To the fullest extent legally possible, all contracts and dealings between Oil & Gas Logistics (Australia) Pty Ltd (ACN 607 473 558) As Trustee for Oil & Gas Logistics (Australia) Unit Trust (ABN: 46 280 178 740) Trading as Oil & Gas Logistics (Australia), OGL (Australia) or OGLA (and each subsidiary, affiliate, associated company, related entities, successors or assigns) and any owner of goods or any party requesting OGL (Australia) to provide the Services (the Owner) relating to the Services are subject to the Terms and Conditions set out herein (the Terms) unless otherwise expressly agreed in writing by OGL (Australia).
1. Definitions: In theseTerms, unless the context otherwiserequires:
Contract means a contract between OGL (Australia) and the Owner for the supply by OGL (Australia), and purchase by the Owner, of the Services pursuantto these Terms.
Goods means the goods of the Owner the subject of the Services.
GST means any tax or imposition on the supply of goods and services covered by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax)Act 1999 (Cth) as amendedfrom time to time.
Owner means the owner of the Goods the subject of the Services,and includes (withoutlimitation):
a)the sender or receiver of the Goods;
b)a personhaving an interestin the Goods;
c)any party requesting OGL (Australia) to providethe Services;
d)any agent, representative, employee or sub-contractor of the Owner; and
e) any other person entitled to make a claim in respect of the Goods.
Services means the carriage by OGL (Australia) of the goods.
Sub-contractor includes (without limitation):
a)each Company which is at any time, or from time to time, a subsidiary of OGL (Australia) within the meaning of the Corporations Act 2001 (Cth);
b)a railway operated by the Commonwealth of Australia or a State or Territory within the Commonwealth of Australia;
c) any person or body corporate with whom OGL (Australia) may arrangefor the carriageof any or all of the Goods; and
d) any person who is at any time, or from time to time,a servant, agent, employee, or Sub-Contractor of any of the persons referred to in paragraphs (a) to (c) above.
2. Not a common Carrier: OGL (Australia) is not a commoncarrier and accepts no liabilityas such.
3. General lien: All Goods are accepted subject to a general lien for all charges due to OGL (Australia) on any account whether in respect of the Goods comprised herein or in respect of any other goods for which OGL (Australia) provides any service.
4. Quotation: OGL (Australia) may, in its absolute discretion, provide to the Owner a quotation (Quotation) specifying:
a) the Services to be carried out by OGL (Australia); and
b) the fee for carrying out the Services (Fee).
5. Basis of Quotation
a)Quotations make no allowance for waiting time and all extra costs arising from waiting time shall be an additional charge to the Owner.
b)Quotations are based upon prompt availability of the Goods for loading and the ability to make prompt delivery, and a charge shall be made by OGL (Australia) in respect of any delay in excess of one hour or other time frame indicated in the quote (commencing at the time OGL (Australia) reports for loading or unloading) in loading or unloading occurring otherwise than by default of OGL (Australia), and that charge will constitute the extra costs to OGL (Australia) incurred as a result of the excess delay.
c)Quotations are subject to the vehicle, haulage equipment and equipment required for loading and unloading having clear access for maneuvering into loading and unloading site positions and the ground surface being firm and consolidated to withstand wheel loadings of the vehicle, haulage equipment and the equipment for loading or unloading and OGL (Australia) costs involved in any site preparation shall be borne by the Owner.
d) Quotations do not include the cost of obtaining or operating cranes to load or unload and those costs shall be borne by the Owner.
e) The Quotation and the Contract are subject toall necessary permits being issued by all relevant authorities.
6. Payment deemed to be earned: The Fee shall be deemed earned by OGL (Australia) as soon as the Goods are loaded and dispatched from the Owner’s premises.
7. Trading terms: Trading terms are strictly Fourteen (14) days from the date of the invoice. Owners awaiting account approval by OGL (Australia) will be required to make payment in full for any services provided by OGL (Australia), to the Owner prior to the Owners account being approved.
8. Hazardous, dangerous etc Goods
a)The Quotation is made on the basis that goods of a hazardous, dangerous, noxious, offensive, volatile, inflammable or explosive naturewill not be tendered to OGL (Australia) and if the Owner requires goods of that nature to be carried,the Owner shall make full disclosure of the nature of the goods and the same will be carried by OGL (Australia) only if express written agreement is made between the Owner and OGL (Australia) in relation to the carriage thereof.
b) The Owner warrants that except as specified in the Contract the Goods which are tendered to OGL (Australia) for carriage shall not be of a hazardous, dangerous, noxious, offensive, volatile, inflammable or explosive nature and will be goods the carriage of which is not illegal or prohibited by any Law of the Commonwealth of Australia or of any State or Territory of the Commonwealth of Australia by reason of their nature,packaging, labeling or otherwise.
c) The Owner hereby indemnifies OGL (Australia) in respect of any liability for death, bodily injury, loss and/or damage incurred by OGL (Australia) arising directly or indirectly as a result of the Owner’s failure to comply with this warranty.
9. Weight and dimensions of Goods
a) Where the Owner has declared the weight of the Goods and OGL (Australia) relies or has relied on that declaration then the Owner shall be responsible for all extracosts and risksincurred OGL (Australia) and shall be liable to OGL (Australia) for any loss or damage occasioned either directly or indirectly to OGL (Australia) by reason of OGL (Australia) relying or having relied upon a declared weight.
b) If weights and dimensions of the Goods exceedthose declared by the Owner and stipulated in the Contract,the Quotation and/orthe Contract shall be null and void at the option of OGL (Australia)
10. Invoice and payments
a)Non approved accountOwners must make payment to OGL (Australia) by the Ownerin cleared funds and in full priorto the completion of the delivery and or services.
b)OGL (Australia) will issue an invoice to the Owner for the Fee.
c)Owners awaiting account approval by OGL (Australia) will be required to make paymentin full for any services provided by OGL (Australia) to the Owner prior to the Owners account being approved.
d)Payment must be made to OGL (Australia) by the Owner in cleared funds and in full without any deductions whatsoever strictly within thirty (30) days end of monthof the date of the invoice.
11. OGL (Australia) acceptance of liability: If, by express and written agreementbetween OGL (Australia) and the Owner, OGL (Australia) accepts responsibility for damageto, loss of, or deterioration of Goods, no claim for that damage, loss or deterioration will be binding on OGL (Australia) unless lodged in writing at the office of OGL (Australia) in the State in which delivery is made (orwhere there is no such office, then at the office of OGL (Australia) in the State from which the Goods were dispatched) within 72 hours after delivery of the Goods was completed.
12. Carriage
a)OGL (Australia) may, in its absolute discretion, arrange with any Sub-Contractor to undertake the carriage of the Goods, and the Sub-Contractor shall be entitled to the benefit of these Terms to the same extent as OGL (Australia), and insofar as it may be necessary to ensure that the Sub-Contractor shall be so entitled, OGL (Australia) shall be deemed to enter into the Contract for its own behalf and as agent for the Sub-Contractor, and the Owner shall be deemed to have ratified the sub contracting arrangement upon delivery of the Goods by OGL (Australia) to the Sub-Contractor.
b)Where the Owner expressly or by implication instructs OGL (Australia) to use, or if it is agreed by OGL (Australia) and the Owner that OGL (Australia) will use a specific method of carriage (whether by road, sea, rail or air) OGL (Australia) shall endeavor to give priority to that specified method. However, if, in OGL (Australia) reasonable opinion, carriageby the specified method cannotbe conveniently undertaken, the Owner authorises OGL (Australia) to carry or arrange for the carriage of the Goods by any other method(s) to be determined by OGL (Australia) in its absolute discretion.
c)Any deviation from the usual route or manner of carriage of Goods which may, in the absolute discretion of OGL (Australia), be deemed necessary,reasonable, or desirable in the circumstancesshall be deemedtohave been authorised
13. Risk
a) All Goods are carried entirely at Owner’s risk
b) OGL (Australia) shall not be responsible:
(i) in tort,contract or otherwise;
(ii) for any loss of, damage to or deterioration of the Goods, the mis-delivery or failure to deliver the Goods, or any delay in the delivery of the Goods for any reason whatsoever (including, but without limitation, the negligence or willful act or default of OGL (Australia), a Sub-Contractor or any other person), in any of the following circumstances:
(A) in the course of performance by OGL (Australia) of the Contract;
(B) in events which are in the contemplation of OGL (Australia) or the Owner;
(C) in events which are foreseeable by them or either of them; or
(D) in events which would constitute a fundamental breach of the Contract or a breach ofa fundamental term
14. Delivery: OGL (Australia) is authorised to deliver Goods to the address for delivery specified by the Owner in the Contract, or if no address is specified, then to the addresssubsequently notified to OGL (Australia) by the Owner,and OGL (Australia) shall be deemed to have delivered the Goods in accordance with the Contractif OGL (Australia) obtainsfrom any person at that subsequently specified address a receipt or signeddocket for the Goods.
15. Delay
a) If a vehicle is delayed by any cause beyond the control of OGL (Australia) or is delayed as a resultof OGL (Australia) followinginstructions of the Owner, the Owner shall be liable for any extracosts incurred by OGL (Australia) as a consequence of the delay.
b) If a vehicle is boggedwhilst OGL (Australia) is following instructions of the Owner,the Owner shall be liablefor the costs incurred by OGL (Australia) in recovering the vehicle from the bog and shall be liable for any damage to the vehicle, equipmentor plant so causedor the recovery thereof.
c) If the Goods have not been loaded within 60 days of the date of the Quotation or the Contract (as the case may be), and the delay in loading is due to any cause beyondthecontrol of OGL (Australia), the Owner shall be liable to pay to OGL (Australia) in addition to the Quotation an amount equal to the increase in OGL (Australia) costs of carrying out the Services.
d) For the avoidance of doubt, the Owner is not relieved of any obligation to accept or pay for the Services due to any delay in delivery.
16. Insurance:
a) The Owner shall be responsible for obtaining its own insurance for the Goods whilst they are in transit and any expense for any such insurance shall be borneby the Owner.
b) Insurance of the Goods will not be affected by OGL (Australia) for the benefit of the Owner except upon the written instructions of the Owner and then only at the Owner’s expense and upon receipt of a declaration of value a reasonable time prior to the loading of the Goods.
17. Obligations of the Owner
a) The Owner shall be solely responsible for the conformity of all containers, packaging and pallets with any requirements of the Goods in relation thereto and for any expenses incurred by OGL (Australia) arising from any failure to so conform.
b) The Owner shall be responsible for all applicable laws, customs and other governmental regulations of the Commonwealth or of any state or territory of the Commonwealth including those relating to the packaging, carriage and delivery of the Goods and shall furnish information and attach such documents to the consignment note as may be necessary to comply with those laws and regulations and OGL (Australia) shall not be liable to the Owner or any other person for loss or expense due to the Owner’s failure to comply with this clause.
18. Owner’s authorised agents: If the person who delivers the Goods or any of them to OGL (Australia) for carriage is not the Owner, that person shall be deemed to be duly authorised by the Owner to execute all documents (including, without limitation, the acceptance of these Terms) for and on behalf of the Owner. Such documents that are executed by that person shall be binding on the Owner.
19. Acceptance of these Terms: The Owner expressly represents and warrants to OGL (Australia) that it is either the Owner or the authorised agent of the Owner, and by entering into the Contract, accepts these Terms.
20. Indemnity: The Owner hereby indemnifies OGL (Australia) from all actions, claims, demands, proceedings, costs, damages and expenses brought or recovered by any of those persons arising out to: or in connection with, these Terms, the Contract or the Services.
21. Recovery costs: The Owner must pay to OGL (Australia) f all and any costs, expenses or losses incurred by OGL (Australia) f as a result of the Owner’s failure to pay to OGL (Australia) f all sums outstanding (including any debt collection and legal costs) on a full indemnity basis.
22. Jurisdiction: The Owner agrees that all Contracts made with OGL (Australia) shall be deemed to be made in the State of Western Australia and subject to the non-exclusive jurisdiction of the courts of Western Australia.
23. Force majeure: OGL (Australia) will not be or will not be deemed in default or breach of any Contract as a result of the effects of force majeure. Force majeure will include (but is not limited to) any fire, flood, strike, civil disturbance, theft, crime or other matter beyond the control of OGL (Australia).
24. Attornment: For the purpose of giving effect to the Owner’s obligations pursuant to these Terms, the Owner hereby irrevocably appoints the public officer of OGL (Australia) as its attorney in all things.
25. Default in payment: Notwithstanding any other provision of these Terms, if the Owner (or any other person liable to make payment to OGL (Australia) for the Services) fails to make payment to OGL (Australia) in accordance with clause 10, OGL (Australia) may, in its absolute discretion:
a) retain and sell all or any of the Goods in its possession, and use the proceeds of such sale towards all expenses of the sale and shall render the surplus moneys from the sale, if any, and any of the Goods should they remain unsold, to the person to whom OGL (Australia) appears to be entitled thereto, and any sale by OGL (Australia) of the Goods, or any of them shall not prejudice or affect charges due or payable in respect of the Services or the sale of the Goods; and
b) charge interest on any overdue accounts at the Westpac Banking Corporation Overdraft Rate plus 4% being the charges payable by OGL (Australia) on debt funding. The Owner will be charged this additional percentage at each invoice period until the Owner makes payment in full to OGL (Australia) the outstanding amount, and
c) if the Owners account fails to be settled after 90 days, OGL (Australia) will automatically render the outstanding amount to external Debt Collection, whereby the Owner will negotiate agreed terms direct with the Debt Collection, on behalf of Oil & Gas Logistics (Australia), the Owners failure to honour these agreed terms will institute formal proceedings to recover the outstanding money and all or any costs incurred to recover the outstanding amounts will also be borne by the Owner.
26. Severability: Any part hereof being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
27.Waiver: The waiver by OGL (Australia) of any breach by the Owner of any of these Terms shall not prevent the subsequent enforcement of that term and shall not be deemeda waiver of any other or subsequent breach.
28. Limitation of Liability
a)Subject to clause 28(b), any condition or warranty (including, but without limitation, any implied warranty of merchantability, satisfactory quality or fitnessfor a particular purpose) whichwould otherwise be implied in these Terms or in relation to any Goods and/orServices is hereby excluded.
b)Where legislation implies in these Terms any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exerciseof or liability under such condition or warranty, the condition or warranty shallbe deemed to be includedin these Terms. However,the liability of theCompany for any breach of such condition or warranty shall be limited to one or more of the following:
(i) supplying of the Services again; or
(ii) payment of the cost of having the Services supplied again.
29. GST: To the extent that a supply of Services provided by Oil & Gas Logistics (Australia), or any other supply made under or pursuant to theseTerms, is a “taxable supply” as defined in the GST Act, OGL (Australia) will increase its price in respectof that supplyits makes by the amountof GST payable on the supply.
30. Privacy Act: The Owner agrees that OGL (Australia) can make any inquiries it deems necessary to investigate the Owner’s creditworthiness including undertaking inquiries with financial institutions, credit reporting agencies, any personal credit and/or consumer credit information providers (the Sources). The Owner authorises the Sources to disclose any information concerning its creditworthiness in their possession to Oil & Gas Logistics (Australia). The Owner agrees that OGL (Australia) may disclose any information in its possession concerning the Owner’s creditworthiness to the Sources.
31. Statement by OGL (Australia): A statement by any officer of OGL (Australia) is conclusive evidence of any fact, matter or thing.
32. Independent Legal Advice: We have been advised to and have had the opportunity to seek independent legal advice in respect of the implications of this Application for Credit.
