terms & conditions

Virago Logistics eCommerce Fulfilment, Storage and Service Terms and Conditions


The Client requires the services, as described in the Quote (hereinafter "the Services") to be provided.

The Client wishes to hire an independent contractor to provide the Services to the Client.

The Service Provider has the necessary skills, qualifications and experience to provide the Services to the Client.

The Service Provider agrees to provide the Services to the Client on these Terms and Conditions.


OPERATIVE PROVISIONS

In consideration of the matters described above, and of the mutual benefits and obligations described in these Terms and Conditions, the receipt of which and the sufficiency of which are hereby acknowledged, the Service Provider and the Client hereby agree as follows:


1. DEFINITIONS

"ACL" means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth)

"Claims" means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise

"Client" means the party named on the front page of the Quote

"Commencement Date" means the date agreed to receive the client’s goods and commence providing the service

"Confidential Information" has the meaning described in clause 17 of this Agreement

"Fees" means fees to be paid by the Client to the Service Provider in accordance with the Quote together with access and handling service charges in accordance with clause 14b and or such other charges as may be agreed between the Parties for other tasks and or functions to be performed by the Service Provider for the Client in accordance with Clause 3b of these Terms and Conditions.

"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law

"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth)

“Insurance Policies" are the policies of Insurance the Client is required to obtain under clause 8 of these Terms and Conditions.

“Invoice” means the Service Provider’s invoice of Fees for the Services

“Invoice Date” means the date of the monthly invoice for the storage and service provided and issued on or about the 1st of each month.

"Losses" means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs and other expenses of any nature whatsoever

“Minimum Term” means the period of months as detailed in the Quote and being the minimum term of commitment period to storage by the client.

"Party" means either the Client or the Service Provider "Parties" means the Client and the Service Provider collectively
“Prohibited Goods” means any goods which are hazardous chemicals, illegal, stolen, flammable, explosive, environmentally harmful, damp, perishable, irreplaceable or which in the reasonable opinion of the Service Provider may cause harm to any person, property or the environment.

“Quote” means the eCommerce Fulfilment and Service Quote signed by the client
“Quote Date” means the date the Quote was signed by the Client

"Receiving Party" in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly)

"Services Location" means the premises of the Service Provider as set out in the Quote or such other premise which the Service Provider occupies from time to time.

"Service Provider" means Virago Logistics
"Services" means the services to be provided by the Service Provider to the client, the specific description of which are described in the Quote

"Supplying Party" in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly)

"Termination Date" means the date the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions are terminated by either party for any reason

“Term” means the period of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions including any Minimum Term

2. INTERPRETATION

In these Terms and Conditions, unless the context otherwise requires, the following rules of interpretation shall apply:

a. Words referring to one gender include every other gender.

b. Words referring to a singular number include the plural, and words referring to a plural include the singular.

c. Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.

d. Headings and titles are included in these Terms and Conditions for convenience only and shall not affect the interpretation of these Terms and Conditions.

e. Each Party must, at its own expense, take all reasonable steps and do all that is
reasonably necessary to give full effect to these Terms and Conditions and the events contemplated by them.

f. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.


3. SERVICES

a. In consideration for the Client paying the Fees, and subject to the provisions of these Terms and Conditions, the Service Provider hereby agrees to provide the Client with the Services as specified in the Quote.

b. The Services may also include any other tasks and or functions to be performed by the Service Provider for the Client which the Parties may agree from time to time, provided such agreement is in writing


4. LOCATION OF SERVICES

The Service Provider will perform the Services at the Services Location.


5. TIMING OF SERVICES

a. The Service Provider will commence providing the Services on the Commencement Date.

b. The Services will be completed at the expiry of the Minimum term or on a date following the Minimum term to be agreed between the Parties with 1 months’ notice in writing


6. TERM

a. The Term will commence on the Commencement Date and will continue until the Minimum Term has been completed, or such other time as provided in these Terms and Conditions.

b. The Minimum Term may be extended by written agreement of the Parties.

c. The Term will cease 60 days after the Invoice date if an Invoice remains unpaid by the Client.


7. PERFORMANCE OF SERVICES

a. The Services may be performed by the Service Provider personally, or by any employees, agents or subcontractors as chosen by the Service Provider in the Service Provider's sole discretion.
b. The Service Provider may not use any persons to perform the Services except for those persons expressly permitted by this clause, or except for any other persons expressly permitted in writing by the Client.

c. The Service Provider is solely responsible for any payments to the Service Provider's employees, agents, subcontractors or affiliates in relation to the provision of the Services under these Terms and Conditions, including any payments due for salary, wages, annual leave, sick leave, long service leave, superannuation and any other amounts to which the Service Provider's employees, agents, subcontractors or affiliates may be entitled in relation to the provision of the Services under these Terms and Conditions.

d. The Service Provider is solely responsible for ensuring compliance with any legislation which applies to the Service Provider's employees, agents, subcontractors or affiliates.


8. INSURANCE

a. The Client must insure their goods and obtain all relevant insurance policies of adequate cover ("the Insurance Policies"), including but not limited to:
i. insurance policies required by law
ii. insurance for damage, fire and theft
b. Upon the request of the Service Provider, the Client must provide to the Service Provider a copy of the Insurance Policies.


9. NATURE OF RELATIONSHIP

a. Nothing in these Terms and Conditions constitutes an employment relationship between the Client and the Service Provider or between the Client and the Service Provider's workers (such as the employees, agents or subcontractors of the Service Provider). No relationship of employer and employee is created by these Terms and Conditions.

b. Nothing in these Terms and Conditions creates a partnership, joint venture, fiduciary relationship, agency or other relationship between the Client and the Service Provider except for the contractual relationship which is provided in these Terms and Conditions.

c. The Parties hereby acknowledge and confirm that it is the express intention of all Parties that the Service Provider is acting in relation to the Client as a contractor and not as an employee, partner, joint venture partner, agent or otherwise.


10. CURRENCY

Unless otherwise specifically provided, all monetary amounts contained in these Terms and Conditions are in Australian Dollars (AUD).


11. FEES

a. In consideration for the Service Provider providing the Services in accordance with these Terms and Conditions, the Client agrees to pay the Fees to the Service Provider as follows:
i. Storage charges will be invoiced monthly in advance
ii. Charges for other services will be tallied at the end of each month and invoiced on or about the 1st of the following month.

b. any time which the Service Provider spends providing the Services, which is less than a month will be calculated on a pro rata basis.

c. the Parties acknowledge that the Fees are exclusive of any Goods and Services Tax ("GST") that may be charged by the Service Provider and that the Service Provider will be entitled to add GST to the Fees.


12. MATERIALS, COSTS AND DISBURSEMENTS

The Service Provider is entitled to charge the Client the Fees and is not entitled to charge, and the Client will not be liable for, any additional costs such as costs for materials or disbursements.

13. INVOICING

a. The Service Provider must provide the Client with a tax Invoice in accordance with the GST Law in relation to the Fees.

b. The Service Provider will be entitled to invoice the Client monthly.

c. Once the Service Provider provides a valid Invoice in relation to the Fees the Client must make payment within 7 Days.


14. CLIENT OBLIGATIONS

The Client:

a. must pay the Service Providers Invoice on or before the due date

b. is not permitted to enter the Service Location unsupervised. Supervised access may be arranged by providing 1 hour advance notice request for a site visit of goods in storage only. A staff member of the Service Provider must accompany the Client during the supervised visit. Supervised site visits are limited to 15 minutes. If the Client requires access to goods, the goods may be relocated to the staging area where the Client may make physical contact with the goods. The Service Provider is entitled to charge access and handling service charges in the event the Client has a site visit and requires access to goods.

c. must not include in the Clients goods any Prohibited Goods.

d. must, at the Client's own cost, take all reasonable steps to cooperate in good faith with the Service Provider during the period the Service Provider is providing the Services to the Client, including by providing to the Service Provider any information or documentation that the Service Provider reasonably requires in order to provide the Services, and make available to the Service Provider any facilities, resources or personnel that the Service Provider reasonably requires in order to provide the Services.

e. must ensure that the Client's employees, agents and other contractors take all reasonable steps to cooperate in good faith with the Service Provider during the period the Service Provider is providing the Services to the Client, including by making available any information, documentation, facilities, resources or personnel as are reasonably required by the Service Provider, in accordance with this clause.

f. will, in the event that the Client does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with the Service Provider as the Service Provider reasonably requires, within the time period that the Service Provider reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by the Service Provider in order to provide the Services.


15. RETURN OF PROPERTY

a. Upon the termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions, the Client will promptly pay the Service Providers Invoice before the return of the Clients stored property. Each party will return to the other Party any property, documentation, records or confidential information which is the property of the other Party.

b. The Service Provider may retain possession of the stored goods until all outstanding Invoices have been paid

16. FAILURE TO PAY INVOICES

a. If the contractual arrangements between the between the Client and the Service Provider as set out in these Terms and Conditions are terminated by the Service Provider due to the failure by the Client to pay the Fees, the Service Provider may after the expiration of 60 days from the date of the Service Provider’s final Invoice:
i. take possession of the Client’s goods
ii. sell the Clients goods by any means necessary
iii. deduct from the sale revenue all outstanding Fees plus any additional costs incurred for the removal and disposal of the goods
iv. Refund to the Client any excess revenue from the disposal of the goods, within a reasonable time

17. CONFIDENTIAL INFORMATION

a. Each Party ("the Receiving Party") shall keep the confidential information of the other Party ("the Supplying Party") confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under these Terms and Conditions. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party's obligations under the provisions of this clause, and must ensure that the Receiving Party's officers, employees and agents meet those obligations.

b. For the purpose of these Terms and Conditions, "Confidential Information" means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:

I. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;

II. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;

III. any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;

IV. any information derived from any other information which falls within this definition of Confidential Information;

V. any copy of any Confidential Information; and
VI. the fact that discussions are taking place between the Parties but does not include information which:
I. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;

II. is, or becomes, publicly available, through no fault of the Receiving Party;

III. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

IV. is provided to the Receiving Party by the Supplying Party and is marked "Non Confidential"; or

V. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.

c. If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.

d. This clause will survive the termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions.


18. QUALITY OF SERVICES

a. The Service Provider must perform the Services using reasonable care and skill for a Service Provider in its field.

b. The Service Provider must ensure that any end products or materials given by the Service Provider to the Client under these Terms and Conditions will not infringe on or violate the intellectual property rights or any other right of any third party.

c. This clause will survive the termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions.


19. LIMITATION OF LIABILITY

a. The Client may have certain rights under the Australian Consumer Law ("ACL"), or under other similar or related consumer protection laws.

b. The ACL (or any other similar or related consumer protection laws) may give the Client certain rights, warranties, guarantees and remedies regarding the provision of services by the Service Provider, which cannot be excluded, modified or restricted by the Service Provider ("Statutory Rights").

c. The Service Provider's liability to the Client is governed solely by the ACL (and any other similar or related consumer protection laws) and by these Terms and Conditions.

d. To the maximum extent permitted by law, the Service Provider excludes all conditions and warranties implied by custom, law or statute, except for the Client's Statutory Rights, and the Service Provider expressly disclaims all warranties of any kind.

e. The Client hereby agrees that the Client is solely responsible for determining whether the Services are fit for the Client's purpose.

f. Except in cases of death or personal injury caused by a Party's negligence, that Party's liability in contract, tort or otherwise arising through or in connection with the completion of obligations under these Terms and Conditions shall be limited to the previous months Fees paid by the Client to the Service Provider.

g. To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.

h. When the Client's Statutory Rights apply, to the maximum extent possible, the Service Provider's liability in respect of any claim is limited to, at the Service Provider's option:

I. the supply of the Services again; or

II. the payment of the cost of having the Services supplied again

i. The Service Provider's failure to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision.

j. This clause will survive termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions.

20. INDEMNITY

a. Except for any payment in settlement from any applicable insurance policy or policies, and to the extent permitted by law, each Party, (which for the purposes of this clause shall be referred to as the "Indemnifying Party" as the context requires) hereby respectively indemnifies, keeps indemnified, and holds harmless the other Party, as well as any of the other Party's employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:

I. any act or omission of the Indemnifying Party in connection with these Terms and Conditions; or

II. any act or omission of any of the Indemnifying Party's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with these Terms and Conditions; or

III. the Services or anything provided under these Terms and Conditions; or

IV. the relationship between the Service Provider and the Client.


b. The Indemnifying Party shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, willful misconduct or bad faith of the other Party or of any of the other Party's employees, agents, officers, representatives, affiliates, or permitted successors or assigns.

c. This clause will survive termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions.


21. WORKPLACE HEALTH AND SAFETY

a. The Service Provider is committed to providing a workplace to its employees, agents, subcontractors, affiliates or other visitors which is healthy, safe and clean.

b. The Service Provider is committed to creating, motivating and maintaining a positive workplace culture, particularly in relation to workplace health, safety, welfare and wellbeing.

c. The Service Provider must, at the Service Provider's cost, comply with all relevant Workplace health and safety policies or any other standards and regulations in relation to workplace health, safety, welfare and wellbeing as required by law.


22. WARRANTIES REGARDING LEGAL ADVICE

a. Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:

I. That the Warranting Party fully understands these Terms and Conditions.

II. That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by these Terms and Conditions and the Warranting Party has either:

A. taken such independent legal advice; or

B. elected not to take such independent legal advice.

III. That the Warranting Party has not been induced to enter into the contractual arrangements between it and the other Party as set out in these Terms and Conditions by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in these Terms and Conditions.

b. This clause will survive the termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions.


23. COMPLIANCE WITH LAWS

a. The Service Provider must, at the Service Provider's own cost, comply with all laws which relate to or affect the Services, these Terms and Conditions or the Service Provider, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any Federal, State or Local authorities, bodies or government departments ("the Laws").

b. The Service Provider hereby indemnifies, keeps indemnified and holds harmless the Client against any actions, costs, charges, claims or demands in relation to a breach of the Laws.

c. This clause will survive the termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions.


24. ENTIRE AGREEMENT

a. The Parties agree that the Quote and these Terms and Conditions represent the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect the Quote or these Terms and Conditions or their subject matter except as expressly provided in them.

b. The Parties each respectively agree that in entering into the contractual arrangements between them as set out in these Terms and Conditions, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in the Quote and these Terms and Conditions..

c. The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded to the maximum extent permitted by law.

d. No amendment to or modification of these Terms and Conditions, and no additional obligation or obligations in relation to them or their subject matter, will bind any Party unless evidenced in writing and signed by both Parties.


25. NOTICES

a. Any notice, demand, request or other correspondence in relation to these Terms and Conditions, which is required or permitted to be given in writing will be deemed validly given to the Client if delivered to the Clients address as detailed in the Quote.

b. Any notice, demand, request or other correspondence in relation to these Terms and Conditions, which is required or permitted to be given in writing will be deemed validly given to the Service Provider if delivered to the Service Location.


26. WRITTEN COMMUNICATION

a. In relation to any correspondence or notification which is required under these Terms and Conditions to be provided in writing from one Party to the other Party:

I. such notice is properly given if given to the other Party:

A. by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or these Terms and Conditions.

B. by facsimile to a facsimile address which the other party has nominated,
acknowledged or used in connection with the Services or these Terms and Conditions.

C. by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or these Terms and Conditions.

II. such notice is taken to be received:

A. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.

B. if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.

C. if sent by prepaid post within Australia, five (5) days after the date of posting.

D. if sent by prepaid post to or from an address outside Australia, twenty-one
(21) days after the date of posting.


27. TERMINATION

a. The contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions may be terminated by the Service Provider immediately, with no notice period, in writing if the Client fails to pay the Fees within sixty (60) days after the Invoice date.

b. Aside from termination by the Service Provider as a result of the Client's failure to pay the Fees as set out in the preceding sub-clause hereof, the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions may be terminated by either Party, upon notice in writing:

I. if the other Party commits a material breach of any of these Terms and Conditions that is not capable of being remedied within fourteen (14) days

II. if the other Party commits a material breach of these Terms and Conditions which is capable of being remedied within fourteen (14) days but is not so remedied with fourteen (14) days after a written request from the first Party is received;

III. if the other Party becomes unable to perform its duties under these Terms and Conditions, including a duty to pay or a duty to perform;

IV. if the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties.

V. with one months written notice following the expiry of the Minimum Term or if there is no Minimum Term with one months written notice


c. If the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions are terminated before the expiration of any Minimum Term, the Client hereby agrees to pay for all Services which would otherwise have been rendered during the Minimum Term, and for any and all expenditure due for payment after the termination date for commitments reasonably made and incurred by the Service Provider relating to the rendering of Services prior to termination date.

d. Any termination of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions under this clause shall not affect the accrued rights and liabilities of either Party under these Terms and Conditions or at law and shall be without prejudice to any rights or remedies that either Party may have under these Terms and Conditions.
e. Any these Terms and Conditions which are meant to continue after termination or which are meant to come into force at or after termination shall not be affected by this clause.


28. ASSIGNMENT

Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under these Terms and Conditions without the prior written consent of the other Party.

29. WAIVER

a. The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any of these Terms and Conditions will not be construed as a waiver of any subsequent breach of the same or other of these Terms and Conditions.

b. The failure or delay by either Party in exercising any right or remedy under these Terms and Conditions will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.

c. Any rights or remedies provided in these Terms and Conditions are cumulative and are in addition to any rights or remedies provided by law.

30. FORCE MAJEURE

a. In the event that circumstances arise which:

I. are outside of the reasonable control of a Party; and

II. materially affect that Party's performance of its obligations under these Terms and Conditions; and

III. could not have been reasonably foreseen or avoided;

(hereinafter "the Circumstances"), then that Party will not be deemed to be in breach of these Terms and Conditions and will not have any liability under these Terms and Conditions for any delays or failures in performance of that Party's respective obligations under these Terms and Conditions.

b. In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.

c. Either Party may terminate the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party.


31. APPLICABLE LAW
These Terms and Conditions subject to the laws of Victoria and each Party submits to the jurisdiction of the courts of Victoria.

32. SEVERABILITY

If any clause or sub-clause of these Terms and Conditions is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of these Terms and Conditions shall continue in full force and effect.

33. SURVIVAL OF OBLIGATIONS

At the termination, expiration or completion of the contractual arrangements between the Client and the Service Provider as set out in these Terms and Conditions, any of these Terms and Conditions which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.