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Standard Conditions of Contract - Transport and Warehousing
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.
1. In these terms and conditions:
“Carrier” shall mean Australian National Couriers Pty Limited (ANC) (ABN 50 087 923 082) carrying on business in its own name (and any other trading name that the Carrier 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.
“Subcontractor” shall include any person who pursuant to a contact or arrangement with any other person (whether or not a company) performs or agrees to perform the Services or any part thereof;
“Consignor” shall mean the person with whom this contract is made;
“Services” shall mean the provision of the operations and services undertaken by the Carrier or anyone on its behalf in connection with items or goods including but not limited to the carriage, transport and or the storage of the said items or goods.
“Goods” shall mean the cargo accepted from the Consignor together with associated paperwork.
2. The Carrier is NOT A COMMON CARRIER and will accept no liability as such for the purposes of arranging the transport of Goods and does not intend to contract as principal. All services performed by the Carrier are subject to these conditions. The Carrier 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 the Carrier’s discretion.
3. The Consignor hereby authorises the Carrier (if it should think fit to do so) to arrange with a Subcontractor for the carriage of any Goods subject to this contract and any such arrangement shall be deemed to be ratified by the Consignor upon delivery of the said goods to a Subcontractor who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Carrier in so far as it may be necessary to ensure that such Subcontractor shall be so entitled the Carrier shall 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 the Carrier or to which the Carrier is entitled to rely on shall also be available to protect the Subcontractor. If the Consignor commences any legal action whatsoever against a Subcontractor, in relation to the Services or otherwise in connection with this agreement, the Consignor hereby agrees to indemnify the Carrier from any consequences of the said legal action including but not limited to damages, costs and taxes.
4. If the Consignor expressly or impliedly instructs the Carrier to use a particular method of carriage whether by Road, Rail, Sea or Air, or of handling or storing the Goods, the Carrier will give priority to the method designated and if that method cannot conveniently be adopted by the Carrier the Consignor hereby authorises the Carrier to handle or to store or to have the Goods carried by another method or methods, including successive carriers and transportation methods.
5. The Consignor hereby authorises any deviation from the usual route of carriage or place of storage which may in the absolute discretion of the Carrier be deemed reasonable, desirable or necessary in the circumstances and the Consignor agrees that the Carrier shall not be held responsible for any defective storage of any frozen, refrigerated or perishable goods so arising.
6. The Consignor warrants to the Carrier that:
(i) The Consignor has complied with all the applicable laws and regulations (including where necessary the Australian Code) relating to the notification description on the consignment note for separately consigning and packaging of the Goods and the expenses and charges of the Carrier in compliance with any such law or with any order or requirement there under or with the requirement of any Harbour dock, Railway, Shipping, Customs, Warehouse or authority or company shall be paid by the Consignor. Additional freight charges shall be paid on such Goods if deemed necessary by the Carrier.
(ii) The Consignor shall be responsible for the conformity of any containers, packaging or pallets with any requirement of the Consignee and for any expense incurred by the Carrier arising from any failure to so conform.
(iii) 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 the Carrier becomes liable to pay pursuant to any law relating to Customs or Excise shall be paid by the Consignor.
(iv) The Consignor has fully and adequately described the Goods on the Consignment Note/Linepad/Electronic transfer. The Consignor shall not tender for carriage any volatile spirit or corrosive substance, inflammable or otherwise, or Goods that are or that may become inflammable and or offensive, (including radioactive materials) or which are or may become liable to damage any property whatsoever, without presenting a full description disclosing the nature of such goods, and in any event, the Consignor shall be liable for all loss and damage caused thereby and if in the opinion of the Carrier, the Goods are, or are liable to become dangerous, inflammable corrosive or offensive or of a damaging nature the same may, at anytime, be destroyed, disposed of, abandoned or rendered harmless by the Carrier without compensation to the Consignor and/or the Consignee and at the Consignors expense and without prejudice to the Carriers right to any charges hereunder.
7. The Carrier is authorised to deliver the Goods at the address given to the Carrier by the Consignor for that purpose and it is expressly agreed that the Carrier shall be taken to have delivered the goods in accordance with this contract at that address where he obtains from any person a receipt or signed delivery docket for the Goods. If the nominated place of delivery should be unattended or if delivery cannot otherwise be effected by the Carrier, the Carrier may at its option deposit the Goods at that place (which shall be conclusively presumed to be due delivery hereunder) or store the Goods and if the Goods are stored by the Carrier the Consignor shall pay or indemnify the Carrier for all costs and expenses incurred in relation to such storage. The Carrier shall be at liberty to redeliver the Goods to the Consignor from the place of storage at the Consignors expense.
8. The Carriers charges shall be considered to be earned as soon as the Consignor has despatched the Goods with the Carrier and the Consignor will remain responsible to the Carrier for all its proper charges incurred for any reason.
9. IT IS THE CONSIGNOR’S RESPONSIBILITY TO TAKE OUT APPROPRIATE INSURANCE. However, the Carrier may choose to offer a referral to the Consignor of an Insurance provider (without recommending any particular product). The Consignor hereby releases the Carrier from any liability that may arise in relation to the Goods due to any failure of a policy of insurance to cover such liability.
10. THE CARRIER IS NOT LIABLE FOR ANY LOSS OR DAMAGE. The goods are at the risk of the Consignor and not the Carrier and unless expressly agreed in writing the Carrier shall not be responsible in tort or contract or otherwise and shall be released and indemnified by the Consignor for any liability arising for any loss of or damage to or deteriorations of Goods or misdelivery or failure to deliver or delay in delivery of Goods including chilled, frozen, refrigerated or perishable Goods either in transit or in storage for any reason whatsoever including without limiting the foregoing the negligence or willful act or default of the Carrier or others and this clause shall apply to all such loss or damage to or deterioration of Goods or misdelivery or failure to deliver or delay in delivery of Goods as aforesaid whether or not the same occurs in the course of performance by the Carrier of the contract or which are in the contemplation of the Carrier and/or the Consignor or in events which are foreseeable by them or either of them or in events which would constitute a fundamental breach of the contract or a breach of a fundamental term thereof.
11. The Consignor expressly warrants with the Carrier that the Consignor 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 who’s behalf the Consignor is acting.
12. The Carrier 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 the Carrier or any documents relating hereto for all sums payable by the Consignor to the Carrier 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.
13. No claim in respect to loss or damage of Goods may be made unless a notice of claim is lodged in writing at the registered office of the Carrier within five (5) days after delivery was affected or would in the ordinary course of business have been affected. Despite anything else to the contrary, the Carriers rights under this Agreement shall not be prejudiced by any claim made by the Consignor.
14. Notwithstanding clause 13 hereof, the Carrier shall in any event be discharged from all liability whatsoever in connection with the Goods unless suit is brought within three (3) months from their delivery or from the date on which in the ordinary course of business delivery would have been effected.
15. Where a dispute arises between the Consignor and Consignee over payment of the Carrier’s charges, it is agreed that the liability for such charges remains with the Consignor at all times and the Consignor shall not institute any set off or deduction of charges owed to the Carrier.
16. It is hereby agreed that if any provision or part of any provision of this contract is made unenforceable, such unenforceability shall not affect any other part of such provision or any other provision hereof.
17. Any action brought against the Carrier shall be brought in the State of New South Wales and each party unconditionally submits to the law of New South Wales in relation to any dispute that arises in relation to this Contract.
18. The Carrier shall be entitled to increase rates and charges for Services where they become manifestly inadequate due to an event or events unforeseeable at the time of setting prices or charges and beyond the control of the Carrier such as (but not limited to) changes to government taxes or charges or increases in the Carrier’s costs arising from amended legislation or regulation or industrial awards or costs;
19. The terms and conditions of this contract can only be varied by an agreement in writing executed by the Carrier and the Consignor.
THESE TERMS AND CONDITIONS ARE TO BE READ AS BEING SUBJECT ALWAYS TO THE PROVISIONS OF THE TRADE PRACTICES ACT.
WAREHOUSING SERVICES
By the conditions set out below, ANC and its related company’s, 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 ANC.
1. FEES, CHARGES & INVOICING
1.1 ANC will invoice the customer weekly or for any other period as agreed between the parties for fees and charges (“rates”) in respect of warehousing and associated services supplied by ANC at the request and order of the customer.
1.2 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.
1.3 Except as set forth in this Clause below, rates shall remain effective and in force for such period (“the period”) as is agreed in writing between ANC and the customer and shall be subject to adjustment by ANC only at the expiration of the period.
(a) As rates are quoted by ANC on the basis of transaction volumes supplied by the customer, ANC shall be entitled to increase rates for any period during which actual volumes for that period fall short of the estimate supplied by the customer PROVIDED HOWEVER that:-
(i) such short-fall is greater than 5% of the estimate supplied;
(ii) 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;
(iii) the increase shall only apply to a period during which the short-fall occurs.
(b) ANC shall be entitled to increase rates where they become manifestly inadequate due to an event or events unforeseeable at the time of entering the contract and beyond the control of ANC such as (but not limited to) changes to government taxes or charges or increases in ANC’s costs arising from government legislation or regulation or industrial awards or other direct costs;
(c) Any increase in rates pursuant to (b) above shall 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 customer detailing the amount of and reason(s) for the increase.
1.4 Pallet Rates:
(a) Are normally charged on the following bases: -
(i) Receiving into store ("pallet-in,);
(ii) Warehousing ("pallet storage");
(iii) Despatch ("pallet-out").
(b) Rates are charged per pallet unit for each full unit and any part of a unit received or despatched.
(c) A pallet unit is defined as that with maximum dimensions of 1170 mm width, 1170 mm depth and 1200 mm height and with maximum volume of 1.64 cubic metres. A skip is defined as that with maximum dimensions of 585mm width, 585 mm depth and 600mm height.
(d) Pallet storage rates are charged on a weekly basis for each full week or any part of a week;
(e) For the purposes of sub-clause 1.4(d) a week is defined as Monday to the following Sunday inclusive.
1.5 As rates are quoted by ANC based on the nature of the goods to be stored, ANC shall be entitled to increase rates or withdraw service if the nature of the goods significantly changes.
2. PAYMENT TERMS & CREDITS
2.1 Invoiced amounts shall be payable in full by the customer within fourteen (14) days from the date of the invoice or such other period agreed to in writing between ANC and the customer. Failure to comply with the agreed payment terms will result in all charges becoming immediately due and payable.
2.2 Claims to ANC for credit in respect of alleged loss or damage to warehoused goods or other property will only be accepted for assessment when made by the customer in writing: -
(a) Immediately following any stock-take by or on behalf of the customer at the warehouse;
(b) In the case of despatch by ANC using transport services retained by 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);
(c) In the case of despatch using transport services not retained by ANC, before departure from the warehouse.
2.3 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.
2.4 A claim for credit shall not be made a reason for deferring payment of an invoice issued by ANC in accordance with the foregoing relevant provisions.
3. SERVICE DELIVERY & PERFORMANCE
3.1 While ANC will use its best endeavours to check that goods brought into the warehouse comply with accompanying paperwork, ANC will not be responsible for ensuring such compliance and will not be subject to any liability whatsoever for any discrepancy between such goods and paperwork.
3.2 It shall be the sole and absolute responsibility of the customer 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.
3.3 Every endeavour will be made by ANC to meet the customer'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.
3.4 Customer orders will only be accepted by ANC when in writing (including E-mail) and where same-day processing is required 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.
3.5 Where the customer 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 - Friday - excluding public holidays).
4. STOCKTAKES
4.1 ANC will carry out stocktakes of the customer's goods at regular intervals (usually weekly unless resources do not permit) at a cost agreed in writing with the customer.
4.2 Where agreed in writing between ANC and the customer, the customer shall be entitled to carry out its own stock takes at reasonable times and with reasonable prior notice in accordance with clause 3.5 above.
4.3 ANC shall in no way or to any extent be liable for any error or inaccuracy in recording the results of its stocktakes or in reporting or not reporting those results to the customer. Where ANC reports such results to the customer these shall be final and conclusive between ANC and the customer and no alleged discrepancy will be recognised or entertained unless it is raised by the customer within twenty-four (24) hours of the results being reported.
5. DANGEROUS & OBJECTIONABLE GOODS
5.1 ANC will not accept for warehousing or any other purpose any dangerous, explosive, inflammable, perishable or spoiling article or substance or anything likely to encourage vermin or other pests, and the customer shall be liable for any damage that may be suffered by ANC or any third party through the introduction of any such article or substance by the customer.
5.2 If any such article or substance is discovered, ANC may at its discretion remove or otherwise dispose of it and shall not be responsible or accountable for the value of it.
6. RISKS & INSURANCE
6.1 ANC SHALL NOT LIABLE FOR LOSS, DAMAGE OR DETERIORATION TO THE GOODS OF THE CUSTOMER 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 customers;
(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 customer; or for loss, damage or deterioration in any article or substance of a perishable nature.
6.2 ANC shall not be liable in any way to the customer or to the owner or hirer of a pallet taken into the custody and control of ANC from the customer or another party acting on behalf of or nominated by the customer in the course of or incidental to ANC carrying out warehousing or distribution or other related service for the customer for all charges and fees payable in respect of the pallet or for damage to or loss of the pallet. The customer shall indemnify and hold harmless ANC from and against all claims and demands to pay such charges and fees or to make good any damage to or loss of the pallet.
6.3 IT SHALL BE THE RESPONSIBILITY OF THE CUSTOMER TO ARRANGE SUCH INSURANCES AS IT SEES FIT TO COVER ALL OR ANY OF THE ABOVE AND ANY OTHER RISKS.
7. OWNERSHIP
7.1 The customer warrants and undertakes with ANC that it is the sole and unencumbered owner of the articles and substances being stored and otherwise dealt with by ANC pursuant to these provisions.
7.2 The customer undertakes to notify ANC promptly if all or any of the warranties and undertakings in 7.1 above cease to apply.
8. LIEN FOR UNPAID CHARGES & POWER OF SALE
8.1 ANC shall have a statutory lien upon the goods of the customer from time to time stored by ANC on behalf of the customer for all moneys payable to ANC pursuant to Section 3 of the Warehousemen’s Liens Act 1935 (NSW) (as amended) (“the Act”).
8.2 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 then allowed by the Act), ANC shall (in accordance with the Act) after providing written notice to relevant parties of an intention to sell the goods deposited, have full power to open and examine any part of the whole of the goods stored on behalf of the customer and to sell such goods or any part thereof by public auction, and after deducting the costs in connection with the sale or any advertising required for the sale, retain and apply the residue of the proceeds of sale in payment of or towards all ANC fees and charges.
8.3 Any surplus remaining after payment of all such fees and charges shall be dealt with by ANC in accordance with the Act.
9. TERMINATION OF AGREEMENT/NO WAIVER
9.1 Any agreement between ANC and the customer for a definite period of time at fixed rates shall, subject clauses 8 9.2 and 9.3 expire at the end of that period PROVIDED HOWEVER that no earlier than six (6) weeks before the scheduled expiration of the agreement ANC shall be entitled to review rates and give to the customer written notice of an intended increase in rates which shall become effective at the expiration of six (6) weeks from the date of that notice.
9.2 ANC shall be entitled to forthwith terminate this agreement at any time by written notice in the event of the death or bankruptcy of the customer or where the customer is a corporation in the event of the customer entering into a scheme of arrangement with its creditors or having an administrator, receiver or liquidator appointed.
9.3 Where the customer is in breach of a fundamental condition of this agreement (including but not limited to failure to pay ANC's fees and charges in accordance with agreed terms) ANC shall be entitled to serve upon the customer written notice of the breach and of ANC's intention to terminate this agreement at the expiration of no less than fourteen (14) days from the date of that notice unless the customer remedies that breach. In the event that the breach is not remedied within the prescribed time to ANC's reasonable satisfaction, ANC shall be entitled forthwith to treat this agreement as terminated due to the customer's breach.
9.4 In the event that ANC gives written notice to the customer of intention to increase fees and charges pursuant to sub-clause 1.3(c) above, the customer shall be entitled to give written to ANC of intention to terminate this agreement on or after the date upon which the proposed increase is to take effective.
9.5 Nothing contained in any of sub-clauses 9.1-9.4 above shall be read or construed to affect in any way the entitlement of ANC to pursue its rights under clause 8 above or such further entitlement as it may have to seek remedies at law or in equity consequential upon breach of this agreement by the customer.
9.6 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.
10. AMENDMENT OF CONDITIONS
ANC reserves the right at any time and from time to time to amend these Terms and Conditions to the customer upon 14 days written notice. All such amendments shall have force and effect after the expiration of the notice period and shall apply to a subsisting contract for warehousing of goods and related services except where it is explicitly agreed between ANC and the Customer that the whole or part of the amended Terms and Conditions do not apply to the customer but where it is agreed that the whole of the amended Terms and Conditions do not apply the Terms and Conditions as they were prior to any such amendments, will apply to the fullest extent.
11. INTERPRETATION
Where any provision hereof is inconsistent with the provisions of the terms of the agreement between ANC and the customer as constituted by acceptance of the quotation issued to the customer by ANC then to the extent of that inconsistency the latter shall prevail.
THESE TERMS AND CONDITIONS ARE TO BE READ AS BEING SUBJECT ALWAYS TO THE PROVISIONS OF THE TRADE PRACTICES ACT.
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