1. Introduction

1.1. These standard trading, Credit Application, any purchase orders and Our Privacy Policy, comprise the terms of a legal agreement between the person or entity listed in Credit Application (Customer, You or Your) and Pac Ware Pty Ltd trading as Pure Global Logistics (ABN 51 134 360 348) (Pure Global, Us or Our) (agreement) for the provision of supply chain, IT solutions, international freight or customs knowledge services, as more particularly described in the relevant purchase order (Purchase Order). The Customer acknowledges that it has read and agree to the terms contained herein, and agree to be bound by them.

1.2. The parties may enter into one or more Purchase Orders. Each Purchase Order will constitute a separate agreement for the provision of Services on the terms and conditions of that Purchase Order (and will incorporate the terms and conditions of this agreement).

1.3. In the event of any inconsistency between this agreement and any Purchase Order, the Purchase Order shall take precedence. Further, no terms or conditions set out in any invoice, bill of lading, waybill or purchase order (or similar), issued by the Customer or anyone else, will override this agreement or Purchase Order (and the agreement and Purchase Order will prevail, as the context permits.

 

2. Definitions

The definitions in this clause apply in this agreement and each Purchase Order (unless otherwise expressly stipulated in any Purchase Order):

(a) Attaches has the meaning in the PPSA;
(b) Authority means a duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction within any nation, state, municipality, port or airport;
(c) Charges means the fees payable by the Customer for the provision of the Services and Disbursements;
(d) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise;
(e) Credit Application means the application for credit completed by the Customer;
(f) Customer, You or Your has the meaning in clause 1.1 and where the context permits, includes Your Personnel and Related Bodies Corporate;
(g) Disbursements means third party costs such as third party freight providers, import duties, demurrage, fees, storage fees, insurance, applicable local air and sea freight port charges;
(h) Goods means the cargo to be carried by Pure Global and includes any accompanying Container, packaging, pallets or handling equipment (whether or not supplied by, or on behalf of, Pure Global);
(i) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the commencement of the agreement as a likely result of breach of the agreement:
(i) indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
(ii) loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, interest, or anticipated savings, downtime costs, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data, loss of opportunity or expectation loss or loss of production;
(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
(j) Container includes any container, flexitank, trailer, transportable tank, flat, pallet or any article of transport used to carry or consolidate goods and any equipment of or connected thereto;
(k) Dangerous Goods means any (i) Goods which are or may become of a dangerous, inflammable, radio-active or are of damaging or hazardous nature; (ii) Goods likely to harbour or encourage vermin or other pests; or (iii) other Goods which are likely to be considered a ‘dangerous goods’ under section 3 of the Dangerous Goods Acct 1985 (Vic);
(l) General Average Loss has the meaning in the Marine Insurance Act 1909 (Cth);
(m) Fragile Goods are fragile or delicate Goods which require special, delicate or proper packaging and storage. For example, artwork, glassware or antiques;
(n) Force Majeure Event means any cause affecting the performance by of its obligations under this agreement arising from acts, events, omissions or non-events beyond its control, including acts of God, failure of a utility service or transport or telecommunications network, riots, civil commotion, computer hacking, war, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or earthquake or any disaster or adverse weather, governmental actions, default or non-performance of hosting or data centre providers or other suppliers or sub contractors, labour disputes, or any other failure, act or omission in Pure Global’s supply chain;
(o) Loss means any loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including legal and other professional costs, General Average Loss and Consequential Loss.
(p) Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, disclosed to or made available to Pure Global in the course of providing the Services or delivering the Permitted Goods.
(q) Personnel means any officer, employee, agent, contractor or consultant of a party and in the case of Pure Global includes a Sub-Contractor;
(r) Permitted Goods means Goods which (i) are not, or may not become, Dangerous Goods; (ii) are Fragile Goods; or (iii) the Pure Global, at its absolute discretion, has agreed in writing may be consigned;
(s) PPSA means the Personal Property Securities Act 2009 (Cth) and where applicable includes all regulations made pursuant to it;
(t) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of personal information applicable to the jurisdiction in which the Customer carries on its business;
(u) Privacy Policy means Our privacy policy available at www.puregloballogistics.com or any other website notified by Us from time to time;
(v) PPSA means the Personal Property Securities Act 2009 (Cth) and where applicable includes all regulations made pursuant to it;
(w) Pure Global has the meaning in clause 1.1 and where the context permits, includes Our Personnel and Related Bodies Corporate;
(x) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations,
proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements anywhere in the world, including the (i) Privacy Laws; (ii) Dangerous Goods Act 1985 (Vic); (ii) the Australian Code for the Transport of Dangerous Goods by Road and Rail; (iii) Warsaw Convention; and (iv) Hague Visby-Rules;
(y) Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth); (z) Security Interest has the meaning in the PPSA;
(aa) Services means the (i) supply chain; (ii) IT solutions; (iii) international freight and shipments; (iv) customs knowledge services; and (v) any other additional or ancillary services to be provided by Pure Global, pursuant to a relevant Purchase Order;
(bb) Sub-Contractor means any person, not being a Pure Global employee, who Pure Global engages to perform all or any part of the Services;
(cc)Taxes means all goods and services taxes, value-added taxes, duties, tariffs, import and expert taxes, levies, fines, deposits and any other taxes and government charges whatsoever levied by any relevant Authority; and

 

3. Provision of Services

3.1. Subject to the Customer complying with its obligations under this agreement, Pure Global will provide the Customer with the Services in accordance with the relevant Purchase Order.

3.2. The Customer acknowledges that Pure Global provides the Services as an agent of the Customer only, unless Pure Global expressly stipulated otherwise, and Our role in providing the Services to you should be construed strictly in his context only.

3.3. In the event Pure Global fails to provide the Services in accordance with clause 3.1, Pure Global will, at its expense, use reasonable endeavours to correct any such non conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of clause 3.1.

3.4. The method of carrying out the Services, including the mode of transportation, route, storage, packaging and handling of the Permitted Goods, will be at Pure Global’s absolute discretion. Pure Global may, at its absolute discretion, without liability to the Customer and without notice to the Customer, deviate from the usual method, mode or route of carriage where Pure Global, in its absolute discretion, deems necessary or
desirable in the circumstances. The Customer will pay for any additional costs incurred by Pure Global arising out of, or in connection with, Pure Global’s decision to deviate from the usual method, mode or route of carriage. For example, Pure Global may, its absolute discretion, determine whether the carriage of the Permitted of Goods are containerised or not containerised, on or under the deck of any vessel, stored, packed, shipped, loaded, unloaded or handled by any person at any place whether on shore or afloat and for any length of time.

3.5. Pure Global is not a common carrier and does not accept any liability as such, and may, at its absolute discretion, refuse to provide Services to the Customer or carry any Goods (or classes of Goods) for, or on behalf of, any Customer, including Permitted Goods.

 

4. Obligations of Customer

4.1. Unless otherwise agreed in writing by Pure Global, the Customer will:

(a) only consign Permitted Goods;
(b) comply with the Relevant Laws in respect of the Permitted Goods, including, without limitation, all Relevant Laws relating to their notification, classification, description, labelling, transport and packaging. The Customer acknowledges that Pure Global is reliant on the Customer alone for direction that the Permitted Goods are accurately described, labelled and packaged for transport in manner to withstand the ordinary risks of their transportation, storage and handling;
(c) provide Pure Global with all necessary cooperation, information and written instructions as may be required by Pure Global in order to provide the Services and the Customer must provide accurate, complete and up-to-date information at all times;
(d) ensure the Permitted Goods conform to the requirements of any party who is to receive the Permitted Goods and must pay any expense incurred by Pure Global if it fails to do so; and
(e) immediately notify Pure Global of any change in the number, weight or dimensions of the Permitted Goods and any changes to the Services, including, but not limited to postponement, cancellation, change of address and change of consignee.

4.2. The Customer warrants that:

(a) it has fully and accurately described the Permitted Goods and all other information provided by the Customer is true, complete and accurate;
(b) the Permitted Goods are properly packed and labelled, except where Pure Global has accepted instructions in respect of packaging and/or labelling;
(c) it will comply with all Relevant Laws in respect of the Permitted Goods;
(d) it will not consign Dangerous Goods;
(e) it is either owner of the Permitted Goods or the authorised agent of the owner of the Permitted and any third party delivering the Permitted Goods to Pure Global is the Customer’s authorised agent (and is authorised to enter into this agreement); and
(f) it is authorised to enter into this agreement and consign the Permitted Goods.

4.3. Without prejudice to Pure Global’s rights under this agreement or under a Relevant Law, if in Pure Global’s opinion, the Goods are not, or may not be, a Permitted Good, Pure Global may at any time and at the Customer’s cost, store, destroy, dispose of, abandon or render the Goods harmless without compensation or liability to the Customer or any third party.

4.4. The Customer will not consign any Goods which require temperature control unless:
(a) the Customer has provided prior written notice to Pure Global of the nature of the Goods and the particular temperature range that the Goods must to be maintained at; and
(b) the Goods are properly packed by the Customer in a temperature-controlled Container and the Customer warrants that:
(i) the Container has been properly pre cooled or pre-heated as appropriate;
(ii) the Goods have been properly, securely and safely packed in the container; and
(iii) the Container’s thermostatic controls have been properly set by the Customer.

4.5. The Customer will not consign any Fragile Goods unless:
(a) the Customer has provided Pure Global with detailed shipping instructions in writing in relation to the Fragile Goods;
(b) the Fragile Goods are properly and suitably packed by the Customer for shipment; and
(c) the Customer insurers the Fragile Goods in accordance with clause 5.

4.6. Unless we otherwise agreed in writing, Pure Global will not be obliged to make any declaration for the purposes of any statute, convention or contract as to the nature or value of any Goods or as to any special interest in delivery or to make any declaration as to specific stowage requirements of any Goods.

 

5. Insurance

5.1. The Charges for the Services do not include insurance. Unless Pure Global agree otherwise in writing, Customer will, at its own expense, maintain insurance in respect of the Permitted Goods to a value no less than the full replacement value and comprehensively insurer against Force Majeure Events, and such other risks as Pure Global may nominate.
5.2. In the event Pure Global agrees in writing to effect insurance in relation to the Services:
(a) Pure Global is a mere agent only of the Customer and is not the Customer’s insurer or insurance broker;
(b) all such insurances are subject to the usual exceptions and conditions in respect of insurance policies of this nature. Pure Global recommends that the Customer refer to the terms and conditions of such insurance policies if the Customer wishes to rely on such insurance policies;
(c) unless Pure Global otherwise agreed in writing, Pure Global is under no obligation to affect a separate insurance on each consignment but may declare it on any open or general policy; and
(d) Pure Global will not liable to the Customer or anyone else arising out of, or in connection with, any failure or refusal by the insurer to accept an insurance claim.

 

6. Delivery

6.1. Pure Global shall use reasonable endeavours to deliver the Permitted Goods as specified in the Purchase Order. Pure Global is deemed to have delivered the Permitted Goods when the Permitted Goods are delivered to the delivery address given by the Customer, and the Customer will ensure that any person who collects or takes delivery of the Permitted Goods is authorised to receive the Permitted Goods.
6.2. Acceptance of delivery by such representative shall constitute conclusive evidence that the Permitted Goods were delivered, complete and in good condition. If required, the duly authorised representative shall sign a receipt confirming acceptance.
6.3. If Pure Global is unable to effect delivery of the Permitted Goods to the delivery address given by the Customer for any reasons (including the failure on the consignee to take delivery within a reasonable time), Pure Global shall, in its absolute discretion, be entitled to:
(a) effect delivery of the Permitted Goods by leaving the Permitted Goods at the delivery address. Delivery by Pure Global will constitute conclusive evidence that the Permitted Goods were delivered to the delivery address, complete and in good condition. Pure Global may (but is not obligated) to provide proof of delivery from any person present at the delivery address; or
(b) handle and store the Permitted Goods at the Customer’s risk and in such manner as Pure Global may determine. The Customer will pay any handling and storage fees at Pure Global’s prevailing rates at the time. Pure Global will charge the Customer additional fees to effect re-delivery of the Permitted Goods, and Pure Global will not liable to the Customer or anyone else for any Loss caused to the Customer (or anyone else) by any delays or failure to effect delivery.

6.4. The Permitted Goods will remain at the sole risk of the Customer at all times, including the risk of Loss, theft, damage or destruction of the Permitted Goods, even where Pure Global has breached this agreement.

6.5. If any identifying document or mark is lost, damaged, destroyed or defaced, Pure Global may (without liability to the Customer or anyone else) take any appropriate measures to identify the Permitted Goods (including by opening any packaging or inspecting any Permitted Goods).

6.6. The time for delivery of the Permitted Goods will not be regarded as being of the essence and delivery times are estimates only. If the delivery of the Permitted Goods is delayed for any reason, Pure Global will not be liable to the Customer, consignee or anyone else for any costs, losses or damages caused to the Customer, consignee or anyone else by any delays in delivery. Pure Global will use reasonable endeavours to promptly notify the Customer of any delays in delivering the Permitted Goods.

6.7. Notwithstanding any other clause in this agreement, Pure Global may, at its absolute discretion and without liability to the Customer, sell, destroy or depose of the Permitted Goods (at the Customer’s expense) in the event:
(a) Pure Global is unable for whatever reason to effect deliver or re-delivery the Permitted Goods to the Customer, provided Pure Global provides the Customer with 21 days’ written notice; or
(b) the Permitted Goods are at risk of, or have, perished, deteriorated or altered in a manner which has caused (or may be reasonably expected to cause) Loss to any person or property or contravenes any Relevant Laws.

6.8. Pure Global shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders without notice to the Customer.

6.9. Pure Global shall have the right to enforce against the Customer, consignee or owner of the Permitted Goods jointly and severally any liability of the Customer under this agreement or any Purchase Order or to recover from them any sums to be paid by the Customer which upon demand have not been paid.

 

7. Charges and payment

7.1. The Customer will pay the Charges and Disbursements for each of the Services as set out in the relevant Purchase Order and in accordance with the Credit Application.
7.2. To the maximum extent permitted by Relevant Laws, the Customer acknowledges that the Charges and Disbursements are payable to Pure Global irrespective of whether the Permitted Goods are:
(a) delivered or not; and/or
(b) lost, stolen or damaged prior to, or after delivery.

7.3. In addition to the Charges, the Customer will pay:
(a) good and services tax (GST) and any other Taxes in relation to the delivery of the Permitted Goods;
(b) charges for payments made by credit card;
(c) Disbursements, including charges for the delivery of the Permitted Goods, handling, storage and loading or unloading of the Permitted Goods;
(d) any costs Pure Global may charge or incur where the Permitted Goods have been inaccurately or incompletely described, weighed or measured; and
(e) any other costs Pure Global may incur in connection with, or arising out, of the Services (where or not contemplated at the date of this agreement), including insurance costs and third party costs.

7.4. To maximum extent permitted by Relevant Laws, Pure Global will not refund any Charges and Disbursement or any other amount paid under this agreement.

7.5. If the Customer fails to pay any amount to Pure Global under this agreement by the due date, without limiting any other remedies available to it under this agreement or under any Relevant Law, the Pure Global may, at its absolute discretion, either:
(a) charge interest on all outstanding invoices, charged at an interest rate of 1.25% per month (15% per annum). Interest will accrue daily and be payable upon demand;
(b) cancel any Purchase Order or suspend the delivery of any Permitted Goods until all outstanding invoices are paid in full (including any interest);
(c) set off any and all outstanding invoices against any amounts owing to the Customer by Pure Global under this agreement; or
(d) terminate this agreement in accordance with clause 11.

7.6. The Customer will pay Pure Global all costs and expenses incurred in recovering any outstanding invoices, fees or charges (including interest), legal costs (on a solicitor/client basis) or expenses paid by Pure Global to mercantile or collections agents.

7.7. Pure Global reserve its rights to request at any time upfront payment, bank guarantee or some other form of security if Pure Global considers the terms of payment of any Permitted Goods delivered by Pure Global have not been strictly adhered to by the Customer, or Pure Global has reasonable concerns about the Customer’s ability to pay for any Permitted Goods or otherwise perform its obligations herein.

 

8. Liability

8.1. To the maximum extent permitted by Relevant Laws, Pure Global excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision or use of the Services, any Purchaser Order, the Credit Application and this agreement.

8.2. Nothing contained in this agreement or any Purchase Order excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other equivalent legislation in other jurisdictions (as the context permits) where to do so is unlawful.

8.3. To the maximum extent permitted by Relevant Laws, Pure Global will not be liable to the Customer, consignee, the Customer’s Personnel or anyone else for:
(a) Consequential Loss; or
(b) loss, damage, contamination, soiling, detention or demurrage of the Permitted Goods, any vessel or any other property or any personal injury or death to the Customer, consignee, the Customer’s Personnel or any third person,
arising out of, relating to or connected to the provision or use of the Services, any Purchase Order and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

8.4. Pure Global is not liable to the Customer, consignee, the Customer’s Personnel or anyone else for any Losses (including legal costs) or Claims arising out of, or in connection with any:
(a) errors or omissions in any information or instructions provided to Pure Global by the Customer in connection with the Services or any actions taken by Pure Global at the Customer’s direction;
(b) failure by the Customer, consignee or the Customer’s Personnel to comply with the terms and conditions of the Credit Application and this agreement;
(c) decision, act, or failure to act by Pure Global, its Related Bodies Corporate or Personnel based on any orders, directions, instructions or recommendations given by any relevant Authority; or
(d) decision, act, or failure to act by Customer based on any information or advice obtained by the Customer from Pure Global in respect of the Services or this agreement.

8.5. Under no circumstances will Pure Global’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Charges (or any other amount) paid by the Customer to Pure Global under the relevant Purchase Order (that is the subject of the claim) in the preceding 1 month of the claim.

8.6. To the maximum extent permitted by Relevant Laws, the Customer agrees to defend, indemnify and hold Pure Global, its Related Bodies Corporate and its Personnel (collectively, the Indemnified) harmless from and against any and all Claims and
Losses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
(a) the provision and use of, the Services by the Customer, its Personnel or any third party;
(b) any negligent acts or omission of the Customer or its Personnel;
(c) any breach of Relevant Laws by the Customer or its Personnel; or
(d) any breach by the Customer or its Personnel of the Credit Application, agreement or any Purchaser Order.

8.7. Any claim for loss or damage to the Permitted Goods or relating to the provision of the Services under this agreement or any Purchase Order must be notified in writing to Pure Global:
(a) in the case of loss or damage to Permitted Goods, the date of delivery of the Permitted Goods; or
(b) in the case of delay or non-delivery of the Permitted Goods, within 3 days of date that the Permitted Goods should have been delivered; or
(c) in any other case, on the date the event giving rise to the claim arose.

8.8. Should Pure Global not receive any notice in writing from the Customer in accordance with clause 8.7, the Permitted Goods will be deemed to have been delivered and constitute conclusive evidence that Pure Global performed its obligations under the Purchase Order and this agreement. In addition, Pure Global will be deemed to have been discharged from all liability, whether under the law of contract, tort or otherwise upon the expiration of 9 months after the delivery of the Permitted Goods or when the Services should have been provided or when the Permitted Goods should have been delivered, whichever the earlier.

 

9. Subcontractors

The Pure Global may, at its absolute discretion, sub-contract the whole or any of part of the Services without the Customer’s or anyone else’s prior written consent. Any clause of this agreement which excludes or limits the liability of Pure Global in respect of the provision of Services will extend to protect the Pure Global’s Personnel, including Sub-Contractors.

 

10. Lien and Security Interest

10.1. The Customer hereby grants to Pure Global:
(a) a general lien upon the Permitted Goods (and upon any other goods of the Customer); and
(b) a first ranking Security Interest in the Permitted Goods (and in any other goods of the Customer and the proceeds arising in respect of any dealings in the Permitted Goods), that secures all amounts now or in the future owing under any Order or this agreement, including any third party costs owing under clause 7.3.
(c) Pure Global’s Security Interest Attaches to the Permitted Goods, or any other goods of the Customer, when Pure Global becomes entitled to its Charges, Disbursements or any other amount under any Purchaser Order, Credit Application or this agreement.

10.2.The Customer will:
(a) at all times provide all complete and accurate information. The Customer will promptly notify Pure Global of any changes in writing of the Customer’s details set out in the Credit Application; and
(b) do all things necessary (such as obtaining consents and executing all documents), for Pure Global to register and perfect its Security Interest in the Permitted Goods (including any other goods of the Customer and the proceeds of the Permitted Goods) on the Register.

10.3.The Customer agrees that all costs in relation to registration and any amendments to registration are to be borne by the Customer.

10.4.The Customer waives its right to receive any notices (including notice of a verification statement after registration) unless a requirement for notice cannot be excluded under the PPSA.

10.5.The Customer will not:
(a) register, or permit to be registered, a financing charge statement in the respect of any Security Interests completed or constituted by this agreement without Pure Global’s written consent; and
(b) create, grant, or seek to grant, any Security Interest in the Permitted Goods in favour of a third party without the Pure Global’s prior written consent.

10.6.Where any Permitted Goods are in the possession of the Pure Global and the Charges, Disbursements or any other amount owing under any Purchase Order or this agreement, is 90 days overdue, Pure Global may, after giving the Customer 28 days’ written notice (to the Customer’s last known address), at its absolute discretion, destroy the Permitted Goods or sell them by public or private sale in which event the proceeds are to be applied towards any of part of the amounts owing under any Purchase Order or this agreement (including sale, storage and handling fees). If any monies are remaining Pure Global will send a cheque to the Customer for such monies and if such cheque is not cashed within 6 months then the monies will be given to any charity of Pure Global’s choosing.

10.7.To the extent permitted by the PPSA, sections 95, 96, 117, 118, 121(4), 125, 127, 129(2) and (3), 130, 132, 134(2) 135, 136, (3), (4) and (5), 137, 142 and 143 of the PPSA do not apply to the obligations owed between the Pure Global and the Customer in accordance with this agreement and the Customer has no rights under them.

 

11. Term and termination

11.1.This agreement commences on the date of execution of the Credit Application by both parties and continues unless terminated pursuant to its terms (Term).

11.2.Either party may terminate this agreement or any Purchase Order immediately by notice in writing if:
(a) the other party is in breach of any term of this agreement or any Purchaser Order and such breach is not remedied within [7] days after receiving notice requiring it to do so;
(b) the other party is in breach of any term of this agreement or any Purchaser Order and such breach is not capable of remedy; or
(c) an Insolvency Event occurs in respect of the other party.

11.3.Pure Global may immediately terminate this agreement or any Purchase Order (with no liability to the Customer), with or without prior written notice to the Customer, if:
(a) the performance of Pure Global’s obligations are likely to be materially effected by any hindrance, risk, delay, difficulty or disadvantage whatsoever; and
(b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by Pure Global, its Related Bodies Corporate or its Personnel, using reasonable endeavours.

11.4.In the event this agreement or any Purchase Order is terminated in accordance with clause 11.3, Pure Global will, at the Customer’s expense, make the Permitted Goods (or any part thereof) available for collection at such a place which Pure Global deems, at its absolute discretion, to be safe and convenient for collection by the Customer.

11.5.On termination of this agreement or any Purchase Order for any reason, the Customer must immediately pay all outstanding Charges, Disbursements and any other amount owing to Pure Global under this agreement and any Purchase Order (including interest).

 

12. Confidentiality

Save as required by law, all information supplied by Pure Global, or otherwise brought to the attention of the Customer, in relation to the Services, the Permitted Goods, the Charges, the Credit Application or any Purchase Order is confidential and must not be disclosed by the Customer to a third party (except to the Sender’s professional advisors) without Pure Global’s written consent. This includes, without limitation, information provided to the Customer in any form (including written and electronic) and by any means (including during any conversations with the Customer). This clause survives termination of this agreement.

 

13. Privacy

13.1.The Customer warrants that:
(a) any Personal Information that is discloses to Pure Global has been collected in accordance with Privacy Laws;
(b) it has the authority to provide to Pure Global, or otherwise make available, such Personal Information as required in order for Pure Global to perform its obligations under this agreement or any Purchase Order; and
(c) Pure Global may use and disclose the Personal Information of a Customer in accordance with this agreement and Our Privacy Policy and the Customer has obtained the informed consent of the individuals the subject of such Personal Information in order for Pure Global to use, disclose, store, transfer, process or handle it.

13.2.The Customer authorises Pure Global to collect Personal Information and credit information about its personal, consumer and commercial credit worthiness from any credit provider or credit reporting agency (CRA) for the purpose of assessing an application for credit in connection with Pure Global providing the Customer with the Services.

13.3.The Customer authorises Pure Global to use, transfer, disclose or exchange Personal Information and credit-related Personal Information about the Customer in order to assess an application for credit and monitor credit worthiness in connection with Pure Global providing the Customer with the Services in accordance with Our Privacy Policy and Credit Application. If the Customer fail to meet its payment obligation under this agreement or any Purchase Order, Pure Global will be entitled to disclose this to the CRAs.

 

14. Dispute resolution

The parties must, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute under or relating to this agreement or any Purchase Order initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved with this period, then either party may initiate court proceedings. Notwithstanding the existence of a dispute, each party must continue to perform its obligations

 

15. Non-solicitation

The Customer undertakes and agrees not to, directly or indirectly, during the term of this agreement and for 12 months after the termination or expiry of this agreement (or, if this is
deemed invalid, for 6 months from the date of termination of this agreement):
(a) solicit, approach, canvass or endeavour to entice away from Pure Global the business, orders, customers or clients of Pure Global by any means, with a view to providing (directly or indirectly) goods or services to such customer or client in competition with Pure Global; or
(b) offer to employ or engage or otherwise endeavour to entice away from Pure Global or any of its Personnel.

 

16. Force Majeure Event

Pure Global will not be liable to Customer or anyone else for any delay or non-performance of its obligations under any Purchase Order or this agreement to the extent that such non performance is due to, or arises as a result of, a Force Majeure Event.

 

17. Notices

17.1.All notices, requests, demands, consents, approvals, offers, agreements or other communications (notices) given by a party under or in connection with this agreement or any Purchase Order must be:
(a) in writing;
(b) signed by a person duly authorised by the sender or, where transmitted by e-mail, sent by a person duly authorised by the sender;
(c) directed to the intended recipient’s address (as specified in clause 17.3 or as varied by any notice); and
(d) hand-delivered, sent by prepaid post or transmitted by e-mail to that address.

17.2.A notice given in accordance with this clause is taken as having been given and received:
(a) if hand-delivered, on delivery;
(b) if sent by prepaid post: (i) within Australia, on the fourth Business Day after the date of posting; or (ii) to or from a place outside Australia, on the seventh Business Day after the date of posting;
(c) if transmitted by e-mail, on transmission,
but, if the delivery or transmission is not on a Business Day or is after 5.00pm (recipient’s time) on a Business Day, the notice is taken to be received at 9.00am (recipient’s time) on the next Business Day.

17.3.The parties’ respective details for the purposes of this clause are set out in the Credit Application (unless otherwise notified in writing by 1 party to the other).

 

18. General

18.1.A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

18.2.If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.3.If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18.4.This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

18.5.Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, except that Pure Global may assign, sell or transfer its rights or obligations under this agreement to a Related Bodies Corporate or bona fide third party purchaser of Pure Global’s business.

18.6.Nothing in this agreement is to be construed as constituting a partnership, employment relationship, joint venture, or any other form of association between the parties in which 1 party may be liable for the acts or omissions of any other party.

18.7.The benefits granted to Pure Global under this agreement apply regardless of whether Pure Global is deemed by any Relevant Laws to be an agent of the Customer or the principal in respect of the Services and the consignment of the Permitted Goods.

18.8.The laws of the State of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of Victoria.