1.1 In these Terms:
- "ACL" means the Australian Consumer Law Schedule of the Competition and Consumer
- "Big Post" means Big Post Pty Ltd (ACN 145 428 002);
- "Contract" means any contract for the provision of services by Big Post to the Seller;
- "Big Post Depot" means Big Post's warehouse designated for delivery of the Goods;
- "Booking" means a booking placed by the Seller for the warehousing of Goods for
the Seller's Customer;
- "Business Day" means Monday to Friday excluding public holidays;
- "Confidential Information" means:
- all processes and procedures, computer programs, specifications, manuals, notes,
diagrams, flow charts, drawings, applications, calculations, know how or any other
verbal information or written data concerning the Software (and its development
and use), the Services and the Business;
- all inventions, improvements, modifications, discoveries, concepts, ideas and all
(if any) other information relating to the Software and the Business;
- all business and financial information, sales and supply details, marketing strategies,
Customer databases, warehouser listings, business listings, information and databases
concerning the Business;
- any information which, by its nature, places or potentially places Big Post at an
advantage over its business competitors; or
- any information that would otherwise at law be considered secret or confidential
information of Big Post;
- whether or not marked confidential BUT does not include information which:
- at the time of first disclosure by Big Post to the Seller is already in the public
- after disclosure to the Seller, becomes part of the public domain otherwise than
by disclosure in breach of these Terms;
- "consumer" is as defined in the ACL and in determining if the Seller is a consumer,
the determination is made if the Seller is a consumer under the Contract;
- "Customer" means a customer of a Seller, whose Goods are the subject of the Services;
- "Dangerous Goods" means any Goods which are:
- hazardous, noxious, explosive, poisonous, corrosive or flammable; or
- capable of causing damage or injury to property, persons or animals;
- "Equipment" means Big Post's scanners and other resources and equipment provided
by Big Post to the Seller for the purpose of utilising the Services;
- "Force Majeure" means an act of God, natural disaster, fire, lightning, explosion,
flood, earthquake, subsidence, insurrection or civil disorder, military operations,
act of terrorism, government restraint, expropriation, prohibition, intervention,
direction or embargo, or industrial disturbance or any other occurrence beyond the
reasonable control of a party;
- "Goods" means the goods sold by the Seller to its Customer, for which the Services
are to be provided;
- "GST" means any tax imposed on the supply of goods or services, consumption or value
added tax, including without limitation, any tax imposed in the A New Tax System
(Goods and Services Tax) Act (C'th) as amended from time to time;
- "Intellectual Property" means the Trade Marks, Confidential Information, Software,
and all other copyright, patent, design or trade mark rights owned by or licensed
to Big Post and allowed to be used by the Seller for the purpose of utilizing the
- "Seller" means the person, jointly and severally if more than one, obtaining the
services from Big Post;
- "Service Fee” means the fees payable by the Seller to Big Post for each of the Services,
as set by Big Post and notified to the Seller from time to time.
- "Services" means the booking, warehousing and such other services agreed to be provided
by Big Post to Seller from time to time;
- "Software" means the software developed by Big Post in relation to the booking,
payment, storage, tracking and notification of Goods;
- "T+Cs" means the particular clause wording notified by Big Post to the Seller from
time to time;
- "Terms" means these Terms and Conditions;
- "Trade Marks" means all trade marks, names, logos, whether registered or not, relating
to Big Post's Business and the Software.
2. Basis of Contract
2.1 These Terms apply exclusively to every Contract and cannot be varied or replaced
by any other terms.
2.2 These Terms apply for as long as the Seller continues to place Bookings, and
Big Post continues to accept those Bookings, unless ended in accordance with clause
2.3 Big Post may vary or amend these Terms by written notice to the Seller at any
time. Any variations or amendments will apply to orders made by the Seller after
the notice date.
2.4 Big Post in its absolute discretion may refuse to accept any order from the
3. Appointment of Big Post
3.1 The Seller appoints, and Big Post agrees to be appointed, to provide the Services
in accordance with the Terms.
3.2 Big Post may offer or provide Services to other parties.
3.3 Big Post may, in its discretion, appoint agents, contractors or sub-contractors
to assist it to carry out the whole or any part of the Services.
4. Seller's Obligations
4.1 For as long as the Seller requests the Services, the Seller must:
- ensure that the T+Cs appear prominently and are incorporated into each contract
with its Customer;
- not make any promises, representations, warranties or guarantees to the Customer
or any third party with reference to the provision of the Services, except as are
accurate and not misleading, or which have been previously approved by Big Post
- place Bookings strictly in accordance with these Terms and Conditions;
- accurately and fully describe the Goods to Big Post;
- pack the Goods suitably for delivery to the Big Post Depot;
- print and display on all Goods despatched the required labels;
- obtain and maintain adequate insurance in relation to the delivery of the Goods
to the Big Post Depot;
- arrange, pay for and be responsible for all costs, charges and expenses arising
from or related to freight and delivery of the Goods to the Big Post Depot;
- accept the return of Goods previously delivered to the Big Post Depot, where such
Goods or their packaging have been damaged in transit or received in a damaged condition
- pay for all freight and other costs associated with return of Damaged Goods;
- accept (at the Seller's cost) the return of Goods previously delivered to the Big
Post Depot, where such Goods do not display the required labelling.
4.2 Big Post reserves the right to:
- refuse to accept delivery of any Dangerous Goods; and
- at its discretion, and without liability to the Seller or its Customer, remove,
destroy, dispose of or return the Dangerous Goods to the Seller.
4.3 If the Customer does not collect their Goods within 20 days of being advised
that the Goods are ready, Big Post may arrange for the return of the Goods to the
Seller, at the Seller's cost.
5. Obligations of Big Post
5.1 For as long as the Seller requests the Services and complies with its obligations
in these Terms, Big Post must:
- provide training to the Seller's designated staff regarding the use of the Software;
- answer any reasonable queries concerning the Software which the Seller may submit
to Big Post.
5.2 If Big Post cannot complete the Services by any estimated date, it will do so
within a reasonable time.
6. Service Fee
6.1 In consideration for the provision of the Services, the Seller agrees to pay
Big Post the Service Fee in the amounts and at the times specified when making the
6.2 Big Post reserves the right to refuse Bookings and to refuse to provide the
Services, where the Seller is in default of its payment obligations.
6.3 Big Post reserves the right to increase the Service Fee where the Seller has
understated the size or weight of the Goods.
7.1 If through circumstances beyond Big Post's control it is unable to provide the
Services, then Big Post may by written notice to the Seller:
- extend any date for completion; or
- cancel the Seller's Booking (even if it has already been accepted).
7.2 Subject to clause 7.3, a full refund will be given by Big Post to a Seller if
they choose to cancel their booking within 14 days from the original booking date,
provided that the Goods have not been received by the Big Post Depot.
7.3 If Big Post accepts the cancellation of a Booking by the Seller, then Big Post
is entitled to levy a cancellation fee.
7.4 A full or partial refund cannot be claimed if the Goods have been accepted or
rejected by the Big Post Depot.
8. Intellectual Property
8.1 Big Post licenses the Seller to use the Intellectual Property for the sole purpose
of utilizing the Services.
8.2 The Seller acknowledges Big Post's title to the Intellectual Property and must
- claim any right, title or interest in the Intellectual Property other than allowed
by these Terms; or
- register or record or attempt to register anywhere in the world any of the Intellectual
Property or derivations, improvements or variations, or aid or abet anyone else
in doing so; or
- create or have created any software or other systems using or taking advantage of
the Intellectual Property.
8.3 The Seller acknowledges that any derivation, variation, modification or improvement
of any of the Intellectual Property will be and remain the property of Big Post.
The Seller hereby assigns to Big Post any intellectual property rights it may obtain
in such derivation, variation, modification or improvement.
9. Warranty and Liability
9.1 The risk in the Goods and all insurance responsibility for transit, theft, damage,
storage and warehousing of the Goods remains with the Seller until the Goods are
confirmed received by the Customer whereby the risk passes to the Customer.
9.2 The Seller must indemnify Big Post and its employees, contractors, sub contractors
and agents against all loss and damage suffered as a result of providing the Services,
except where the Seller is a consumer and Big Post has not used due care and skill.
9.3 Notwithstanding clause 9.1, the Seller remains responsible for all liabilities
- in respect of the conduct of its business;
- in respect of or attaching to the Goods (including but not limited to any statutory
guarantees under the ACL),
- in respect of the Goods in transit and storage;
- in respect of any pallets or other delivery containers used to deliver the Goods
to Big Post;
- in respect of the merchantability, acceptability, suitability, fitness for purpose,
condition, description, and specification of the Goods to its Customer; and
- as a result of its breach of these Terms.
9.4 Except as these Terms specifically state, the Contract does not include by implication
any other term, condition or warranty in respect of the quality, merchantability,
acceptability, fitness for purpose, description or performance of the Services,
or any contractual remedy for their failure.
9.5 Big Post is not liable for any direct or indirect or consequential losses or
expenses suffered by the Seller or any third party, howsoever caused, including
but not limited to loss of turnover, profits, business or goodwill or any liability
to any other party, except to the extent of any liability imposed by the ACL.
9.6 Big Post is not liable for any concealed damage, contamination or evaporation
of Goods delivered to or held in the Big Post Depot.
9.7 The Seller is responsible for any loss or damage to Big Post's Intellectual
Property and Equipment as a result of the Seller's actions, omissions or negligence.
9.8 The Seller is responsible to indemnify Big Post and its employees, agents, contractors
or sub-contractors for any loss, damage or expense suffered or incurred as a result
of the delivery of Dangerous Goods.
9.9 If the Seller is deemed to be a 'consumer' under the ACL, then nothing in these
Terms restricts, limits or modifies the Seller's rights or remedies against Big
Post for failure of a statutory guarantee under the ACL.
10. Suspension, Termination and Default
10.1 Big Post may, in its sole discretion, suspend or terminate the provision of
any further Services to the Seller if the Seller is in breach of these Terms.
10.2 The parties may by mutual agreement terminate the Contract at any time.
10.3 The Contract may be terminated by either party by giving the other party 30
days' written notice.
10.4 A party ("Non-defaulting Party”) may immediately terminate the Contract by
written notice to the other party ("Defaulting Party") if the Defaulting Party:
- commits a breach of these Terms and fails to remedy such breach within 14 days of
written notice from the Non-defaulting Party requiring such breach to be remedied;
- acts in a way that is likely to substantially prejudice the reputation or goodwill
of the Non-defaulting Party;
- becomes insolvent or is made subject to an application for winding up or resolves
to wind up (other than for the purposes of a solvent reconstruction), or has a receiver
(or similar functionary) or an administrator appointed in respect of any of its
assets, or ceases to carry on business or enters into a composition or arrangement
with its creditors generally.
10.5 Big Post may immediately terminate the Contract by written notice if the Seller
uses Big Post's Intellectual Property in a manner not allowed under these Terms.
10.6 Termination of the Contract does not relieve a party of liability to the other
party in respect of the rights or remedies of the other party which have accrued
prior to termination.
11. Consequences of Termination
11.1 On service of a notice of termination pursuant to clause 10:
- Big Post will continue to provide the Services in relation to any Booking which
was communicated to and accepted by it prior to expiration of the notice of termination;
- Big Post may, at its discretion, cancel any outstanding Bookings.
11.2 On termination:
- all rights, privileges and licences granted to the Seller under these Terms immediately
- the Seller must cease using or exploiting Big Post's Intellectual Property; and
- the Seller must return in good order and condition all of Big Post's Equipment.
- Big Post must refund to the Seller any unused funds remaining in the Account.
11.3 On termination, the Seller will not be entitled to any compensation for any
loss suffered by the Seller resulting from the termination.
12. Confidentiality obligations
12.1 The Seller must not use, exploit nor divulge to any other person the Confidential
Information other than with Big Post's prior written approval.
12.2 The Seller must not make any written notes, copy, reproduce, retain, store,
record, computerise, document or duplicate any part of the Confidential Information
nor attempt to make any variations to any of the Confidential Information without
Big Post's prior written consent.
12.3 If the Seller is uncertain whether any information comprises part of the Confidential
Information then it must seek direction from Big Post before divulging the information
to any other person.
12.4 The Seller will be liable for any breach of this clause by its employees, agents
or contractors, if any.
13. Disclaimer of Partnership
13.1 Nothing in the Terms is to imply or constitute a partnership, franchise, joint
venture or employment relationship between the parties.
13.2 No party has the right or authority to assume, create or incur any commitment,
liability or obligation of any kind against, or in the name of, or on behalf of,
any other party except as expressly provided in these Terms.
14.1 The law of Victoria from time to time governs the Contract.
14.2 Big Post's failure to enforce any of these Terms shall not be construed as
a waiver of any of Big Post's rights.
14.3 If any Term is unenforceable it shall be read down so as to be enforceable
or, if it cannot be read down, the term shall be severed from the Terms without
affecting the enforceability of the remaining terms.
14.4 A notice must be in writing and handed personally or sent by facsimile, email
or prepaid mail to the last known address of the addressee. Notices sent by pre-paid
post are deemed to be received upon posting. Notices sent by facsimile or email
are deemed received on confirmation of successful transmission.
14.5 A notice given on a day which is not a Business Day is treated as given on
the next Business Day.
14.6 The Seller must pay on demand all of Big Post’s costs (including legal fees
on an indemnity basis) incurred in relation to the Seller's breach of these Terms.
14.7 Clauses 8, 9 and 12 continue to have effect and do not merge or end when the
14.8 An obligation of a party under these Terms (other than an obligation to pay
money) will be suspended during the time and to the extent that the party is prevented
from or delayed in complying with that obligation by an event of Force Majeure.
14.9 A party affected by an event of Force Majeure must give the other party written
particulars of the event of Force Majeure within 24 hours of becoming aware of the
relevant Force Majeure event and take reasonable steps to remove or mitigate the
relevant event of Force Majeure.