1.1. Provision of Services FreightExchange is committed to providing the Services as outlined in these Terms and any relevant Statement of Work (SOW) and/or Broker Services that have been made available to the Customer and mutually agreed upon.
1.2. Standard of Performance FreightExchange will execute the Services with the necessary skill and diligence, ensuring compliance with all relevant laws and regulations.
1.3. Exclusion of Warranties Subject to Non-excludable Conditions Except for any Non-excludable Conditions, FreightExchange does not provide any representation or warranty that: (a) The Services will be without defects or errors. (b) The Customer’s use of the Services will be continuous or uninterrupted. (c) The Services will be suitable for the Customer’s specific purpose. (d) Utilising any Service will improve the financial performance or profitability for the Customer or any other party.
2.1. Commencement and Duration These Terms become effective on the Start Date and remain in force for the duration that FreightExchange provides Services to the Customer, unless: (a) A different term is specified in an applicable SOW. (b) The Customer has a month-to-month, no lock-in contract plan. In this case, the Customer can terminate at any time and will only be charged a pro-rata amount for the services used during the month of termination. (c) The Terms are terminated earlier according to the provisions within this document.
2.2. Automatic Renewal for Fixed Terms For services with a fixed term, unless terminated earlier by either party: (a) FreightExchange will give at least 30 days’ written notice before the term expires, confirming that the Services will automatically renew for another 12 months. This notice will also detail any changes to the Terms or SOW, including pricing. (b) If the Customer does not agree to the new terms or does not wish to renew, they can terminate the agreement without penalty by providing written notice to FreightExchange before the end of the fixed term. The termination will be effective upon the expiry of the fixed term. (c) If the Customer does not respond to the renewal notice, the Terms or the relevant SOW will automatically renew for an additional 12 months, including any variations mentioned in the notice. (d) Upon renewal, FreightExchange will continue to provide the Services, both parties must continue to comply with their duties under the varied agreement, and this automatic renewal clause will apply to all subsequent terms.
3.1. Grant of Licence Upon payment of the relevant Fee, FreightExchange grants the Customer a non-exclusive licence to: (a) Use the object code in the Software during the term of the agreement (excluding the Software itself, which is for FreightExchange’s exclusive use). (b) Communicate with the Software through the API to obtain Services, strictly for the Customer’s business operations.
3.2. Facilitation of BYO Shipments The Services allow the Customer and their End Users to place “Bring Your Own” (BYO) Shipments via the Platform. All BYO Shipments are submitted to the Carrier through the Customer’s account with that Carrier. As such, the FreightExchange platform only facilitates the booking, and FreightExchange does not function as an agent or partner of the Customer for any booking.
4.1. Customer Responsibilities The Customer is required to: (a) Possess all necessary authorisations, permits, and licences required by law to receive and use the Services. (b) Adhere to all applicable laws concerning the receipt and use of the Services. (c) Not conceal any information that could negatively impact the provision of Services. (d) Not instruct FreightExchange to perform any action that would cause a breach of any laws.
4.2. Malicious Code The Customer must ensure that no malicious or harmful code is sent to FreightExchange while using the Services.
4.3. Prohibited Items The Customer must not use the Services to send Prohibited Items. Sending Prohibited Items may result in non-collection or return without a refund, and return charges may apply. No claims for loss or damage can be made for Prohibited Items, and the Customer will be held liable for any damage caused to other shipments or property by sending such items.
4.4. Dangerous Goods The Customer acknowledges that failing to declare dangerous goods and/or Prohibited Items can lead to prosecution, and the responsibility for this declaration lies solely with the Customer.
4.5. Inspection of Shipments It is the Customer’s responsibility to check that the contents of their shipments are permissible and do not include any Prohibited Items or dangerous goods.
5.1. Responsibility for Integration Unless specified in the SOW, FreightExchange’s integration services are limited to providing the API or existing FreightExchange integrations for ERP, WMS, TMS, or eCommerce platforms.
5.2. Consequences of Integration Delays If the Customer’s failure to perform adequate integration (not caused by FreightExchange) delays the Services, the Services may be postponed. However, this does not affect the Start Date, and FreightExchange is entitled to receive monthly charges from the original Start Date.
5.3. End User Agreements The Customer must make reasonable efforts to ensure their End Users agree to content requested by FreightExchange, such as terms and conditions, privacy notices, and links to FreightExchange’s websites.
5.4. Accuracy of Information The Customer must ensure its systems can provide all required information accurately, completely, and in the format specified by the API.
5.5. Error Handling Procedures The Customer’s systems must implement robust error handling and retry procedures for communications via the API.
5.6. Limitation of FreightExchange’s Liability for Integration FreightExchange is not liable for any costs, damages, or losses resulting from the Customer’s failure to: (a) Prevent the transmission of harmful code. (b) Integrate as required. (c) Display required content to End Users. (d) Provide accurate and complete information. (e) Implement robust error handling.
6.1. Existing and New Carriers FreightExchange can integrate with Existing Carriers and may consider requests to integrate with New Carriers, which could incur an additional cost.
6.2. Provision of BYO Carrier Information For BYO Carriers, the Customer must supply (or ensure the Carrier supplies): (a) Rates and account information in a format reasonably requested by FreightExchange. (b) Any updates to this information at least one Business Day before the changes take effect.
6.3. Errors in Customer Provided Information FreightExchange is not responsible for errors, extra expenses, or delays caused by incorrect, outdated, or improperly formatted information provided by the Customer, unless FreightExchange contributed to the error.
6.4. Carrier System Issues FreightExchange is not responsible for errors, extra expenses, or delays resulting from: (a) Changes in a Carrier’s system that disrupt integration. (b) Errors or failures in a Carrier’s system. (c) Delays in a Carrier providing tracking information.
6.5. Consequences of Errors and Delays Involving Carriers The Customer acknowledges that errors and delays mentioned in clauses 6.3 and 6.4 may lead to: (a) Delayed or unavailable tracking information. (b) Carrier system failures to recognise manifested deliveries, leading to associated fees. (c) Delivery failures or delays.
7.1. Payment Obligations The Customer must pay FreightExchange the fees and any applicable expenses outlined in the relevant SOW.
7.2. Invoicing and Payment Terms Invoices are due on the same day they are issued unless otherwise agreed in the SOW. Certain software service fees may be payable monthly in advance; if the service is terminated, a refund for the unused portion of the month will be provided. Credit card or processing fees may apply.
7.3. Invoice Dispute If a Customer genuinely disputes an invoice, they must provide a written Dispute Notice with reasons within 14 days of the invoice date. After this period, all invoices are considered final. Paid invoices are also treated as final.
7.4. Withholding of Disputed Amounts The Customer agrees not to defer or withhold payments or deduct any amounts from the Company’s account.
7.5. Resolution of Invoice Disputes Both parties will use reasonable efforts to resolve any invoice dispute within 14 days of the Dispute Notice being issued.
7.6. Referral of Unresolved Disputes If a dispute is not resolved within 14 days, it will be handled according to the dispute resolution procedures in clause 22.
8.1. Consequences of Late Payment If the Customer fails to pay an amount by its due date (and it is not under dispute): (a) All outstanding sums owed to FreightExchange become immediately due. (b) FreightExchange may suspend or terminate the Service. (c) The Customer will be liable for all reasonable expenses, including legal fees, incurred by FreightExchange in enforcing payment.
From 1 July each year, the parties may review fees and hourly rates. (a) FreightExchange may propose an increase corresponding to the Consumer Price Index (CPI) or reflecting prevailing market conditions. (b) Any increase requires the Customer’s prior written agreement. (c) If agreement is not reached within 30 days, either party may terminate the relevant SOW with 30 days’ written notice, without penalty.
10.1. Reimbursement of Taxes and Duties The Customer must reimburse FreightExchange for all taxes and duties (like sales, use, excise, or transfer taxes) levied on the transactions under these Terms, excluding income taxes on FreightExchange’s profits.
10.2. Goods & Services Tax (GST) All fees are exclusive of GST unless stated otherwise. The Customer must pay an additional amount equal to the GST on any taxable supply at the same time the payment for the supply is due.
11.1. Ownership of FreightExchange IP FreightExchange retains ownership of all its intellectual property (FreightExchange IP), whether pre-existing or created during the provision of Services.
11.2. Customer Modifications The Customer must not create improvements or modifications to the Software or Platform without prior written consent from FreightExchange.
11.3. Licence to Customer IP The Customer retains all intellectual property rights in the information they provide to FreightExchange but grants FreightExchange an irrevocable, royalty-free licence to use and reproduce that information as needed to perform the Services.
11.4. Prohibition of Reverse Engineering The Customer must not attempt to reverse engineer, decompile, or circumvent the Software or Platform.
11.5. Notification of IP Infringement The Customer must promptly notify FreightExchange of any suspected or actual infringement of FreightExchange’s IP.
11.6. FreightExchange’s Liability for Third Party IP Infringement FreightExchange is liable for reasonable costs of any breach of third-party IP rights arising from the Customer’s use of FreightExchange IP, provided the Customer’s use was not negligent, followed instructions, and did not breach clauses 11.2 or 11.4. The Customer must also notify FreightExchange promptly and grant control of the defence of any claims.
12.1. Obligations of Confidentiality Both parties agree to hold any Confidential Information of the other party in the strictest confidence. They will not disclose it to third parties or use it for any purpose other than fulfilling their obligations under these Terms, without express written permission.
12.2. Injunctive Relief A breach of confidentiality may cause irreparable damage, so either party may seek injunctive or other equitable relief against a breach.
12.3. Permitted Disclosure FreightExchange may use the Customer’s name for marketing purposes but will not disclose commercial details, pricing, or other sensitive information.
13.1. Obligations Regarding Personal Data Any party receiving Personal Data must handle it in accordance with Data Protection Legislation, use it only for purposes connected with these Terms, and cooperate with reasonable requests from the disclosing party regarding data protection.
13.2. Handling of Data Protection Complaints Each party must promptly notify the other of any complaints received regarding the handling of Personal Data and comply with reasonable directions related to the complaint.
14.1. Dependence on External Factors The Customer acknowledges that the Services depend on factors beyond FreightExchange’s reasonable control, such as third-party communication links.
14.2. Exclusion of Liability for Force Majeure Neither party will be liable for delays or failures in performance caused by a Force Majeure event, except for payment obligations.
15.1. Technical Support FreightExchange provides reasonable technical support through its online Help Desk.
15.2. Limitations of Support Support may be interrupted by factors beyond FreightExchange’s control, and FreightExchange is not liable for any unavailability it did not cause or contribute to.
16.1. Aggregate Limit of Liability The maximum aggregate liability of either party during any 12-month period is limited to the minimum fees paid by the Customer to FreightExchange during that period, excluding fees for Broker Services.
16.2. Limitation for Breach of Non-excludable Conditions If FreightExchange is liable for a breach of a non-excludable condition implied by statute, its liability is limited to either resupplying the Services or paying the reasonable cost of having them resupplied.
16.3. Exclusion of Consequential Loss Neither party is liable for any indirect, special, or consequential loss or damage, such as loss of revenue, profits, or business opportunities.
16.4. Duty to Mitigate Loss Both parties must use reasonable efforts to mitigate any potential damages. A party’s recoverable loss will be reduced to the extent they caused or contributed to it.
16.5. Role of FreightExchange The Customer agrees that FreightExchange is a booking service provider and not the entity responsible for completing the booking. Therefore, FreightExchange is not liable for any loss, damage, or claim related to the booking itself (e.g., delivery delays or damage to goods), unless an error or defect in its Services caused or contributed to the issue.
17.1. Termination by Either Party Either party may terminate these Terms or an SOW: (a) For a material breach that is not remedied within 30 days of a written notice. (b) Immediately upon written notice if the other party experiences an Insolvency Event. (c) By providing 90 days’ prior written notice to the other party.
17.2. Immediate Termination by FreightExchange FreightExchange may terminate with immediate effect if: (a) The Customer fails to pay an overdue amount within 14 days of receiving notice. (b) The Customer engages in fraudulent, illegal, or unauthorised use of the Services. (c) Laws or regulations prohibit the provision of the Service. (d) A required consent or permit is rejected, cancelled, or lapses.
18.1. Obligations Upon Termination Upon termination, the Customer must: (a) Immediately stop using the relevant Service. (b) Promptly delete all copies of any software provided by FreightExchange. (c) Immediately pay all outstanding invoices and charges. (d) If requested, provide a signed statement certifying compliance with the deletion of software.
19.1. Initial Notification of Dispute A party claiming a dispute must provide written notice to the other party’s Representative, after which the Representatives will try to resolve it.
19.2. Referral to Senior Management If unresolved after 14 days, the dispute is referred to the CEOs or other senior executives of each party.
19.3. Mediation If still unresolved after another 14 days, the dispute will be submitted to mediation administered by the Australian Commercial Disputes Centre (ACDC).
19.4. Selection and Procedure for Mediation The mediation will be held in Sydney (unless otherwise agreed) and conducted according to ACDC Guidelines for Commercial Mediation.
19.5. Application for Urgent Injunctive Relief This dispute resolution process does not prevent a party from seeking urgent injunctive relief.
FreightExchange may subcontract its obligations but remains responsible to the Customer for the performance and liable for the acts and omissions of its subcontractors as if they were its own.
All written notices to FreightExchange must be addressed to: FreightExchange Pty Ltd 4/4 Campbell Street Clovelly NSW 2031 Australia finance@freightexchange.com.au
Neither party may assign, sublicense, or transfer these Terms or any SOW without the prior written consent of the other party, which cannot be unreasonably withheld.
If any provision is held to be unenforceable, the parties will substitute it with an enforceable provision that reflects the original intent and economic effect.
A failure or delay by either party in exercising a right does not constitute a waiver of that right.
These Terms may be varied by FreightExchange with at least 7 days’ reasonable notice. If the Customer does not accept the variations, they may terminate the agreement before the changes take effect.
The Customer agrees that FreightExchange may identify them as a customer in advertising and promotional materials.
These Terms are governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
In the event of a sale of the Company’s business or assets, this Agreement will remain in full force, with all rights and obligations transferring to the successor entity.
This Agreement, along with the SOW, Terms and Conditions for the Carriage of Goods, and Transit Warranty Terms and Conditions, constitutes the complete agreement between the service provider and its users.