1.1. Welcome to www.peakup.com.au (the 'Website'). The Website for Transportation Services (the 'Services').
1.2. The Website is operated by Peak Up PTY LTD (ABN 92 619 845 411 002) also trading as Peak Up Transport. Access to and use of the Website, or any of its associated Services, is provided by Peak Up PTY LTD. Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
1.3. Peak Up Transport reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Peak Up Transport updates the Terms, it will use reasonable endeavours to provide you with notice of updates 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.
In these Terms and Conditions:
•"Articles" means the articles consigned by the Customer to the Carrier under this Contract.
•"Carrier" shall mean Peak Up Pty Ltd (ABN 92 619 845 411 002).
•"Customer" shall mean the person or entity with whom this Contract is made.
•"Contract" means the terms and conditions pursuant to which the Services are provided by the Carrier as set out in these Terms and Conditions.
•"Dangerous Article" means any item which in the Carrier's sole opinion is or may become dangerous or hazardous, including, without limitation, any item which in the Carrier's sole opinion is or may become volatile, explosive, inflammable, radioactive, liable to damage any property, or hazardous to the environment or human health.
•"GST Act" means the A New Tax System (Goods and Services Tax Act) 1999 (Cth), as amended.
•"Sub-Contractor" shall mean and include:
(a) All companies which are related bodies corporate of the Carrier within the meaning of that expression as defined in the Corporations Act 2001 (Cth);
(b) Railways operated by the Commonwealth or any State;
(c) Any other person, organisation, company or government or statutory body or authority with whom the Carrier may arrange for the carriage of any Articles; and
(d) Any person who is now or hereafter a employee, agent, officer, servant or sub-contractor of any of the persons referred to in 1, 2 and 3 above."Services" shall mean the operations and services provided by the Carrier or a Sub-Contractor under this Contract, including, as applicable, carriage and/or storage of Articles.
Headings do not affect the interpretation of these Terms and Conditions.
3.Acceptance of the Terms
You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Peak Up Transport in the user interface.
4.1. Where the option is given to you, you may make payment of bookings Fee by way of:
(a)Electronic funds transfer ('EFT') into our nominated bank account
(b)Credit Card Payment ('Credit Card')
4.2.All payments made in the course of your use of the Services are made using Stripe ('Stripe'). In using the Website, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the Stripe terms and conditions which are available on their website.
4.3.You acknowledge and agree that where a request for the payment of the booking 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 booking fee.
5.Copyright and Intellectual Property
5.1. 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. 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 contributors.
5.2. 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 a Member to:
(a)use the Website pursuant to the Terms;
(b)copy and store the Website and the material contained in the Website in your device's cache memory; and
(c)print pages from the Website for your own personal and non-commercial use.
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.
5.3.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),
5.4.You may not, without the prior written permission of Peak Up Transport and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
6.Right to refuse carriage
-Peak Up Pty Ltd is not a common carrier and will accept no liability as such. All Services are provided by the Carrier subject only to these Terms and Conditions and the Carrier reserves the right to refuse to provide Services in respect of any Article or class of Articles at its discretion.
- The Customer hereby authorises the Carrier to engage a Sub-Contractor(s) to provide all or part of the Services. Such Sub-Contractor shall be entitled to the full benefit of every exemption, limitation and condition afforded to the Carrier by these Terms and Conditions. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled, the Carrier shall be deemed to enter into this Contract for its own benefit and also as agent for the Sub-Contractor.
- The Customer undertakes that no claim will be made against any employee, agent, officer, servant or Sub-Contractor of the Carrier. If any such claim should nevertheless be made, the Customer shall indemnify the Carrier against all consequences thereof.
8.Method of carriage
- If it is expressly agreed that the Carrier will use a particular method of handling or storing of the Articles or a particular method of carriage, the Carrier will use reasonable endeavours to adopt that method but the Carrier reserves the right to handle, store or carry, or have the goods handled, stored or carried, by any other method or methods as the Carrier in its discretion thinks fit.
- The Customer hereby authorises any deviation from the usual route or manner of cartage and/or storage of Articles which may in the absolute discretion of the Carrier be deemed reasonable or necessary in the circumstances.
- The Customer warrants that the Customer is either the owner or the authorised agent of the owner of each Article and by entering into this Contract the Customer accepts these Terms and Conditions for the Customer as well as for all other persons on whose behalf the Customer is acting.
- The Customer warrants the accuracy of all information provided to the Carrier, its employees, agents, officers, servants and Sub-Contractors under this Contract, in relation to the Articles or otherwise.
- The Customer warrants not to use the Service for any illegal, immoral, obscene or fraudulent purpose or for any purpose prohibited by law.
11.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
11.2. Subject to this clause, and to the extent permitted by law:
(a) All terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) Peak Up Transport will not be liable for any special, 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 being 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.
11.3. Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Peak Up Transport make any express or implied representation or warranty about the Services or any Services (including the Services of Peak Up Transport) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of Peak Up Transport; and
(d) the Services or operation in respect to links which are provided for your convenience.
12.Limitation of liability
12.1. Peak Up Transport's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence),
12.2. You expressly understand and agree that Peak Up Transport, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
12.3. The Articles are at all times at the sole risk of the Customer unless expressly agreed by the Carrier in writing.
12.4. The Carrier shall not be responsible for any reason, whether in tort, contract or otherwise, for any loss of, damage to, deterioration of, misdelivery or failure to deliver, or delay in delivery of, Articles, or in relation to the provision of the Services generally, including without limitation in respect of chilled, frozen, refrigerated or perishable Articles.
12.5. Notwithstanding anything herein contained, the Carrier shall continue to be subject to any mandatory implied warranty provided by the Competition and Consumer Act 2010 (Cth) (as amended) if and to the extent that the said Act is applicable to this Contract.
12.6. To the extent permissible by law, the Carrier's liability under this Contract, including any liability implied by statute or resulting from negligence, breach of any term, condition or warranty is limited to, at the Carrier's sole option:
(i) the supply or re-supply (as the case may be) of the Services; or
(ii) the payment of the cost of having the Services supplied again, as reasonably assessed by the Carrier.
12.7. The Customer shall be liable for any damage, occurring during the provision of the Services, to the property of:
(i) the Carrier;
(iii) the Carrier's employees or agents;
(iv) any person; or
(v) any bicycle or vehicle (as the case may be),caused by the Customer or owner of the Article or any person acting on behalf of either of them or for which the Customer is otherwise responsible.
- The Carrier is authorised to deliver the Articles to the address provided to the Carrier by the Customer for that purpose and it is expressly agreed that the Carrier shall be taken to have delivered the Articles in accordance with this Contract if at that address the Carrier obtains from any person a receipt or a signed delivery docket for the Articles.
- If the address provided to the Carrier for the purposes of delivery is unattended at the time of delivery, or if delivery cannot reasonably be completed by the Carrier (other than by reason of the negligence of the Carrier) the Carrier 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 the Customer shall pay the Carrier for all costs and expenses incurred as a result of that storage and re-delivery.
- It is agreed that the person delivering any Articles to the Carrier is authorised to sign documentation evidencing or in respect of this Contract for or on behalf of the Customer.
- Prices quoted by the Carrier are those that are applicable at the time of placing an order and are subject to change prior to acceptance. Prices may be subject to waiting and loading time.
- The Carrier's charges shall be considered earned upon the Articles leaving the Customer's premises (or, if the Articles are delivered to the Carrier, leaving the Carrier's premises). The Customer will be and remains responsible to the Carrier for all of its proper charges incurred for any reason in the performance of the Services.
- Payment terms are 7 days from the date of invoice.
15.1. You agree to indemnify Peak Up Transport, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) 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 Your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
(c) any breach of the Terms.
- The Customer expressly warrants that the Customer has compiled with all laws and regulations relating to the notification, classification, packaging, labeling, 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.
- These Terms and Conditions shall apply to the container or containers or other packaging containing the Articles and to any pallet or pallets delivered with the Articles to the Carrier. The Customer shall be responsible for the conformity of such containers, packaging and pallets with any requirements of the Carrier and for any expense incurred by the Carrier arising from any failure to so conform.
- The Customer shall strictly comply with all laws and regulations relating to the safety of persons on or about its premises and shall fully indemnify the Carrier, its employees, agents, officers, servants and Sub-Contractors against all costs, liabilities or expenses arising out of the Customer's failure to maintain a safe environment for the Carrier, its employees, agents, officers, servants and/or Sub-Contractors.
18.Time restrictions on claims
- Any claim for loss or damage to the Articles shall be notified in writing by the Customer to the Carrier within 3 days of the date of delivery of the Articles to the Customer or the date by which the Articles should have been delivered to the Customer (whichever is the earlier), failing which the Articles shall be deemed to have been delivered in good order and condition in compliance with the terms of this Contract and any claim under this Contract shall be waived by the Customer and the Carrier shall have no liability whatsoever.
- The Carrier shall be fully discharged from all liability to the Customer in the event that the Customer does not commence Court proceedings within six (6) months of the date on which the Articles were received by the Carrier under this Contract.
19.Venue and Jurisdiction
The Services offered by Peak Up Transport is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
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.
21.Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any clause (or part thereof) of this Contract is or becomes unenforceable or invalid such clause shall be severed and that unenforceability or invalidity shall not affect the enforceability of the remainder of the clause or any other clause of this Contract.