1.1 Welcome to www.peakup.com.au operated by Peak Up Pty Ltd trading as Peak Up Transport (ACN 619 845 411) (Peak Up Transport).
1.2 Access to and use of the Website, or any of its associated products and/or services, are provided by Peak Up Transport. Please read these terms and conditions (the Terms) carefully.
(a) “Advertiser” means an advertiser who has been accepted to place an advertisement or listing on or through the Website;
(b) “Article” means the articles consigned by you under these Terms and for the provision of the Services;
(c) “Business Day” means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Australia;
(d) “Customer” means the person or entity with whom this contract is made;
(e) “Content” means anything an end user, subscriber or Advertiser submits to be included on the Website, including all material, links, words and images;
(f) “Dangerous Article” means any item which in Peak Up Transport’s sole discretion is or may become dangerous or hazardous, including, without limitation, any item which in Peak Up Transport’s sole discretion is or may become volatile, explosive, inflammable, radioactive, liable to damage any property, or hazardous to the environment or human heath;
(g) “Services” means the freight transport services facilitated through our Website or by way of telephone and/or email correspondence;
(h) “Service Provider” means:
(i) all companies which are related bodies corporate of Peak Up Transport within the means of that expression as defined in the Corporations Act 2001 (Cth);
(ii) railways operated by the Commonwealth or any State;
(iii) any other person, organisation, company or government or statutory body or authority with whom Peak Up Transport may arrange for the carriage of any Articles; and
(iv) any person who is now or hereafter an employee, agent, officer, servant or subcontractor of any of the persons referred to in (i), (ii) and (iii) in this clause.
(i) “Temperature Controlled Article” means any item which in Peak Up Transport’s sole discretion must be temperature controlled;
(j) “We”, “our” and “us” means Peak Up Pty Ltd trading as Peak Up Transport (ACN 619 845 411);
(k) “Website” means www.peakup.com.au; and
(l) “You” means each of the end user, subscriber or Advertiser (as relevant).
Acceptance of these Terms
3.2 If you are signing up on behalf of a company, trust or partnership, you warrant that you have the authority to act on behalf of this entity and bind the entity to these Terms.
3.3 Peak Up Transport reserves the right to review and change any of the Terms by updating this page at Peak Up Transport’s sole discretion. When Peak Up Transport updates the Terms, it will use reasonable endeavours to provide you with notice of update to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
4.1 Peak Up Transport offers a platform that allows Customers to hire Service Providers for the provision of the Services.
4.2 You agree and acknowledge that Peak Up Transport offers the Services in reliance that the Content provided by you is accurate and up to date. Peak Up Transport reserves the right to terminate the Service, at any time and without any notice, if the Content is misleading, false, deceptive, inaccurate and/or outdated.
4.3 By using the Services, you agree and acknowledge that:
(a) you are solely responsible for assessing the risks and implications of using the Services;
(b) we do not, at any time, guarantee whatsoever the success of the Services;
(c) we reserve the right to terminate the Services at any time at our sole discretion;
(d) Peak Up Transport will engage a Service Provider(s) to provide all or part of the Services;
(e) these Terms do not create a relationship of employment, trust, joint venture, partnership or other relationship of a fiduciary nature between you and us; and
(f) Peak Up Transport has entered into these Terms in reliance on the acknowledgements, warranties and representations given by you in these Terms.
5.1 To access the Services, you may be required to register an account on the Website (the Account) by filling an application form. On request, you may receive the application forms via email or to your mailing address.
5.2 To set up an Account, you may be required to provide personal information about yourself, including but not limited to, the following:
(a) full name;
(b) date of birth;
(c) email address;
(d) mailing address;
(e) telephone number;
(f) company name and Australian Business Number and/or Australian Company Number (if you are using the Website and accessing the Services on behalf of a company);
(g) bank account details;
(h) a preferred username; and
(i) a preferred password.
5.3 You agree and acknowledge that any information you provide to Peak Up Transport in the course of establishing up an Account will always be accurate, correct and up to date.
5.4 You agree and acknowledge that Peak Up Transport reserves the right to suspend and/or terminate your Account and/or ban you from accessing the Services without notice if you provide misleading, false, deceptive, inaccurate and/or outdated personal information.
5.5 You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Peak Up Transport; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are reside or from which you use the Services.
Your Account Obligations
6.1 You agree and acknowledge that:
(a) you are solely responsible for the activity that occurs under your Account;
(b) your Content is accurate, correct and up to date;
(c) you have the sole responsibility to protect the confidentiality of your password and/or email address. You agree to immediately notify Peak Up Transport at firstname.lastname@example.org of any unauthorised use of your password or email address or any breach of security of which you have become aware. You agree and acknowledge that use of your password by any other person may result in an immediate cancellation of the Services;
(d) you will use the Website and the Services as permitted by:
(i) the Terms; and
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
(e) access to and use of the Website, Services and Account is non-transferable and limited to you for the purposes of us providing the Services;
(f) any use of your registration information and Content by another person, or third party, is strictly prohibited;
(g) appropriate legal action will be taken by Peak Up Transport for any illegal or unauthorised use of the Website and Services;
(h) you must not:
(i) expressly or impliedly impersonate another Account at any time;
(ii) use the Services or Website for any illegal and/or unauthorised use;
(iii) provide false information including false names, address, contact details and Content;
(iv) use the Services or Website unlawfully or in a manner that violates these Terms and any applicable laws or regulations;
(v) circumvent or hack into any part if the Website to access data not intended for you;
(vi) interfere with the servers or networks connected to the Services and/or Website, or violate any of the policies, procedures or regulations connected to the Services and/or the Website;
(vii) engage in conduct or access the Website or Services in a way that will impose an unreasonable or large burden of traffic demands on Peak Up Transport;
(viii) create derivative works of the Services or an application substantially similar or a direct copy of the Services such that confusion may occur as to which the Services are operated by Peak Up Transport;
(ix) resell, distribute, transfer, modify, lease, encumber or export the software associated with the Website or the Services;
(x) resell, distribute, transfer, modify, lease, encumber or export the software associated with the Website or the Services;
(xi) copy of produce a substantially similar Service that was provided to you by us; and/or
(xii) automate the use of the Website or Services.
7.1 You agree and acknowledge that the Website, and any associated website we own, may use third party vendors and hosting partners to provide the necessary software, hardware, service and storage, as well as anything related to running the Website.
7.2 Unless otherwise specified, the Website and associated services are for your personal and own business use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained from the Website, which are not your own intellectual property.
8.2 You agree and acknowledge that where a request for the payment of the processing fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the processing fee.
9.1 Peak Up Transport will charge you 18% interest per annum (Interest) on the amount of the Service fee which is not paid within the time specified in these Terms or in accordance with the time period stipulated in any tax invoice (the Late Payment Fee).
9.2 If the Customer does not pay for the Services in accordance with the invoice and/or these Terms, Peak Up Transport may:
(a) suspend the Services until payment of the Service Fee and the Interest has been made;
(b) if after seven (7) days’ notice has been provided to the Customer of its failure to pay the Service Fee and Interest in accordance with the invoice and/or these Terms, and the Customer fails and/or refuses to remedy its default by making payment, then Peak Up Transport may terminate your Account with written notice; and
(c) proceed to recover the debt from the Customer without further notice.
9.3 If Peak Up Transport initiates debt recovery action against the Customer, the Customer acknowledges and agrees to be liable for all debt collection costs which includes any legal costs (on an indemnity basis), collection agency costs and any other expenses or disbursements, including but not limited to, Land and Property Information searches, Australia Securities and Investment Commission searches, process server fees, Expert Reports and court/tribunal fees. The Customer will also be liable to pay interest on the outstanding debt. Further, you authorise Peak Up Transport to share your personal information with a credit reporting agency to report the breach of these Terms and the non-payment of any money which is due and payable pursuant to these Terms.
10.1 If for whatever reason you are unsatisfied with the Services please contact Peak Up Transport at email@example.com outlining why you believe you are entitled to a refund of any fee so that we are able to determine whether a refund should occur.
10.2 Any refunds granted pursuant to this clause will be at Peak Up Transport’s absolute discretion.
11.1 The Website, the Services and all of the related products of Peak Up Transport are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties.
11.2 Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Peak Up Transport or its Service Providers.
11.3 All trademarks, service marks and trade names are owned, registered and/or licensed by Peak Up Transport, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are have an Account to:
(a) use the Website pursuant to the Terms; and
(b) copy and store the Website and the material contained in the Website in your device’s cache memory.
11.4 Peak Up Transport does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Peak Up Transport.
11.5 Peak Up Transport retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process) to you.
11.6 You are solely responsible for obtaining written permission before reusing any copyrighted material that is available on our site and Website. Any unauthorised use of the materials appearing on our Website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
12.1 You warrant that you are either the owner or the authorised agent of the owner of each Article and by using the Services, you accept these Terms as well as for all person on whose behalf you are acting for.
12.2 You warrant the accuracy of all information provided to Peak Up Transport, its employees, agents, officers, servants and Service Providers, in relation to the Articles or otherwise.
12.3 You warrant that you will not use the Services or Website for any illegal and/or unauthorised use.
Right to Refuse Carriage
13.1 Peak Up Transport is a platform that facilitates the provision of the Services. Peak Up Transport does not provide the Services and will therefore not accept liability as a common carrier.
13.2 Peak Up Transport and the Service Providers reserve the right to refuse to provide the Services in respect of any Article or class of Articles in its sole discretion.
Dangerous Articles and Temperature Controlled Articles
14.1 You agree and acknowledge that the Services are not provided for goods deemed to be Dangerous Articles and/or Temperature Controlled Articles.
14.2 In the event that items are found to be Dangerous Articles and/or Temperature Controlled Articles, they may be destroyed, returned to you, or otherwise dealt with at the sole discretion of Peak Up Transport and/or the Service Provider or any other person in whose custody they may be at the relevant time. If such items are accepted under arrangement previously made in writing, they may nevertheless be destroyed or otherwise deal with if they become dangerous to other goods or property.
15.1 The Service Provider is authorised to deliver the Articles to the address provided to the Service Provider by you for that purpose and it is expressly agreed that the Service Provider will be taken to have delivered the Articles in accordance with these Terms if at that address the Service Provider obtains from any person a receipt or a signed delivery docket for the Articles.
15.2 If the address provided to the Service Provider for the purposes of delivery is unattended at the time of delivery, or if delivery cannot reasonably be completed by the Service Provider (other than by reason of the negligence of the Service Provider) the Service Provider may deposit the Articles at that address (which shall be deemed to be compliant delivery within the terms of this Contract) or store the Articles and if the Articles are stored then you must pay for all costs and expenses incurred as a result of that storage and re-delivery.
15.3 It is agreed that the person delivering any Articles to the Service Provider is authorised to sign documentation evidencing or in respect of this Contract for or on behalf of you.
16.1 Prices quoted by Peak Up Transport are those that are applicable at the time of placing an order and are subject to change prior to acceptance. You agree and acknowledge that prices may be subject to waiting and loading time.
16.2 You agree and acknowledge that all of the Service fees must be made before the provision of the Services. Peak Up Transport reserves the right to cancel or suspend the Service in the event of you incurring a Late Payment Fee.
17.1 You expressly warrant that you have complied with all laws and regulations relating to the notification, classification, packaging, labelling, storage and carriage of the Articles (including without limitation the Australian Code for the Transport of Dangerous Goods by Road and Rail) and that the Articles are packed in a satisfactory manner, given their nature, so that they are capable of withstanding the ordinary risks of storage and carriage.
17.2 These Terms shall apply to the container or containers or other packaging containing the Articles and to any pallet or pallets delivered with the Articles to Peak Up Transport and/or the Service Provider. You will be responsible for the conformity of such containers, packaging and pallets with any requirements of Peak Up Transport and/or the Service Provider and for any expense incurred by Peak Up Transport and/or the Service Provider arising from any failure to so conform.
Storage and Security of Personal Data
19.1 Any information you enter on our Website or give us in any other way, from time to time, is protected by our secure server or by a third party on our behalf using an approved secure server. You may provide information and documents (Personal Data) to enable us to send information or process your claim. We may also collect additional Personal Data at other times in order to be able to deliver our Services, including but not limited to contact lists, GPS location, passwords, feedback or communication with Peak Up Transport customer support.
19.3 We may collect other information about your use of the Website, login information, data storage and other similar information for the purpose of improving our Services. At no time will we sell, rent or share your Personal Data with any third parties for marketing or similar purposes, without your express consent or unless required by law.
19.4 We do not keep your Personal Data when you terminate your use of the Website and our Services. We periodically purge the database to ensure any outdated information that may personally identify you is wiped from our database.
Disclosure of Your Information
20.1 We may from time to time need to disclose certain information, which may include your Personal Data, to comply with a legal requirement, such as a law, regulation, court order, subpoena, warrant, in the course of a legal proceeding or in response to a law enforcement agency request. Peak Up Transport may also use your Personal Data to protect the rights, property or safety of Peak Up Transport, its customers or third parties.
20.2 If there is a change of control in one of our businesses (whether by merger, sale or otherwise), or a sale or transfer of its assets, customer information, which may include your Personal Data, could be disclosed to a potential purchaser under an agreement to maintain confidentiality, or could be sold or transferred as part of that transaction. We would only disclose your information in good faith and where required by any of the above circumstances.
Termination of Services
21.1 The Terms will continue to apply until the deletion of your Account, or until terminated by Peak Up Transport as set out below.
21.2 If you elect to terminate, you must provide at least thirty (30) days’ written notice to Peak Up Transport.
21.3 Peak Up Transport may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) you have an outstanding Late Payment Fee;
(c) Peak Up Transport is required to do so by law;
(d) the partner, if any, with whom Peak Up Transport offered the Services to you has terminated its relationship with Peak Up Transport or ceased to offer the Services to you;
(e) Peak Up Transport is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the Service;
(f) the provision of the Services to you by Peak Up Transport is, in the opinion of Peak Up Transport, no longer commercially viable;
(g) if you have used the Services:
(i) in breach of any law;
(ii) in a way that is misleading or deceptive;
(iii) in a way which is unreasonable as determined by Peak Up Transport at its absolute discretion; or
(iv) in a manner which can or does bring Peak Up Transport into disrepute or could damage Peak Up Transport’s reputation as determined by Peak Up Transport at its absolute discretion.
21.4 Subject to local applicable laws, Peak Up Transport reserves the right to discontinue or cancel your access to the Services at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct damages Peak Up Transport’s name or reputation or violates the rights of those of another party.
21.5 Upon the termination of the customer’s account, all of the legal rights, obligations and liabilities that you and Peak Up Transport have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
21.6 You agree and acknowledge that Peak Up Transport holds no liability for any direct, incidental, special consequential or exemplary damages which may be incurred by you as a result of Peak Up Transport suspending or terminating your Account and/or the provision of the Services.
22.1 Your use of the Website and any of our Services is at your sole risk. The Website and Services are provided on an ‘as is’ and ‘as available’ basis. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis.
22.2 Peak Up Transport will not be liable for any special, or indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not be able to use the Services or the late supply of the Services whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
22.3 In all cases, our liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, is limited to the amount paid by you to us in the last one (1) month for any Service.
22.4 Our failure to exercise or enforce any right or provision of these Terms not constitute a waiver of such right or provision.
22.5 You agree and acknowledge that Peak Up Transport, its affiliates, employees, agents, contributors, agents, third party content providers and licensors will not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, or consequential loss, loss of profits, goodwill, or business reputations which may be incurred by you, however caused and under any theory of liability.
22.6 You agree and acknowledge that Peak Up Transport holds no liability for any direct, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing your Content on the Website.
23.1 Use of this Website is at your own risk and Peak Up Transport is not liable for any loss, damage or disclosure of any personal information that may result from its use. The Website accesses the minimum permissions required to enable the Website to function.
23.2 Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including Australian Consumer Law (or any liability under them) which by law may not be excluded.
(a) if you are not a Consumer (under the Australian Consumer Law), you agree that Peak Up Transport has no direct or indirect liability (including in negligence) to you in any way related to your use of the Website or the Services;
(b) if you are a Consumer (under the Australian Consumer Law), Peak Up Transport limits all its direct and indirect liability (including in negligence) to you to the Consumer Guarantees under the Australian Consumer Law; and
(c) where there is a breach of the Consumer Guarantees, then to the maximum extent permitted by law, Peak Up Transport’s liability to you is limited to resupply of the Services or payment of the cost of re-supplying the Services.
23.3 Subject to this clause and to the extent permitted by law:
(a) Peak Up Transport excludes all representations, warranties or guarantees, whether express or implied, by statute, trade or otherwise; and
(b) Peak Up Transport will not be liable for any claims, causes of action, damage or expenses arising out of or in connected with the Website or the Services, whether at common law, in equity, pursuant to statute, or otherwise.
24.1 You agree to indemnify Peak Up Transport, its affiliates, employees, agents, contributors, Service Providers and any third parties from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with:
(a) inaccurate, misleading, false or deceptive information provided by you;
(b) any breach of these Terms; or
(c) any direct or indirect consequences of you accessing, using or transacting on the Website or the Services or attempts to do so.
24.2 This indemnity will survive termination of these Terms.
25.1 If a dispute arises out of or relates to the Terms and the Services, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought):
(a) a party to the Terms claiming a dispute (the Dispute) that has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute (the Notice);
(b) on receipt of the Notice by the other party:
(i) the parties will endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree within seven (7) days of the Notice; and
(ii) if for any reason whatsoever, the Dispute has not been resolved within twenty-one (21) days after the date of the Notice, the Dispute has not been resolved the Parties must refer the Dispute mediation in accordance with the Australian Dispute Centre Guidelines for Commercial Mediation (as superseded). The venue of mediation shall be New South Wales, Australia;
(c) the Parties are equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation and without limited the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
(d) If the Dispute is not resolved within thirty (30) days from the matter being referred to mediation, either party may commence legal proceedings in a court of competent jurisdiction.
Governing Law and Jurisdiction
26.1 The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns. The venue of any legal proceedings is Sydney, New South Wales.
27.1 Peak Up Transport may provide any notice to you under the Terms by sending a message to your email address. The notice provided by Peak Up Transport to you by email shall be deemed to have been properly given on the date Peak Up Transport sends the email, regardless of whether you have received the email.
27.2 Unless specified otherwise, any notices provided by you to Peak Up Transport must be in writing and be delivered either in person, or via registered post to Level 5, 7 Eden Park Drive, Macquarie Park in the State of New South Wales 2127 . Notices provided by registered post shall be deemed to have properly given three days after they are posted (if posted).
28.1 If any part of the Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.
29.1 A waiver of any right, power or remedy under these Terms must be in writing signed by the party granting it.
29.2 A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
29.3 The fact that a party fails to do, or delays in doing, something the party is entitled to do under these Terms does not amount to a waiver.
30.1 Peak Up Transport may assign or transfer its rights or obligations under the Terms without your consent.
30.2 You may not assign or transfer your rights or obligations under the Terms without prior written consent of Peak Up Transport. A purported assignment without written consent will be deemed to be void and convey no rights.
31.1 Our Website and correspondence to you may contain links to other websites. These links are meant for your convenience only. Please be aware that Peak Up Transport is not responsible for the privacy practices of such other websites. We encourage our users to be aware, when they leave our Website, to read the privacy statements of each and every website that collects personally identifiable information. This privacy statement applies solely to information collected by this Website.
32.1 Peak Up Transport may also provide you with information and updates regarding our Website and changes to the law from time to time. Peak Up Transport may also make you aware of their new and additional products and services via email. This service is free and you can unsubscribe at any time.
Questions or Complaints
33.1 If at any time you have a question about what information we hold about you, wish to change your personal details or have a complaint or concern, please contact us at: firstname.lastname@example.org.
33.2 If you have a complaint regarding the provision of the Services provided to you, please contact us at email@example.com within seven (7) days from the date of the Service provided.
33.3 Please return periodically to policies for material changes.