About ANR Freight Services

Terms and Conditions

1.     Definitions

1.1    “Seller” shall mean ANR Freight Services Pty Ltd and its successors and assigns or any person acting on behalf of and with the authority of ANR Freight Services.

1.2    “Sub-Contractor” shall mean and include:

(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or

(b) any other person or entity with whom the Seller may arrange for the carriage or storage of any Goods the subject of the contract; or

(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clause 1.2(a) and 1.2(b).

1.3    “Buyer” shall mean the Buyer or any person or persons acting on behalf of and with the authority of the Buyer. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.

1.4    “Consignee” shall mean the person to whom the Goods are to be delivered by way of the Seller’s Services.

1.5    “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.

1.6    “Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of the Seller’s Services, or for storage by the Seller.

1.7    “Services” shall mean all services supplied by the Seller to the Buyer and are as described on the quotations, invoices, consignment note, airway bills, manifests, sales order or any other forms as provided by the Seller to the Buyer and includes any advice or recommendations.

1.8    “Price” shall mean the cost of the Services as agreed between the Seller and the Buyer subject to clause 3 of this contract.


2.     The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

2.1    Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

2.2    Liability of the Seller arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Trade Practices Act 1974 or howsoever arising, is limited to any of the following as determined by the Seller:

(a) the supplying of the Services again; or

(b) the payment of the cost of having the Services supplied again; or

(c) where the Buyer is a consumer as defined in the Trade Practices Act 1974 then the client shall also be entitled to a refund.


3.     Acceptance

3.1    Any instructions received by the Seller from the Buyer for the supply of Services shall constitute acceptance of the terms and conditions contained herein.

3.2    Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.

3.3    These terms and conditions are to be read in conjunction with the Seller’s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by the Seller to the Buyer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.

3.4    The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer or any change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.


4.     Price And Payment

4.1    At the Seller’s sole discretion the Price shall be either;

(a) as indicated on invoices provided by the Seller to the Buyer in respect of Services supplied; or

(b) Seller’s quoted Price (subject to clause 4.2 & 4.3) which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within thirty (30) days.

4.2    The Seller may by giving notice to the Buyer increase the Price of the Services to reflect any increase in the cost to the Seller beyond the reasonable control of the Seller (including, without limitation, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs).

4.3    The Seller may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.

4.4    Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment note, airway bills, manifests or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.

4.5    Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Buyer and the Seller.

4.6    GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5.     Seller Not Common Carrier

5.1    The Seller is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by the Seller subject only to these conditions and the Seller reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.


6.     Nomination Of Sub-Contractor

6.1    The Buyer hereby authorises the Seller (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Buyer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Seller. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Seller shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.


7.     Seller’s Servants or Agents

7.1    The Buyer undertakes that no claim or allegation shall be made against any servant or agent of the Seller which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify the Seller and any such servant or agent against all consequences thereof.


8.     Method Of Transport

8.1    If the Buyer instructs the Seller to use a particular method of carriage whether by road, rail, sea or air the Seller will give priority to the method designated but if that method cannot conveniently be adopted by the Seller the Buyer shall be deemed to authorise the Seller to carry or have the Goods carried by another method or methods.


9.     Route Deviation

9.1    The Buyer shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of the Seller be deemed reasonable or necessary in the circumstances.


10.    Charges Earned

10.1  The Seller’s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and despatched from the Buyer’s premises.


11.    Demurrage

11.1  The Buyer will be and shall remain responsible to the Seller for all its proper charges incurred for any reason. A charge may be made by the Seller in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of the Seller. Such permissible delay period shall commence upon the Seller reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Buyer or Consignee.


12.    Dangerous Goods

12.1  Unless otherwise agreed in advance in writing with the Seller the Buyer or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Buyer shall be liable for and hereby indemnifies the Seller for all loss or damage whatsoever caused by any Dangerous Goods.


13.    Consignment Note

13.1  It is agreed that the person delivering any Goods to the Seller for carriage or forwarding is authorised to sign the consignment note for the Buyer.


14.    Buyer’s Responsibility

14.1  The Buyer expressly warrants to the Seller that the Buyer is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Buyer accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Buyer is acting.


15.    Delivery

15.1  The Seller is authorised to deliver the Goods at the address given to the Seller by the Buyer for that purpose and it is expressly agreed that the Seller shall be taken to have delivered the Goods in accordance with this contract if at that address the Seller obtains from any person a receipt or a signed delivery docket for the Goods.

15.2  The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.

15.3  Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery for the purposes of this agreement.

15.4  It is the Buyer’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery.

15.5  The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

16.    Loss Or Damage

16.1  Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):

(a) the Seller shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of the Seller or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and

(b) the Buyer will indemnify the Seller against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by the Seller in connection with the Goods.


17.    Insurance

17.1  The Buyer acknowledges that:

(a) the Goods are carried and stored at the Buyer’s sole risk and not at the risk of the Seller; and

(b) the Seller is under no obligation to arrange insurance of the Goods and it remains the Buyer’s responsibility to ensure that the Goods are insured adequately or at all; and

(c) under no circumstances will the Seller be under any liability with respect to the arranging of any such insurance and no claim will be made against the Seller for failure to arrange or ensure that the Goods are insured adequately or at all.


18.    Default & Consequences Of Default

18.1  Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2  In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Seller.

18.3  If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

18.4  Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Services to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.

18.5  If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

18.6  Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or

(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.


19.    Unpaid Seller’s Rights to Dispose of Goods

19.1  The Seller shall have a lien on any Goods (and any documents relating to those Goods) in the possession or control of the Seller for all sums payable by the Buyer to the Seller, and the Seller shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Buyer. The Seller shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.


20.    Security And Charge

20.1  Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 20.1.


21.    Privacy Act 1988

21.1  The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.

21.2  The Buyer and/or the Guarantor/s agree that the Seller may exchange information about the Buyer and the Guarantor/s with those credit providers either named as trade referees by the Buyer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by Buyer; and/or

(b) to notify other credit providers of a default by the Buyer; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or

(d) to assess the credit worthiness of Buyer and/or Guarantor/s.

21.3  The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

21.4  The Buyer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:

(a) provision of Services; and/or

(b) marketing of Services by the Seller, its agents or distributors in relation to the Services; and/or

(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and/or

(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services.

21.5  The Seller may give information about the Buyer to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Buyer; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.


22.    Cancellation

22.1  The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

22.2  In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.


23.    General

23.1  If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

23.2  These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.

23.3  The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.

23.4  The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change.

23.5  Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

23.6  The terms and conditions set out herein shall prevail over the terms and conditions set out in any document used by the Buyer, the owner or any other person having an interest in the Goods and purporting to have a contractual effect.

23.7  The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.