Terms & Conditions

GENERAL TERMS AND CONDITIONS
In summary
The purpose of this document is to ensure that there is no confusion as to the responsibilities of both you, the client, and us, who you are hiring to provide goods and services.
We will always do our best to fulfil your needs and meet your goals.
1. Services and Pricing
(a) FCCM will provide a scope of works for the Services along with the corresponding pricing in a Quotation.
(b) The Quotation will be valid for a period of 7 days from the date on that Quotation.
(c) If the Customer accepts the Quotation, they must sign and return a copy of the Quotation or confirm accepting in writing, which will then form part of these General Terms and Conditions.
(d) In any event, if the Customer instructs FCCM to provide any Services, accepts any Services or obtains credit, these General Terms and Conditions will be binding on the Customer.
2. Variation
(a) Any variation to the Services must be agreed to in writing by the parties.
(b) If the Customer wishes to vary its requirements after a Quotation has been prepared or after the placement of an order, FCCM reserves the right to vary the quote to include any additional charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised quote issued by FCCM in respect of the requested variation supersedes the original quote. If the revised quote only specifies additional work, the quote for that additional work will be in addition to the immediately preceding quote for the Services.
(c) FCCM has an automatic extension of time for the provision of the Services equal to the delay caused by the variation, (if the Services has an agreed delivery date).
3. Term
(a) The term will be for the period specified in the Quotation. At the end of the term, if the Customer continues to use the Services, then it will be on a month-by month basis until terminated in accordance with clause 3 (b) below.
(b) If no term is specified, or the fixed term has expired, then it will be on a month-by-month basis until termination by either party for any reason with 30 days prior written notice.
(c) Notwithstanding clause 3 (a) and (b), if the Quotation is for the provision of Services that are ‘one off’, then the term will be completed at the completion of the Services.
4. Insurance
Public Liability: FCCM maintains a public liability insurance policy to cover any liabilities arising from or incidental to the Services.
5. Liability
(a) In the case of Services supplied other than for domestic, household or personal use, to the extent permitted by law, our liability for a breach of this Agreement in relation to the Services is limited, at our option, to:
(i) the replacement of the goods or services or the supply of equivalent goods or services;
(ii) the repair of the goods or the payment of the cost of having the goods repaired; or
(iii) the payment of the cost of replacing the goods or services or acquiring equivalent goods or services.
(b) Except in relation to liability for personal injury and subject to any non-excludable statutory liability, notwithstanding any other provision of this Agreement, the total liability of FCCM arising out of or in connection with this Agreement or for all claims, whether arising in contract (including under any warranty or indemnity), tort (including negligence), in equity, in restitution or pursuant to statute shall be limited to the amounts recovered under FCCM’s policy of insurance or in the absence of insurance shall be limited to $5000.
(c) Notwithstanding any other provision of this Agreement, FCCM shall not be liable to the Customer or its personnel and related bodies corporate for any consequential, special, economic, incidental or indirect losses including, but not limited to, loss of production or production stoppage, loss of profit or anticipated profit, loss of revenue or other form of consideration, loss of income or anticipated savings, loss of use, loss of contract or repudiation of contract, loss of data, loss of goodwill or reputation, loss of opportunity, business interruption, holding over or overhead loss, loss of future business or for any punitive or exemplary damages whatsoever arising out of or in relation to this Agreement.
6. Intellectual Property
(a) All intellectual property rights in any materials created or used by FCCM will remain vested in FCCM (or its relevant licensors) and to the extent that any rights in such materials vest in the Customer by operation of law, the Customer hereby assigns such rights to FCCM.
(b) Both FCCM and the Customer acknowledge and agree that they shall not acquire or claim any title to any of the other’s intellectual property and will not, at any time, do, or omit to do, anything which is likely to prejudice the other’s ownership of such intellectual property rights.
7. Confidentiality
The parties and all signatories to this Agreement regardless of the capacity in which each signatory has executed this Agreement agree and each of them covenants with the other and all others of them that (except only to the degree and extent as is expressly required by law or a court or tribunal of competent jurisdiction) the contents of this Agreement shall be and remain at all times and for all purposes secret and confidential to the parties and signatories and shall not except as aforesaid be published or otherwise be made public or known to any other party or parties.
8. Termination
(a) For the purpose of this Agreement, each of the following is a Terminating Event:
(i) the breach or threatened breach by either party of any of its obligations under this Agreement;
(ii) the appointment of any type of insolvency administrator in respect of the property or affairs of either party;
(iii) the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;
(iv) the merger with or the takeover of the Customer by another person;
(b) Subject to clause 8 (c) below, this Agreement may be terminated immediately on the happening of a Terminating Event at the option of the affected party.
(c) If the Terminating Event is clause 8(a) (i) the affected party must give to the other party notice of the happening of that event and require the breach to be remedied within the time specified in the notice.
(d) Subject to any lien or Security Interest that FCCM may have, the parties will, immediately on termination, return to the other party all documentation, information, Goods, Mailing Items or other property that belongs to the other party.
(e) Any termination of this Agreement will not affect any accrued rights or liabilities of either party, nor will it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
9. Force Majeure
(a) If, by reason of a Force Majeure Event, FCCM cannot meet its contractual obligations to the Customer then FCCM shall advise the Customer immediately and the Customer may, at the Customer’s discretion and cost, contract with a third party on such terms and conditions as it may agree so as to enable the Services to continue to be provided and:
(i) Subject to any lien or Security Interest that FCCM may have for outstanding monies due, it will allow the Customer or such third party (as requested by the Customer) access to any Goods within the possession or the control of FCCM to enable the Services to be provided; and
(ii) no payment will be payable to FCCM in respect of the particular Services that it cannot provide.
(b) If any Force Majeure Event continues for a period of or exceeding 30 calendar days, the non-affected party shall have the right to terminate this Agreement immediately on written notice.
(c) If there is a Force Majeure Event the affected party must use all possible diligence to overcome or remove the Force Majeure Event as quickly as possible.
(d) Force Majeure Event means any event or circumstance not within the control of a party which that party is not reasonably able to prevent or overcome, including:
(i) act of God, landslide, earthquake, flood, fire, inclement weather, natural disaster, epidemic or pandemic;
(ii) Industrial Dispute;
(iii) act of war (whether or not accompanied by any formal declaration of war), terrorism, blockade, insurrection, riot or civil disturbance;
(iv) act of any government or competent authority (including the cancellation or revocation of any approval, authority or permit);
(v) fire, explosion or other serious damage to buildings; or
(vi) declaration of a state of emergency or the invocation of martial law having an effect on commerce generally.
10. Notice
(a) All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient or such other address as the recipient may designate by notice given in accordance with this clause.
(b) Any notice may be delivered by hand or by prepaid letter or email.
(c) Any such notice will be deemed to have been served when delivered (if delivered by hand) or 24 hours after posting (except by prepaid letter) or on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise) when the email enters the recipient's mail server.
11. Privacy
(a) To the extent applicable FCCM shall comply with the Privacy Act 1998 (Cth) and shall ensure that any personal information supplied to FCCM is handled in accordance with the current published Privacy Policy of FCCM.
(b) The Customer agrees to comply with the Privacy Act 1998 (Cth).
12. Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties submit to the jurisdiction of the courts of Victoria, Australia.
13. Price Variations and CPI Increases
(a) FCCM reserves the right to adjust its fees, charges and costs payable under this Agreement for any Services that are provided without a fixed term or are on a month-to-month basis.
CPI
(b) For any Services that have been agreed to be provided for a fixed term, FCCM reserves the right to adjust any fees, charges and costs payable under this Agreement in accordance with CPI.
(c) The CPI review date will be on 1 July each year of the fixed term.
(d) all fees, charges and costs payable under this Agreement may be adjusted in accordance with the following formula provided always that no such adjustment may reduce the previous year’s fee:
New Fee Payable = Current Fee x CPI(1)
CPI (2)
CPI means consumer price index.
CPI (1) means the quarterly CPI (All Groups) figure for the weighted average of the 8 Australian Capital Cities, last published by the Australian Government Statistician prior to 1 July of the relevant year.
CPI(2) means the quarterly CPI (All Groups) figure for the weighted average of the 8 Australian Capital Cities figure published prior to 1 July of the immediately previous year, or where FCCM did not adjust fees, charges and costs in the immediately previous year of the fixed term, “CPI(2)” will mean the quarterly CPI (All Groups) figure for the weighted average of the 8 Australian Capital Cities figure published prior to 1 July in the last year of the fixed term in which an adjustment was made (but adjustments may not be made using CPI figures dating from more than 3 years from the relevant adjustment date).
14. Order of Priority of documents
(a) In the event of inconsistency between the FCCM documents, to the extent of the inconsistency the order of priority will be as follows:
(i) The agreed Quotation between the parties;
(ii) Relevant Schedule for the Services;
(iii) Warehouse Specifications Policy;
(iv) Schedule 1 - Credit Terms and Conditions;
(v) The General Terms and Conditions;
(vi) Privacy Policy;
(vii) Recycling Policy;
(viii) Any other FCCM policy.
15. Australian Consumer Law
(a) To the extent the Customer is considered a consumer as defined in the Australian consumer Laws the following applies:
Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(i) to cancel your service contract with us; and
(ii) to a refund for the unused portion, or to compensation for its reduced value
You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
16. General
(a) Each party will bear their own costs of and incidental to the preparation and entry into this Agreement.
(b) This Agreement binds and benefits the parties and their respective successors and permitted assigns.
(c) If this Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same documents including any exchange of documents made electronically.
(d) A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. A singular or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement. A waiver of a breach does not operate as a waiver of any other breach.
(e) Each party must do or cause to be done all things necessary or reasonably desirable to give full effect this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
(f) Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
(g) Unless that parties have agreed to a fixed term, FCCM may vary the Agreement without the prior consent of the Customer.
(h) The Customer may not assign, novate, transfer or otherwise deal with this Agreement or any right or obligation under this Agreement without the prior written consent of FCCM. FCCM may assign, transfer or otherwise deal with this Agreement or any right or obligation under this Agreement without the need to obtain any consent of the Customer.
(i) Where the Customer comprises two or more parties, each such party agrees that they undertake all obligations and liabilities under this Agreement jointly and severally and that FCCM may, at its option, as may be appropriate in its absolute discretion, enforce the terms of this Agreement against any one or more such parties without any obligation to enforce it against all such parties and without waiving its rights against any of the other parties.
(j) If any provision of this Agreement is or becomes wholly or partly invalid or unenforceable then, from the date of the invalidity or unenforceability:
(i) if the offending provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down to the extent necessary to achieve that result; and
(ii) otherwise, the offending provision must be severed from this Agreement and the remaining provisions will operate as if the severed provision had not been included.
(k) A term or condition of, or act done in connection with this Agreement does not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged. Each term of this Agreement that has not been carried into effect at the termination of this Agreement survives the termination.
17. Interpretation
In this Agreement, until the contrary intention appears:
(a) A reference to this Agreement or to another Deed includes this Agreement or that instrument as amended or varied from time to time.
(b) The expression party means a party to this Agreement and parties has a corresponding meaning.
(c) Words and expressions defined in the recitals or elsewhere in this Agreement have the meaning therein ascribed to them.
(d) Clause headings are inserted for convenience only and are not to be used in the interpretation or construction of this Agreement.
(e) Words importing any gender include all other genders.
(f) Words importing the singular include the plural and vice versa.
(g) A reference to an annexure, clause or recital is a reference to an annexure to, clause of or recital to this Agreement.
(h) A reference to a person includes a natural person, corporation, incorporated associates, partnership, Joint venture and trusts.
(i) a reference to a person will include a reference to that person's successors, executors, administrators and permitted assigns.
(j) A reference to a company extends to and includes its successors and permitted assigns.
(k) This Agreement shall include the Schedules (if any) hereto and embodies the entire understanding and the whole Agreement between the parties hereto.
(l) a reference to any legislation will include a reference to any statutory modification or re-enactment thereof.
(m) This agreement is not to be construed against a party merely because that party was responsible for preparing it.
18. Definitions
(a) Agreement means all the FCCM binding documentation that form one agreement, including the Quotation, the General Terms and Conditions, the Credit Terms and Conditions, the Schedules, the Privacy Policy, the Recycling Policy and the Warehouse specifications Policy.
(b) Australian Consumer Laws means Schedule 2 as applied under Subdivision A of Division 2 of Part XI of the Competition and Consumer Act (2010) (Cth).
(c) Business Day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the State of Victoria.
(d) Carrier means Individuals or businesses that are engaged to deliver people or property to an agreed destination, including common or private carriers.
(e) Credit Terms and Conditions means the FCCM document titled ‘credit terms and conditions’ attached in Schedule 1 as updated from time to time.
(f) Contact List means the list of names, phone numbers, email addresses and other personal information provided by the Customer to FCCM.
(g) Customer means the entity identified in the Credit Application; in the absence of a Credit Application it will be the entity identified in the Quotation.
(h) FCCM or First Class Consulting & Mailing means First Class Consulting Pty Ltd ACN 075 046 249 atf the Nautilus Unit Trust ABN 89 208 027 286 trading as First Class Consulting and Mailing and its related bodies corporate.
(i) General Terms and Conditions means this FCCM document ‘General Terms and Conditions’ as updated from time to time.
(j) Goods means the goods or inventory that the Customer requires warehousing and/or transport services by FCCM.
(k) Mailing Item means an item the Customer has requested FCCM to mail.
(l) Privacy Policy means the FCCM document titled ‘privacy policy’.
(m) Quotation means the FCCM document titled ‘quotation’ which contains a list of all the Services and corresponding fees/costs for the provision of these Services with the specified time frames (if applicable).
(n) Recycling Policy means the FCCM document titled ‘recycling policy’.
(o) Security Interest means as per the definition in the Credit Terms and Conditions.
(p) Services means the works/services (including incidental goods) that are provided by FCCM to the Customer as specified in the Quotation.
(q) Shrinkage means the loss of goods or inventory that can be attributed to factors such as employee theft, shoplifting, administrative error, vendor fraud, damage, and cashier error. Shrinkage is the difference between recorded inventory on a company's balance sheet and its actual inventory.
(r) Warehouse means Factory 21 & 23 /148 Chesterville Road MOORABBIN VIC 3189, or such other locations as determined by FCCM from time to time.
(s) Warehouse Specifications Policy means the FCCM document titled ‘warehouse specifications policy’.
 

Schedule 1 – Credit Terms and Conditions
1. In applying for credit with First Class Consulting Pty Ltd ACN 075 046 249 atf the Nautilus Unit Trust ABN 89 208 027 286 trading as First Class Consulting and Mailing (‘FCCM’) or (‘We’), the Customer acknowledges that any credit granted following the credit application will be subject to the terms and conditions specified in the General Terms and Conditions and this Schedule 1 - Credit Terms and Conditions (or as subsequently varied by FCCM and advised to the Customer) (‘Agreement’).
2. Payment terms are 30 days from the date of invoice unless alternative terms are agreed upon by FCCM in writing. The Customer may not set off any amounts claimed against monies due to FCCM.
3. If payment is not made on time, FCCM reserves the right to suspend the Services and the Customers credit account.
4. Interest will be charged on any payments that are overdue. The interest charged will be at the rate for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983.
5. If FCCM does not receive payment and must engage lawyers or debt collectors due to late payment, the Customer will be liable to pay all costs and expenses to recover monies (including legal costs on an indemnity basis).
6. Any credit limit approved by FCCM and advised to the Customer must not be exceeded. We periodically review our credit limits. We may increase or reduce the Customers credit limit at the Customer’s specific request. We may also reduce the Customer’s credit limit if the Customer:
(a) defaults under this Agreement; or
(b) fails to make a payment to us when due,
but, we will not reduce the Customer’s credit limit below the outstanding balance on the account at the time of the reduction without prior communication with the Customer.
7. As security for the due and punctual payment of the Secured Moneys, the Customer:
(a) charges and grants a Security Interest to FCCM in all the Customer's present and future rights and interest in the Goods and any Proceeds of the Goods.
(b) The Security Interests arising under this Agreement attach to all present and after-acquired property of the Customer upon signing of this Agreement and the parties confirm that they have not agreed that any Security Interest arising under this Agreement attaches at any later time.
In this clause 7 to clause 11:
(c) Security Agreement has the same meaning given to it under the Personal Property Securities Act 2001 (Cth) (PPS Act);
(d) Security Interest has the same meaning given to it under the PPS Act; and
(e) Secured Moneys means all debts and monetary liabilities the Customer owes FCCM on any account or under or in relation to any agreements between the parties for the provision of goods & services from FCCM to the Customer and in any capacity and irrespective of whether the debts or liabilities:
(i) are present or future;
(ii) are actual prospective, contingent or otherwise;
(iii) are at any time ascertained or unascertained;
(iv) are owed or incurred by or on account of the Customer alone, or severally or jointly with any other entity, including a trust whether or not it is disclosed to FCCM;
(v) are owed or incurred by or on account of FCCM or severally or jointly with any other entity;
(vi) are owed to any other person as agent (whether disclosed or not) for or on behalf of FCCM;
(vii) are owed or incurred as principal, interests, fees, charges, taxes, damages, (whether for breach of contract or tort or incurred on any other ground) or other loss or on any other account;
(viii) are owed or incurred for the account of FCCM directly as a result of:
A. the assignment to FCCM of any debt or liability of the Customer; or
B. any other dealing with any such debt or liability;
C. are owed to or incurred to the account of FCCM before the date of execution of this Agreement, before the date of any assignment of this agreement to FCCM by any other entity person or otherwise; or
D. comprise any combination of the above;
8. The Customer must do all things reasonably necessary, including without limitation amending the terms of this Agreement, executing any new document or agreement, obtaining consents and supplying information) that:
(a) FCCM may require to:
(i) ensure that any Security Interest is enforceable, perfected and otherwise effective;
(ii) register, or give any notification in connection with, any Security Interest in order to confer the priority we require; or
(iii) exercise rights in connection with the Security Interest; or
(b) FCCM considers necessary to ensure that our rights and obligations are not adversely affected, or that our position is improved.
9. All of the enforcement provisions of Chapter 4 of the PPS Act apply to all of the Security Interests created under or referred to in this agreement, except as excluded by clause 10.
10. The following provisions of the PPS Act will not apply to the enforcement of this Agreement:
(a) section 95 (notice of removal of accession), to the extent that it requires us to give a notice to the Customer;
(b) subsection 121(4) (enforcement of liquid assets – notice to grantor);
(c) section 130 (notice of disposal), to the extent that it requires FCCM to give the Customer a notice;
(d) paragraph 132(3)(d) (contents of statement of account after disposal);
(e) subsection 132(4) (statement of account if no disposal);
(f) section 135 (notice of retention);
(g) section 142 (redemption of collateral);
(h) section 143 (reinstatement of security agreement); and
(i) section 157 (Verification statements-secured parties to give notice to grantors).
11. FCCM does not need to give the Customer any notice under the PPS Act (including a notice of a verification statement under section 157) unless the notice is required by the PPS Act and that requirement cannot be excluded.
12. The Customer must notify FCCM immediately of any change in its name, ACN, ABN, ARBN, ARSN or any other information provided to FCCM to enable it to register a Financing Statement under the PPS Act.
13. FCCM either directly or through any agent reserve the right to actively pursue collection of outstanding amounts and the costs of doing so, if any, will be passed on to the account of the Customer.
14. FCCM may at any time set off amounts owed by it to the Customer from the amounts owed by the Customer to FCCM.
15. The Customer indemnifies and holds harmless FCCM and its officers, employees and agents from and against all actions, claims, proceedings or demands which may be brought against it in respect of any loss, injury or damage arising out of any breach of the Agreement by the Customer or any negligent act or omission by the Customer and from and against all damages, costs and expenses incurred in defending or settling any action, claim, proceeding or demand arising from such breach, act or omission, except to the extent that the claims are caused by or negligent acts or omissions or breach of the terms of this Agreement.
16. If the Customer:
(a) obtains credit from FCCM by fraud or dishonesty;
(b) allows the amount of a monthly statement to remain unpaid for more than 30 days from the due date;
(c) breaches any of the terms of this Agreement;
(d) being an individual, commits an act of bankruptcy;
(e) being a body corporate, becomes insolvent under administration or becomes subject to external administration or has a winding up order filed against it; or
(f) uses our credit facility in circumstances where FCCM believes that the continued use of the credit facility will cause loss or damage to FCCM.
reserving the rights under clause 3 above, then FCCM may close or suspend the credit facility. If the credit facility is closed or suspended by FCCM, then we may require the Customer to immediately pay all outstanding amounts (plus any interest that has accrued). Suspension or cancellation does not affect any of the Customer’s obligations in respect of the credit facility.
17. The Customer acknowledges and agrees that we may:
(a) from time to time, collect, use or disclose personal information as defined in the Privacy Act 1988 (Cth) (Personal Information) provided by the Customer and its proprietors, directors, employees, officers, consultants, contractors, agents or other third parties acting on the Customer's behalf (the Customer's personnel) or otherwise collected by us in performing its obligations under this Agreement; and
(b) use or disclose any Personal Information we collect in accordance with the terms of Our Privacy policy set out on First Class consulting & Mailing website: Privacy Policy (fccm.com.au) as varied by Us from time to time (Privacy Policy).
18. FCCM collects and uses commercial credit related Personal Information for the purposes of:
(a) assessing applications for commercial credit;
(b) establishing and managing the relationship with the Customer;
(c) exercising its rights and obligations;
(d) performing any administrative operation; and
(e) collecting payments from the Customer.
19. FCCM exchange commercial credit related Personal Information with our related bodies corporate, agents, contractors, external advisors, credit reporting services and mercantile agents to accomplish our purposes as set out above in clause 17 and our Privacy Policy.
20. The Customer must ensure that any relevant Customer personnel who deal with FCCM in relation to our provision of goods and services to the Customer or whose Personal Information or commercial credit related Personal Information is made available to FCCM are aware of and have agreed to the terms set out in this Agreement and the disclosure and use of their Personal Information and (if applicable) their commercial credit related Personal Information in accordance with the terms of this Agreement.
21. The parties agree that all amounts are all amounts are excluding GST, unless specified by FCCM. if the whole or any part of any payment or pursuant to this Agreement is the consideration for a taxable supply for which the payee is liable to GST, the payer must pay to the payee at the same time as that payment an addition amount equal to the GST payable on the supply.
TRUSTS
22. This section applies if any of the parties to the Agreement are executing the Agreement and becoming a party to the Agreement as a trustee of a trust. The balance of this section applies as follows:
(a) if only one party is entering into the Agreement as the trustee of a trust - to the trustee in respect of the Trust (as specified in the ‘customer’ portion of this Agreement) to which it has been appointed pursuant to the trust deed (as these terms are defined in this section); and
(b) if more than one party is entering into the Agreement as the trustee of a trust – separately, to each trustee in respect of the relevant Trust to which it has been appointed pursuant to the relevant trust deed.
23. Unless otherwise specified in the Agreement, a reference to a transaction, asset, act or liability of any nature of the Trustee includes its transactions, assets, acts or liabilities as trustee of the Trust.
24. The Trustee acknowledges that it enters into this Agreement in its capacity as trustee of the Trust and that this Agreement is binding on it personally and in its capacity as trustee of the Trust.
25. A reference to a related body corporate of the Trustee includes a related body corporate of the Trust.
26. The Trustee expressly acknowledges that the trustee has full power conferred by the trust deed or any law:
(a) to execute and perform this Agreement, so as to bind the Trust and its assets, without any default by that trustee under the trust deed or any law;
(b) to perform any action or liability contemplated by this Agreement;
(c) to perform any business activity of the Trust as performed or contemplated at any time, to pledge the assets of the trust.
27. The trustee or trustees (both in its own right and as trustee of the Trust) represents and warrants to FCCM that:
(a) the Trust is validly constituted and has not terminated, nor has any action been taken to wind up, terminate or resettle the Trust, nor has the date or any event occurred for the vesting of the assets of the Trust (“Trust Fund”);
(b) it has not given any notice of resignation and no action has been taken to remove it or to appoint an additional trustee or trustee of the Trust;
(c) all action has been taken that is necessary or desirable under the trust deed or at law to authorise its entry into this Agreement and to perform its obligations under this Agreement;
(d) it is entering into this Agreement as part of the proper administration of the Trust, for the commercial benefit of the Trust and for the benefit of the beneficiaries of the Trust;
(i) It has the right to be indemnified out of the Trust Fund in relation to any liability arising under or in connection with the proper performance of its rights and obligations under this Agreement;
(ii) The Trust Fund is sufficient to satisfy that right in full; and
(iii) It has not released or disposed of its equitable lien over the Trust Fund;
(e) It has disclosed to FCCM full particulars of the Trust and of any other trust or fiduciary relationship affecting the Trust Fund and has given FCCM a complete up-to-date copy of the trust deed; and
(f) It is not in breach of any material obligation imposed on it in its capacity as trustee of the Trust, whether under the trust deed or otherwise.
28. The warranties in this clause are taken to be made on receipt of this Agreement being accepted by the trustee.
29. The trustee must give FCCM promptly on request (and in any event within 10 days of receipt of the request) either;
(a) any information relating to the financial condition (including the financial accounts), business, assets and affairs of the Trust that FCCM reasonably requests, or
(b) a statement from the duly appointed auditors of the Trust attesting to the solvency and financial soundness of the Trust and the trustee of the Trust.
30. Each of these events or circumstances gives FCCM the right to terminate for cause pursuant to this Agreement:
(a) (breach of warranty) a warranty under this section made or taken to be made by the trustee is incorrect or misleading when made or taken to be made and, if capable of remedy, is not remedied within 10 Business Days of being made or taken to be made;
(b) (amendment of the trust deed) the trust deed is amended in any material respect without the prior written consent of the FCCM;
(c) (failure to provide information) any of the information required to be provided under this document is not provided within the time specified in that clause or if the information provided is incorrect, incomplete or misleading in any material respect;
(d) (distributions) any distributions of the capital of the Trust are made out of the Trust without FCCM’s prior written consent; and
(e) (dealing with units) if the Trust is a unit trust, any unit is issued, transferred, redeemed, encumbered or otherwise dealt with, without notification being given to FCCM.
31. For the purpose of considering this application, and at any time during the term of this Agreement, the Customer authorises FCCM to make such enquiries as we may require to be satisfied as to the creditworthiness of the Customer.

Schedule 2 - Direct Mail and Marketing Terms and Conditions
1. The task at hand
(a) Firstly, let us know what you require us to do. Putting it in writing ensures we all know exactly what needs to be done. We will then provide you with a quote for the work and an estimated time for completion.
(b) Whilst we will stick to the quoted price and estimated completion date, you would appreciate that if you change the work you want us to do or any of the job components, we may need to change the price or completion date.
2. Provision of material
(a) Once deadlines and timeframes have been agreed to, you will agree to provide us with all the information
required to complete the project. This will include, but not be limited to – call centre scripts, data, images, artwork, letter text/s, stock, file layout & data mapping, which will be supplied as and when we need it, in the format we specify and within the requested times.
(b) You acknowledge that if you are late providing this material, there may be changes to the price and the estimated completion date.
(c) FCCM cannot be held liable for a missed deadline/turnaround if time frames have been compromised and or instructions are not put into writing.
(d) FCCM shall assemble or compile the direct mail items in a manner agreed with the Customer. In the absence of agreement, FCCM shall assemble or compile the direct mail items (both paper and product items) by any method which it sees reasonably fit.
3. Variations
(a) Should you require any changes, these will be charged at our standard rate for author’s corrections, except when a provided sample does not match the original brief, or an element of the original brief has been missed by our team.
(b) Any changes or revisions will be required in writing at the time the request has been made to ensure the integrity of campaign and job instructions.
(c) For complex programming structures, if a change is requested after we have already initiated the setup process, you will be charged an additional set up fee, indicative to the number & type of changes.
4. Sign off
To further reduce the possibility of error, we ask that you sign off samples that we provide to ensure that the job is being processed in accordance with your instructions. We will include as many variations of the job as possible or required. The client is responsible for sign off and work will not commence until sign off has been received. Our commitment to turnaround times begins once sign off is received.
5. Licence and Intellectual Property
(a) If a licence, consent or permission of any authority is required in order to FCCM to be able to provide the Services and deal with all the items supplied by the Customer to FCCM, then the Customer shall obtain the licence or consent at its own expense and if requested/necessary produce evidence of it to FCCM on demand. Failure to obtain any licence or consent does not entitle the Customer to withhold or delay payment of monies. Any additional expenses or charges incurred by FCCM resulting from such failure shall be paid by the Customer.
(b) All intellectual property rights in any materials submitted by the Customer to FCCM will remain vested in the Customer or its licensors.
6. Quality Assurance
(a) Whilst we endeavour to always get everything correct, we are human and there is a possibility of error. We have extensive QA procedures in place to ensure that we minimize the risk of damage/error to your job in the following areas and define our minimum standard of service:
(i) Manual Processing - one in every one hundred records are checked.
(ii) Random spot checks on a job. If an error is found, the operator will alert a supervisor who will then check the 5 records preceding and proceeding the piece with the error to ensure that it is isolated.
(iii) Machine Processing - the client accepts that machines can sometimes cause damage to mail pieces while printing, folding, sealing & inserting. For this reason, we require a 5% stock buffer for any elements of the mailing.
(b) FCCM reserves the right for it and for Australia Post, or any other carrier to open and inspect mailing items to verify compliance with the requirements of relevant law and regulations and this Agreement.
7. Compliance with Privacy Laws
(a) The Customer warrants that all information provided to FCCM has been obtained lawfully and in full compliance with the Privacy Act 1998 (Cth).
(b) The Customer warrants that all information provided to FCCM is strictly personal information as defined in the Privacy Act 1998 (Cth) and does not contain any sensitive information as defined in the Privacy Act 1998 (Cth).
(c) The Customer warrants that providing any information to FCCM does not breach the Privacy Act 1998 (Cth).
(d) The Customer undertakes to ensure that any files and data transferred to FCCM will be done so securely. FCCM will not be liable for a privacy breach occurring because of the transfer of files and data without password encryption.
8. Compliance with Spam Act
The Customer warrants that the Contact List and related information has been obtained in accordance with the requirements under the Spam Act 2003 (Cth), in particular that the express or implied consent of person has been obtained for the Customer to contact them for the Customers purpose.
9. Indemnities
(a) In the event it is found that provision of the Contact List and related information and/or any contact made by FCCM on behalf of the Customer has breached this Agreement and/or any other relevant laws and regulations, the Customer will fully indemnify FCCM against all claims, liability, actions, expenses, loss, breach of law, penalties, damage that may or will arise as a result.
(b) The indemnity given under in clause 9(a) above shall be reduced proportionately to the extent that FCCM caused or contributed to the damages, losses, claims, actions, liability, expenses and costs which are the subject of the indemnity.
10. Liability
Subject to the limitation of liability in the General Terms and Conditions:
(a) FCCM will not accept responsibility for any errors or omissions once samples have been signed off by the Customer.
(b) Mail out:
(i) in the event of loss of or damage to any Mailing Item dealt with by FCCM under this Agreement, FCCM shall, subject to satisfactory proof of being provided by the Customer of the loss or damage, and subject to the remainder of this clause 10, pay compensation to the Customer subject to the following limits:
A. where FCCM has already handed over the relevant Mailing Item to the Carrier, the compensation shall be limited to whatever payment FCCM recovers from the Carrier;
B. otherwise, the compensation in respect of the relevant Mailing Item shall be limited to the fees charged by FCCM in respect of such Mailing Item and the cost of replacing such lost or damaged Mailing Item.
11. Insurance
The Customer must obtain its own insurance on each Mailing Item as FCCM accepts no liability for any loss or damage to Mailing Items that are not in the possession of FCCM, including but not limited to Mailing Items that are being posted with the Carrier.
12. Workman’s Lien
We will also retain any stock or material you have provided us under our workman’s lien until our account is up to date.

Schedule 3 - Call Centre Terms and Conditions
1. Compliance with Privacy Laws
(a) The Customer warrants that all information provided to FCCM has been obtained lawfully and in full compliance with the Privacy Act 1998 (Cth).
(b) The Customer warrants that all information provided to FCCM is strictly personal information as defined in the Privacy Act 1998 (Cth) and does not contain any sensitive information as defined in the Privacy Act 1998 (Cth).
(c) The Customer warrants that providing the Contact List and related information to FCCM does not breach the Privacy Act 1998 (Cth).
(d) The Customer undertakes to ensure that any files and data transferred to FCCM will be done so securely. FCCM will not be liable for a privacy breach occurring because of the transfer of files and data without password encryption.
2. Compliance with Spam Act
The Customer warrants that the Contact List and related information has been obtained in accordance with the requirements under the Spam Act 2003 (Cth), in particular that the express or implied consent of person has been obtained for the Customer to contact them for the Customers purpose.
3. Do Not Call Register
(a) FCCM strictly complies with the requirements under the Do Not Call Register Act 2006 (Cth) and related regulations and will only operate the call centre for any telemarking calls as defined in the Do Not Call Register Act 2006 (Cth), during the times not prohibited by Telecommunications (Telemarketing and Research Calls) Industry Standard 2017.
(b) The Customer warrants that the Contact List is compliant with the Do Not Call Register Act 2006 (Cth) and is at all times up to date with the Do Not Call Register and does not contain any phone numbers that are currently registered on the Do Not Call Register.
4. Call Centre Hours
Subject to clause 3 (a) of schedule 3 – Call Centre Terms and conditions above, the call centre will operate within the hours of 9 am to 5pm on Business Days, Australian Eastern Standard Time.
5. Call Centre Script
(a) The Customer and FCCM will work together to develop a call centre script.
(b) The Customer is responsible for the call centre script and general messaging or information being conveyed to the Contact List.
6. Customer Responsibilities
(a) The Customer warrants that any messaging or information being conveyed to the people on the Contact List by FCCM is not misleading and deceptive and fully compliant with the Australian Consumer Laws and the Competition and Consumer Act 2011 (Cth).
(b) In addition to the responsibilities and warranties set out above, the Customer shall at all times:
(i) ensure that the Services are not used in any manner which will or may constitute an unlawful or criminal act (including, but not limited to deception and/or fraud) or a violation or infringement of the rights of any person, firm or company (including, but not limited to, rights of confidentiality and copyright) or a violation or infringement of any statutory duty or obligation in contract, tort or otherwise to any third party;
(ii) ensure that the Services are not used for the transmission of any material which is or is intended to be a hoax call or is of a defamatory, offensive, abusive, obscene or menacing character, or which is likely to bring the Services or FCCM into disrepute or may be prejudicial to FCCM’s commercial interests;
(iii) Not act, omit to act or allow the Services to be used in any way which will or may injure or damage any persons (whether or not employees, agents or representatives of FCCM) or property; and
(iv) provide to FCCM such assistance and/or information as FCCM may from time to time reasonably require in order to comply with all requirements and conditions imposed by law or by any other competent authority or public body which are or may be applicable to or affect the Services and/or their provision.
7. Indemnities
(a) In the event it is found that provision of the Contact List and related information and/or any contact made by FCCM on behalf of the Customer has breached this Agreement and/or any other relevant laws and regulations, the Customer will fully indemnify FCCM against all claims, liability, actions, expenses, loss, breach of law, penalties, damage that may or will arise as a result.
(b) The indemnity given under in clause 7(a) above shall be reduced proportionately to the extent that FCCM caused or contributed to the damages, losses, claims, actions, liability, expenses and costs which are the subject of the indemnity.

Schedule 4 - Warehouse & Logistics Terms and Conditions
1. Inventory Management System
(a) FCCM has an inventory management system (including software) for the management of the goods in the Warehouse.
(b) FCCM will input all Goods received into the inventory management system, so that it may keep track at all times of the Customers Goods.
(c) The Customer must notify FCCM in writing if it does not want to have its Goods input into the inventory management system.
(d) FCCM accepts no responsibility for any Shrinkage of Goods that are not managed by the inventory management system at the election of the Customer.
(e) For clarity receipt of ‘one off’ Goods will not be input into the inventory management system.
(f) The Customer must provide a delivery docket to FCCM with every delivery of Goods to FCCM and/or its Warehouse, whether a regular user of the Warehouse of a one-off user of the Warehouse.
(g) FCCM accepts no responsibility for any Shrinkage of Goods if the Customer does not provide a delivery docket as set out in clause 1 (f) of Schedule 4.
2. Lien
(a) FCCM shall only ever be a bailee of the Goods for reward and at no time, and in no circumstance, will FCCM acquire title to, or property in such Goods.
(b) In the first instance FCCM claims a statutory lien as provided under the Warehousemen’s Lien Act 1958 (Vic).
(c) In the second instance FCCM claims a general lien at common law on all Goods in its possession for any and all sums due and payable at any time by the Customer. FCCM shall be entitled to sell or dispose of such Goods at the expense of the Customer and apply the proceeds in or towards the payment of such sums on 30 days’ notice in writing to the Customer.
(d) In the third instance FCCM claims a particular lien at common law on all Goods in its possession for any and all sums due and payable at any time by the Customer. FCCM shall be entitled to sell or dispose of such Goods at the expense of the Customer and apply the proceeds in or towards the payment of such sums on 30 days’ notice in writing to the Customer.
3. Insurance
It is the responsibility of the Customer to insure and keep insured any property and/or Goods for the full insurable value whilst they are in the Warehouse and whilst they are in transit to and from the Warehouse and to any Carrier. The insurance must be against the risks of loss, recovery or damage by fire, explosion, burglary, theft, terrorism, and all other events outside FCCM control including acts of God, such other risks as are normally insured against by prudent persons carrying on businesses similar to those carried on by the Customer and FCCM, including consequential loss and loss of profits on the property or goods. This policy must waive any rights of subrogation against FCCM.
4. Inspection and Access
(a) The Customer may not enter the Warehouse without prior written consent from FCCM.
(b) The Customer must adhere to all reasonable instructions provided by FCCM or its personnel while on site to ensure the Customers safety.
(c) The Customer must adhere to work health and safety laws and regulations while at the Warehouse.
5. FCCM Policy & Procedure
(a) The Customer confirms it has received and read a copy of the Warehouse Specifications Policy and the Recycling Policy.
(b) The Customer acknowledges that the Warehouse Specifications Policy and Recycling Policy form part of this Schedule 4 – Warehouse Terms and Conditions.
(c) If the Customer does not adhere to the Recycling Policy and FCCM incurs additional costs to remove excess waste and/or packaging, then FCCM may charge the Customer for any additional costs or expense incurred as a result.
6. Risk and Responsibility
(a) The Goods are stored at the sole risk and responsibility of the Customer who shall be responsible for any and all theft, damage to, and deterioration of the Goods, and shall bear the risk of any and all damage caused by flood or fire or leakage or overflow of water, mildew, heat, spillage of material from any other Facility, removal or delivery of the Goods, pest or vermin or any other reason whatsoever including acts or omissions, negligent, deliberate or otherwise, of FCCM or persons under its control.
(b) The Customer must comply with all relevant laws and regulations as are or may be applicable to the use and storage of the Goods at the Warehouse. This includes laws relating to:
(i) the material which the Goods are comprised of and the way it is stored; and
(ii) Goods that are of an illegal or prohibited nature.
(c) The Goods stored at the Warehouse must not be of a dangerous, hazardous or explosive nature.
(d) If FCCM has reason to believe that the Customer is not complying with any relevant laws, FCCM may take any action it believes to be necessary, including, without limitation, contacting, cooperating with and/or submitting Goods to the relevant authorities, and/or immediately disposing of or removing the Goods at the Customers expense. Failure on the part of FCCM to take any action does not proportionally reduce the liability of the Customer.
7. Indemnity
(a) The Customer indemnifies FCCM against any claims, liability, actions, expenses, loss, breach of law, penalties, damage that may or will arise as a result of:
(i) any fraudulent, malicious or criminal conduct;
(ii) any negligent act or omission;
(iii) any breach of this Agreement and/or any relevant laws and regulations; or
(iv) any personal injury to or death of any person caused, done or permitted by the Customer, its employees, agents or sub-contractors.
(b) Subject to clause 6 (d), the indemnity given under in clause 7(a) above shall be reduced proportionately to the extent that FCCM caused or contributed to the damages, losses, claims, actions, liability, expenses and costs which are the subject of the indemnity.
8. Limitation of Liability
Subject to the limitation of liability in the General Terms and Conditions:
The Customer agrees and acknowledges that FCCM, its employees and agents shall not be liable for damage or loss of the Goods during loading, unloading, shipment or transport to and from the Warehouse.