Transport & Services - Terms & Conditions
This agreement outlines the terms & conditions, including any quotation, schedules, annexures or attachments that apply (unless otherwise previously agreed in writing) to the supply of Services by ANC to the Consignor from time to time (“Agreement”).
Any supply of Services by Fleet Flyers Pty Ltd trading as ANC to the Consignor made after the date of acceptance of the terms of this Agreement is a supply pursuant to the Agreement and any such supply does not give rise to a new or separate agreement.
This Agreement is structured in 3 parts:
1. Part 1: General Terms – these are applicable to all Services provided by ANC;
2. Part 2: Transport Terms – these are additional terms applicable to transport services only; and
Party Details – refer to Schedule A
PART 1: GENERAL TERMS
Definitions
1. In this Agreement, unless the context otherwise prescribes, the following definitions apply:
“Additional Charges” includes all delivery, goods and services tax, stamp duty, third party surcharges, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Fees, payable by the Consignor to ANC arising out of the supply of the Services.
“Chain of Responsibility” means the chain of responsibility obligations that may be applicable to the parties:
(a) under the Heavy Vehicle National Law in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria;
(b) under the road transport laws of Western Australia and the Northern Territory;
(c) under any federal or state Modern Slavery legislation and regulations; and
(d) under any other regulatory or legislative regime.
(e) as modified or varied from time to time.
“Commencement Date” is the date of commencement of this Agreement, as set out at Schedule A.
“Confidential Information” means this Agreement and all information exchanged between the parties under this Agreement or during negotiations preceding this Agreement (including but not limited to business and financial information, marketing and sales information, pricing, Consignor information) and any other information that by its nature or the circumstances of its disclosure is or could reasonably be expected to be regarded as confidential but does not include information which is in the public domain (other than by reason of a breach of this Agreement).
“Consignor” means the party entering into this Agreement with ANC for whom the Services are to be supplied to by ANC and a reference to ‘Consignor’ includes a reference to any credit account applicant or credit account client of ANC related to that party.
“Dangerous Goods” means articles or materials, which in the reasonable opinion of ANC or at Law, are capable of posing a threat, damage or injury to people, health, property or the environment and include items that are, or could become, noxious, hazardous, radioactive, dangerous, explosive, inflammable, volatile, corrosive, perishable or contain any spoiling material or substance or anything likely to encourage vermin or other pests and includes any goods deemed to be dangerous goods under the Australian Dangerous Goods Code or any other Laws.
“Extended Trading Term” is the period of extension of the Principal Trading Term, as set out at Schedule A.
“Fees” means the price for the Services charged by ANC at the price quoted by ANC in the Quotation (as reflected in Schedule B) or such other price as may be agreed by ANC and Consignor prior to supply of the Services, and unless the context provides otherwise, includes any expenses incurred or to be incurred by ANC in relation to the Services on behalf of the Consignor, subject to review and increase under this Agreement.
“Fixed Pricing Period” is the period where Fees are fixed, as set out at Schedule A.
“Goods” shall mean the cargo accepted by ANC that is the subject of the Services from the Consignor together with associated paperwork.
“GST” means goods and services tax as defined in New Tax System (Goods and Services Tax) Act 1999 (Cth), and as may be amended from time to time.
“Heavy Vehicle National Law” means the Heavy Vehicle National Law and its regulations that are in force in the Teritory in which the Services are provided.
“Manifest” means a document including particulars of the Goods, and which must include the total carton quantity, description, weight, value, nature, measurements of the Goods and a declaration that the Goods are not Dangerous Goods.
“Law” means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory the Commonwealth or a local government and includes laws applicable to the Chain of Responsibility, laws applicable to work, health and safety and the common law and equity as applicable from time to time and any mandatory standards or industry codes of conduct.
“Order” means a request, whether written otherwise, for Services made by a Consignor.
“Personnel” means any person who is an employee, agent or Sub-Contractor of either party.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Premises” means any premises at which ANC is located or from which ANC uses, operates or conducts any of its business activities from time to time.
"Principal Trading Term” is the term of this Agreement (subject to extension) set out at Schedule A.
“Quotation” means a quotation, whether written otherwise, for the provision of Services by ANC to the Consignor.
“Review Period” is the period, after which Fees are subject to a review set out at Schedule A.
“Storage” means the whole of the storage operation and storage services undertaken by ANC in relation to the Goods but does not include collection of the Goods or their redelivery when taken out of storage.
“Services” means the services to be provided by ANC (or any Subcontractor) pursuant to this Agreement as detailed in the Scope of Work set out in Schedule C.
“Subcontractor” includes any person or company that, pursuant to a contract, arrangement or other understanding with ANC performs or agrees to perform the Services or any part thereof.
“Territory” is the territory where the Services are performed, as set out at Schedule A.
Term
2. With effect on and from the Commencement Date, for the Principal Trading Term, ANC agrees to provide Services, under Orders given to ANC, in the Territory, on the terms and conditions set out in this Agreement.
3. The Consignor may, within 3 months before the end of the Principal Term, extend the Principal Term by the Extended Trading Term (or such shorter period as the Consigner may require) by giving notice in writing to ANC, provided that ANC agrees in writing to the extension.
4. This Agreement may be terminated earlier, as set out in this Agreement.
Appointment of Subcontractors
5. The Consignor hereby authorises and permits ANC to engage, at its discretion, any Subcontractor for the performance of Services under this Agreement.
Liability of Subcontractors
6. The Consignor shall grant any Subcontractor appointed by ANC pursuant to this Agreement entitlement to the full benefit of this Agreement to the same extent as ANC. Every right, exemption from liability, defence and immunity of any nature applicable to ANC or to which ANC is entitled to rely on together with any obligations will also be available for the benefit of the Subcontractor. If the Consignor commences any legal action against a Subcontractor, in relation to the Services or otherwise in connection with this Agreement, the Consignor hereby agrees to indemnify ANC from any consequences of the said legal action including but not limited to damages, costs and taxes.
Order for Services
7. An Order given to ANC is only binding on ANC and the Consignor, if:
(a) a written acceptance is signed for or on behalf of ANC; or
(b) the Services are supplied by ANC in accordance with the Order.
8. An Order which has been accepted in whole or in part by ANC cannot be cancelled by the Consignor without prior written approval of ANC, which it may refuse in its absolute discretion. In the event cancellation of an Order is approved by ANC, ANC reserves the right to claim payment from the Consignor and the Consignor agrees to pay the cancellation fee described in the Quotation (if applicable) for the cancelled Order or for that part of the Order so cancelled and the Additional Charges.
9. ANC reserves the right to claim full payment of the Fees and Additional Charges from the Consignor and the Consignor agrees to pay the Fees and Additional Charges for an Order if ANC has commenced providing the Services and ANC is unable to complete an Order through no fault of ANC and because the Consignor has cancelled or sought to cancel the Order.
10. ANC may give Quotations where the Consignor proposes to request Services from ANC under an Order. Any Quotations given by ANC are valid for 30 days from the date of the Quotation unless stated otherwise.
Variations
11. Any work required to be completed that is not within the agreed scope of Services under an Order will be deemed to be a variation (Variation). Variations must be confirmed and agreed to in writing by ANC (or an authorised representative of ANC) and the Consignor before the ANC performs such work. Fees for variations will be confirmed in writing seven (7) days prior to Services being carried out (Variation Notice). If ANC does not receive a response within seven (7) days of receipt of the Variation Notice then it will have deemed to have accepted such Variation Notice and any amount due on such Variation Notice will be payable in accordance with ANC’s ordinary payment terms. ANC will not be responsible for any delays relating to Variations to the scope of works.
Consignor’s instructions
12. If the Consignor expressly or impliedly instructs ANC to use a particular method of transporting, handling or storing the Goods in performing Services, ANC will use its best endeavours to comply with those instructions. In the event that ANC cannot conveniently or reasonably comply with those instructions, the Consignor authorises ANC to transport, handle or store the Goods in performing Services in any such manner as it sees fit.
13. The Consignor authorises any deviation from the usual route or method of carriage or place of storage which may in the absolute discretion of ANC be deemed reasonable, desirable or necessary in the circumstances.
Fees, invoicing and payment terms
14. The Consignor must pay the Fees and Additional Charges to ANC. The Consignor must abide by the Invoice Payment Guidelines (as set out in Schedule A).
15. If the Consignor is in default, ANC may at its option withhold further Services, cancel the Services, withdraw credit or refuse any further credit, without prejudice to any of its existing rights.
16. Fees and Additional Charges are payable within 14 days from the date of invoice.
17. Failure to comply with the agreed payment terms will result in all charges becoming immediately due and payable.
18. Interest is also charged at the rate of 2.00% per month or part of a month from the expiry of the due date for payment of invoice until the date payment is actually received by ANC.
19. Payments should be made to ANC via direct debit or credit card (credit card processing fees incurred will be on-charged). Cash and cheque payments will not be accepted. ANC is not liable for any loss or damage of any kind howsoever caused which is suffered or incurred by the Consignor in connection with the use of a credit card or other debit device or service.
Fee Reviews
20. As Fees are quoted by ANC on the basis of the estimated transaction volumes of Goods supplied by the Consignor, ANC is entitled to increase Fees for any period during which actual volumes of Goods for that period fall short of the estimate supplied by the Consignor provided however that:-
(a) such short-fall is greater than 15% of the estimate supplied;
(b) the increase in Fees shall be no greater than the difference between the Fees ANC agreed to charge for the estimated volume and the Fees ANC would in the ordinary course of trade charge for the actual volume;
(c) the increase shall only apply to a period during which the short-fall occurs.
21. Notwithstanding clause 20:
(a) all Fees will be subject to review, starting at the end of the Fixed Pricing Period. Reviews are undertaken every Review Period.
(b) ANC may also review and increase its Fees at any time due to an event or events unforeseeable at the time of entering the Agreement and beyond the control of ANC including (but not limited to) changes to legislation, regulations, industrial awards, government taxes or charges or other direct costs such as increases in the cost of contractors, freight, transport or currency fluctuations.
(c) Following a review done during a Review Period, any proposed increase in Fees pursuant to this provision become effective from the expiration of a period of not less than 14 days from the date that a written notice is provided to the Consignor detailing the amount of and reason(s) for the increase and the Consignor does not give notice in writing to object to the increase within the 14 day notice period. The new Fees do not apply during the period of notice.
(d) If the Consignor objects to the increase, then the Consignor is deemed to accept an increase in Fees by 5%.
(e) If ANC does not receive a response within 14 days of receipt of the notice in this clause, then the Consignor will be deemed to have accepted such price increase and any amount due on such price increase will be payable in accordance with this Agreement.
22. Except where otherwise expressly indicated, Fees quoted and invoiced by ANC are exclusive of GST which will be shown as a separate item on ANC’s tax invoice.
23. A fuel levy as outlined in Schedule A will be added to each job for Services that are transportation services. The fuel levy rate is subject to regular review in line with changes in fuel prices and is an additional charge to the Fees payable under this Agreement.
Disputed Invoices
24. Disputes concerning invoices will only be recognised if raised by notice in writing to ANC within 14 days of the date of the invoice.
25. Liability for such charges on a disputed invoice remains with the Consignor at all times and the Consignor may not set off or deduct any amount owed to ANC. If, in resolving the dispute, it results in ANC issuing a credit note, that credit will be noted on the next invoicing cycle and the original disputed invoice must be paid in full.
26. ANC may engage a debt collection agency to assist it to recover any unpaid amounts owing to it by the Consignor. If this occurs, the Consignor agrees to pay all of ANC’s costs incurred in recovering the unpaid amount upon written demand.
27. ANC shall have a common law or statutory lien or in the event there is no such lien than a general lien on the Goods and documents relating to this Agreement and on any other goods of the Consignor in the possession of ANC or any documents relating hereto for all sums payable by the Consignor to ANC and for that purpose shall subject to any prevailing laws, have the right to sell any such goods by public auction or private treaty without notice to the Consignor. Nothing in this Agreement derogates from, reduces or otherwise affects such lien.
Consignor warranties and acknowledgements
28. The Consignor warrants that:
(a) the Consignor will only permit authorised officers who are currently employed by the Consignor at the time of issue of any Order to ANC, to issue and/or sign such order.
(b) it is either the owner or the authorised agent of the owner of any Goods or property, that is subject of Services to be performed under this Agreement;
(c) it will indemnify and hold harmless ANC against any and all damage, loss, cost (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party), expense, liability, claim, proceeding, however arising, whether present, unascertained, immediate, future or contingent, suffered, paid or incurred by ANC arising out of or in connection with an act or omission of the Consignor in supplying the Goods or any and all obligations or warranties under these condition, the contract or an order whatsoever and howsoever arising (including, without limiting the foregoing for negligent or willful misconduct) to any party who has or claims to have an interest in the Goods except to the extent where that liability is caused by ANC’s negligence or willful misconduct;
(d) where applicable, the person or entity delivering the Goods to ANC for Services to be carried out, is authorised by the Consignor to do so;
(e) all Goods have been properly, safely and sufficiently prepared, packed, stowed, labelled and/or marked in accordance with all applicable Laws and in a manner that is sufficient to enable the Goods to withstand the ordinary risks which they could reasonably be expected to experience during the provision of the Services. ANC will be entitled to be fully reimbursed by the Consignor for any additional expense it incurs in rectifying any failure by the Consignor to conform to these requirements;
(f) a Manifest will be provided to ANC prior to providing the Goods for the provision of Services and all details in that Manifest including all descriptions, values, measurements and other particulars furnished to ANC are complete and accurate and the Consignor has fully disclosed the Goods on the consignment note/linepad/electronic transfer or other document (as applicable);
(g) it will not offer for transportation or storage any Dangerous Goods;
(h) it will indemnify ANC against any liability, claims, loss, damage, costs or expenses arising out of any other person relying upon advice or information (whether written or oral) given by the Consignor including advice and information which is not related to specific instructions accepted by ANC;
(i) it shall notify ANC in writing of any change in control within the Consignor, as ‘Control’ is defined under section 50AA of the Corporations Act 2001 (Cth), or any change in directorship, partnership or trusteeship, within seven (7) days of the date of such change; and
(j) it will indemnify ANC against all liability whether to the Consignor or to any third party for any loss, damage, costs and expenses whatsoever arising out of ANC acting in accordance with the Consignor’s instructions or arising from any breach by the Consignor of any warranty or undertaking contained in this Agreement or from the negligence or wilful misconduct of the Consignor except to the extent where that liability is caused by ANC’s negligence or wilful misconduct.
29. The Consignor undertakes to notify ANC promptly if all or any of the above warranties cease to apply.
30. The Consignor indemnifies and will keep ANC indemnified against any claim, loss, damage, expense, penalty, fine or liability arising from a breach of the warranties in clause 28 if any of the warranties given prove to be untrue.
31. The Consignor acknowledges and agrees that the Fees payable by the Consignor to ANC have been determined, in part, in reliance on the above warranties given to it by the Consignor. If at any time any of the warranties given by the Consignor proves to be incorrect or incomplete in any respect, ANC will be entitled to revise its Fees from an agreed date, to reflect what would have been the Fees had the information supplied to it been correct and complete.
32. ANC shall grant the Consignor access to its ANC’s online IT systems (currently known as FMS by providing login details (username(s) and password(s)), to enable the Consignor to make an Order under on this Agreement (and provide other functionalities and tools that benefits the Consignor, as notified by ANC from time to time). The Consignor agrees and acknowledges that access and login details may only be given to and used by such of the Consignor’s directors, agents or employees that is authorised to be given access (and which the Consignor has notified ANC in advance) (Authorised Personnel).
33. Notwithstanding anything else in this Agreement, the Consignor will indemnify and hold harmless ANC against any and all damage, loss, cost (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party), expense, liability, claim, proceeding, however arising, whether present, unascertained, immediate, future or contingent, suffered, paid or incurred by ANC arising out of or in connection with any access to, use of, exploitation of or any form of cyber-attack or cyber-incident against ANC’s IT systems, using the login details provided by ANC to the Authorised Personnel, by any person other than the Authorised Personnel. The Consignor shall maintain such cyber insurances or similar forms of insurance as ANC deems appropriate to insure the Consignor for its liability towards ANC for such risks and must ensure that ANC obtains the benefit of such policies.
Dangerous Goods
34. Unless express written consent has been provided by ANC, ANC will not accept for transportation any Dangerous Goods, and the Consignor will be liable for any damage or loss that may be suffered by ANC or any third party as a result of Dangerous Goods tendered to ANC.
35. If ANC discovers it is in possession of Dangerous Goods, it may at its discretion remove, destroy, dispose of, abandon or otherwise render them harmless at the Consignor’s expense, without incurring any liability to compensate the Consignor and without prejudice to ANCs right to receive any payment under this Agreement.
Risk and Insurance
36. ANC is not liable for loss, damage or deterioration to the Goods caused by or arising out of the following
(a) burglary or theft;
(b) floods, leakage or overflow of water;
(c) heat or fire or smoke or fumes;
(d) overflow or spillage from or of goods stored for other Consignors;
(e) pests or vermin;
(f) strikes, labour troubles, act of God, riot, civil commotion, invasion, war, explosion, radiation, vandalism and air accidents;
(g) damp, moths, mildew or rust;
(h) any packaging, case or container supplied by the Consignor; or for loss, damage or deterioration in any article or substance of a perishable nature including chilled, frozen, refrigerated or perishable Goods either in transit or in storage for any reason whatsoever; or
(i) any other form of event that is a Force Majeure Event (as defined in clause 64).
37. The Goods are at all times at the Consignor’s sole risk. Should the consignment reach its destinations in damaged packaging or be handed to ANC or the Subcontractor appointed by ANC with its packaging damaged, then ANC shall be entitled to reject the consignment without checking the contents. Should it be necessary to return the consignment, the Consignor shall bear the cost of the return.
38. It is the responsibility of the Consignor to arrange such insurance to cover all or any of the above and any other risks at all times whilst stored at ANC’s Premises or while in the possession, custody or control of ANC in carrying out the Services.
Limitation of Liability
39. To the maximum extent permitted at law:
(a) any claims to be made against ANC in relation to the Services must comply with the process set out under the clauses headed ‘Time limit for claims’;
(b) all other warranties whether implied or otherwise, not set out in this Agreement are excluded and ANC is not liable in contract nor tort (including, without limitation, negligence or breach of statutory duty); and
(c) ANC will in no case be liable for any loss of profit, loss of sales, loss of market, loss of goodwill or reputation, third party claims, incidental, exemplary or special damages or indirect or consequential loss of any kind.
40. In the event ANC is rendered liable to the Consignor pursuant to any statute or judgment of a court of competent jurisdiction, its total liability pursuant to this Agreement will be limited to a refund of any Fees it has received from the Consignor for the Services.
Time limits for claims
41. Notwithstanding any other provision of this Agreement, claims made by the Consignor to ANC for credit in respect of alleged loss or damage to Goods may be considered if the Consignor provides full details of its claim in writing to ANC within forty-eight (48) hours of delivery (or in the case of alleged loss, within 48 hours after the date the Goods allegedly lost should, in the ordinary course, have been delivered).
42. Claims to ANC for credit arising from any other cause will only be accepted for assessment when made in writing within fourteen (14) days from the date of issue of ANC’s tax invoice.
43. Making a claim for credit does not entitle the Consignor to delay payment of an invoice issued by ANC.
44. Failing to make a claim within these timeframes will result in ANC being discharged from all liability in respect of the Goods or Services.
45. A claim for credit may only be used to offset future Fees payable by the Consignor under this Agreement. The Consignor’s request for the claim for credit to be paid as a refund shall be considered by ANC on a case-by-case basis.
Termination of agreement
46. It is agreed that:
(a) ANC is entitled to terminate this Agreement immediately by written notice in the event of the bankruptcy of the Consignor, if the Consignor enters into a scheme of arrangement with its creditors, has an administrator, receiver or liquidator appointed, or stops carrying on the business that it carried on as at the date of this Agreement.
(b) ANC may terminate this Agreement if the Consignor is in breach of a term of this Agreement and has not rectified that breach within 14 days of receipt of written notice from ANC.
(c) ANC or the Consignor have the right to terminate this Agreement for convenience by providing 30 days’ written notice to the other.
(d) If ANC gives written notice to the Consignor of its intention to increase its Fees and charges the Consignor may give 30 days’ written notice to ANC of intention to terminate this Agreement before the date upon which the proposed increase in Fees is to take effect.
(e) Nothing contained in this Agreement may be read or construed to affect or limit in any way ANC’s entitlement to seek remedies at law or in equity following any breach of this Agreement by the Consignor.
(f) Any delay or failure by ANC to exercise any right or entitlement it may have shall not operate as a waiver of such right or entitlement. Any waiver of a provision of this agreement by either party must be in writing and signed by the party or a person having clear and ostensible authority to do so.
Chain of Responsibility and Work Health and Safety
47. Each party:
(a) acknowledges that it has or may have obligations under the Law, including without limitation, in relation to safety and Chain of Responsibility; and
(b) agrees to comply with all Laws applicable to the performance of its obligations, including without limitation all workplace laws and Chain of Responsibility.
48. The Consignor must comply at its own expense with any Chain of Responsibility obligations applicable to it and co-operate with ANC, including but not limited to, by way of provision to ANC of any information or documents in whatever form, reasonably required for ANC to be able to comply with or satisfy any Chain of Responsibility obligations that may be applicable it.
PPSA
49. Defined terms in this clause have the same meaning as given to them in the PPSA.
50. The Consignor and ANC acknowledge that this Agreement constitute a Security Agreement and entitle ANC to claim:
(a) a Security Interest in favour of ANC over the Collateral supplied or to be supplied to the Consignor as Grantor pursuant to this Agreement; and
(b) a Security Interest over the Proceeds of sale of the Collateral referred to in clause 50(a) as original Collateral; The goods supplied or to be supplied under this Agreement fall within the PPSA classification of ”Other Goods” acquired by the Consignor pursuant to this Agreement.
51. The Proceeds of sale of the Collateral referred to in clause 50(b) falls within the PPSA classification of “Account”.
52. ANC and the Consignor acknowledge that ANC, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to the Consignor pursuant to this Agreement and in the relevant Proceeds.
53. To the extent permissible at law, the Consignor:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Consignor to ANC.
(b) agrees to indemnify ANC on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the:
i. registration or amendment or discharge of any Financing Statement registered by or on behalf of ANC;
ii. enforcement or attempted enforcement of any Security Interest granted to ANC by the Consignor;
(c) agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under this Agreement; and
(d) agrees to waive its right to do any of the following under the PPSA:
i. receive notice of removal of an Accession under section 95;
ii. receive notice of an intention to seize Collateral under section 123;
iii. object to the purchase of the Collateral by the Secured Party under section 129;
iv. receive notice of disposal of Collateral under section 130;
v. receive a Statement of Account if there is no disposal under section 132(4);
vi. receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
vii. receive notice of retention of Collateral under section 135;
viii. redeem the Collateral under section 142; and
ix. reinstate the Security Agreement under section 143.
x. All payments received from the Consignor must be applied in accordance with section 14(6)(c) of the PPSA.
Indemnity
54. To the full extent permitted by law, the Consignor indemnifies ANC and will keep ANC indemnified from and against any duties, taxes, payments, fines, expenses, losses, damages (including physical damage) and liabilities,
(a) arising directly or indirectly from or in connection with a breach of any of these Terms by the Consignor or its Personnel;
(b) incurred by ANC in the performance of its obligations hereunder, including any liability to indemnify any other person against claims made against such other person by the Consignor, receiver or owner of Goods; or
(c) arising from or in relation to a claim by a third party asserting to be the owner of the Goods or having a right to immediate possession.
55. Without limiting this indemnity clause, the Consignor shall be liable for and shall indemnify ANC against all liability for GST, and any other goods and services tax, value added tax, consumption tax or tax of similar effect levied from time to time.
56. This indemnity is independent of and exists alongside and without negating any other indemnity within this Agreement or otherwise given in favour of ANC by the Consignor.
Confidentiality
57. Subject to clause 58, the parties must not disclose any Confidential Information to any person and must not permit or procure any other person to disclose Confidential Information to any other person.
58. A party may disclose Confidential Information:
(a) to its employees, officers, advisors and bankers as is reasonably necessary for the performance of its obligations under this Agreement provided it is on a “needs to know” and confidential basis;
(b) if disclosure is required by Law, in which case the party must use its best endeavors to first provide the other party with an opportunity to comment on the form and terms of the proposed disclosure;
(c) for the purpose of obtaining legal or accounting advice or services in respect of this Agreement, provided it is on a “needs to know” and confidential basis; or
(d) with the prior written approval of the other party.
Data Privacy
59. In clauses 60 and 61:
(a) Personal Information has the meaning of that term in the Privacy Act 1988 (Cth);
(b) Privacy Laws means the Privacy Act 1988 (Cth) and any other laws or other mandatory requirements relating to the handling of Personal Information and and any other relevant data protection laws, legislation and regulation;
(c) Consignor Data means all data (including personal data) and other information (editorial, text, graphic, audio visual and other content), including Personal Information, that the Consignor or someone on behalf of the Consignor makes available to ANC, through or as a consequence of the performance of the parties’ obligations under this document;
(d) Data Breach means any loss and unauthorised access, use, modification, disclosure or other misuse of Consignor Data.
60. ANC agrees to:
(a) store and use the Consignor Data in connection with this Agreement for the purposes of fulfilling its obligations in this Agreement, in accordance with the Privacy Laws;
(b) comply with the Privacy Laws governing the collection, security, access, data quality, use and disclosure of the Consignor Data to the extent that those principles apply to the activities pursuant to this Agreement;
(c) provide all reasonable assistance necessary to assist the Consignor with any suspected Data Breach;
(d) upon request by the Consignor, destroy all Consignor Data collected or obtained from, through or on behalf of the Consignor or when the Personal Information is no longer required;
(e) take reasonable endeavours to protect the information technology systems and data used in connection with the operation of the business and its performance are made pursuant to this document.
61. Unless otherwise expressly provided by the Consignor in writing and agreed to by ANC:
(a) The Consignor warrants that all Consignor Data provided by or obtained from the Consignor is owned by the Consignor;
(b) Upon request from the Consignor, ANC will delete, destroy or return all copies of the Consignor Data, and in accordance with the Consignor’s direction;
(c) ANC will not commercially misuse the Consignor Data on behalf or itself or third parties;
(d) ANC will not accumulate the Consignor Data for any purpose other than pursuant to this Agreement;
(e) ANC will take all reasonable measures to prevent unauthorised access to the Consignor Data; and
(f) ANC will not be liable for any breaches of the Privacy Laws or any Data Breaches to the extent that any activity by a third party in relation to the Consignor Data (using use or storage) prior to its provision to ANC constitutes a breach of the Privacy Laws or is a Data Breach by that third party.
Trustee Capacity
62. If the Consignor is the trustee of a trust (whether disclosed to ANC or not), the Consignor warrants to ANC that:
(a) the Consignor enters into this Agreement in both its capacity as trustee and in its personal capacity;
(b) the Consignor has the right to be indemnified out of trust assets;
(c) the Consignor has the power under the trust deed to enter into this Agreement;
(d) the Consignor will not retire or be removed as trustee of the trust or appoint any new or additional trustee without first advising ANC and obtain ANC’s consent to the retirement, removal or appointment.
Dispute Resolution
63. It is agreed that:
(a) If there is a dispute in relation to any aspect of the supply of the Goods either party may notify the other in writing of the dispute.
(b) Following any such notification, there will be a period of 30 days during which both parties must participate in good faith in any negotiations or discussions regarding the dispute which ANC requests the Consignor to participate in.
(c) If the dispute has not been resolved by the end of the 30 day period, ANC may require that the dispute be submitted to mediation in accordance with, and subject to, the Resolution Institute and its applicable rules.
(d) Subject to clause 60 neither party is permitted to commence any court proceedings or other similar actions relating to a dispute unless it has complied with the procedure set out in this clause.
64. This clause does not prevent a party from commencing legal proceedings for urgent interlocutory relief.
Notices
65. All notices, consents, waivers, and other communications under this Agreement must be in writing and addressed to the party as listed in the table in this Agreement headed “Party Details” or otherwise notified to a party in writing and notice will be deemed to have been duly given when;
(a) if delivered by hand, upon delivery;
(b) if sent by post, two (2) Business Days after being sent;
(c) if by email, on the the day the email has been sent, unless the sender receives a delivery failure notification, indicating that the email has not been delivered to the recipient..
General
66. It is agreed that:
(a) This Agreement, together with the Quotation accepted by the Consignor, form the contract between the parties. In the event of an inconsistency between any term in this Agreement and the Quotation, the term in the Quotation will prevail to the extent of such inconsistency.
(b) If any provision or part of any provision of this Agreement is or becomes unenforceable, such unenforceability will not affect the enforceability of the remainder of that provision or any other provision in this Agreement.
(c) This Agreement is governed by the laws of New South Wales and the parties agree to submit to the exclusive jurisdiction of the courts of New South Wales in relation to any dispute arising in connection with this Agreement. The terms and conditions of this Agreement can only be varied by an agreement in writing executed by ANC and the Consignor.
(d) ANC reserves the right at any time and from time to time to amend this Agreement to the extent reasonably necessary to protect its legitimate business interests by providing 14 days written notice to the Consignor. All such amendments will have force and effect after the expiration of the notice period and will apply to a subsisting contract except where it is explicitly agreed between ANC and the Consignor.
(e) Nothing in this Agreement is intended to restrict, override or modify any Federal, State or Territory legislation and are to be read as being subject to such legislation, in particular, the provisions of the Competition and Consumer Act 2010 (Cth). Any stated exclusion or limitation in this Agreement is only to the full extent permitted at law.
(f) The Consignor has been provided with an opportunity to seek independent legal, financial and any other kind of professional advice (that the Consignor considers appropriate) prior to entering into this Agreement.
(g) The Consignor acknowledges that it has been provided with an opportunity to read, consider, negotiate and discuss this Agreement with ANC prior to entering into the Terms and Conditions.
Force Majeure
67. Every endeavour will be made by ANC to meet the Consignor's reasonable requirements under an Order by the time desired. However, ANC shall not be liable for failure to do so or any loss occasioned thereby caused by strike or other labour disputes or unrest, government restrictions, pandemic, epidemic, shortage of supplies, public health orders, transport delays, equipment breakdown, stress of weather, “Act of God”, or any other cause beyond its control (‘Force Majeure Event’).
68. If a Force Majeure Event arises, ANC will notify the Consignor in writing of the Force Majeure Event and the likely impact it will have on ANC’s performance of Services. If the Force Majeure Event affects the capacity of ANC to complete its material obligations under this Agreement in a timely manner, ANC may by notice to the Consignor terminate this Agreement without any liability whatsoever on its part arising from that termination.
Special Conditions
69. The special conditions as set out in Schedule D (Special Conditions) form part of this Agreement.
70. If there is any inconsistency between the other provisions of this Agreement and the Special conditions, then the Special Conditions prevail to the extent of that inconsistency.
71. Where a provision of a Special Condition is held to be invalid, void or unenforceable, such provision shall be severable from the other provisions of the Special Condition which shall remain valid and enforceable.
PART 2: TRANSPORT TERMS
72. The Consignor acknowledges and agrees that ANC is not a common carrier and accepts no liability as such for the purposes of arranging the transport of Goods,
73. ANC reserves the right to refuse the carriage or transport of Goods or articles for any person corporation or company and the carriage or transport of any class of Goods or articles is at ANC’s discretion.
Delivery of Services
74. The times quoted for delivery of the Services are estimates only and ANC accepts no liability for delay. The Consignor is not relieved of any obligation to accept or pay for Services by reason of any delay in delivery of the Services.
75. If the Consignor becomes aware that it needs to delay the provision of any part of the Services due to weather events or other factors outside of its reasonable control, the Consignor must provide ANC with a minimum of 48 hours written notice, or such other period agreed in writing between the parties, of the delay. The parties will work together to minimise the impact of any delays.
76. A charge may be made to the Consignor in respect of any delay in excess of thirty (30) minutes in loading or unloading incurred other than from the default of ANC. Such permissible delay period shall commence upon ANC reporting for loading or unloading. Labour to load or unload the Goods shall be the responsibility of and at the expense of the Consignor.
77. The Consignor will become liable to pay ANC its quoted Fees and charges upon dispatch of the Goods with ANC, not when delivery occurs.
78. ANC is authorised to deliver the Goods at the address given to ANC by the Consignor for delivery and it is expressly agreed that ANC will be taken to have delivered the Goods in accordance with this Agreement if the Goods are delivered to that address and a receipt or signed delivery docket for the Goods is obtained.
79. If the nominated place of delivery should be unattended or if delivery cannot otherwise be effected by ANC, ANC may at its option either deposit the Goods at that place (which shall be conclusively presumed to be due delivery hereunder) or store the Goods. If the Goods are stored by ANC, the Consignor shall pay or indemnify ANC for all costs and expenses incurred in relation to such storage. ANC shall be at liberty to redeliver the Goods to the Consignor from the place of storage at the Consignor’s expense.
80. ANC accepts no responsibility for the collection of cash on delivery or any other payments on behalf of the Consignor or any other person. When goods are tendered by any person with instructions for ANC to collect any such payments ANC shall not be bound by such instructions notwithstanding that ANC may accept those Goods as tendered and perform other Services in relation to those Goods.
81. If any of the Goods are subject to the control of customs, all customs duty and excise duty costs including any fine or penalty which ANC becomes liable to pay pursuant to any law relating to customs or excise shall be paid by the Consignor.
82. ANC may perform any of the following activities on the Consignor’s behalf in order to provide its Services to the Consignor: (1) complete any documents, amend product or service codes, and pay any duties or taxes required under applicable laws and regulations, (2) redirect the Goods to an import broker or other address upon request by any person who ANC believes in its reasonable opinion to be authorised.