Terms and Conditions

WISEWAY LOGISTICS STANDARD TRADING CONDITIONS

These contractual conditions apply to the Services provided by Wiseway Logistics Pty Ltd (Wiseway). These trading conditions contain limits and exclusions of liability in favour of Wiseway (clause 5). There are also clauses that make you liable to pay Wiseway for additional costs incurred in performing the services (clause 8). Goods are carried at the risk of the Customer. Wiseway recommends obtaining insurance against loss or damage to the goods. You should read these trading conditions carefully.

1. DEFINITIONS

“Carriage” means carriage by vehicles and conveyances of all kind including acts in furtherance of an act of carriage by another or a specific means, whether by air, sea or land transport, or any combination of such transport modes.

“Carrier” means any party involved in the Carriage of Goods whether by airfreight, seafreight or land transport.

“Customer” shall mean the entity that signs this document, or if it is not signed, completes Wiseway’s credit account application, letter of instruction, consignment note, provides Wiseway with a letter or authority and/or instructs Wiseway to perform services.

“Consequential Loss” means any loss or damage which (a) does not arise naturally or in the usual course of things; or (b) constitutes, or arises from or in connection with, a loss in revenue, profit or opportunity or a loss of goodwill or business reputation, even if such loss or damage arises naturally or in the usual course of things.

“Container” means any container, flexitank, trailer, transportable tank, flat, pallet or any equipment used to carry or consolidate goods and any equipment of or connected thereto.

“Convention” means any application international convention, including the national implementation of that convention, that applies to the international transport of goods including without limitation the provisions of the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25th August, 1924 (and includes the amendments by the Protocols signed at Brussels in 1968 and 1979, but only if the amendments are compulsorily applicable to this agreement and nothing in this agreement shall be construed as contractually applying those amendment), the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 and the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw, 12 October 1929; that Convention as amended at The Hague on 28 September 1955; that Convention as amended at The Hague 1955 and by Montreal Protocol No. 1, 2, or 4 (1975) as the case may be.

“Dangerous goods” shall mean such of the Goods as shall be, or become, in fact or at law noxious, dangerous, hazardous, explosive, radioactive, inflammable or capable by their nature of causing damage or injury to other goods or to any person or animals or to any thing in which those goods are carried, handled or stored.

“Fees” means Wiseway’s fees for the Services as set out in any quotation, rates schedule, tariff or as otherwise notified to the Customer, shipper or consignee and any other amounts payable under these Terms and Conditions.

“Force Majeure Event” means anything outside of the reasonable control of a Party including, without limitation, fire, flood, drought, storm (or other adverse weather conditions), lightening, act of God, peril of sea or air, explosion, radioactive or chemical contamination, sabotage, accident, embargo or trade restriction, blockade, labour dispute, strike or shortage, civil commotion, curfew, act of war, actual or threatened act of terrorism, pressure waves caused by aircraft or other devices, meteorites, epidemic, pandemic, the act of an authority or law to contain a pandemic or epidemic, plague, quarantine.

“Goods” shall mean the chattels, articles or things tendered for carriage or bailment or other services by the Customer and shall include the Container, unit load devices or other packaging containing the same and any other pallet delivered with the same to Wiseway or Subcontractor.

“Perishable goods” shall mean such of the Goods as shall be in fact or law liable to deteriorate in quality and/or value and shall include, but not be limited to, fruits, vegetables, dairy products, meat, etc.

“Related Company” means a related body corporate within the meaning of section 50 of the Corporations Act 2001.

“Services” shall mean the storage/warehousing, carriage, transport, movement, handling, customs clearance and/or any other service performed or arranged by Wiseway in relation to the Goods and/or pursuant to, or ancillary to, this contract with the Customer.

“Subcontractor” shall mean and include: -

(i) Any person, firm or company with whom Wiseway may arrange to effect any Service in respect of the Goods which are the subject of this contract.

(ii) Any person, firm or company which is now or hereafter a servant, agent, employee or independent contractor of any of the persons or entities referred to in (i) above.

(iii) Any other person, firm or company (other than Wiseway) by whom the Services or any part thereof are arranged, performed or undertaken.

“Terms and Conditions” means these terms and conditions.

“Transport Document” includes a bill of lading, sea waybill, air waybill, consignment note, or similar carriage document.

“Valuables” shall mean bullion, coins, precious stones, jewellery, antiques, or works of art.

“Wiseway” shall mean Wiseway Logistics Pty Ltd (ACN 123 556 561), their employees, servants, agents, subsidiaries and/or associated entities.

Words importing the singular include the plural and vice versa and words importing any gender include all genders and words importing a person include firm and corporation where appropriate.

2. GENERAL

(a) Wiseway is not a common carrier and accepts no liability as such.

(b) The Goods are at all times at the risk of the Customer.

(c) Services are arranged or performed by Wiseway subject only to these Terms and Conditions and any Transport Document. These documents apply to the exclusion of any terms and conditions proposed by the Customer, including any terms and conditions on any Customer purchase order or other document. Any terms in a Transport Document issued by Wiseway will take priority over these Terms and Conditions.

(d) Any amendment of these conditions will only be valid if in writing and signed by Wiseway and the Customer.

(e) Wiseway reserves the right to refuse at its sole discretion the carriage of the Goods for any customer or any other Service whether before or after the carriage or Service has commenced.

(f) Wiseway reserves the right to open and inspect all Goods as necessary to perform the Services and at the Customer’s expense.

(g) If the Customer is a trustee of a trust, the Customer:

(i) will provide Wiseway with a copy of the trust deed and any documents amending that trust deed;

(ii) will notify Wiseway of any change in trustee of the trust;

(iii) agrees that these Terms and Conditions apply to, and all requests for Services placed by the Customer with Wiseway are placed by, the Customer in its personal capacity and as trustee of the trust.

(h) Any party that enters this agreement as a disclosed or undisclosed agent agrees to be joint and severally liable for the debts, liabilities and obligations of the principal under this agreement.

(i) The Customer will provide Wiseway with all assistance, information and documentation necessary to enable Wiseway to provide the Services, and punctually comply with any law or request from a government authority.

(j) The Customer is under a continuing obligation to provide any information which may materially affect the capacity of the Customer or Wiseway to perform its obligations under the Agreement.

(k) The Customer will keep confidential Wiseway’s Fees or charges and any waiver, discount, release or indulgence provided by Wiseway in relation to the provision of the Services.

3. AGENCY/SUBCONTRACTING/SUBBAILMENT

(a) Subject to and in accordance with these Terms and Conditions, Wiseway agrees and the Customer hereby employs and authorises Wiseway, as agent of the Customer to contract either in its own name or in the Customer’s name with any Subcontractor, and employs and authorizes any Subcontractor to subcontract with any other Subcontractor, for the performance of any Service to be performed or arranged by Wiseway pursuant to, or ancillary to, this agreement.

(b) Any such contract will be made on the standard trading terms used by the Subcontractor, unless modified terms are more favourable to the Customer. These terms may include terms which may limit or exclude liability in respect of the Service and terms whereby the Subcontractor may employ any person, firm or company for performance of the Service.

(i) the value of the Goods will not be declared or inserted into a Transport Document or contract for the purpose of extending a Carrier’s liability unless the Customer provides express written instructions to Wiseway to do so, and if required, the Carrier agrees;

(ii) where a Subcontractor’s or Carrier’s charges may be determined by the extent of liability assumed by the Subcontractor or Carrier, no declaration of value will be made for the purpose of extending the liability of the Subcontractor or Carrier, and the Goods will be dealt with at the Customer’s risk for minimum charges, unless the Customer provides written instructions to the contrary to Wiseway;

(iii) Wiseway reserves the right to not make any declaration or take any action in respect of the Customer’s Goods unless the Customer has provided Wiseway with sufficient notice, written instructions and the documents necessary to take that action in relation to those Goods.

(d) Every Subcontractor shall have the benefit of all provisions herein benefiting Wiseway as if such provisions were expressly for its benefit, and in entering into this contract, Wiseway, to the extent of these provisions, does so not only on its own behalf, but also as agent and trustee for such parties.

4. WARRANTIES BY THE CUSTOMER

The Customer warrants:

(a) that it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods;

(b) that it enters into this agreement on its own behalf, or in its capacity as the authorised agent of the owner of the Goods;

(c) that the person releasing or delivering the Goods to Wiseway is authorised to sign Wiseway’s consignment note or letter of instruction and accept these Terms and Conditions on the Customer’s behalf;

(d) the accuracy and completeness of all markings, brandings and labelling of the Goods, descriptions, values and other particulars furnished to Wiseway for the carriage, customs, consular and any other purposes;

(e) it will not request or require that Wiseway breach any law in the performance of any Service;

(f) that is has complied with all laws relating to the Goods, including the nature, condition, packaging, handling, storage and Carriage of the Goods;

(g) the Goods are packed to endure the ordinary risks of handling, storage and the Services, having regard to the nature of the Goods including without limitation, that in respect of temperature controlled goods, the Container has been properly pre-cooled or pre-heated and the Container’s thermostatic controls have been correctly set;

(h) the Goods are not Dangerous Goods, unless Wiseway has agreed in writing to provide the Services in respect of those particular Dangerous Goods, and in which case, warrants that it has made full disclosure of Dangerous Goods and such Goods are distinctly marked; and

(i) it will ensure, so far as is reasonably practicable, the safety of any road transport performed for or on behalf of the Customer and it will meet its obligations under the Heavy Vehicle National Law where the Customer is the consignor, consignee, packer or loader of the Goods.

5. EXCLUSION AND LIMITATION OF LIABILITY

(a) Neither Party to this Agreement shall be liable to the other Party for any Consequential Loss, however caused.

(b) Where the Services involve the international Carriage of Goods, Wiseway limits and/or excludes its liability for any loss or damage suffered by the Customer or any other person, however caused or arising, including by the negligence of Wiseway or its Subcontractors, to the extent permitted by any applicable legislation, International Convention or law.

(c) Wiseway will exercise reasonable care in the selection of a Subcontractor or third party Carrier. However, Wiseway will not be liable for loss or damage to Goods that occurs when the Goods are in the possession of a Subcontractor or third party Carrier.

(d) Without limitation to any other clause in this agreement, for Carriage by air, if the Carriage involves an ultimate destination stop in a county other than the country of departure, the Warsaw Convention or the Montreal Convention may be applicable and the relevant convention governs, and in most cases, limits the liability of air Carriers in respect of loss or damage to cargo.

(e) Wiseway will not be in breach of any of its obligations to the Customer or liable for any Loss (including Consequential Loss) suffered by the Customer arising from or connected with Wiseway’s compliance with any Law, including without limitation, disclosing confidential information to a government authority.

(f) Wiseway excludes from this Agreement all conditions, warranties, terms and consumer guarantees implied by Laws, general law or custom except any the exclusion of which would contravene any Laws or cause this condition to be void (Non-Excludable Condition).

(g) Wiseway’s liability for any breach of a Non-Excludable Condition is limited, at Wiseway’s option, to supplying the particular Services again, or the cost of supplying the particular Services again.

(h) In all cases where liability has not been limited or excluded by mandatory applicable statute, Convention or law, the liability of Wiseway is limited to, without limiting clause 5(b) above, the lesser of:

(i) $2 per kilogram of any Goods lost or damaged during air freight or sea freight where the consignment is carried as a less than a full container load;

(ii) $10,000 per container for all Goods within that container that are lost or damaged during sea or rail freight where carried as a full container load;

(iii) $300 per pallet for palletised Goods, and $1 per kilogram for unpalletised Goods, lost or damaged during road freight or warehousing;

(iv) where the damage is not loss or damage to Goods, an amount equal to 2 times the Fees charged by Wiseway in respect of the relevant loss causing event;

(v) the actual loss or damage incurred; or

(vi) $100,000 per loss causing event and in the aggregate of all claims by the Customer against Wiseway during a calendar year.

(i) Further, without limiting the generality of the foregoing, Wiseway shall not be liable for any loss or damage suffered by the Customer or any other person as a result of a failure or inability of Wiseway or Subcontractor to collect or receive cash on delivery payments from any consignees or their agents unless caused by the negligence of Wiseway’s servants, agents, employees or Subcontractors.

(j) It is hereby agreed between the Customer and Wiseway that the Customer’s right to compensation for any claim for loss or damage will only be maintained provided the following is strictly adhered to:

(i) Any claim for damage to Goods or delay must be lodged in writing with Wiseway within the time period specified in any applicable International Convention, and where no timeframe is specified or applicable, within 7 days of delivery of the Goods or the date Services are completed, whichever date occurs first;

(ii) Any claim for loss/non-delivery of Goods must be notified in writing to Wiseway within 14 days from the date the Goods should have been delivered or the Services should have been completed, whichever date occurs first;

(k) Any right to any legal remedy against Wiseway in respect of lost or damaged Goods or delay shall be extinguished unless legal proceedings are brought against Wiseway in Australia and within 9 months (in respect of international sea freight) or 21 months (in respect of international air freight) from the date the Services were completed or Goods delivered, or the date the Services should have been completed or the Goods should have been delivered, whichever date occurs first.

(l) Where the claim does not involve loss or damage to Goods or delay, any legal proceedings must be brought against Wiseway in Australia within the timeframes specified in any applicable International Convention, and where no timeframe is specified or applicable, within 9 months of the Customer becoming aware of the loss or damage or potential loss or damage.

(m)It is specifically agreed that all rights, immunities and limitations of liability granted to Wiseway by the provisions set forth in this agreement shall continue to have their full force and effect in all circumstances and notwithstanding any breach of the contract or any condition hereof by Wiseway.

6. LOADING AND UNLOADING ON AND FROM TRANSPORTATION VEHICLE

(a) Unless otherwise agreed, the Customer shall be responsible for the cost of, and arranging for, the loading and unloading of the Goods on and from the relevant transportation vehicle.

(b) In the event that there is a delay in the loading or unloading of the Goods by reason other than the default of Wiseway, the Customer shall be liable for Wiseway’s expenses incurred by reason of the delay, including demurrage costs as notified by Wiseway from time to time or as made available upon request.

(c) Unless otherwise agreed, the Customer shall provide adequate and suitable facilities and equipment for loading and unloading the Goods from the relevant transportation vehicle. Unless otherwise notified, the Customer also warrants that the Goods will be suitable for Carriage without the use of specialised equipment.

(d) The Customer has the right to inspect the transportation vehicle before the loading of the Goods. Absent any inspection or complaint or evidence to the contrary, the transportation vehicle will be deemed to be in adequate and suitable condition for the Carriage of the Goods.

7. WAREHOUSING

The Goods may at any time be warehoused or otherwise held at any reasonable place or at any time be removed from any place at which they may be warehoused or otherwise held at the reasonable discretion of Wiseway. In every case, whether warehousing is incidental or the primary Service provided by Wiseway, it will be provided at the Customer’s expense as a primary charge incidental to or in connection with the Carriage of the Goods or any Service hereunder.

8. CUSTOMER’S INDEMNITY

(a) The Customer shall on demand indemnify Wiseway in respect of any claim, loss, damage, payment, fine, expense, duty, tax, impost or other outlay whatsoever or howsoever caused, arising directly or indirectly from any Service arranged or performed by Wiseway in respect of the Goods and/or in respect of any such cost incurred as a result of any breach of the terms, conditions or warranties in this agreement by the Customer.

(b) The Customer shall indemnify Wiseway on demand in respect of any loss or damage to the extent it arises from:

(i) any inherent defect, quality or vice of the Goods;

(ii) the Customer’s, consignees or owner’s failure to return, return by the due date, return within the “free” period and/or return empty, clean, or undamaged any Container or transport equipment involved in the performance of the Services;

(iii) any claim against Wiseway by a person who claims to have an interest in the Goods;

(iv) breach of this Agreement, including any warranty provided by the Customer;

(v) any loss, cost or liability incurred or suffered by Wiseway as a result of releasing or delivering the Goods to the Customer or at the direction of the Customer;

(vi) any claim for general average and will provide any security requested by Wiseway for the release of any Goods that are the subject of a claim for general average;

(vii) any holding, inspection of, or treatment of, the Goods by, or directed by, a government authority;

(viii) all duty, GST, and any other fees and taxes incurred in connection with the Goods payable to a government authority;

(ix) costs and charges payable by Wiseway third parties in respect of the Carriage of the Goods that were not included in the Fees; and

(x) any costs of charges paid on behalf, or at the instruction of, the Customer.

(i) the loss, cost, liability or expense was caused by the negligence or breach of Wiseway;

(ii) the loss, cost, liability or expense is a third party cost or expense that was a known cost or expense at the time of Wiseway providing a quotation for the Services and it was neither notified to the Customer nor a cost that the Customer would reasonably have expected to incur.

9. INSURANCE

The Customer should seek its own insurance cover. No insurance will be effected by Wiseway on the Customer’s behalf except on express instructions in writing by the Customer and only if Wiseway is licensed to do so pursuant to applicable Australian regulations. Any such insurance so effected will be subject to the usual exceptions and conditions of policies of the insurance company or underwriters taking the risk. Wiseway shall not be under any obligation to effect separate insurance on each consignment but may declare it on any general policy. Should such insurers dispute liability for any reason, the Customer, as the insured, shall have no recourse against Wiseway whatsoever and any recourse by the Customer shall be against the insurer.

10.QUOTATIONS

Quotations for the Services are made on an immediate acceptance basis, are limited only to the route and consignment details the subject of the quotation and are subject to withdrawal or revision without notice at Wiseway’s discretion.

11.ROUTES AND PROCEDURES

(a) If Wiseway is instructed by the Customer and agrees to use a particular method or mode of transport and/or Service, Wiseway shall give due consideration and priority to the method or mode designated but shall at all times have the right to reasonably choose or vary such method or mode of transport and/or Service or route and procedure to be followed in respect of the Service performed. The Customer hereby authorises Wiseway to substitute alternate Carriers or other Service providers provided that such variation does not materially vary the cost, time or risk associated with the Service. Where possible, notice of any material variation will be provided to the Customer.

(b) Sufficient notice of instructions must be given by the Customer to Wiseway to enable Wiseway to follow those instructions. If insufficient notice is given and Wiseway attempts to adopt the Customer’s instructions, Wiseway is not deemed to have accepted the instructions.

12.PAYMENT OF EXPENSES/DUTIES

The Customer authorises Wiseway, but with no obligation on the part of Wiseway, to pay any duties, taxes, imposts, outlays or charges at any port or place in respect of the Goods and the Customer shall, unless caused by Wiseway’s breach or negligence, be liable for the reimbursement of such disbursements and for payment of any fine, expense, loss or damage incurred by Wiseway in connection therewith.

13.FEES/CHARGES

(a) The Customer shall pay Wiseway for all Fees rendered and any charges it incurs for any reason in respect of the Services performed. This includes the payment of Fees/charges which Wiseway is advised by, or agrees with, the Customer, will be paid by a third party which then fails to so pay. Where Fees / charges relate to the Carriage of Goods, such Fees/charges shall be deemed fully earned as soon as the carriage of Goods commences and shall be immediately payable (unless otherwise agreed in writing).

(b) Wiseway’s Fees may include any disbursements and other amounts that Wiseway is required to pay third parties in connection with the Services. Wiseway at its reasonable discretion may vary its Fees if the amount of any such disbursements change. Where reasonably practicable, Wiseway will provide the Customer with notice of any material change in the Fees.

(c) Wiseway at its discretion may determine its Fees, including by weight, measurement or value, including without limitation, by volumetric conversion.

(d) Fees due to Wiseway are payable in Australian dollars unless otherwise agreed. Wiseway is entitled to charge a currency conversion fee when it receives payment in a currency other than Australian dollars.

(e) Wiseway’s Fees must be paid by the due date stated on the invoice, within 7 days of an invoice date where no due date is stated in the invoice or as otherwise agreed in writing (the Due Date). Time is of the essence in respect of the Customer’s obligations to make any payment to Wiseway in connection with this agreement.

(f) Any Customer dispute regarding an invoice issued by Wiseway must be raised by the later of 7 days following the receipt of the invoice or the due date of that invoice. A failure by the Customer to raise any dispute within this period shall be taken as prima facie evidence that the invoice is correct.

(g) The Customer agrees that it shall not defer or withhold payment or deduct any amount from the account of Wiseway by reason of any claim it alleges against Wiseway or a Related Company of Wiseway.

(h) In the event that the Customer fails to pay any invoice in full within the time specified for payment, all amounts owed by Customer shall immediately become due and payable. The Customer shall also become indebted to Wiseway for costs of collection, including reasonable legal fees, plus default interest to be calculated in accordance with base rate for Business Overdraft and Westpac Invoice Finance (subject to daily change) set out by Westpac Banking Corporation on the amount outstanding on all amounts, compounded daily and calculated from the due date.

(i) The Customer agrees that Wiseway may charge its Fees and/or recover its administrative costs by way of increasing the amount charged to it by third parties, such as disbursements, when invoicing those amounts to the Customer and that there is no obligation on Wiseway to separately show this portion of the fee/disbursement on any invoice.

(j) The Customer agrees that Wiseway may receive and retain for its own account renumeration, allowances, brokerages and commissions from shipping and forwarding agents, shipping lines, insurance brokers, airlines and any other persons with whom Wiseway deals or that are payments of the nature commonly received by freight forwarders and that Wiseway is not require to disclose the receipt and retention of such amounts to the Customer, even, without limitation, if acting as agent for the Customer.

14.LIEN

(a) Wiseway shall have a particular and general lien on the Goods of the Customer and any documents relating thereto and on any other Goods of the Customer which are in, or may come into, the possession of Wiseway or any documents relating thereto for all sums payable by the Customer to Wiseway or a Related Company of Wiseway. Where the debt remains unsatisfied for a period of 7 (seven) days from the date which Wiseway gives, or reasonably attempts to give, notice of the exercise of lien to the Customer (or owner), Wiseway shall have the right to sell any such Goods by private sale or public auction. Wiseway will apply any such proceeds realised from such sale toward satisfaction of any amounts owing by the Customer and all proper charges and expenses in relation to the exercise of the lien and the sale of the Goods. Wiseway shall remit any surplus proceeds to the Customer. Where reasonably practicable, Wiseway will give the Customer 7 days’ notice of the intended sale of the Goods. Notice will not be reasonably practical where the Goods may deteriorate during the notice period, or storage or other costs incurred during the notice period would likely exceed the amount realised from the sale of the Goods.

(b) For the purposes of the lien, Wiseway will retain constructive possession of the Goods and the lien and rights granted by this clause will survive delivery of the Goods or transfer of the Goods to a Subcontractor or third party.

15.VALUABLES, DANGEROUS GOODS, PERISHABLE GOODS, LIVESTOCK, ETC.

(a)

(i) Except as agreed in writing, Wiseway will not accept Valuables, Dangerous goods or livestock for Services arranged or performed by Wiseway. Should the Customer nevertheless deliver any such goods to Wiseway or cause Wiseway to handle or deal with any such goods, otherwise than as agreed in writing, the Customer shall be liable for any loss or damage thereto or consequent thereon whether direct, indirect or Consequential Loss unless caused by the negligence of Wiseway.

(ii) Any such Dangerous goods may be destroyed in the reasonable discretion of Wiseway or any other person in whose custody the Goods may be at the relevant time. If such goods are accepted pursuant to a written agreement, they may nevertheless be destroyed or dealt with if deemed reasonably necessary in the reasonable discretion of Wiseway or any other person in whose custody they may be at the relevant time. In the event that the goods are destroyed or otherwise dealt with as aforesaid, other than as a result of the negligence of Wiseway, Wiseway shall bear no liability therefore.

(b) The Customer undertakes that any of the goods referred to in (a) above (including their covering, packaging, containers and other devices they are carried in) shall be distinctly marked having regard to their nature. The Customer further undertakes that the Goods are packed in a manner adequate to withstand the ordinary risks of any Service having regard to their nature and in compliance with all laws and regulations which may be applicable with respect to any Service.

(c) The Customer’s compliance with (b) above in no way reduces or limits those rights afforded to Wiseway under (a) of this clause.

16.DELIVERY

(a) Wiseway is authorised to deliver the Goods to the consignee or its agent at the address nominated to Wiseway by either the Customer, the consignor, the consignee or their agents and it is expressly agreed that the Carrier shall be deemed to have delivered the Goods in accordance with this agreement if it obtains a receipt, signed delivery docket for the Goods or signature on its consignment note from any person at that address.

(b) If the nominated place of delivery shall be unattended or if delivery cannot otherwise be effected, Wiseway in its reasonable discretion may either deposit the Goods at the nominated place or store the Goods at the risk and expense of the Customer, both of which will be deemed to be delivery of the Goods under this agreement.

(c) Dates specified for completion of Carriage or any other Service are estimates only and Wiseway shall not be liable for failure to complete Carriage or any other Service on such date or dates unless such delay is due to the negligence of Wiseway.

17.SALE AND DISPOSAL OF GOODS

Wiseway and its Subcontractors shall be entitled at the cost and expense of the Customer, subject to any compliance with any applicable law, to sell or dispose of:

(a) Goods which in the opinion of Wiseway or Subcontractor cannot be delivered by reason of the Goods being insufficiently or incorrectly addressed or by reason of the Goods not being collected or accepted by the Consignee or for any other reason. Wiseway will reasonably attempt to provide at least 7 days’ notice prior to selling or disposing of any such Goods, and

(b) any Perishable goods which in the opinion of Wiseway or the Subcontractor appear to be deteriorating, if the Customer fails to adequately instruct Wiseway with respect thereto or fails to pay any costs and expenses necessary to implement the Customer’s instructions. Wiseway will provide at least 7 days’ notice prior to selling or disposing of any such Goods unless the Goods will deteriorate or materially lose value during the notice period.

(i) it does so as principal, not as agent, and is not the trustee of the power of sale;

(ii) the Customer must pay all costs, charges and expenses incurred by Wiseway in connection with the storage, sale or return of the Goods, which may be deducted from the proceeds of the sale of the Goods;

(iii) Wiseway is entitled to recover any deficit from the Customer where the proceeds of sale of the Goods do not satisfy the amounts payable to Wiseway.

18.REGULATION COMPLIANCE

The Customer shall comply with all applicable laws and Government regulations including those relating to the packing, carriage, storage, customs clearance, delivery or other Services in respect of the Goods, and shall furnish such information and provide such documents to the Customer as may be necessary to comply with such laws and regulations.

19.LAW AND JURISDICTION

Any dispute arising under this Contract shall be governed by the laws of NSW, Australia and shall be determined exclusively by the courts of NSW.

20.REPRESENTATIONS

By signing any document in connection with the Services or otherwise accepting these conditions, the Customer agrees that it did not rely on any representation, promise, warranty or condition of Wiseway or its Subcontractor not expressly made (in writing) part of this agreement.

21.SEVERANCE & WAIVER

It is hereby agreed that if any provision or part of any provision of this contract is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision hereof. Further, should a party elect not to exercise any of its rights under this agreement, under any other contract/agreement or under law, such election shall not constitute a waiver of any rights relating to any other or subsequent breach by the other Party.

22.CUSTOMER’S OWN FORM

The use of the Customer’s own form is no derogation to these conditions of contract.

23.Statutory Guarantees

(a) Any relief from liability contained in this agreement is to be read subject to any restriction on contracting out of liability provided in any legislation binding on Wiseway so that the provisions for relief contained in this agreement are limited or rendered ineffective only to the extent required to give effect to that legislation but are otherwise fully effective and all the provisions hereof are severable and effective independently of any provisions which are null and void or ineffective by reason of any legislation.

(b) Unless written notification to the contrary is given by the Customer to Wiseway at or prior to entering into this agreement, the Customer expressly warrants and represents that all or any Services to be supplied by Wiseway and acquired by the Customer pursuant to this agreement are so supplied and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the Customer.

24.FORCE MAJEURE

Where a Party is unable to carry out any obligation under the contract due to any Force Majeure Event, that Party shall be excused from such obligations to the extent of such prevention, restriction or interference so caused.

25.LARGE BUSINESSES AND NON-STANDARD FORM CONTRACTS

(a) This clause 25 applies where either of the following are met:

(i) this agreement is not a Consumer Contract or Small Business contract as defined in section 23 of schedule 1 of the Competition and Consumer Act 2010 (Cth);

(ii) this agreement is not a Standard Form Agreement; or

(iii) this agreement is a contract to which Part 2-3 of schedule 1 of the Competition and Consumer Act 2010 (Cth) does not apply.

(b) Where this clause 25 applies, this agreement is read as follows:

(i) clause 5(h) is replaced with the following wording:

“5(h) In all cases where liability has not been limited or excluded by mandatory applicable statute, Convention or law, the liability of Wiseway is limited to, without limiting clause 5(b) above, the lesser of:

(a) the actual loss or damage suffered; or

(a) $1,000 per loss causing event and in the aggregate of all claims by the Customer against Wiseway during a calendar year.”

(ii) clause 8(c) does not apply.