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.
16.1 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.
18.1
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
(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.