Terms - Retailers - Parcelpoint

Last updated 20 October 2022

Retailer Terms & Conditions

1. Application and Interpretation

(a) These Retail Terms & Conditions, together with all of the Order Forms, are between Parcelpoint Pty Ltd (Administrator Appointed) (ABN 25 614 602 336) (we or us) and the Company (you) for the provision of certain services described in the Order Form (Services).

(b) You acknowledge that you have read and agree to the following and you agree to be bound by them:

(i) these Retailer Terms & Conditions; and

(ii) the terms and conditions contained in each Order Form relevant to the Services, all of which are expressly incorporated into these Retailer Terms & Conditions (as the context permits),

(collectively the Agreement).

(c) If you are entering into this Agreement online, by ticking the ‘I accept the Parcelpoint Terms and Conditions’ box and clicking the ‘Subscribe’ button at the ‘Confirmation’ page, you are deemed to have read and accepted this Agreement and enter into a binding contract with us. You acknowledge you have read and agreed to this Agreement and you understand its effect.

(d) This Agreement is structured so that each Order Form relevant to each of the Services is further governed by and subject to these Retail Terms & Conditions. Terms defined in the Order Form relevant to each of the Services shall have the same meaning in these Retail Terms & Conditions, unless expressly stated otherwise.

(e) We are only willing to supply Services on the terms set out in the Order Form relevant to each of the Services, and your continued receipt or use of the Services indicates your agreement to the Order Form, together with these Retailer Terms & Conditions. If there is any inconsistency between these Retail Terms & Conditions and the Order Form, the Order Form shall take precedence.

(f) By entering into this Agreement, you warrant that you have read, acknowledged and understood our Privacy Policy (http://parcelpoint.com.au/privacy).

2. Term and Termination

2.1 General

(a) This Agreement commences on the earlier of the: (i) date we first confirm to you that a Service has been activated; (ii) date when a Service is activated; and (iii) date as set out in the Order Form (Commencement Date).

(b) Either party may terminate or suspend this Agreement (without any liability) immediately on giving notice to the other party, if: (i) the other party materially breaches this Agreement (including failure to pay Fees) and the other party has failed to remedy such breach following the issue of a 30 day notice with an opportunity to rectify; or (ii) the other party breaches a material provision of this Agreement and the breach is not capable of remedy; (iii) the other party is placed into receivership, official management, liquidation, enters into any arrangement with its creditors, or otherwise becomes insolvent within the meaning of Corporations Act 2001 (Cth) (or equivalent legislation); or (iv) the other party becomes unable to pay its debts when due, or it ceases, or threatens to cease, to carry on business.

(c) We may also terminate or suspend a particular Service. Termination of a particular Service shall not affect the continuation of this Agreement relevant to other Services then in force, which shall remain operational in all other respects.

(d) On termination of this Agreement (wholly or partly): (i) we shall invoice you for amounts then due but unbilled; (ii) the licences referred to in this Agreement immediately come to an end; and (iii) you shall immediately destroy or return to us (at our option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.

2.2 No Subscription Plan

If you do not select a Subscription Plan:

(a) the initial term of this Agreement is 12 months (Initial Term); and

(b) this Agreement continues after the Initial Term for successive periods of 12 months each, unless

(i) a party provides the other party with written notice that it elects to terminate this Agreement at the end of the then current term, provided that such notice is delivered to the other party not less than 30 days prior to the end of the then current term; or
(ii) this Agreement is otherwise terminated on its terms,(collectively the Initial Term and all further terms are referred to as the Term).

2.3 Subscription Plan

(a) If you select a Subscription Plan, the Agreement:

(i) is entered into on a monthly rolling basis; and
(ii) continues after the first month for successive periods of 1 month each, unless:
- (A) a party provides the other party with written notice that it elects to terminate the Agreement no later than 2 Business Days before the end of the then current month (Termination Notice); or
- (B) the Agreement is otherwise terminated on its terms,
(collectively the first month and each further month is referred to as the Term).

(b) If you wish to terminate this Agreement by providing us with a Termination Notice, you must do so by emailing us at info@parcelpoint.com.au.

3. Subscription Plan

3.1 General

(a) This clause 3 only applies if you select a Subscription Plan.

(b) You must pay us the Subscription Fee for your Subscription Plan.

(c) If you wish to change your Subscription Plan subject to clause 3.1(d), you must do so by emailing us at info@parcelpoint.com.au.

(d) Unless otherwise agreed to by us in writing, if we accept in writing your request to change your Subscription Plan:

(i) your current Subscription Plan will remain active until the end of the calendar month in which we accepted your request; and
(ii) your new Subscription Plan will be activated on the first day of the following calendar month.

3.2 Retailer Paid Plan

(a) If you select a Retailer Paid Plan you must pay us the Fee Per Parcel for each Article we attempt to deliver to you if you have exhausted the Included Returns for that calendar month.

(b) If an Article delivery has been lodged with a Parcelpoint Agent and is later cancelled by you or your Customer (except where the cancellation is due to the negligence of the Parcelpoint Agent), we will not credit you with an Included Return.

(c) If you do not exhaust the Included Returns in any given calendar month, the Included Returns remaining for that calendar month will not be carried over to the next calendar month(s) and you will not receive any form of refund due to this reason.

3.3 Customer Paid Plan

(a) If you select a Customer Paid Plan:

(i) the Fee Per Parcel must be paid by your Customer or you; and
(ii) we will provide you with the Rebates at the Rebate Rate.

(b) If you do not exhaust the Rebates in any given calendar month, the Rebates remaining for that calendar month will not be carried over to the next calendar month and you will not receive any form of refund due to this reason.

4. Fees and Payment

4.1 General

(a) Time for payment of the Fees shall be of the essence.

(b) Unless stated otherwise in the relevant Order Form, all Fees and other amounts payable will attract additional GST.

(c) We may set off any amounts due and payable under this Agreement against amounts payable by us, including any Rebates.

(d) We reserve the right to charge interest on overdue amounts at the annual rate of 2% over the Reserve Bank of Australia base rate ruling on the due date.

(e) We may by notice to you suspend your use of and access to the Services, or otherwise disable the Service from your website:

(i) if any Fees have not been paid by the relevant due date for payment, until all Fees and any interest have been paid in full; and
(ii) if we suspect there has been any fraudulent or unlawful activity associated with the payment of any Fees.

(f) Invoices may only be disputed if you by provide us with written details within 14 days of the invoice date, failing which the invoice shall be deemed accepted by you. You shall make payment of any undisputed portions of an invoice.

(g) Unless stated otherwise in the relevant Order Form, Articles processed are assumed to have an average of no more than 2.5kg per Article, based on the greater of Dead Weight and Volumetric Weight. If the average exceeds this in any given month, pricing will be reviewed and adjusted accordingly by us.

(h) We reserve the right to inform any relevant third parties (including any government enforcement agency or credit reporting agency) of any suspected fraudulent or unlawful payment activity.

(i) We may amend the Fees, at any time, by notifying you of a fuel surcharge or an annual increase reflective of the increase in CPI (ie Consumer Price Index for All Groups – the weighted average of the 8 capital cities of the states and territories of Australia as published by the Australian Bureau of Statistics, or any equivalent replacement index).

4.2 Subscription Plan

(a) This clause 4.2 only applies if you select a Subscription Plan.

(b) The Subscription Fee and any Fee Per Parcel (where relevant) will be due and payable on:

(i) the Commencement Date; and
(ii) the first date of each following calendar month during the Term,(each, a Payment Date).

(c) You authorised us to take payment of the relevant Fees from the credit card we have on file for you on each Payment Date.

(d) The Subscription Fee must be paid up-front for each calendar month.

(e) Each Fee Per Parcel must be paid in arrears on a monthly basis.

4.3 No Subscription Plan

The fees payable for each Service are set out in the Order Form relevant to each of the Services (as updated by us from time to time). The Fees are payable in Australian dollars within 14 days of the invoice date, unless stated otherwise in the relevant Order Form.

5. Customers

5.1 Application of clause 5

(a) In the event that the Company is acting in the capacity as a Retailer (as specified and defined as such in an Order Form), then it must comply with all of the terms contained in this clause 5 (by way of reference to ‘you’ in this clause 5). For the avoidance of doubt, nothing in this clause detracts from the obligation of the Company (when acting in such capacity as a Retailer) to also comply with the remaining terms of this Agreement (as the context permits).

(b) In the event that the Company is acting in the capacity as an Intermediary (as specified and defined as such in an Order Form), then:

(i) it does not need to comply with clause 5, but it must procure (as minimum terms in its agreement with each retailer (Flow Down Terms) that such retailer complies with the terms in this clause 5, as the context permits (as if references to ‘you’ in this clause 5 were references to such retailer in your agreements with each retailer). For the avoidance of doubt, nothing in this clause detracts from the obligations of the Company (when acting in such capacity as an Intermediary) to comply with the remaining terms of this Agreement (as the context permits);
(ii) the Company will ensure that the Flow Down Terms with each retailer includes a term whereby the retailer acknowledges that we are entitled, as a third party beneficiary, to independently enforce the relevant provisions under the Company’s agreement with each retailer insofar as it relates to the Services and the Software;
(iii) the Company will ensure that the Flow Down Terms cease and no longer have any effect when this Agreement or an Order Form comes to an end (as the case may be); and
(iv) it is acknowledged that the Company has the relationship with such retailer, and we do not have a relationship with, nor are we liable to, such retailer (and nothing in this clause or otherwise should be construed as such).

5.2 Customer Promotion

(a) You will offer the Services to Customers via the Retailer Site(s) and other relevant channels, and will communicate information on the Services in accordance with the applicable user guides and other documentation as communicated or directed by us from time to time.

(b) You will ensure that any fees payable by the Customer for using the Services are communicated accurately and in accordance with the relevant Order Form, or as otherwise updated by us from time to time.

(c) You will clearly and prominently mark the Services as being provided by ‘Parcelpoint’ and prominently display the Parcelpoint logo on the Retailer Site(s) wherever a Service is offered, as provided by us. We license to you the Parcelpoint logo and brand solely for this usage during the Term.

(d) You will allow us, on a royalty-free basis, to use Retailer’s brand and logo on our website and marketing collateral for the purposes of identifying the availability of Services via the Retailer Site(s).

5.3 Customer Terms of Use and Data

(a) You must ensure Customers are at least 18 years of age when completing an order, or they otherwise do so via a guardian.

(b) We may collect data of Customers, such as:

(i) the Customer’s personal information;
(ii) other information that can be used (together with other information or data) to personally identify Customers; or
(iii) browsing, ordering and purchasing data and customer analytics, including through widgets integrated into the Retailer Site(s).

(i) any personal information that is disclosed to us (including pursuant to clause 5.3(b)) has been collected in accordance with the Privacy Act 1988 (Cth);
(ii) you have authority to provide to us, or otherwise make available, such personal information and data as required in order for us to perform our obligations under this Agreement, including in order for us to collect and process each order, or as otherwise set out in the applicable user guides and technical documentation or our Privacy Policy (http://parcelpoint.com.au/privacy); and
(iii) you have obtained the informed consent of such individuals (who are the subject of the personal information) in order for us to do so.

(d) For Customer orders transacted on or via the Retailer Site(s) or other systems, you will ensure that each Customer has been given a chance to consider our Privacy Policy (http://parcelpoint.com.au/privacy) prior to completing an order, and is only able to complete such order once it has accepted the terms contained therein.

5.4 Customer Support

(a) You will provide the Customer with first line customer support in relation to the Services, based on the standard Q&A provided by us and any other support information provided by us from time to time, and referring more complex enquiries to us, in accordance with the Parcelpoint Support Agreement http://parcelpoint.com.au/help/retailer.

(b) We will provide customer support in relation to the Services in accordance with the Parcelpoint Support Agreement http://parcelpoint.com.au/help/retailer.

(c) In the event of loss or damage of an Article, either in-transit to or from a Parcelpoint location or while being held at a Parcelpoint location, you will provide the Customer with a replacement, refund or repair as appropriate and in accordance with your standard returns policy.

6. Click & Collect Services

6.1 Sender Responsibilities

You will ensure that Articles lodged with us:

(a) are properly and securely packaged and packed, including, without limitation, adequate and secure packing, wrapping and cushioning;

(b) do not exceed the agreed maximum size or weight, as outlined in the Order Form;

(c) are labelled as per the applicable user guides and technical documentation provide to you upon request, or as otherwise agreed in writing with us;

(d) are pre-advised or manifested electronically to us, including the standard customer and order data, as per the applicable user guides and technical documentation provided to you upon request.

6.2 Prohibited Goods

(a) We may refuse, in our absolute discretion, to carry, distribute or receive an Article if, in our opinion, the Article breaches our Terms of Prohibition.

(b) Without limiting clause 6.2(a), we may refuse, in our absolute discretion, to carry an Article if: (i) the Article is marked with any word or symbol that is likely to delay or misdirect its carriage; (ii) the envelope or wrapping of the Article has affixed to or printed on the outer surface any text or image which, in our opinion, could be considered offensive, threatening or defamatory; or (iii) the name and address of the person to whom the Article is directed have not been: (A) legibly printed on the largest surface or on a label securely attached on the largest surface of the Article so as to run parallel to the longest dimension of that surface; or (B) in any other case printed written on a label that is securely attached to the Article.

6.3 Dangerous Goods

(a) We will not accept or deal with any Dangerous Goods, unless we have first been notified of the nature, type and contents of the Dangerous Goods and we expressly agree to accept the Dangerous Goods.

(b) You are liable for, and indemnify us against, all losses, liabilities, penalties and costs (including legal costs) incurred by us or anyone else arising out of or in connection with: (i) you failing to notify us in advance of any Articles constituting or comprising Dangerous Goods; or (ii) us providing Services in respect of Dangerous Goods.

(c) You must comply with all applicable laws, regulations and industry codes in relation to the Dangerous Goods, including by providing us with full and accurate descriptions of the Dangerous Goods in any relevant consignment note.

(d) We may retain, destroy, dispose of, abandon, remove, render harmless, hand over to relevant authorities, or otherwise deal as we deem fit, any Dangerous Goods, in our absolute discretion, including if we consider that the Dangerous Goods present a risk of injury or death to persons or damage to the environment or other goods or property.

6.4 Carriage

(a) If you have elected to acquire a transport-inclusive Service from us, pursuant to an Order Form, then the freight and handling terms shall also apply as set out below.

(b) If collection by us is applicable, you will ensure that Articles are ready at the time agreed for collection, as per the relevant Order Form or as otherwise agreed in writing. If the Articles are not ready or no one is available to dispatch the Articles at the nominated collection time, then the driver or collection agent may leave without the Articles and you will be liable for the Minimum Collection Fee (as outlined in an Order Form).

(c) If you have elected to deliver Articles to Parcelpoint locations via third party means, pursuant to an Order Form, then you retain responsibility and risk in relation to managing, booking and otherwise dealing with the carrier(s) that you use (and any associated responsibilities or issues).

6.5 Customer Collection and Uncollected Goods

You acknowledge that:

(a) we will store Articles at the relevant Parcelpoint location until the expiration of the Maximum Holding Period (as outlined in the Order Form), or until collection by the Customer if this is sooner.

(b) when collecting their Articles, Customers are required to identify themselves as outlined in the relevant collection notification, for example by showing valid photo ID. In the event that a Customer does not meet the stated identification requirements then the Articles may be withheld.

(c) If an Article remains uncollected or unclaimed after the Maximum Holding Period has expired, then we may return the Article to you, at your cost based on the agreed Return To Sender fee as set out in a relevant Order Form.

6.6 Lost and Damaged Goods

In the event of loss or damage of an Article for which Fees are payable by you, pursuant to an Order Form, and provided such loss or damage occurs whilst the Article is in the possession of us, our agents or our authorised freight and handling suppliers (except where such loss or damage is caused or contributed by you or your agents), then we will reimburse you the agreed Parcel Loss & Damage Cover, where applicable as set out in a relevant Order Form.

7. Returns Services

7.1 Receiver Responsibilities

(a) You will accept delivery of Articles by us, or our freight and handling suppliers, to the nominated Warehouse Address, immediately following a visual inspection (which shall be conducted by you at the time of delivery) to ensure accepted Articles are not damaged.

(b) Immediately following such delivery you: (i) accept full liability for risk or damage or loss for such Articles, and (ii) retain responsibility for processing and implementing the returns (e.g. to provide a refund or exchange to the Customer). For the avoidance of doubt, should you not notify us at the delivery time of any damage or loss, then acceptance of such Articles shall be deemed to have occurred.

7.2 Carriage

If you have elected to acquire a transport-inclusive Service from us, for which Fees are payable by you, pursuant to an Order Form, then the Freight and Handling terms set out below shall also apply.

7.3 Other Carrier Suppliers

(a) You will provide us with adequate and correct data in relation to returns methods other than the Parcelpoint Returns Service (Other Carrier Suppliers), that you choose to offer via the Software, and you retain full responsibility for the accuracy of this information.

(b) You retain full responsibility and liability for risk or damage in relation to managing, booking or otherwise dealing with the Other Carrier Suppliers which may potentially be offered via the Software.

(c) You acknowledge that we, to the extent permitted by law, are excluded from all conditions, warranties or other terms implied by law and are not responsible for any Articles returned via Other Carrier Suppliers, or any act or omission of any Other Carrier Suppliers.

7.4 Lost and Damaged Goods

8. Software

8.1 Application of clause 8

(a) The terms set out in clause 8 will apply to your access to, and use of, the Software, where this option is specified and defined as such in an Order Form.

(b) In the event that the Company is acting in the capacity as a Retailer (as specified and defined as such in an Order Form), then it must comply with all of the terms contained in this clause 8 (by way of reference to ‘you’ in this clause 8). For the avoidance of doubt, nothing in this clause detracts from the obligation of the Company (when acting in such capacity as a Retailer) to also comply with the remaining terms of this Agreement (as the context permits).

(c) In the event that the Company is acting in the capacity as an Intermediary (as specified and defined as such in an Order Form), then: (i) the Company will comply with the terms of clause 8 and the Company must also procure (as minimum terms in its agreement with each retailer (Flow Down Terms) that such retailer complies with the terms in this clause 8, as the context permits (as if, in this clause 8, references to ‘you’ were references to such retailer, and as if references to ‘we’ were references to the Company in your agreements with each retailer, as the context permits); (ii) nothing in this clause detracts from the obligation of the Company (when acting in such capacity as an Intermediary) to comply with the remaining terms of this Agreement (as the context permits); (iii) the Company will ensure that the Flow Down Terms with each retailer includes a term whereby the retailer acknowledges that we are entitled, as a third party beneficiary, to independently enforce the relevant provisions under the Company’s agreement with each retailer insofar as it relates to the Services and the Software; (iv) the Company will ensure that the Flow Down Terms cease and no longer have any effect when this Agreement or the relevant Order Form comes to an end (as the case may be); and (v) it is acknowledged that the Company has the relationship with such retailer, and we do not have a relationship with, nor are we liable to, the retailer (and nothing herein or otherwise should be construed as such).

8.2 Use of Software

(a) We agree to integrate, implement and activate the Software as expressly agreed in a relevant Order Form.

(b) We grant you a non-exclusive, non-transferable, revocable licence during the Term to access the Software, on a subscription basis, for the purpose of processing your data in accordance with this Agreement.

(c) You must not (nor shall you allow any other person to do so) modify, copy, frame, mirror or reproduce the Software or any modification of it, nor shall you reverse assemble, reverse engineer, decompile, disassemble or make error corrections to, the Software or any modification of it (in whole or in part).

(d) You must ensure that the Software and modifications to it are protected against unauthorised access, use, damage, corruption and destruction.

8.3 Acceptance

(a) You must test the Software against the acceptance criteria provided by us. You must prepare all necessary test data specified in the acceptance criteria.

(b) The Software is accepted by you when the first of the following occurs: (i) you give us written notice that you have accepted the Software; (ii) you use the Software in a live, production or commercial environment; or (iii) 7 days pass after the testing is complete without you notifying us in writing that the Software has not been accepted and giving reasons why the Software does not meet the acceptance criteria.

8.4 Software Support

(a) We shall support and maintain the Software in accordance with support.parcelpoint.com.au and in the form of our standard support services and levels of support (Support Services).

(b) We shall have no obligation to provide the Support Services where faults arise from: (i) misuse, incorrect use of, or damage to, the Software; (ii) failure to maintain the necessary environmental conditions for use of the Software; (iii) use of the Software in combination with any equipment, data, system or other software not provided by us, or any fault in any such equipment, data, system or other software; (iv) relocation, integration or installation of the Software by any person other than us or a person acting under our express instructions; or (v) any breach of your obligations under this Agreement.

9. Freight and Handing

9.1 Provision of Freight and Handling Services

(a) We are authorised to deliver the Articles to the address given to us by you, or given on your behalf, or otherwise, to a Parcelpoint Agent (such party who receives the Article being referred to as the Recipient).

(b) We undertake to provide you with freight and handling services. Notwithstanding, we will use our best endeavours to deliver Articles in accordance with the terms of this Agreement, provided that where an Article is lodged for carriage and that Article does not comply with this Agreement, Parcelpoint is not obliged to deliver that Article and lodgement with us shall in no way constitute acceptance of the Article for carriage.

(c) In the event we fail to provide the freight and handling services in accordance with this Agreement, we will use reasonable endeavours to either correct any such non-conformance or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any such failure by us.

(d) We reserve to ourselves the complete freedom to decide upon the means, route and procedure to be followed in the handling, storage, delivery and transportation of the Article.

9.2 Carriage of Articles

(a) We may, at our absolute discretion: (i) carry Articles by the most convenient method we elect; and (ii) subcontract such carriage to a third party.

(b) To the extent permitted by law, we are not a common carrier and accept no liability as a common carrier, and we reserve the right to: (i) refuse to provide the Freight and Handling Services to you; (ii) refuse to carry any goods or Articles (including the manner in which the carriage is performed); or (iii) accept Articles of any particular class, character or nature whatsoever, at our sole discretion, whether before or after the carriage has commenced.

(c) We may also, at our sole discretion, open any document, envelope, package or other container in which goods or Articles are placed or packaged, or the goods or Articles themselves, to inspect the goods or Articles to determine the nature or condition of the goods or Articles or, where any consignment note or identifying document or mark is lost, damaged or destroyed, to ascertain the ownership, source or destination of the goods or Articles.

9.3 Refused or Undeliverable Articles

(a) An Article shall be deemed to be refused by the Recipient where, in our opinion: (i) the Recipient (or its representative) has refused, declined to accept, neglects or is unable to take Delivery of the Article; or (ii) the Article is insufficiently or incorrectly addressed or marked or is otherwise not identifiable.

(b) Where an Article is refused by, or undeliverable to, the Recipient, we may, at your cost, deliver back the Article to the Sender, provided that where the Recipient is a Parcelpoint Agent (and it is responsible for the Article being refused or undeliverable) such cost will be borne by us.

(c) Notwithstanding, an Article may be disposed of by us as follows: (i) pursuant to any court order or subpoena; (ii) pursuant to any requirements at law or of a regulatory authority, police force, customs service, prosecuting authority or commission of inquiry; (iii) if the Article constitutes, or is reasonably believed by us to constitute, evidence of a criminal offence or the Article contains Dangerous Goods.

(d) An Article that is undeliverable may be sold, destroyed, stored or otherwise disposed of, in such a manner as Parcelpoint deems fit and with or without notice. In the event of such a sale, we sell or otherwise dispose of such Article as principal and not as agent and we are not trustee of the power of sale.

10. Liability

(a) The Services and Software are provided without any guarantees, conditions or warranties as to accuracy, completeness, reliability or suitability and are provided on an ‘as is where is’ basis. We do not warrant that the Services and Software will be uninterrupted or error free, will meet your requirements, nor will they be free from external intruders or viruses. Any timeframes or dates in this Agreement (including in an Order Form) are provided as a guide or estimate only (and are not binding).Without limiting the foregoing, we will not be liable for any Loss arising in relation to any of the following (as the context permits): (i) an event, act or omission prior to delivery of the Articles by you (where you are responsible for delivering); (ii) an event, act or omission after collection of the Articles by, or delivery to, the Customer or you (as the context permits); (iii) lost Articles where there is no proof of delivery to us (or a Parcelpoint Agent); or (iv) managing, booking and otherwise dealing with third party carriers as contemplated in clause 6.4(c). No representation or warranty is given by us that all faults will be fixed or will be fixed within a specified period of time.

(b) To extent permitted by law, we, our agents, and each of their directors, employees and representatives, hereby expressly exclude: (i) all conditions, warranties and other terms which might otherwise be implied or imposed by custom, statute, common law or equity; and (ii) any liability for any Loss suffered by you, including Consequential Loss .

(c) Notwithstanding anything else, to the extent permitted by law of relevant jurisdiction (and in Australia, the Competition and Consumer Act 2010 (Cth)) and subject to clause 10(d), our liability is limited in our sole discretion to: (i) in the case of services – the supplying of the services again or the payment of the cost of supplying the services again; or (ii) in the case of goods – the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of repairing the goods. Except where Loss & Damage Cover is applicable (as set out in a relevant Order Form), you acknowledge that we have no responsibility for any damage or loss to the items or contents contained in an Article and you are solely responsible for the items or contents in an Article and we shall not be held liable or accountable for the items or contents in an Article.

(d) Notwithstanding anything else and without limiting foregoing, in no event shall our maximum aggregate liability, in respect of the Services or Software, or under or in any way connected with this Agreement, exceed: (i) insofar as liability relates to an Article – AUD$100 per Article that is the subject of the claim, or the cost price of the goods contained within the Article (whichever is the lesser); or ii) in all other circumstances – the amounts paid by you to us pursuant to this Agreement in the 3 months immediately preceding the date on which the claim giving rise to such liability arose. You shall indemnify us, our agents, and each of their directors, employees and representatives from and against all claims, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to, use of Services or Software by you, the Recipient, or anyone else, or otherwise as a result of this Agreement, or an act or omission of you or your agents, sub-contractors or employees.

(e) Where Loss & Damage Cover is applicable (as set out in a relevant Order Form), our liability for loss or damage arising from any of the following, will be limited to the amount of the Loss & Damage Cover: (i) damage to items or Articles, whether or not we have inspected the item; (ii) mis-delivery (including Delivery otherwise than to the Recipient), delayed Delivery, early Delivery, or failure to deliver any Article; or (iii) loss or damage to the contents of an Article whether concealed or otherwise, including, but not limited to, deterioration, contamination or evaporation of any Article, container, packaging, other property or thing.

(f) Notwithstanding anything else, we will not be liable for loss or damage arising from, or caused or contributed by: (i) the injury, illness or death of any person or damage to property (except for damage to the Article or its contents which is dealt with under clause 10(e)); or (ii) fragile items, glassware, dangerous or flammable items, non-working goods (such as faulty electronics), any other items prohibited by this Agreement or the Terms of Prohibition (including those items prohibited by the Parcelpoint dimension requirements), whether or not we have inspected the item.

(g) All the rights, immunities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances notwithstanding any breach by us of any terms contained in this Agreement.

(h) We shall be discharged from any and all liability whatsoever unless a suit is brought within 6 months of the provision of the Services, delivery of the Article, or when the Services should have been provided, or when the Article should have been delivered (as the context permits).

(i) You acknowledge that the Services are commercial in nature and constitute a business to business relationship between us and you.

(j) Notwithstanding anything else and subject to any requirements at law, we do not warrant that use of the Services will meet your requirements or anyone else’s requirements.

11. Intellectual Property

(a) Notwithstanding anything else, we retain all Intellectual Property Rights: (i) in the Software, together with computer programmes, computer programming method, code, interfaces, material, tools, applications, documents, presentations, specifications, data, know-how, processes, customer data (such as browsing, ordering and purchasing data and customer analytics), whether any of the foregoing existing now or at any time in the future, and anything else generated, created or developed, whether as improvements or otherwise, in course of providing (directly or indirectly) the Services or Software; and (ii) existing prior to the commencement of the Services (including, without limitation, our trade mark, logo and Software).

(b) You acknowledge that the Services may include third party software, open source software or third party intellectual property rights (Third Party IP). Any rights you may have to access Third Party IP shall be limited to extent of our ability to pass on such rights to you.

(c) In relation to any data, content, information or material provided by you (or on your behalf) to us, you warrant that: (i) they will not infringe the rights of any third party nor contravene any law or industry code; and (ii) you are authorised to provide them to us.

(d) In the event that the Company is acting in the capacity as an Intermediary (as specified and defined as such in an Order Form), then the Company will comply with the terms of clause 11 and must procure (as minimum terms in its agreement with each retailer) that such retailer complies with the terms in this clause 11, as the context permits. For the avoidance of doubt, in the event that the Company is acting in the capacity as a Retailer (as specified and defined as such in an Order Form), then the Company will comply with the terms of clause 11.

12. Confidentiality

(a) Save as required by law, you shall not disclose any confidential information relating to us or our affiliates, which you obtain during or arising out of this Agreement, the Services or Software, to anyone (except your employees on an as need basis for the purposes of this Agreement and only during the Term).

(b) You shall procure that anyone else receiving benefit of the Services, whether your employees or otherwise, complies with terms of this clause as if they were a party to this Agreement.

(c) We have the right to promote you as our partner (or similar) in marketing and promotional materials (including websites) and you hereby grant us a royalty-free licence to use your name, logo and trade mark for these purposes. The content of any media releases relating to this Agreement or our relationship shall be subject to the prior written consent of the parties (acting reasonably).

(d) You should keep full back up copies of your data and your Customers’ data.

13. General

(a) This Agreement, and the documents referred to in this Agreement, contain the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, and representations relating to the Services and the subject matter of the Agreement, including, but not limited to, those relating to performance or results that ought be expected from using Services. Notwithstanding, you shall also be bound by any of our policies or guidelines, as updated from time to time.

(b) This Agreement does not preclude or limit in any way our right to provide services of any kind or nature whatsoever to any person or entity we in our sole discretion deem appropriate or develop, for ourselves or others, materials that are the same as, or similar to, the Software.

(c) You must: (i) cooperate with us, including, but not limited to, providing us with timely access to data, information and personnel; (ii) promptly report faults to us; (iii) comply with all applicable laws, regulations and industry standards with respect to your activities and obligations; (iv) comply with all of our reasonable directions and guidelines advised from time to time; and (v) carry out your responsibilities in a timely manner. You acknowledge that the ability of us to provide the Services is dependent upon your full, effective and timely co-operation and decisions (which you agree to provide).

(d) We shall not be liable for any delays resulting from your failure to fulfil any of your obligations, or otherwise arising from an act or omission of you or your Customers or Recipients. We reserve the right to invoice you for any additional expenses reasonably incurred by us as a result of such delays.

(e) We shall not be responsible, nor have any liability, for any delay, suspension or failure arising out of an Uncontrollable Event. For the avoidance of doubt, nothing in this clause shall excuse you from any payment obligations under this Agreement.

(f) At all times during the Term, you must maintain insurance which is suitable and sufficient including: (i) product liability insurance for an amount of AUD$1million for any one claim and AUD$10 million in annual aggregation; and (ii) any insurance that you are required by law to maintain.

(g) This Agreement can only be varied by written agreement of the parties, provided that we may amend it, at any time, by notifying you, or by posting the amended terms on our website which you acknowledge shall constitute sufficient notice thereto and, in this respect, we encourage you to revisit these terms on our website on a regular basis. Your continued use of the relevant Service after the date of such change will constitute your acceptance of such update.

(h) A waiver of any right is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

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

(j) You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations.

(k) Nothing is intended to, or shall operate to, create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

(l) This Agreement and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of that State.

14. Definitions

Article means any matter or thing, and includes, for example, a packet, parcel or container, that is lodged for carriage in Australia, and which has a mass and dimensions not exceeding the limits established by us from time to time and not otherwise excluded by definition herein.

Company means the party entering into this Agreement with us, whether it is a Retailer or Intermediary (as specified and defined as such in an Order Form).

Consequential Loss means any indirect or consequential loss or damage incurred by you, your customers, Recipients or any other end user in connection with the Services or Software, or use of the Services or Software, including, without limitation, any liability for loss of income or revenue; loss or interruption of business; loss of profits; loss of anticipated savings or benefits; loss of or damage or corruption to data; loss of goodwill; loss of or damage to reputation; loss of capital; loss of customers; wasted management; downtime costs; and for any other loss or damage of any kind, however arising, even if foreseeable.

Customer means the customer or end user who uses the Parcelpoint Service and conducts an order, transaction or dealing, such as your customer or end user (which, for the avoidance of doubt, may be the Recipient or the Sender, as the context permits).

Customer Paid Plan means any Subscription Plan that requires your customer to pay the Fee Per Parcel except where specifically requested by you and accepted in writing by us.

Dangerous Goods means any noxious, dangerous, damaging hazardous, inflammable, radioactive or explosive goods, goods likely to harbour or encourage vermin or other pests, goods likely to otherwise cause damage or be dangerous in any manner, or any goods prescribed by any applicable local or international law or regulation to be dangerous.

Dead Weight means the actual weight of an Article, as calculated by weighing the Article on accurate scales.

Delivery means the delivery of an Article by handing or distributing the Article to the person that the Article is addressed to, to a person authorised by him/her to receive it, or to a person who presents himself/herself to be that person (it being acknowledged that we will require identification, such as photo or signature, of the addressee or the authorised person before effecting delivery).

Fee means any fees to be paid by you to us under this Agreement, including:

(a) the Subscription Fee;
(b) any Fee Per Parcel; and
(c) any other fee specified in the Order Form.

Fee Per Parcel means the fee to be paid to us by:

(a) you, if you select a Retailer Paid Plan; and
(b) your customer, or you if agreed to in writing by us, if you select a Customer Paid Plan, for each Article we attempt to deliver to you, specified in the Order Form.

Included Returns means the maximum number of Article deliveries lodged at or with a ParcelPoint Agent per calendar month that are included in your Subscription Fee and do not incur a Fee Per Parcel (which will be on a pro-rata basis if the Subscription Plan does not commence on the first day of the relevant month).

Intellectual Property Rights includes designs, copyright, trademarks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

Loss means any loss, cost, expense or damage, regardless of whether it is (a) direct or indirect; (b) present or future; (c) fixed or ascertained; or (d) arising under common law, statute or contract.

Order Form means an order form, the terms of which are agreed by you, completed and sent, or submitted, by you to us, specifying the terms and conditions for the relevant Services:

(a) if you agree to this Agreement in hard copy or PDF – in the form of a document (whether hard copy or electronic) headed ‘Order Form’ (or similar) issued by us;
(b) if you agree to this Agreement online – in the form of an online form relating to the Subscription Plan you select on the ‘Subscription’ page or any other relevant page (as directed by us from time to time); and
(c) any other form deemed acceptable and issued by us.

Parcelpoint Agent means an entity who is authorised by us to act as our agent for the purposes of providing the Services (as the context permits).

Privacy Policy means the ParcelPoint privacy policy found at http://parcelpoint.com.au/privacy (as amended from time to time) or any other webpage as directed by us from time to time.

Rebates means the maximum number of monetary rebates to be paid by us to you per calendar month for each Article delivery you book with us, specified in the Order Form (which will be on a pro-rata basis if the Subscription Plan does not commence the first day of the relevant month).

Rebate Rate means the value of each Rebate, specified in the Order Form.

Recipient is the person to whom the Article is addressed, or other recipient of the Article, as further set out in clause 9.1(a) (as the context permits).

Retailer Paid Plan means any Subscription Plan that requires you to pay the Fee Per Parcel.

Retailer Site(s) means the website(s), mobile application(s) or similar set out in an Order Form.

Sender is the person who sends or despatches the Article, whether it be you, a Customer, an intermediary or otherwise (as the context permits).

Software means the Parcelpoint technology, software platform, website, platform APIs, web toolkits and platform plugins, including where applicable all services made available via the foregoing.

Subscription Fee means the fixed monthly fee to be paid by you to us, specified in the Order Form (which must be paid on a pro-rata basis if the Subscription Plan does not commence on the first day of the relevant month).

Subscription Plan means a monthly subscription plan for the relevant Services, including the terms and conditions for the relevant Services, specified in the Order Form.

Terms of Prohibition means the terms of prohibited items as set out in http://parcelpoint.com.au/prohibited or our dimension requirements set out in an Order Form, or any other items or substances declared by us to be prohibited items from time to time.

Uncontrollable Event means an event that occurs outside of our reasonable control, including, but not limited to, acts of God, governmental actions, labour difficulty, strike, war, terrorism, fire, explosion, flood, storm, an act or omission of a third party, inability to obtain any materials, default or failure of performance provided by suppliers, subcontractors or others, postal or delivery delays, interruption of transportation, internet interruption or virus, breakdown, disruption or failure of software, hardware or communication network, loss or damage to any Article (and its contents) resulting from deterioration, dampness of atmosphere, extremes of temperature, ordinary wear and tear, or that which occurred or arose prior to or after the time when the Article is in our possession.

Volumetric Weight means the weight of an Article taking into account its length, width and height, calculated based on 250kg per cubic metre.