Effective August 2024
This document (the Services Terms) sets out terms and conditions that you must understand and requirements you must meet to use our Services. These Services Terms, together with the documents listed in clause 2(a) form your Services Agreement.
(a) We agree to provide you with the Services in accordance with the Services Agreement.
(b) You agree to comply with all Laws, the Services Agreement and any reasonable directions given by us.
(a) The Services Agreement is comprised of the following parts:
(i) the Special Conditions (if any);
(ii) the Details Schedule;
(iii) these Services Terms;
(iv) the Product Terms and Guide; and
(v) the Pricing Schedules.
(b) If there is any inconsistency between the parts above, the earlier mentioned part will prevail to the extent of that inconsistency.
3.1 Your payment obligations
(a) You must pay the Service Fees and any Additional Charges (for example, a fuel surcharge or administrative fee if applicable) in accordance with the payment obligations in the Details Schedule. Further information on when Additional Charges may apply to your Services can be found in the relevant Product Terms and Guide.
(b) We will invoice you on a monthly basis unless we notify you otherwise in writing.
3.2 Changes to Service Fee or Additional Charges
(a) We may amend the Service Fees and any Additional Charges by giving you written notice ("Price Notification") of at least 30 days ("Price Notification Period").
(b) If you do not accept the Price Notification you may terminate the Services Agreement or cease the relevant Service by providing us written notice at least 10 Business Days before the end of the Price Notification Period. The termination of the Services Agreement or cessation of the Service will be effective at the end of the Price Notification Period.
(c) You will be deemed to have accepted the Price Notification if we do not receive your written notice of termination at least 10 Business Days before the end of the Price Notification Period.
(d) Our right under clause 3.2(a) is in addition to our right to charge Additional Charges during a Force Majeure Event, in accordance with clause 9(c).
3.3 GST
(a) All stated prices and amounts payable under the Services Agreement are calculated excluding GST unless stated otherwise. You must pay an additional amount equal to the GST payable in respect of the taxable supply ("GST Amount") on receipt of a valid tax invoice.
(b) If in relation to a supply made under the Services Agreement an adjustment event occurs that gives rise to an adjustment, the price of that supply (including any GST Amount) will alter accordingly and where necessary a payment will be made to reflect the price adjustment.
(a) Subject to clause 4(b), we exclude to the maximum extent permitted by Law, all guarantees, conditions, and warranties, express or implied by Law, in respect of the Services.
(b) If any guarantee, condition or warranty applies or is implied into the Services Agreement pursuant to any Law (including the Competition and Consumer Act 2010 (Cth)), then where permitted by Law, our liability for breach of the guarantee, condition or warranty will be limited to either resupplying the Service, or paying the cost of resupplying the relevant Service and otherwise will be limited to the maximum extent permitted by Law.
(c) Subject to clauses 4(b), 4(d), any provision in a Product Terms and Guide that specifies otherwise, and other than as required by Law, you agree that we are not liable to you, in contract, tort (including negligence), bailment or otherwise in Law or equity for any Loss arising out of the provision of (or any failure to provide) the Services.
(d) Subject to clause 4(g), and any provision in a Product Terms and Guide that specifies otherwise, a party will beliable for Loss arising out of
(i) an injury to or death of any person caused by a negligent act or omission of that party; or
(ii) any fraudulent act, gross negligence or wilful misconduct of that party.
(e) You agree to indemnify us against an Indemnifiable Loss incurred by us arising from any breach by you of your warranties or obligations under the Services Agreement.
(f) Unless specified otherwise in a Product Terms and Guide, each parties’ liability to the other is reduced proportionately to the extent the other party, or its Representatives caused or contributed to the Loss.
(g) Unless otherwise specified in a Product Terms and Guide, neither party is liable to the other (including under the indemnity in clause 4(e)) for any Consequential Loss in connection with the Services Agreement.
(h) The limitations on our liability in this clause 4 are always subject to your rights under the Australian Consumer Law. Nothing in the Services Agreement is intended to limit your rights under the Competition and Consumer Act 2010 (Cth).
5.1 Intellectual Property Rights
(a) Subject to clause 5.2(b) and clause 6.2 each party must keep confidential, and must not use, other than in performing its obligations or exercising its rights under the Services Agreement, or disclose to any other person, any Confidential Information of the other party.
(b) A party may disclose the other party’s Confidential Information:
(i) to any employees, consultants, service providers or professional advisers where it is necessary to disclose the information for the purpose of performing that party’s obligations or exercising its rights under the Services Agreement;
(ii) with the consent of the other party, which consent may not be unreasonably withheld; or
(iii) as is necessary for it or its shareholders to comply with any applicable Law.
(c) A party disclosing Confidential Information under clause 5.2(b) must take all reasonably practicable steps to ensure that the person receiving the Confidential Information from it complies with clause 5.2(a).
5.2 Confidentiality
(b) A party may disclose the other party’s Confidential Information:
(i) to any employees, consultants, service providers or professional advisers where it is necessary to disclose the information for the purpose of
performing that party’s obligations or exercising its rights under the Services Agreement;
(ii) with the consent of the other party, which consent may not be unreasonably withheld; or
(iii) as is necessary for it or its shareholders to comply with any applicable Law.
(c) A party disclosing Confidential Information under clause 5.2(b) must take all reasonably practicable steps to ensure that the person receiving the Confidential Information from it complies with clause 5.2(a).
6.1 Privacy
(a) We handle Personal Information in accordance with the Privacy Act 1988 (Cth), the APC Act and the Australia Post Privacy Policy.
(b) You warrant that you have obtained all necessary consents required to enable us to lawfully use any Personal Information and data you provide to us to allow us to perform the Services.
6.2 Data
(a) You acknowledge that we use data collected or created by us in the normal course of providing the Services for improving our performance and services, improving health and public safety, generating reports, undertaking consumer, market and trend analysis (which findings may be used for a commercial purpose, subject to our compliance with clause 6.2(b) and performing our business functions.
(b) We undertake to use data as described in clause 6.2(a) in an appropriately aggregated and de-identified way. We will only disclose the aggregated and de-identified data in a manner which is consistent with our obligations under the Privacy Act 1988 (Cth), the APC Act and the Australia Post Privacy Policy.
7.1 Term
(a) The Services Agreement commences upon the Agreement Commencement Date in the Details Schedule and continues until the Agreement Expiry Date in the Details Schedule (if any) unless terminated earlier under this clause 7.
(b) Each Service will commence on or around the relevant Service Commencement Date in the Details Schedule andcontinue until the relevant Service Expiry Date in the Details Schedule (if any), unless ceased earlier.
(c) Where 1 or more (but not all) Services are ceased or have expired, the Service Agreement will continue to apply tothe remaining Services.
(d) Where all of the Services are ceased or have expired, the Service Agreement will be deemed terminated as at the date of termination or expiry of the final Service.
7.2 Termination for cause
(a) A party ("Non-defaulting Party") may terminate the Services Agreement or cease a Service immediately by giving written notice to the other party ("Defaulting Party") if the Defaulting Party commits a material breach of the Services Agreement (including any Product Terms and Guide) and:
(i) the breach is not remedied within 14 days after receipt of written notice from the Non-defaulting Party specifying the breach and its intention to terminate the Services Agreement or cease a Service by reason of such breach; or
(ii) the breach is not capable of remedy (as determined by the Non-defaulting Party, acting reasonably).
(b) In addition to our rights under clause 7.2(a), we may (at our discretion) immediately terminate the Services Agreement, or cease providing you a Service, by giving you written notice if a Termination Event occurs.
7.3 Termination for convenience
Either party may terminate the Services Agreement or cease a Service for any reason by giving at least 30 days’ notice in writing to the other party.
7.4 Following termination
(a) The termination or expiry of the Services Agreement or a Service will not extinguish or otherwise affect:
(i) rights of a party against the other which accrued before the termination or expiry;
(ii) the provisions of clauses, 4 (Liability & Limitation of Liability), 5 (IP& Confidentiality), 6 (Privacy & Data), and7 (Term & Termination); or(iii) any other provision of the Services Agreement, which is expressly stated to, or which by its nature should, survive termination or expiry.
(b) Upon termination or expiry of the Services Agreement, you must immediately pay us all outstanding amounts owed under the Services Agreement up to and including the termination or expiry date.
(a) We may, acting reasonably, suspend any Service immediately upon written notice to you:
(i) if your Business Credit Account is terminated or suspended;
(ii) if necessary to prevent actual or potential fraudulent or unlawful conduct; or
(iii) if necessary to ensure the safety of, or prevent loss, harm or damage to any person, property or the environment, (each a "Suspension Event").
(b) The Service will be suspended during any Suspension Event and may be resumed or we may exercise our right toterminate the Services Agreement in accordance with clause 7.2(b).
(a) Subject to complying with clause 9(b), if a Force Majeure Event affects a party ("Affected Party") that party is excused from performing its obligations under the Services Agreement (other than the obligation to pay money).
(b) The Affected Party must make reasonable endeavours to:
(i) give the other party prompt notice in writing of the Force Majeure Event including details of the Force Majeure Event and the extent to which it is prevented or delayed from performing its obligations under the Services Agreement; and
(ii) subject to clause 9(c), promptly overcome or mitigate the effect of the Force Majeure Event.
(c) Where we are the Affected Party, and the effect of a Force Majeure Event can be overcome or mitigated but at an additional cost, we may:
(i) continue to provide some, or all of the Services (even though we are excused from performance under clause9(a)); and
(ii) pass on the additional cost to you in the form of a new or amended Additional Charge, provided we give you reasonable prior written notice (being no less than 3 Business Days).
(d) Nothing in clause 9 will require the Affected Party to settle strikes or other labour disputes on terms contrary to its reasonable wishes.
(e) If the Force Majeure Event prevents the Affected Party from performing its obligations for more than 30 consecutive days, either party may immediately terminate the Services Agreement or permanently cease the relevant Service, by giving written notice to the other party.
We will, and will use commercially reasonable efforts to ensure our Representatives take reasonable steps to:
(a) comply with the Modern Slavery Act 2018 (Cth); and
(b) ensure there are no modern slavery (as that term is defined under Modern Slavery Act 2018 (Cth)) practices in our supply chains or in any part of our businesses.
We have a Sustainability Roadmap that is underpinned by the UN Sustainable Development Goals, including carbon reduction initiatives supporting Net Zero by 2050.
If a dispute arises, the parties must first try to resolve it by joint discussion between their Authorised Representatives for Notices (as set out in the Details Schedule). If the dispute is unable to be resolved between the Authorised Representative for Notices, the dispute must be referred to senior management of both parties. If within 10 Business Days (or such other time as the parties agree) of a party’s request to refer a dispute to senior management, the senior representatives have not met or the dispute remains unresolved, then either party may commence litigation to resolve the dispute.
13.1 Material amendment by Australia Post
(a) Subject to clause 13.2, we may amend or vary any Service or part of the Services Agreement (including a Product Terms and Guide) by giving you prior written notice (Amendment Notice") of at least 30 days' ("Amendment Notice Period").
(b) If you do not accept the Amendment Notice you may terminate the Services Agreement or cease the relevant Service by providing us written notice at least 10 Business Days before the end of the Amendment Notice Period. The termination of the Services Agreement or cessation of the Service will be effective at the end of the Amendment Notice Period.
(c) You will be deemed to have accepted the Amendment Notice if we do not receive your written notice of termination at least 10 Business Days before the end of the Amendment Notice Period.
13.2 Non-material changes to the Product Terms and Guide
We may make non-material changes and updates to the Product Terms and Guide at any time, without providing you prior notice, provided such changes do not have a material adverse effect on you in respect of the Services
13.3 Amendment by agreement
In addition to clause 13.1 & 13.2, the parties may amend or vary any part of the Services Agreement by agreement in writing, signed by both parties.
14.1 Notices
(a) Unless specified otherwise in a Product Terms and Guide, any notice, consent, approval, waiver or other communication (Notice) in connection with the Services Agreement must be in writing and hand delivered or sent by email, Registered Post or prepaid post to the address set out in the Details Schedule (or any alternative address given in writing to the sending party).
(b) A Notice will be taken to be received:
(i) if hand delivered or sent by Registered Post, on written acknowledgement of receipt by an authorised Representative of the recipient;
(ii) if sent by prepaid post, 6 Business Days after the date of posting (or 10 Business Days after the date of posting if posted to an address in another country);
(iii) if sent by email, the earlier of;
(A) when the sender receives an automated message confirming delivery; or
(B) 4 hours after the time sent (as recorded by the sender’s email server) unless the sender receives an automated message that the email has not been delivered.
(C) Any notice received on a non-Business Day or after 5.30pm on a Business Day is taken to be received on the next Business Day.
14.2 Sub-Contracting
We may engage Sub-Contractors to perform all or any of the Services in our absolute discretion. We remain liable for the acts or omissions of our Sub-Contractors.
14.3 Assignment
(a) You must not assign, novate or otherwise deal with the Services Agreement without our prior written consent (not to be unreasonably withheld). Any change of your ownership or change in your structure or control will be deemed to be an assignment.
(b) We may assign or novate or otherwise deal with the Services Agreement on 30 days’ written notice to you.
14.4 Waiver
Subject to any provision in the Services Agreement which specifies otherwise, a provision of the Services Agreement or a right created under the Services Agreement may not be waived or varied except in writing, signed by the parties.
14.5 Entire agreement
The Services Agreement and any other documents incorporated by reference in the Services Agreement, constitute the entire agreement of the parties about the Services and supersede all previous agreements, understandings and negotiations on that subject matter.
14.6 Severability
If the whole of, or any part of, a provision of the Services Agreement is deemed void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of the Services Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause 14.6 has no effect if the severance alters the basic nature of the Services Agreement or is contrary to public policy.
14.7 Execution
The Services Agreement may be executed electronically and in counterparts. All counterparts when taken together are 1 instrument.
14.8 Jurisdiction
Unless specified otherwise in the Details Schedule, the Services Agreement is governed by the laws of the State of Victoria and each party submits to the exclusive jurisdiction of the relevant courts there.
14.9 Relationship
The Services Agreement does not create a relationship of employment, trust, agency or partnership between us and you.
15.1 Interpretation
The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and vice versa.
(b) The meaning of general words is not limited by specific examples introduced by “including”, “for example”, “such as” or similar expressions.
(c) An agreement, representation or warranty in favour of 2 or more persons is for the benefit of them jointly and each of them individually.
(d) An agreement, representation or warranty by 2 or more persons binds them jointly and individually.
(e) A party includes its employees, agents, representatives, contractors and sub-contractors and any servant or agent of its contractors or sub-contractors.
(f) A word which denotes a person includes an individual or a body corporate. A person also includes the trustee, executor, administrator, and successor in title and permitted assignee of that person.
(g) Any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation.
(h) Dollars, A$ or $ is a reference to Australian currency.
15.2 Definitions
The following definitions apply unless the context requires otherwise:
APC Act means the Australian Postal Corporation Act 1989 (Cth).
Additional Charges means the surcharges, charges, fees or rates (additional to the Service Fees) as set out in the PricingSchedule or as otherwise notified to you in accordance with the terms of the Services Agreement.
Australian Consumer Law means the Australian Consumer Law, appearing in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Australia Post Privacy Policy means the policy published at: http://auspost.com.au/privacy.
Background IPR of a party means the Intellectual Property Rights:
(a) which are owned or licensed by that party as at the date of the Services Agreement; or
(b) which are subsequently created by that party independently of the performance of the Services.
Business Credit Account means an Australia Post Business Credit Account, under which we extend credit to you, as identified in the Details Schedule, in respect of each Service.
Business Day means a day which is not a Saturday, Sunday or a gazetted public holiday:
(a) in the context of receipt of notice, in the place of receipt; and
(b) in all other contexts, in Melbourne, Victoria.
Claim means any allegation, cause of action, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at Law, in equity, under statute or otherwise.
Confidential Information means information that is by its nature confidential, is designated by a government agency as confidential, or a party knows or ought to know is confidential, but does not include information that:
(a) is or becomes public knowledge otherwise than by breach of the Agreement or any other confidentiality obligation;
(b) is already known to the receiving party and not subject to any obligation of confidentiality; or
(c) has been independently developed or acquired by the receiving party.
Consequential Loss means any indirect or consequential loss, including loss of profits or revenue, pure economic loss, loss of opportunity or business, loss of anticipated savings, or damage to goodwill or reputation.
Details Schedule means the schedule headed “Details Schedule” which forms part of the Services Agreement.
Force Majeure Event means any cause or event that:
(a) is outside the reasonable control of the party claiming that the event has occurred; and
(b) prevents or delays that party from performing its obligations in the usual manner, and includes:
(i) an act of God, lightning strike, meteor strike, earthquake, storm, flood, extreme weather, landslide, explosion or fire;
(ii) strikes or other industrial action, other than strikes or other industrial action of some or all of a party’s employees; or
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, virus, plague, pandemic or epidemic, direction of a Government Authority, sanction or change in Law.
Government Authority means any governmental, judicial or statutory body with authority or jurisdiction over the Services Agreement, a party, or the performance of any part of the Services Agreement, and any relevant stock exchange or customs authority.
Indemnifiable Loss means Loss incurred by us arising out of the following:
(a) an injury to or death of any person;
(b) property damage;
(c) a third-party Claim against us; and
(d) regulatory or enforcement action against us by a Government Authority.
A person is Insolvent if:
(a) it is in liquidation, in provisional liquidation, under administration or wound up or has had a controller appointed to its property;
(b) it is otherwise unable to pay its debts when they fall due;
(c) it, being a natural person, commits or suffers an act of bankruptcy; or
(d) something having a substantially similar effect to paragraphs (a)-(c) happens in connection with that person underany Law.
Intellectual Property Rights means all rights conferred under statute, common law or equity subsisting in and in relation to, inventions, designs, patents, copyright in all works, trade secrets, Confidential Information, trademarks, business names, domain names and circuit layout rights.
Law means any statute, regulation, order, rule, subordinate legislation, direction or other document of a Government Authority, which is enforceable under any statute, regulation, rule or subordinate legislation, and which is applicable to a party, the Services Agreement or the performance of any part of the Services Agreement.
Loss means any damage, loss, liability, debt, cost, and expense (including legal and other professional advisors’ costs and expenses) suffered by a party.
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.
Pricing Schedule means the schedule headed “Pricing Schedule” which forms part of the Services Agreement.
Product Terms and Guide means the product guide specific to each type of Service we provide you under the Services Agreement, as set out in the Details Schedule.
Related Bodies Corporate has the meaning set out in the Corporations Act 2001 (Cth).
Representative means an employee, agent, officer, director, contractor or sub-contractor or a Related Body Corporate and any other person providing any or all of the Services.
Service Fees means the fees payable by you to us for the Services as set out in the Pricing Schedule or otherwise notified to you by us.
Services means the Services you have selected to receive as set out in the Details Schedule.
Services Agreement means the agreement between you and us regarding the provision of the Services consisting of these Services Terms, the Details Schedule, Pricing Schedules and Product Terms and Guide.
Special Conditions means the agreed conditions, if any, set out in the Services Agreement under the section "Special Conditions", if any.
Sub-Contractor means any person we arrange to perform the Services or any part thereof and any person who is anemployee, agent or sub-contractor of that Sub-Contractor.
Termination Event means a situation where:
(a) you become Insolvent or cease or threaten to cease business;
(b) you failed to comply with a requirement in the Services Agreement (including a requirement in any Product Terms and Guide, or other requirement to make a payment, or meet a minimum spend) and did not rectify that failure for 30 days after we notified you in writing that we intended to terminate the Services Agreement by reason of such failure;
(c) your Business Credit Account is terminated;
(d) the supply or use of a Service is or is to become unlawful; or
(e) in our reasonable opinion, the provision of a Service is liable to cause death or personal injury or damage to real property.
We or us or our means the Australian Postal Corporation ABN 28 864 970 579 and its Related Bodies Corporate, to the extent that such Related Bodies Corporate provide Services.
You or your means any person, organisation, business or company who requests the Services from us under the Services Agreement, as set out in the Details Schedule.