Terms & Conditions
By the conditions set out below, the Carrier and its servants and agents are not liable at all for certain losses and damage and, if they are liable, the amount of liability is in all the circumstances limited to the amount stated.
Customers are therefore advised to seek their own insurance cover in any areas in which liability and fault are not clearly accepted by the Carrier.
These Terms and Conditions are structured in 3 parts:
– these are applicable to all Services provided by ANC;
– these are terms applicable to transport services only; and
– these are terms applicable to warehousing services only.
PART 1: GENERAL TERMS
In these Terms and Conditions:
“ANC” means Australian National Couriers Pty Limited (ABN 50 087 923 082) carrying out business in its own name (and any other trading name that ANC may use) its officers, servants, agents, subcontractors and ANC shareholders operating in their own names or under the trading name “ANC” in their respective Australian states of residence.
“Consignor” means the party entering into this contract with ANC;
“Dangerous Goods” means articles or materials, which in the sole opinion of ANC, are capable of posing a threat to people, health, property or the environment and include items that are, or could become, dangerous, explosive, inflammable, volatile, corrosive, perishable or contain any spoiling material or substance or anything likely to encourage vermin or other pests.
“Goods” shall mean the cargo accepted from the Consignor together with associated paperwork.
“Services” means the services to be provided by ANC or any Subcontractor pursuant to this contract.
“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;
Appointment of Subcontractors
1. The Consignor hereby authorises ANC to engage, at its discretion, a Subcontractor for the carriage, or storage of the Goods with subject of this contract and any such arrangement shall be deemed to be ratified by the Consignor upon delivery of the said goods to a Subcontractor.
Liability of Subcontractors
2. Any Subcontractor appointed by ANC pursuant to this contract will be entitled to the full benefit of these terms and conditions to the same extent as ANC. ANC will be deemed to enter into this contract for its own benefit and also on behalf of the Subcontractor. Every right, exemption from liability, defence and immunity of any nature applicable to ANC or to which ANC is entitled to rely on will also be available to protect the Subcontractor. If the Consignor commences any legal action against the 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.
3. If the Consignor expressly or impliedly instructs ANC to use a particular method of transporting, handling or storing the Goods, 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 any such manner as it sees fit.
4. 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
5. As fees are quoted by ANC on the basis of transaction volumes supplied by the Consignor, ANC is entitled to increase rates for any period during which actual volumes for that period fall short of the estimate supplied by the Consignor PROVIDED HOWEVER that:-
(a) such short-fall is greater than 5% 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.
6. ANC may also increase its fees if they become manifestly inadequate due to an event or events unforeseeable at the time of entering the contract 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. Any increase in rates pursuant to this provision will be equivalent to the increase in ANC’s costs caused by the said event or events and 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.
7. In the event a contract for a fixed period between ANC and the Consignor may be renewed, 6 weeks prior to the expiration of that contract, ANC may review its fees and must give notice of any increase in its fees for the renewed term to the Consignor.
8. Except where otherwise expressly indicated, rates quoted and invoiced by ANC are exclusive of G.S.T. which will be shown as a separate item on ANC’s tax invoice.
9. Invoiced amounts are payable in full by the Consignor within fourteen (14) days from the date of the invoice or such other period as agreed to in writing between ANC and the Consignor. Failure to comply with the agreed payment terms will result in all charges becoming immediately due and payable.
10. If the amount invoiced is greater than $150 and is overdue by 60 days or more, ANC reserves the right to report the Consignor to a credit rating body for inclusion in the Consignor’s consumer credit report.
11. Should a dispute arise between the Consignor and ANC over payment of ANC’s charges, it is agreed that the liability for such charges remains with the Consignor at all times and the Consignor may not set off or deduct any amount owed to ANC.
12. 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.
13. ANC shall have a lien on the Goods and documents relating to this contract 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.
Consignor warranties and acknowledgements
14. The Consignor warrants that:
(a) it is either the owner or the authorised agent of the owner of any Goods or property the subject matter of this contract of carriage and by entering into this contract the Consignor accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Consignor is acting;
(b) it will indemnify ANC in respect of any liability whatsoever and howsoever arising (including, without limiting the foregoing for negligent or wilful misconduct) to any party who has or claims to have an interest in the Goods;
(c) all goods have been properly and sufficiently prepared, packed, stowed, labelled and/or marked in accordance with all applicable laws and regulations 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;
(d) all descriptions, values and other particulars furnished to ANC for all purposes pursuant to the performance of the Services are complete and accurate and the Consignor has fully disclosed the Goods on the consignment note/linepad/electronic transfer or other document (as applicable);
(e) it will not offer for transportation or storage any Dangerous Goods without previously giving notice of their nature to ANC and obtaining its prior consent in writing, which shall not be unreasonably withheld;
(f) 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; and
(g) 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 the Consignor acting in accordance with the Consignor’s instructions or arising from any breach by the Consignor of any warranty or undertaking contained in these Terms and Conditions or from the negligence or wilful misconduct of the Consignor.
15. The Consignor undertakes to notify ANC promptly if all or any of the above warranties cease to apply.
16. 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 rates from an agreed date, to reflect what would have been the rates had the information supplied to it been correct and complete.
17. Unless express written consent has been provided by ANC, ANC will not accept for warehousing or transport 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.
18. If ANC discovers it is in possession of Dangerous Goods, it may at its discretion remove, destroy 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 these Terms and Conditions.
Risk and Insurance
19. ANC is not liable for loss, damage or deterioration to the goods caused by or arising out of:-
(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
(i) for loss damage or deterioration in any article or substance of a perishable nature including chilled, frozen, refrigeration or perishable Goods either in transit or in storage for any reason whatsoever.
20. It is the responsibility of the Consignor to arrange such insurance as it sees fit to cover all or any of the above and any other risks.
21. If ANC offers a referral to the Consignor of an insurance provider, the acceptance of any such referral is at the discretion of the Consignor and ANC makes no representation as to the suitability of the insurance provider or the products offered. It is the sole responsibility of the Consignor to ensure any insurance policy obtained is appropriate for its requirements and the Consignor hereby releases ANC from any liability in connection with its referral of an insurance provider to it.
Limitation of Liability
22. To the maximum extent permitted by law, all Services are provided at the risk of the Consignor and ANC is not responsible in tort, contract, bailment or otherwise for any, or the consequences of any, loss or damage arising from the provision of Services or any delay in providing or failure to provide Services (including but not limited to deterioration to, delay in delivery of, failure to deliver or misdelivery of the Goods) for any reason whatsoever including, without limiting the foregoing, the negligence or breach of contract or wilful act or default of ANC or others and this limitation will apply to all, and the consequences of all, loss, damage, deterioration, misdelivery, failure to deliver or delay in delivery of the Goods whether or not it occurs in the course of the performance of these Terms and Conditions or in events which are in the contemplation of the Consignor or ANC or in events which are foreseeable by them or either of them.
23. To the maximum extent permitted by law, ANC will in no case by liable for any loss of profit, loss of sales, loss of market, loss of goodwill or reputation, third party claims, incidental or special damages or indirect or consequential loss of any kind.
24. In the event ANC is rendered liable to the Consignor pursuant to any statute or judgement of a court of competent jurisdiction, its total liability pursuant to this contract will be limited to a refund of any payment it has received from the Consignor for the Services.
Time limits for claims
25. Notwithstanding any other provision of the contract, 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 the following timeframes:
(a) For warehousing services: within twenty-four (24) hours of the results of any stocktake undertaking by or on behalf of the consignor at the warehouse being communicated;
(b) For warehousing services where the Goods are being transported from the warehouse by a party other than ANC, any time prior to dispatch of the Goods from the warehouse;
(c) For transport services: within forty-eight (48) hours of delivery (or in the case of alleged loss within 48 hours after the Goods allegedly lost should in the ordinary course have been delivered);
26. 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.
27. Making a claim for credit does not entitle the Consignor to delay payment of an invoice issued by ANC.
28. Failing to make a claim within these timeframes will result in ANC being discharged from all liability in respect of the Goods and Services.
Termination of agreement
29. ANC is entitled to terminate this contract immediately by written notice in the event of the death or bankruptcy of the Consignor or if the Consignor is a corporation, if the Consignor enters into a scheme of arrangement with its creditors or has an administrator, receiver or liquidator appointed.
30. ANC may terminate this contract if the Consignor is in breach of a term of this contract and has not rectified that breach within 14 days of receipt of written notice from ANC.
31. If ANC gives written notice to the Consignor of its intention to increase its fees and charges pursuant to changes in government taxes, legislation, regulations and industrial awards, the Consignor may give written notice to ANC of intention to terminate this contract on or after the date upon which the proposed increase in fees is to take effect.
32. 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 contract by the Consignor.
33. 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.
34. These Terms and Conditions together with the quotation accepted by the Consignor form the contract between the parties. In the event of an inconsistency between any term in these Terms and Conditions and the quotation, the term in the quotation will prevail.
35. If any provision or part of any provision of this contract is or becomes unenforceable, such unenforceability will not affect the enforceability of the remainder of that provision or any other provision in this contract.
36. This contract 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 contract. The terms and conditions of this contract can only be varied by an agreement in writing executed by ANC and the Consignor.
37. ANC reserves the right at any time and from time to time to amend these Terms and Conditions to the Consignor by providing 14 days written notice. 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.
38. Nothing in these terms and conditions 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).
PART 2: TRANSPORT TERMS
39. 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, nor does ANC intend to contract as principal.
40. 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.
41. The Consignor will become liable to pay ANC its quoted fees and charges upon dispatch of the Goods with ANC, not when delivery occurs.
42. 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 contract if the Goods are delivered to that address and a receipt or signed delivery docket for the Goods is obtained.
43. If the nominated place of delivery should be unattended or if delivery cannot otherwise by 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 Consignors expense.
44. 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.
45. 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) act as the Consignor’s forwarding agent for customs and export control purposes and as receiver solely for the purpose of designating a customs broker to perform customs clearance and entry and (3) 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.
PART 3: WAREHOUSING TERMS
46. It is the sole and absolute responsibility of the Consignor if and when it so wishes to verify that goods comply by quantity, quality or otherwise with its expectations and requirements and at no stage shall ANC be responsible or accept liability for any discrepancy between the Goods and those expectations and requirements.
47. Every endeavour will be made by ANC to meet the Consignor’s reasonable order requirements 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 troubles, equipment breakdown, stress of weather or any other cause beyond its control.
48. Orders will only be accepted by ANC when in writing (including e-mail) and where same-day processing is required, the Goods must be forwarded to be received by ANC before 1.00pm on that business day and must be reasonably capable of implementation on that day.
49. Where the Consignor takes responsibility for tasks requiring its attendance (including by its employees and agents) at ANC’s warehouse, ANC will provide reasonable access upon reasonable notice during business hours (7.30am – 4.00pm Monday to Friday – excluding public holidays).
50. Pallet rates are normally set on the following basis:
(a) Receiving into store (“pallet-in”);
(b) Warehousing (“pallet storage”);
(c) Despatch (“pallet-out”)
51. Rates are charged per pallet unit for each full unit and any part of a unit received or despatched.
52. A pallet unit is defined as that with maximum dimension of 1170 mm width, 1170 mm depth and 1200 mm height and with maximum volume of 1.64 cubic metres.
53. A skid is defined as that with maximum dimensions of 585 mm width, 585 mm depth and 600 mm height.
54. Pallet storage rates are charged on a weekly basis for each full week or any part of a week that they remain in storage.
55. For the purposes of determining charges for storage, a week is defined as Monday to the following Sunday inclusive.
56. ANC will carry out stocktakes of the Consignor’s goods at regular intervals at a cost agreed in writing with the Consignor.
57. Where agreed in writing between ANC and the Consignor, the Consignor shall be entitled to carry out its own stock takes at reasonable times and with reasonable prior notice.
58. ANC is in no way or to any extent liable for any error or inaccuracy in recording the results of its stocktakes or in reporting or not reporting those results to the Consignor. Where ANC reports such results to the Consignor these shall be final and conclusive between ANC and the Consignor and no alleged discrepancy will be recognised unless it is raised by the Consignor within twenty-four (24) hours of the results being reported.
Lien for unpaid charges and power of sale
59. ANC has a statutory lien over the Goods warehoused by ANC for all moneys payable to ANC by the Consignor pursuant to Section 3 of the Warehousemen’s Liens Act 1935 (NSW) (as amended) (the “Act”).
60. Subject to the provisions of the Act, where at least some part of the fees and charges owing to ANC are in arrears of payment for more than six (6) months (or such shorter period as allowed by the Act), ANC will, after providing written notice to relevant parties of an intention to sell the Goods, have full power to open and examine the Goods stored on behalf of the Consignor and to sell all or some of those Goods by public auction. After deducting the costs in connection with the sale or any advertising required for the sale, ANC is entitled to retain and apply the balance of the proceeds of sale in payment of or towards all ANC’s fees and charges owing by the Consignor.
61. Any surplus remaining form the sale after payment of all such fees and charges will be dealt with by ANC in accordance with the Act.