be limited, at our discretion:

1.      In relation to the supply of Products, to the re-supply of the Products, the repair of the Products, or an amount equal to the price paid by you for the Products.

2.     In relation to the supply of the Services, to the re-supply of those Services or an amount equal to the fees paid by you for those Services.

                                                                          ii.     We will not be liable for any loss of profits or any indirect or consequential loss or damage arising out of these terms or our dealings with you.

13.   Disclaimer

a.    We do not warrant that:

   i.     any tracking information provided on the System is free from errors or reliable.

                                                                          ii.     the System will always be available or be uninterrupted.

                                                                         iii.     the System will be secure or free from bugs or viruses.

14.  Suspension or Termination

a.    We may suspend the supply of Products or Services to you if:

   i.     you do not pay any invoice when due;

  ii.     any credit limit we have agreed to grant you is or is likely to be exceeded;

  iii.     we have any concerns about your creditworthiness; or

iv.     we otherwise determine that it is necessary to suspend the supply of Products or Services to you.

b.    Either party may terminate our agreement for any reason by giving 30 days’ written notice of termination to the other party.

c.    Our agreement may be terminated immediately by either party giving written notice to the other as a result of:

                                                                            i.     the other party’s default under these terms; or

                                                                          ii.     the other party becoming insolvent, or being subject to the appointment of a receiver, manager, liquidator, or statutory manager, or committing an act of bankruptcy, or making a scheme of arrangement with its creditors.

a.    We may amend these terms from time to time by giving you notice in writing. Any amendment to these terms will apply to any subsequent orders of Products or Services made by you after we notify you of the amended terms.

16.  No Waiver

a.    We will not be deemed to have waived any right under these terms unless the waiver is in writing and signed by us. A failure to exercise or delay in exercising any right by us under these terms will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in these terms.

17.  No Assignment

a.    You may not assign or transfer any of your rights or obligations under these terms without our prior written consent.

18.   Governing Law and Jurisdiction

a.    New South Wales and Australian law will apply and Australian courts will have jurisdiction in relation to these terms, and any claims arising out of any transaction between you and us. The parties agree that any claim arising out of this agreement will be heard in New South Wales.