1.1 �RPM� shall mean RPM Freight & Logistics Pty Ltd, and its successors and assigns or any person acting on behalf of and with the authority of RPM Freight & Logistics Pty Ltd.
1.2 �Sub-Contractor� shall mean and include:
(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
(b) any other person or entity with whom RPM may arrange for the carriage or storage of any Goods the subject of the contract; or
(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clause 1.2(a) and 1.2(b).
1.3 �Client� means any person/s requesting RPM to provide the Services (or person/s acting on behalf of and with the authority of the Client) as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.4 �Consignee� shall mean the person to whom the Goods are to be delivered by way of RPM�s Services.
1.5 �Services� shall mean all services supplied by RPM to the Client (including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or fumigating, transhipping, or otherwise handling the Goods, or anything else done in relation thereto), including the offering of any advice or recommendations.
1.6 �Goods� shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of RPM�s Services, or for storage by RPM.
1.7 �Dangerous Goods� means Goods so classified in the Dangerous Goods Code or which are or may become noxious, dangerous, hazardous, inflammable, explosive or damaging (including waste, contaminated or radioactive material, or capable of causing death, injury, or damage to any person or property whatsoever.
1.8 �Price� shall mean the cost of the Services as agreed between RPM and the Client subject to clause 4 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by, RPM.
2.2 These terms and conditions may only be amended with RPM�s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and RPM.
2.3 These terms and conditions are to be read in conjunction with RPM�s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by RPM to the Client. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
2.4 The Client shall do anything necessary or desirable to give (and must not do anything which may prevent) full effect being given to this agreement.
2.5 Any exercise of discretion by RPM shall be absolute and unfettered and may be unreasonable or arbitrary.
2.6 These terms and conditions together with any printed on the reverse side hereof, contain the whole of the agreement between the Client and RPM in relation to the provision of Services and any previous agreements are hereby negated.
2.7 None of RPM�s agents or representatives are authorised to make any representations, statements, promise, warranty, conditions or agreements not expressed by the manager of RPM in writing, nor is RPM bound by any such unauthorised statements.
2.8 Any time specified by RPM for provision of the Services is an estimate only and RPM will not be liable for any loss or damage incurred by the Client as a result of any delay. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that RPM is unable to provide the Services as agreed solely due to any action or inaction of the Client then RPM shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
2.9 Any handling, installation, removal, assembly or erection of any kind included in the provision of the Services is undertaken on the basis that RPM accepts no liability whether in contract, tort, bailment or otherwise for any loss, damage or injury of any kind whatsoever, howsoever arising (including but not limited to, any negligence or breach of contract by RPM) caused or incurred or occurring during any part of such activity including any loss, damage or injury to any person, property or thing or any Goods.
3 Change in Control
3.1 The Client shall give RPM not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client�s details (including but not limited to, changes in the Client�s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by RPM as a result of the Client�s failure to comply with this clause.
4 Price and Payment
4.1 At RPM�s sole discretion the Price shall be either;
(a) as indicated on invoices provided by RPM to the Client in respect of Services provided;
(b) RPM�s current Price at the date of delivery of the Goods according to RPM�s current rates schedule; or
(c) RPM�s quoted Price (subject to clause 4.2) which shall be binding upon RPM provided that the Client shall accept in writing RPM�s quotation within thirty (30) days.
4.2 RPM reserves the right to change the Price:
(a) if a variation to RPM�s quotation is requested or required (including as to the nature or quantity of the Goods, nature and location of the collection and/or delivery address, facilities available for packing, loading or unloading, weather conditions or delays beyond the control of RPM, delivery times or date or otherwise, etc.);
(b) to reflect any increases to RPM in the cost of providing the Services which are beyond the reasonable control of RPM (including, without limitation, increases in the cost of labour or materials, foreign exchange fluctuations, administration costs (including photocopying, postage, etc.), or increases in fuel costs, taxes or customs duties, insurance premiums or warehousing costs, or for any other services, facilities or resources provided by RPM);
(c) for any delay over thirty (30) minutes in either loading and/or extended storage occurring other than from RPM�s fault.
4.3 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by RPM, which may be:
(a) on RPM�s receipt of the Goods;
(b) the date specified on any invoice, consignment note, airway bill, manifest, or any other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice, consignment note, airway bill, manifest, or any other form given to the Client by RPM.
4.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card � excluding Amex (plus a surcharge of up to five percent (5%) of the Price), or by any other method as agreed to between the Client and RPM.
4.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to RPM an amount equal to any GST RPM must pay for any provision of Services by RPM under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.6 Receipt by RPM of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then RPM�s ownership or rights in respect of the Services, and this agreement, shall continue.
4.7 Where the Client requesting or organising RPM to provide the Services is acting on behalf of any third party, and that third party is intended to be responsible for the payment of the Price, then in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Price as if they had contracted for the provision of the Services on their own behalf.
5 Provision of the Services
5.1 RPM is not a �Common Carrier� and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by RPM subject only to these conditions and RPM reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
5.2 The Client authorises RPM (in its discretion at any time without notice to the Client) to:
(a) license or sub-contract all or any part of its rights and/or obligations, including using the services of others where necessary to ensure safety of other road users and property and/or compliance with lawful authority requirements and/or Police or private escorts, road closures and/or transport control, and using specialist equipment such as special cooling, etc.;
(b) deviate from the usual, customary, intended or advertised route (whether or not the nearest and/or most direct and/or customary) or manner of carriage of Goods that may be deemed reasonable or necessary in the circumstances, including stay at any place whatsoever once or more often in any order backwards or forwards and/or store the Goods at any such place for any period whatsoever;
(c) comply with any order or direction or recommendation on loading, unloading, departure, routes, place or call, stoppages, destination, arrival, discharge, delivery or otherwise whatsoever given by any lawful authority.
5.3 The Client acknowledges and agrees:
(a) RPM contracts with the Client both on its own behalf and on the behalf of RPM�s servants, agents and subcontractors, and the Client undertakes that the Client will not make any claims against such servant, agent or subcontractor which may impose upon any of them any liability whatsoever in connection with the Goods or the provision of the Services, whether or not arising out of negligence or a wilful act or omission by any of them;
(b) in respect of any clause herein which excludes, or in any way limits, the liability of RPM in respect of the Services, RPM, in addition to acting for itself, is acting as an agent of, and trustee for, each of its employees and also any other person or company with whom RPM arranges for the carriage of the Goods (and the employees of such person or company) so that these parties are parties to this agreement in so far as to the exclusions or indemnities that are contained herein are concerned and, in so far as may be necessary to give effect to this clause, RPM will hold the benefit of these terms and conditions for its employees and so any such person or company and their employees;
(c) the Client shall indemnify RPM against:
(i) the consequences of such claim or allegation thereof;
(ii) all claims or demands whatsoever by whomsoever made in respect of any loss, damage, or injury howsoever caused whether or not
5.4 RPM�s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and despatched from the Client�s premises or despatched from third party premises as directed by the Client in order to fulfil the carriage of the Goods.
5.5 In addition to clause 4.2, RPM reserves the right to change the Price where the Price is calculated by weight, measurement or value, RPM may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
5.6 Should the Client require RPM to collect the Goods upon the Client�s behalf from a third party, any receipt RPM may give that third party when effecting collection is no more than a record of the collection an cannot be construed as confirmation of the quality or condition of the Goods.
6 Client-Packed Containers
6.1 RPM may open at the Client�s risk and expense any document or any packaging or container in which the Goods are placed or carried to inspect the Goods to determine their nature or condition or to determine their ownership or destination where any consignment note or identifying mark is lost, damaged, destroyed, defaced or otherwise.
6.2 Subject to any written special instructions to the contrary:
(a) the Client is solely responsible for the safe and proper packaging of the Goods (including the manner in which the Goods have been packed, the suitability of the Goods for carriage or manner or packaging and/or the condition of the packaging, etc.) and for any loss suffered or incurred by any person (including the Client) through any such failure;
(b) RPM is not obliged to pack the Goods or to provide any plant, power or labour required for loading and/or unloading of the Goods.
6.3 Goods requiring special appliances for loading and/or unloading are accepted for carriage only on condition that such appliances are made available by the Client at the collection and/or delivery address. If RPM is, without prior arrangement, called upon to load and/or unload such Goods, RPM shall not be liable to the Client for any loss whatever, howsoever caused, arising out of such loading and/or unloading and the Client shall indemnify RPM against all claims and demands whatsoever which could not have been made if such assistance had not been given.
7 Dangerous Goods
7.1 Unless otherwise agreed in advance in writing with RPM the Client or their authorised agent shall not tender for carriage any Dangerous Goods, nor anything which may encourage vermin or pests. The Client shall be liable for and hereby indemnifies RPM for all loss and damage and all additional charges and expenses incurred or sustained by RPM arising out of the carriage of the Goods, any false, misleading or inaccurate information or description of such Dangerous Goods, or any default or failure of the Client to declare the Goods and Dangerous Goods and provide full particulars thereof.
7.2 Where Dangerous Goods and/or anything likely to encourage vermin or pests are accepted for carriage the Client warrants that the carriage thereof is not prohibited and they have fully disclosed in writing to RPM before RPM has taken possession of the Goods the full particulars and description of the Goods, the nature and value of the Goods, all requirements of lawful authorities for such carriage and all other relevant information.
7.3 RPM may, at its discretion, at the Client�s expense and without compensation thereto or to any other person with an interest in the Goods and without prejudice to its charges or any other rights hereunder:
(a) remove, sell, destroy or otherwise dispose of any undeclared Dangerous Goods in its possession without being responsible or accountable for the value thereof to the Client or any other person with an interest thereto;
(b) dispose of or destroy or abandon or render harmless any Goods which RPM believes have deteriorated or become objectionable, unwholesome, infested with vermin or pests, or a source of danger or contamination, or any declared Dangerous Goods which are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damaging nature.
8 Client�s Responsibility
8.1 The Client expressly warrants to RPM that:
(a) the Client is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this agreement, and by entering into this agreement the Client accepts these terms and conditions for the Consignee as well as for all other persons on whose behalf the Client is acting;
(b) the Goods are fit for carriage, comply with any applicable legal requirements relating to the nature, condition and/or packaging of the Goods (and that the expenses of complying with such requirements or any other lawful requirements of any authority, other body or the company shall be at the Client�s cost) and are not Dangerous Goods;
(c) the person handing over the Goods to RPM is authorised to sign and accept these terms and conditions;
(d) it is solely the Client�s responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery;
(e) any packaging, labelling and/or marking by the Client accurately describes the Goods as to content, weight and method of handling or otherwise, complies with applicable dangerous goods codes, any other applicable laws and with any relevant Australian or international standards;
(f) at RPM�s discretion, where differences or omissions between address and/or contact information written on the consignment and/or other documentation or in any form of communication (including, but not limited to, email and telephone) provided by the Client to RPM, RPM shall reserve the right to choose which delivery information is followed and shall not be held liable for any associated costs in relocation of the Goods if this address is the incorrect one.
8.2 The Client shall indemnify RPM against any loss (including any fine, levy, charge or other monetary imposition to which RPM may become liable incidental to the carriage) damage, death or injury, including loss or damage to RPM�s containers and/or equipment arising out of:
(a) the Client�s unreasonable detention of any vehicle container or other equipment of RPM;
(b) any breach of the Client�s warranties under clause 8.1, including the failure to comply with clause e.
9.1 RPM will not, without the Client�s written instruction, and RPM�s written approval, insure the Goods, and:
(a) the Goods are carried and stored at the Client�s sole risk and not at the risk of RPM;
(b) subject to sub-clause c:
(i) RPM is under no obligation to arrange insurance of the Goods and it remains the Client�s responsibility to ensure that the Goods are
(ii) under no circumstances will RPM be under any liability with respect to the arranging of any such insurance and no claim will be made against RPM for failure to arrange or ensure that the Goods are insured adequately or at all;
(c) any such insurance is at the Client�s own expense. Where the Client�s instruction does not specify the class of insurance to be effected, RPM may in its discretion effect that class of insurance which it considers appropriate. Such insurance shall exclude all claims resultant from:
(i) wear, tear, moths, vermin, damp, mildew or loss of market;
(ii) loss, damage or expensed proximately caused by delay;
(iii)strikes, riots, civil commotions or malicious damage of the insured Goods;
(iv)gradual deterioration, rust or oxidisation unless due to or consequent upon fire, collision, overturning or other accident;
(v) any exclusion common to that class of insurance;
(vi)any other exclusion advised by the Client to RPM, detailed in the special instructions.
10 Delivery of the Goods
10.1 RPM is authorised to deliver the Goods at the Client�s nominated delivery address and it is expressly agreed that RPM shall be taken to have delivered the Goods in accordance with this contract:
(a) if at that address RPM obtains from any person a receipt or a signed delivery docket for the Goods; or
(b) that even if the Client is not present at the nominated delivery address, that it is deemed that delivery has occurred even without RPM obtained a signed receipt or delivery docket.
10.2 RPM may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.
10.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery for the purposes of this agreement.
11 Loss or Damage
11.1 Subject to clause 16 and any statutory provisions imposing liability in respect of the loss of or damage to the Goods, RPM shall not be under any liability for:
(a) any delay or any loss or damage to the Goods occasioned during carriage arising from any Force Majeure or any confiscation, requisition, destruction of or damage by order of any authority, or seizure under legal process;
(b) compliance with the directions of any person or lawful authority entitled to give them;
(c) deterioration, contamination (including any contamination of any grain or other cargo compromising the Goods), evaporation, breakdown or malfunction of any refrigeration or cooling equipment, wrongful delivery, misdelivery, delay in delivery or non-delivery of the Goods whenever or howsoever occurring (and whether the Goods are or have been in the possession of RPM or not)
(d) any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
(e) any act or omission whether wilful, reckless, negligent or otherwise of RPM, or its servants or agents or subcontractors;
(f) any latent defect or inherent vice or natural deterioration or wastage of the Goods or packaging;
(g) any act, omission or neglect of the Client, including insufficient or improper packaging, labelling or addressing, or failure to take delivery, or any handling, loading, storage or unloading of the Goods.
12 Conditions of Storage
12.1 RPM will prepare an inventory of Goods received for storage and will ask the Client to sign that inventory. The Client will be provided with a copy of the inventory. If the Client signs the inventory, or does not do so and fails to object to its accuracy within seven (7) days of receiving it from RPM, then the inventory will be conclusive evidence of the Goods received. The inventory will disclose only visible items and not any contents unless the Client ask for the contents to be listed, in which case RPM will be entitled to make a reasonable additional charge.
12.2 RPM is authorised to remove the Goods from one warehouse to another without cost to the Client. RPM will notify the Client of the removal and advise the address of the warehouse to which the Goods are being removed not less than five (5) days before removal (except in emergency, when such notice will be given as soon as possible).
12.3 The Client is entitled upon giving RPM reasonable notice to inspect the Goods in store but a reasonable charge may be made by RPM for this service.
12.4 Subject to payment for the balance of any fixed or minimum period of storage agreed the Client may require the Goods to be removed from the store at any time on giving RPM not less than five (5) working days� notice. If the Client gives RPM less than the required notice RPM will still use their best endeavours to meet the Client�s requirements, but shall be entitled to make a reasonable additional charge for the short notice.
12.5 The Client agrees to remove the goods from storage within twenty-eight (28) days of a written notice of requirement from RPM to do so. In default, RPM may sell any or all of the Goods as per clause 14.
13.1 The defences and exclusions of liability in these conditions general including clause 11 apply in any action (whether based on contract, tort, bailment or any other cause of action howsoever arising) against RPM even if it is resulted from an act or omission of RPM done wilfully or recklessly with knowledge that damage would or would probably result.
13.2 Nothing whatsoever done or omitted to be done or other conduct by RPM in breach of these terms and conditions or otherwise howsoever lawfully or unlawfully shall under any circumstances constitute either a breach going to the root of this agreement, or a deviation or departure therefrom or a repudiation thereof such as to have effect of disentitling RPM from obtaining the benefit of and enforcing all rights, defences, exceptions, immunities and limitations of liability and other protections herein which shall continue to have full force and effect in any event whatsoever.
13.3 Subject to clause 16, but without prejudice to any other provision hereof, this agreement and any other agreement RPM makes under its authority and any contract made by any person whom RPM has delegated such authority, shall be made by the Client or be allowed or admitted further subject to all terms, conditions and requirements which may be imposed on or with respect to the Goods or the carriage thereof (including storage by any port, harbour, dock, railways, shipping, airways or other lawful authority or person into whose hands it may become necessary to entrust the Goods or to whose control the Goods become subject in transit). All further or additional charges which may become payable on the Goods or their carriage as a result shall be payable in the manner as provided by clause 4.
14.1 RPM shall have a lien on any Goods owned by the Client and in the possession or control of RPM (and any documents relating to those Goods) for all sums payable by the Client to RPM, and RPM shall have the right to sell such Goods or cargo by public auction or private treaty after giving seven (7) days� notice to the Client. RPM shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods, from the proceeds of sale and shall render any surplus to the entitled person. Any such sale shall not prejudice or affect RPM�s right to recover from the Client any charges due or payable in respect of the carriage or such detention and sale.
15.1 Notwithstanding clauses 9 and 11, in the event that the Client believes that they have any claim against RPM then they must lodge any notice of claim for consideration and determination by RPM within seven (7) days of the date of delivery, or for non-delivery within seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
15.2 The failure to notify a claim within the time limits under clause 15.1 is evidence of satisfactory performance by RPM of its obligations hereunder.
16 The Commonwealth Competition and Consumer Act 2010 and Fair Trading Acts
16.1 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
16.2 RPM acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.3 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, RPM makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Services. RPM�s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.4 If the Client is a consumer within the meaning of the CCA, RPM�s liability is limited to the extent permitted by section 64A of Schedule 2.
16.5 If RPM is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then RPM may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
16.6 If the Client is not a consumer within the meaning of the CCA, RPM�s liability for any defective Services is:
(a) limited to the value of any express warranty or warranty card provided to the Client by RPM at RPM�s sole discretion;
(b) otherwise negated absolutely.
17.1 RPM may cancel any contract to which these terms and conditions apply or cancel the provision of the Services at any time before the Services have commenced by giving written notice to the Client. On giving such notice RPM shall repay to the Client any sums paid in respect of the Price. RPM shall not be liable for any loss or damage whatever arising from such cancellation.
17.2 In the event that the Client cancels the provision of the Services, then the Client shall be liable for any loss incurred by RPM (including, but not limited to, any loss of profits) up to the time of cancellation.
18 Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at RPM�s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes RPM any money the Client shall indemnify RPM from and against all costs and disbursements incurred by RPM in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, RPM�s contract default fees, and bank dishonour fees).
18.3 Without prejudice to any other remedies RPM may have, if at any time the Client is in breach of any obligation (including those relating to payment) RPM may suspend or terminate the provision of Services to the Client and any of its other obligations under the terms and conditions. RPM will not be liable to the Client for any loss or damage the Client suffers because RPM exercised its rights under this clause.
18.4 Without prejudice to RPM�s other remedies at law RPM shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to RPM shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to RPM becomes overdue, or in RPM�s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19 Personal Property Securities Act 2009 (�PPSA�)
19.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
19.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all:
(i) Goods that have previously been carried and any Goods that will be carried in the future by RPM to the Client; and/or
(ii) collateral (account), being a monetary obligation of the Client to RPM for Services that have previously been provided, and will be provided in the future by RPM to the Client.
19.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which RPM may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 19.3ai or 19.3aii;
(b) indemnify, and upon demand reimburse, RPM for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of RPM;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of RPM.
19.4 RPM and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
19.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
19.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
19.7 Unless otherwise agreed to in writing by RPM, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
19.8 The Client must unconditionally ratify any actions taken by RPM under clauses 19.3 to 19.5.
19.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
20 Security and Charge
20.1 In consideration of RPM agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
20.2 The Client indemnifies RPM from and against all RPM�s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising RPM�s rights under this clause.
20.3 The Client irrevocably appoints RPM and each director of RPM as the Client�s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client�s behalf.
21 Privacy Act 1988
21.1 The Client agrees for RPM to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by RPM.
21.2 The Client agrees that RPM may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client�s repayment history in the preceding two years.
21.3 The Client consents to RPM being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Client agrees that personal credit information provided may be used and retained by RPM for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client�s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
21.5 RPM may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
21.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that RPM is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client�s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and RPM has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of RPM, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client�s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.7 The Client shall have the right to request (by e-mail) from RPM:
(a) a copy of the information about the Client retained by RPM and the right to request that RPM correct any incorrect information; and
(b) that RPM does not disclose any personal information about the Client for the purpose of direct marketing.
21.8 RPM will destroy personal information upon the Client�s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
21.9 The Client can make a privacy complaint by contacting RPM via e-mail. RPM will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
22.1 The failure by RPM to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect RPM�s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which RPM has its principal place of business, and are subject to the jurisdiction of the Courts in that state.
22.3 Subject to clause 16, RPM shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by RPM of these terms and conditions (alternatively RPM�s liability shall be limited to damages which under no circumstances shall exceed the Price).
22.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by RPM nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 The Client agrees that RPM may amend these terms and conditions at any time. If RPM makes a change to these terms and conditions, then that change will take effect from the date on which RPM notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for RPM to provide Services to the Client.
22.6 Where RPM is unable, wholly or in part, by reason of any fact, circumstance, matter or thing beyond the reasonable control of RPM, including but not limited to any act of God, war, terrorism, strike, civil commotion, lock-out, general or partial stoppage, restraint of labour, industrial action, fire, flood, storm, etc. (�Force Majeure�) to carry out any obligation under this agreement and RPM gives the Client prompt notice of such Force Majeure with reasonably full particulars thereof and, insofar as is known, the probable extent to which it will be unable to perform or be delayed in performing that obligation and uses all reasonable diligence to negate or remove that Force Majeure as quickly as possible, that obligation is suspended, so far as it is affected by Force Majeure, during the continuance thereof. The requirement that any Force Majeure shall be negated or removed with all reasonable diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of RPM.
22.7 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.