ANC Standard Terms & Conditions
Agreement
This document (the “Agreement”) sets out the terms & conditions that apply to the supply of Services by Fleets Flyers Pty. Limited t/a ANC Australian National Couriers ABN 41 008 417 016 (“ANC” or “Supplier”) to you, the Client.
By signing the Credit Application & or Agreement, the Client agrees to be bound by these Terms and Conditions, which are incorporated into and form part of the Credit Application & or Agreement. This Agreement commences on the date the Credit Application or Agreement is accepted by ANC. You can terminate a Credit Application / Agreement or this Agreement by following the steps in the “Termination” clause of this Agreement. ANC reserves the right to not provide any services to you, the Client, unless you have completed in and signed a Credit Application &f Agreement.
We may change this Agreement, the Services, or Fees from time to time in accordance with this Agreement. See the “Fee Reviews” clause for information about when we will notify you, the Client, of changes, and what rights you, the Client, have if we make changes.
Definitions
In this Agreement, unless the context otherwise prescribes, the following definitions apply:
“Additional Charges” means any additional amounts payable by the Client in connection with the Services other than the Fees, including any applicable delivery costs (if not already included in the Fees), goods and services tax, stamp duty, third party surcharges (where disclosed to the Client), Government Imposts, interest, and reasonable enforcement or recovery costs (including legal costs) incurred by the Supplier (excluding any costs caused by the Supplier’s own default or negligence).
“Agreement Date” is the date begins when both parties sign the Credit Application or Agreement form and continues until either party terminates the Agreement.
“Chain of Responsibility” means the chain of responsibility obligations that may be applicable to the parties:
1. under the Heavy Vehicle National Law in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria;
2. under the road transport laws of Western Australia and the Northern Territory;
3. under any federal or state Modern Slavery legislation and regulations; and
4. under any other regulatory or legislative regime,
as modified or varied from time to time.
“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, Client 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).
“Credit Application” means the credit application form that ANC will provide to the Client to complete and sign prior to ANC providing any Services to You.
“Client” means the party entering into this Agreement with ANC for whom the Services are to be supplied to by ANC and a reference to ‘Client’ 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.
“Fuel Levy (FSC)” : A fuel levy is a surcharge applied over and above the rates provided
“Fees” means:
· the price for the Services charged by ANC at the price quoted by ANC in the Quotation or such other price as may be agreed by ANC and Client 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 Client, subject to review and increase under this Agreement.
“Fixed Pricing Period” is the period where Fees are fixed as set out in the Quotation or as otherwise agreed between the parties.
“Goods” shall mean the cargo accepted by ANC that is the subject of the Services from the Client together with associated paperwork.
“Government Imposts” means taxes, levies, charges or other fees imposed by a government authority and reasonably incurred and substantiated by ANC that are directly related to the supply of the Services.
“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 Territory in which the Services are provided.
“Intellectual Property Rights” means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
“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 Client.
“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.
“Quotation” means a quotation, whether written otherwise, outlining the fees payable for the provision of Services by ANC to the Client.
“Review Period” is the period, after which Fees are subject to a review, being every six month period starting on and from the date of this Agreement.
“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.
“Scope of Work” means the scope of the Services agreed to be provided by ANC as set out in the Quotation or as may be agreed from time to time between ANC and the Client in writing.
“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.
Term
This Agreement begins when both parties sign the credit application form or this Agreement (or ANC begins providing the Services, whichever is the first to occur), and continues until either party terminates the Agreement in accordance with the provisions of this Agreement.
Appointment of Subcontractors
ANC may engage, at its discretion, any Subcontractor for the performance of any part or all of the Services under this Agreement.
Liability of Subcontractors
The client must 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 under this Agreement will also be available for the benefit of the Subcontractor. If the Client commences any legal action against a Subcontractor, in relation to the Services or otherwise in connection with this Agreement, the Client hereby agrees to indemnify ANC from any reasonable and direct loss or costs incurred by ANC in connection with the said legal action including but not limited to damages, costs and taxes, except to the extent such loss or claim is caused or contributed to by ANC
Order of Service
An Order given to ANC is only binding on ANC and the Client, if:
- a written acceptance is signed for or on behalf of ANC; or
- the Services are supplied by ANC in accordance with the Order.
An Order which has been accepted in whole or in part by ANC cannot be cancelled by the Client without prior written approval of ANC, which must not be unreasonably withheld. In the event cancellation of an Order is approved by ANC, ANC reserves the right to charge the Client a reasonable cancellation fee (as described in the Quotation, if applicable), and the Client agrees to pay the cancellation fee for the cancelled Order or for that part of the Order so cancelled and any Additional Charges that have been reasonably and necessarily incurred by ANC in connection with the cancelled Order.
Where reasonable ANC reserves the right to claim from the Client (and the Client agrees to pay) full payment of the Fees, and any Additional Charges that were reasonably and necessarily incurred in connection with the Services, 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 Client has cancelled or sought to cancel the Order, provided that ANC must use reasonable efforts to mitigate any loss resulting from such cancellation.
ANC may give Quotations where the Client 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
Any work required to be completed that is not within the agreed Scope of Work 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 Client 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 the Customer 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.
Client’s Instructions
If the Client expressly 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 client authorises ANC to transport, handle or store the Goods in performing Services in any such manner as it sees fit (acting reasonably).
The client authorises any deviation from the usual route or method of carriage or place of storage which may in ANC’s discretion be deemed reasonable, desirable or necessary in the circumstances.
Fees, Invoicing and Payment Terms
The Client must pay the Fees and any applicable Additional Charges to ANC. The client must abide by the “Invoice Payment Terms” as set by ANC and provided to the Client prior to or at the time of entering into this Agreement.
If the Client 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.
Fees and Additional Charges are payable within 14 days from the date of invoice.
Despite any other clause of this Agreement, Additional Charges will only be charged where reasonably incurred and substantiated by ANC.
If the Client fails to comply with the Invoice Payment Guidelines (or any other agreed payment terms) or other payment terms in this Agreement, and such failure is not remedied within 7 days of written notice from ANC, the Client agrees that all outstanding Fees and Additional Charges will then become immediately due and payable.
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.
Fee Reviews
As Fees are quoted by ANC on the basis of the estimated transaction volumes of Goods supplied by the Client, 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 Client provided however that:-
1. such short-fall is greater than 10% of the estimate supplied;
2. the increase in Fees will 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;
3. the increase will only apply to a period during which the short-fall occurs.
Fee Reviews
All Fees will be subject to review, starting at the end of the Fixed Pricing Period. Reviews are undertaken within 30 days of the expiry of each Review Period.
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.
Following a review being undertaken, any proposed increase in Fees pursuant to this provision (including without limitation after any review done during a Review Period) become effective from the expiration of a period of not less than 30 days from the date that a written notice is provided to the Client detailing the amount of and reason(s) for the increase. The new Fees do not apply during the period of notice.
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.
A fuel levy as outlined to the Client 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. No Negative fuel levy will apply
Disputed Invoices
The Client must notify ANC in writing of any dispute regarding an invoice within 14 days of the date of the invoice, specifying the amount and reason for the dispute in reasonable detail. Liability for such charges on a disputed invoice remains with the Client at all times and the Client 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 undisputed amount must be paid in full.
ANC may engage a debt collection agency to assist it to recover any unpaid amounts owing to it by the Client. If this occurs, the Client agrees to pay all of ANC’s costs incurred in recovering the unpaid amount upon written demand.
ANC will have a common law or statutory lien or in the event there is no such lien than a general lien (subject to any appliable law) on the Goods and documents relating to this Agreement and on any other goods of the Client in the possession of ANC in connection with this Agreement or any documents relating hereto for all sums owing by the Client to ANC under the terms of this Agreement. If any amounts remain unpaid for more than 30 days after the due date, ANC may, after providing the Client with at least 7 days’ written notice of its intention to do so, sell or dispose of the relevant Goods by public auction or private treaty to recover the unpaid amount, subject to any applicable law or court order. Any surplus proceeds will be returned to the Client after deducting ANC’s reasonable costs of enforcement and sale.
Nothing in this Agreement derogates from, reduces or otherwise affects such lien.
Client warranties and acknowledgements
The Client warrants that:
1. the Client will only permit authorised officers who are currently employed by the Client at the time of issue of any Order to ANC, to issue and/or sign such order.
2. 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;
3. where applicable, the person or entity delivering the Goods to ANC for Services to be carried out, is authorised by the Client to do so;
4. 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 Client for any additional expense (including without limitation any Additional Charges) it incurs in rectifying any failure by the Client to conform to these requirements;
5. 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 Client has fully disclosed the Goods on the Clientnote/linepad/electronic transfer or other document (as applicable);
6. it will not offer for transportation or storage any Dangerous Goods; and
7. it must notify ANC in writing of any change in control within the Client, 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.
The Client undertakes to notify ANC promptly if all or any of the above warranties cease to apply.
The Client indemnifies and will keep ANC indemnified against any claim or reasonable loss, damage, expense, penalty, fine or liability arising from a breach of the warranties in this Agreement if any of the warranties given prove to be untrue, except to the extent that such loss, cost, damage, or liability is caused or contributed to by ANC.
The Client acknowledges and agrees that the Fees payable by the Client to ANC have been determined, in part, in reliance on the above warranties given to it by the Client. If at any time any of the warranties given by the Client proves to be incorrect or incomplete in any respect, ANC will be entitled to (without limitation to any other right of ANC) 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.
ANC may grant the Client access to ANC’s online relevant IT systems (by providing login details (username(s) and password(s)), to the extent required to enable the Client to make an Order under this Agreement (and provide other functionalities and tools that benefits the Client, as notified by ANC from time to time). The Client agrees and acknowledges that access and login details may only be given to and used by such of the Client’s directors, agents or employees that is authorised to be given access (and which the Client has notified ANC in advance) (Authorised Personnel).
Notwithstanding anything else in this Agreement, the Client 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, data breach (including an Eligible Data Breach under the Privacy Act 1998 Cth) or cyber-incident against ANC’s IT systems, using the login details provided by ANC to the Authorised Personnel, except to the extent that such loss, cost, damage, or liability is caused or contributed to by ANC. The Client must maintain such cyber insurances or similar forms of insurance as ANC deems appropriate to insure the Client for its liability towards ANC for such risks and must ensure that ANC obtains the benefit of such policies.
Dangerous Goods
Unless express written consent has been provided by ANC, ANC will not accept for transportation any Dangerous Goods, and the Client 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 where such express written consent has not been provided by ANC.
If ANC discovers it is in possession of Dangerous Goods (where ANC has not provided its express written consent to transport the goods), it may at its discretion remove, destroy, dispose of, abandon or otherwise render them harmless at the Client’s expense, without incurring any liability to compensate the Client and without prejudice to ANCs right to receive any payment under this Agreement. The Client will always bear all risk of loss of or damage to, or arising in connection with, Dangerous Goods where ANC has not provided its express written consent to transport the goods).
Risk and Insurance
To the extent permitted at law, ANC is not liable for loss, damage or deterioration to the Goods caused by or arising out of the following:
1. burglary or theft;
2. floods, leakage or overflow of water;
3. heat or fire or smoke or fumes;
4. overflow or spillage from or of goods stored for other clients;
5. pests or vermin;
6. strikes, labour troubles, act of God, riot, civil commotion, invasion, war, explosion, radiation, vandalism and air accidents;
7. damp, moths, mildew or rust;
8. any packaging, case or container supplied by the Client; 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
9. any other form of event that is a Force Majeure Event (as defined in this Agreement).
except to the extent that such risks were caused or contributed to by ANC’s breach of this Agreement or negligence or failure to exercise reasonable care.
To the extent permitted by law and subject to the other terms of this Agreement, the Goods are at all times at the Client’s risk, except to the extent that any loss or damage is caused or contributed to by ANC’s negligence or breach of this Agreement.
Should the Goods reach its destinations in damaged packaging (through no fault of ANC) or be handed to ANC or the Subcontractor appointed by ANC with its packaging damaged, then ANC will be entitled to reject the Goods without checking the contents. Should it be necessary to return the consignment, the Client must bear the cost of the return.
It is the responsibility of the Client to arrange such insurance to cover loss or damage to the Goods in connection with all or any of the above and any other risks at all times whilst the Goods are stored at ANC’s Premises or while in the possession, custody or control of ANC in carrying out the Services. Nothing in this clause obliges the Client to take out insurance to cover any damage or loss caused by the Supplier's negligence or breach of this Agreement.
Limitations of Liability
To the maximum extent permitted at law, and subject to any non-excludable rights under the Australian Consumer Law:
1. 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’;
2. all other warranties, guarantees, conditions or representations, whether implied or otherwise, not set out in this Agreement are excluded by ANC; and
3. ANC will in no case be liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise 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.
In the event ANC is rendered liable to the Client 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 Client for the Services during the 12 month period prior to the event giving rise to the relevant claim.
Time Limits for Claims
Notwithstanding any other provision of this Agreement, claims made by the Client to ANC for credit in respect of alleged loss or damage to Goods may be considered if the Client 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).
Claims to ANC for credit arising from any other cause must be made in writing to the ANC ( for assessment by ANC) when made in writing within fourteen (14) days from the date of issue of ANC’s tax invoice.
Making a claim for credit does not entitle the Client to delay payment of an invoice issued by ANC.
A claim for credit may only be used to offset future Fees payable by the Client under this Agreement. The Client’s request for the claim for credit to be paid as a refund will be considered by ANC on a case-by-case basis.
Nothing in this clause limits any non-excludable rights the Client may have under the Australian Consumer Law.
Termination of Agreement
Either party may terminate this Agreement for convenience by providing 30 days’ written notice.
Either party may also terminate this Agreement immediately by written notice if the other party commits:
1. a material breach of this Agreement that is incapable of remedy; or
2. any other breach and fails to remedy that breach within 7 days of receiving written notice requiring it to do so.
Termination under this clause does not affect any rights or obligations accrued prior to the termination date, including the obligation to pay for Services provided up to that date.
Any provisions of this Agreement which by their nature are intended to survive termination or expiry, including clauses relating to indemnities, limitations of liability, confidentiality, dispute resolution, and payment obligations, will survive the termination or expiry of this Agreement or any Credit Application.
Chain of Responsibility and Work Health and Safety
Each party:
1. acknowledges that it has or may have obligations under the Law, including without limitation, in relation to safety and Chain of Responsibility; and
2. agrees to comply with all Laws applicable to the performance of its obligations, including without limitation all workplace laws and Chain of Responsibility.
The Client 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
Defined terms in this clause have the same meaning as given to them in the PPSA.
The Client and ANC acknowledge that this Agreement constitute a Security Agreement and entitle ANC to claim:
1. a Security Interest in favour of ANC over the Collateral supplied or to be supplied to the Client as Grantor pursuant to this Agreement; and
2. a Security Interest over the Proceeds of sale of the Collateral referred to as original Collateral; The goods supplied or to be supplied under this Agreement fall within the PPSA classification of ”Other Goods” acquired by the Client pursuant to this Agreement.
The Proceeds of sale of the Collateral referred to, falls within the PPSA classification of “Account”.
ANC and the Client acknowledge that ANC, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to the Client pursuant to this Agreement and in the relevant Proceeds.
To the extent permissible at law, the Client:
1. 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 Client to ANC;
2. 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 Client;
3. agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under this Agreement; and
4. agrees to waive its right to do any of the following under the PPSA:
a. receive notice of removal of an Accession under section 95;
b. receive notice of an intention to seize Collateral under section 123;
c. object to the purchase of the Collateral by the Secured Party under section 129;
d. receive notice of disposal of Collateral under section 130;
e. receive a Statement of Account if there is no disposal under section 132(4);
f. 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.
g. receive notice of retention of Collateral under section 135;
h. redeem the Collateral under section 142; and
i. reinstate the Security Agreement under section 143.
j. All payments received from the Client must be applied in accordance with section 14(6)(c) of the PPSA.
Indemnity
To the full extent permitted by law, the Client indemnifies ANC and will keep ANC indemnified from and against any duties, taxes, payments, fines, expenses, losses, damages (including physical damage) and liabilities that ANC has incurred:
1. arising directly or indirectly from or in connection with a breach of any of this Agreement by the Client or its Personnel;
2. due to the wilful or negligent acts or omissions of the Client or its Personnel (including Subcontractors), including any acts or omissions constituting fraud;
3. from damage to or loss of property (including damage to, corruption or loss of data or systems) or from injury or death of any person caused or contributed to by the Clients or its Personnel (including subcontractors);
4. any third party claim against the Supplier or its subcontractors arising from or in connection with the Goods, where such claim arises due to the Client’s breach of this Agreement, negligence, wilful misconduct and any liability the Supplier incurs to indemnify a third party as a result of such a claim;
5. 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;
6. arising from any Claim by any third party that the Client or its Personnel infringed the Intellectual Property Rights or other rights of any third party;
7. arising out of or in connection with an act or omission of the Client 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;
8. arising out of any other person relying upon advice or information (whether written or oral) given by the Client including advice and information which is not related to specific instructions accepted by ANC;
9. arising out of ANC acting in accordance with the Client’s instructions or arising from any breach by the Client of any warranty, undertaking or other obligation contained in this Agreement or from the negligence or wilful misconduct of the Client
except to the extent that any such any duties, taxes, payments, fines, expenses, losses, damages (including physical damage) or liabilities are caused or contributed to by ANC’s negligence or wilful misconduct or breach of this Agreement.
Without limiting this indemnity clause, the Client will be liable for and must 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 on any amounts payable by the Client to ANC under or in connection with this Agreement.
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 Client.
Confidentiality
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.
A party may disclose Confidential Information:
· 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;
· 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;
· 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
· with the prior written approval of the other party.
Data Privacy
In this section:
· Personal Information has the meaning of that term in the Privacy Act 1988 (Cth);
· 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;
· Client Data means all data (including personal data) and other information (editorial, text, graphic, audio visual and other content), including Personal Information, that the Client or someone on behalf of the Client makes available to ANC, through or as a consequence of the performance of the parties’ obligations under this document;
· Data Breach means any loss and unauthorised access, use, modification, disclosure or other misuse of Client Data.
· Eligible Data Breach has the meaning given to that term in the Privacy Laws
ANC agrees to:
· store and use the Client Data in connection with this Agreement for the purposes of fulfilling its obligations in this Agreement, in accordance with the Privacy Laws;
· comply with the Privacy Laws governing the collection, security, access, data quality, use and disclosure of the Client Data to the extent that those principles apply to the activities pursuant to this Agreement;
· comply with its obligations under the Privacy Laws in respect to any suspected Eligible Data Breach concerning the Client Data;
· upon request by the Client, destroy all Client Data collected or obtained from, through or on behalf of the Client or when the Personal Information is no longer required;
Unless otherwise expressly provided by the Client in writing and agreed to by ANC:
· The Client warrants that all Client Data provided by or obtained from the Client is owned by the Client;
· ANC will not commercially misuse the Client Data on behalf or itself or third parties;
· ANC will not accumulate the Client Data for any purpose other than pursuant to this Agreement;
· ANC will take all reasonable measures to prevent unauthorised access to the Client Data; and
· To the extent permitted by law, ANC will not be liable to the Client for any breaches of the Privacy Laws or any Data Breaches or Eligible Data Breaches to the extent that any activity by a third party in relation to the Client 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
If the Client is the trustee of a trust (whether disclosed to ANC or not), the Client warrants to ANC that:
1. the Client enters into this Agreement in both its capacity as trustee and in its personal capacity;
2. the Client has the right to be indemnified out of trust assets;
3. the Client has the power under the trust deed to enter into this Agreement;
4. the Client 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
It is agreed that:
1. 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.
2. 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 any party requests the other party to participate in.
3. If the dispute has not been resolved by the end of the 30 day period, either party may require that the dispute be submitted to mediation in accordance with, and subject to, the Resolution Institute and its applicable rules.
4. 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.
This clause does not prevent a party from commencing legal proceedings for urgent interlocutory relief.
Intellectual Property
In this clause, “Background IP Rights” means any and all Intellectual Property Rights (including or not limited to copyright, trademark, design or patent, whether registered or not) owned by ANC; and/or all Intellectual Property Rights created by ANC independently of this Agreement; and (c) any improvements to the same.
All Background IP Rights are and will remain the exclusive property of ANC and except as expressly set out in this Agreement, nothing in this Agreement will operate to assign, transfer or license any Background IP Rights to the Client.
ANC will provide a royalty-free non-exclusive and non-transferable and non-assignable licence to the Client to use the Background IP Rights to the extent necessary to carry out and perform the Client’s obligations under this Agreement, for the duration of this Agreement.
To the extent that the Client has made, generated, developed or otherwise created any new Intellectual Property Rights (including or not limited to copyright, trademark, design or patent, whether registered or not) which are developed using or incorporating the Background IP Rights in the course of performing its obligations under this Agreement and otherwise to carry out activities and transactions contemplated in this Agreement, then such new Intellectual Property Rights belongs to and immediately vests in ANC on making, generation, development or creation and form part of the Background IP Rights. If required, the Client must do all things necessary to assign or transfer legal title and interest to such new intellectual property rights to ANC.
This clause does not apply to Intellectual Property Rights developed by the Client independently of ANC’s Background IP Rights
General
It is agreed that:
1. This Agreement, together with the Credit Application, exhibits, appendixes, annexures or schedules accepted by the Client, form the contract between the parties.
2. 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.
3. 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. Other than as provided for in this Agreement, the terms and conditions of this Agreement can only be varied by an agreement in writing executed by ANC and the Client.
4. 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. All such amendments will have force and effect after the expiration of the notice period of 60 days following notice in writing by ANC of the exercise of its right to amend this Agreement and will apply to a subsisting contract except where it is explicitly agreed between ANC and the Client. The Client has the right to terminate this Agreement by giving notice in writing to ANC within the abovementioned notice period.
5. 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.
6. The Client acknowledges that it has been provided with an opportunity to seek independent legal, financial and any other kind of professional advice (that the Client considers appropriate) prior to entering into this Agreement.
7. If there is any inconsistency between the other provisions of this Agreement and the Credit Application, exhibits, appendixes, annexures or schedules, then the Credit Application, exhibits, appendixes, annexures or schedules prevail to the extent of that inconsistency.
8. The Client acknowledges that it has been provided with an opportunity to read, consider, negotiate and discuss this Agreement with ANC prior to entering into this Agreement and the applicable Credit Application and/or Order.
Force Majeure
Every endeavour will be made by ANC to meet the Client’s reasonable requirements under an Order by the time desired. However, ANC will not be liable for failure to do so or any loss occasioned thereby caused by strikes or other labour disputes or unrest, government restrictions, pandemics, epidemics, shortage of supplies, public health orders, transport delays, equipment breakdown, stress of weather, “Act of God”, war or other military conflicts, or any other causes beyond ANC’s control (‘Force Majeure Event’).
If a Force Majeure Event arises, ANC must notify the Client 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 for a continuous period of 30 days, either party may by notice to the other party terminate this Agreement without penalty and neither party will have any further liability to the other in respect of such termination (except for accrued rights and obligations up to the date of termination).
For the avoidance of doubt, nothing in this clause excuses the payment of monies due by the Client pursuant to this Agreement, including without limitation for any Fees and applicable Additional Charges owing as at the date of termination.
Transport Terms
The Client 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.
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
The times quoted for delivery of the Services are estimates only and ANC accepts no liability for delay, except where an unreasonable or material delay is directly caused by the supplier’s negligence or breach of this Agreement. The Client is not relieved of any obligation to accept or pay for Services by reason of any delay in delivery of the Services.
If the Client 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 Client must provide ANC with a minimum of 72 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. ANC may charge for any delay where no minimum notice was provided.
A reasonable additional charge may be made to the Client by ANC in respect of any delay in excess of fifteen (15) minutes in loading or unloading incurred other than from the default or negligent act 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 Client.
The Client will become liable to pay ANC its quoted Fees and charges upon dispatch of the Goods with ANC, not when delivery occurs.
ANC is authorised to deliver the Goods at the address given to ANC by the Client 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 or digital POD delivery docket for the Goods is obtained.
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 Client must pay or indemnify ANC for all costs and expenses reasonably incurred in relation to such storage. ANC may redeliver the Goods to the Client from the place of storage at the Client’s expense.
ANC accepts no responsibility for the collection of cash on delivery or any other payments on behalf of the Client or any other person. When goods are tendered by any person with instructions for ANC to collect any such payments ANC will not be bound by such instructions notwithstanding that ANC may accept those Goods as tendered and perform other Services in relation to those Goods.
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 must be paid by the Client.
ANC may perform any of the following activities on the Client’s behalf in order to provide its Services to the Client: (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.