1.1 “AEC” shall mean Associated Express Couriers Pty Ltd and its successors and assigns or any person acting on behalf of and with the authority of Associated Express Couriers Pty Ltd.
1.2 “Sub-Contractor” shall mean and include:
(a) railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
(b) any other person or entity with whom AEC may arrange for the carriage or storage of any Goods the subject of the contract; or
(c) any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clauses 1.2(a) and 1.2(b).
1.3 “Customer” shall mean the Customer or any person or persons acting on behalf of and with the authority of the Customer. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
1.4 “Consignee” shall mean the person to whom the Goods are to be delivered by way of AEC’s Services.
1.5 “Goods” shall mean cargo together with any container, packaging, or pallet(s) to be moved from one place to another by way of AEC’s Services, or for storage by AEC.
1.6 “Services” shall mean all services supplied by AEC to the Customer (including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or fumigating, transhipping, or otherwise handling the Goods, or anything else done in relation thereto including the offering of any advice or recommendations.
1.7 “Price” shall mean the cost of the Services as agreed between AEC and the Customer subject to clause 3 of this contract.
2. The Commonwealth Competition and Consumer Act 2010 (CCA) and Fair Trading Acts
2.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Customer purchases Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
2.3 Liability of AEC arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of warranty implied into these terms and conditions by the Competition and Consumer Act 2010 or howsoever arising, is limited to any of the following as determined by AEC:
(a) rectifying the Services; or
(b) supplying the Services again; or
(c) paying for the Services to be supplied again.
2.4 If AEC is required to rectify, re-supply, or pay the cost of re-supplying the Services under clause 2.3 or the CCA, but is unable to do so, then AEC may refund any money the Customer has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Customer which were not defective.
3.1 Any instructions received by AEC from the Customer for the supply of Services shall constitute acceptance of the terms and conditions contained herein.
3.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of AEC.
3.3 These terms and conditions are to be read in conjunction with AEC’s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by AEC to the Customer. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
3.4 The Customer shall give AEC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by AEC as a result of the Customer’s failure to comply with this clause.
4. Freight Forwarding
4.1 Except to the extent that any of the Service shall be actually performed by AEC, AEC shall act as a forwarding agent only. AEC shall be entitled to enter into contracts on behalf of and as agent for the Customer and without notice the Customer, for the carriage of the Goods by any route means a carrier, for the storage, packing, trans-shipment, unloading, loading or handling of Goods by any person at any place and for any length of time, and for such other matters as in the opinion of AEC may be necessary or desirable to the performance of the Services. The Customer hereby appoints AEC agent of the Customer for the purpose of entering into any contract, upon such terms and conditions, as AEC may in its absolute discretion think fit. The Customer shall be bound by the terms of any consignment note, air waybill or other contractual document which AEC may receive for the Goods, or for any package, unit or container in which the Goods may be packed, whether by the Customer, AEC or any other person.
5. Price And Payment
5.1 At AEC’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by AEC to the Customer in respect of Services supplied; or
(b) AEC’s quoted Price (subject to clause 4.2 & 4.3) which shall be binding upon AEC provided that the Customer shall accept in writing AEC’s quotation within thirty (30) days.
5.2 AEC may by giving notice to the Customer increase the Price of the Services to reflect any increase in the cost to AEC beyond the reasonable control of AEC (including, without limitation, foreign exchange fluctuations, or increases in taxes, customs duties, insurance premiums, or warehousing costs)
5.3 The Carrier may charge freight by weight, measurement or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
5.4 AEC reserves the right to change the Price in the event of a variation (including, but not limited to the Goods, at the time of pick-up, not being as described by the Customer at the time of quotation) to AEC’s quotation.
5.5 At AEC’s sole discretion a deposit may be required.
5.6 At AEC’s sole discretion;
(a) payment shall be due on delivery of the Goods, or
(b) payment shall be due before delivery of the Goods, or
(c) payment for approved Customers shall be made by instalments in accordance with AEC’s payment schedule, or
(d) payment for approved Customer’s shall be due on thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
5.7 Time for payment for the Services shall be of the essence and will be stated on the invoice, consignment note, airway bills, manifests or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
5.8 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and AEC.
5.9 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. AEC Not Common Carrier
6.1 AEC is not a Common Carrier and will accept no liability as such. All articles are carried or transported and all storage and other services are performed by AEC subject only to these conditions and AEC reserves the right to refuse the carriage or transport of articles for any person, corporation or body, and the carriage or transport of any class of articles at its discretion.
7. Customer-Packed Containers
7.1 If a container has not been stowed by or on behalf of AEC AEC shall not be liable for loss of or damage to the Goods caused by:
(a) the manner in which the container has been stowed; or
(b) the unsuitability of the Goods for carriage or storage in containers; or
(c) the unsuitability or defective condition of the container.
8. Nomination Of Sub-Contractor
8.1 The Customer hereby authorises AEC (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as AEC. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled AEC shall be deemed to enter into this contract for its own benefit and also as agent for the Sub-Contractor.
9. AEC’s Servants or Agents
9.1 The Customer undertakes that no claim or allegation shall be made against any servant or agent of AEC which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify AEC and any such servant or agent against all consequences thereof.
10. Method Of Transport
10.1 If the Customer instructs AEC to use a particular method of carriage whether by road, rail, sea or air AEC will give priority to the method designated but if that method cannot conveniently be adopted by AEC the Customer shall be deemed to authorise AEC to carry or have the Goods carried by another method or methods.
11. Route Deviation
11.1 The Customer shall be deemed to authorise any deviation from the usual route or manner of carriage of Goods that may in the absolute discretion of AEC be deemed reasonable or necessary in the circumstances.
12. Charges Earned
12.1 AEC’s charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and dispatched from the Customer’s premises.
13.1 The Customer will be and shall remain responsible to AEC for all its proper charges incurred for any reason. A charge may be made by AEC in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of AEC. Such permissible delay period shall commence upon AEC reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Customer or Consignee.
14. Perishable Goods
14.1 Where the Goods are perishable and the Customer has, in the opinion of AEC, failed to collect the Goods within a reasonable period having regard to nature of the Goods, or is likely so to fail to collect the Goods or, in the opinion of AEC, AEC cannot properly or is unlikely to be able to properly deliver the Goods to the address nominated by the Customer for delivery, AEC may sell the Goods in which event the proceeds of sale shall be used by AEC to discharge its costs in respect of the Services together with all costs, expenses and charges (the Charges) incurred by AEC in effecting such sale and the balance of the proceeds (if any) shall be paid by AEC to the Customer. In the event of a shortfall, the Customer shall pay to AEC the balance of the Charges then outstanding.
15. Non-Perishable Goods
15.1 Where the Goods are non-perishable and the Customer has, in the opinion of AEC, failed to collect the Goods within a period of twenty-one (21) days from the date that written notice was sent to the address supplied by the Customer to AEC at the time of quotation, or is likely to fail to collect the Goods or, in the opinion of AEC, AEC cannot properly or is unlikely to be able to properly deliver the Goods to the address nominated by the Customer for delivery, AEC may, at its option, serve a notice on the Customer that it intends to sell the Goods on the date which is twenty-one (21) days from the date on which the Customer receives the notice.
15.2 In the event the Goods are sold pursuant to clause 15.1, the proceeds if sale shall be used by AEC to discharge its costs in respect of the Services together with all costs, expenses and charges (the Charges) incurred by AEC in effecting such sale and the balance of the proceeds (if any) shall be paid by AEC to the Customer. In the event of a shortfall, the Customer shall pay AEC the balance of the Charges then outstanding.
16. Dangerous Goods
16.1 Unless otherwise agreed in advance in writing with AEC the Customer or his authorised agent shall not tender for carriage or for storage any explosive, inflammable or otherwise Dangerous Goods. The Customer shall be liable for and hereby indemnifies AEC for all loss or damage whatsoever caused by any Dangerous Goods.
17. Consignment Note
17.1 It is agreed that the person delivering any Goods to AEC for carriage or forwarding is authorised to sign the consignment note for the Customer.
18. Customer’s Responsibility
18.1 The Customer expressly warrants to AEC that the Customer is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this contract of cartage and/or storage and by entering into this contract the Customer accepts these conditions of contract for the Consignee as well as for all other persons on whose behalf the Customer is acting.
19.1 AEC will prepare an inventory of Goods received for storage and will ask the Customer to sign that inventory. The Customer will be provided with a copy of the inventory. If the Customer signs the inventory, or does not do so and fails to object to its accuracy within seven (7) days of receiving it from AEC, then the inventory will be conclusive evidence of the Goods received. The inventory will disclose only visible items and not any contents unless the Customer asks for the contents to be listed, in the case AEC will be entitled to make a reasonable additional charge.
19.2 AEC is authorised to remove the Goods from one warehouse to another without cost to the Customer, AEC will notify the Customer of the removal and advise the address of warehouse to which the Goods are being removed not less than five (5) days before removal (except in emergency, when such notice will be given as soon as possible).
19.3 The Customer is entitled upon giving AEC reasonable notice to inspect the Goods in store but a reasonable charge may be made by AEC for this service.
19.4 Subject to payment for the balance of any fixed or minimum period of storage agreed by the Customer may require the Goods to be removed from the store at any time on giving AEC not less than five (5) working days notice. If the Customer gives AEC less than the required notice AEC will still use their best endeavours to meet the Customers requirements, but shall be entitled to make a reasonable additional charge for the short notice.
19.5 The Customer agrees to remove the Goods from storage within twenty-eight (28) days of a written notice of requirement from AEC to do so. In default, AEC may after fourteen (14) days notice to the Customer SELL ALL OR ANY OF THE GOODS by the public auction or, if that is not reasonably practicable by private treaty and apply the net proceeds in satisfaction of any amount owing by the Customer to AEC.
20. Loss Or Damage
20.1 Subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods (including but not limited to chilled, frozen, refrigerated or perishable Goods):
(a) AEC shall not be under any liability for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of AEC or not) nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Goods or any other thing or matter, nor for any consequential or indirect loss, loss of market or consequences of delay; and
(b) the Customer will indemnify AEC against all claims of any kind whatsoever, howsoever caused or arising brought by any person in connection with any matter or thing done, said or omitted by AEC in connection with the Goods.
21.1 The Customer acknowledges that:
(a) the Goods are carried and stored at the Customer’s sole risk and not at the risk of AEC; and
(b) AEC is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility to ensure that the Goods are insured adequately or at all; and
(c) under no circumstances will AEC be under any liability with respect to the arranging of any such insurance and no claim will be made against AEC for failure to arrange or ensure that the Goods are insured adequately or at all.
22.1 Notwithstanding clauses 20 and 21 in the event that the Client believes that they have any claim against the Carrier then they must lodge any notice of claim for consideration and determination by the Carrier within seven (7) days of the date of delivery, or for non delivery within seven (7) days of the anticipated date of delivery or the removal or destruction of the Goods.
22.2 The failure to notify a claim within the time limits under clause 22.1 is evidence of satisfactory performance by the Carrier of its obligations.
23. Default & Consequences Of Default
23.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at AEC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
23.2 If the Customer owes AEC any money the Customer shall indemnify AEC from and against all costs and disbursements incurred by AEC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AEC’s collection agency costs, and bank dishonour fees).
23.3 Without prejudice to any other remedies AEC may have, if at any time the Customer is in breach of any obligation (including those relating to payment) AEC may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. AEC will not be liable to the Customer for any loss or damage the Customer suffers because AEC exercised its rights under this clause.
23.4 Without prejudice to AEC’s other remedies at law AEC shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to AEC shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to AEC becomes overdue, or in AEC’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
24. AEC’s Rights To A Lien On Goods
24.1 AEC shall have a right to take a particular and general lien on any Goods the property of the Customer or a third party owner which are in the possession or control of AEC (and any documents relating to those Goods) for all sums owed at any time by the Customer or a third party owner to AEC (whether those sums are due from the Customer on those Goods or documents, or on any other Goods or documents), and AEC shall have the right to sell such Goods or cargo by public auction or private treaty after giving notice to the Customer. AEC shall be entitled to retain the sums due to it, in addition to the charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
24.2 Notwithstanding clause 24.1 nothing shall prejudice AEC’s rights to use any of AEC’s other rights and remedies contained in this agreement to recover any outstanding charges or fees payable in respect of the Goods that were not recovered out the sale of the Goods in accordance with clause 24.1 and no exception shall be taken upon the grounds that the Price realised is less than the full market value of the Goods.
25. Personal PropertySecurities Act 2009 (“PPSA”)
25.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Customer and AEC by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
25.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in all Goods being transported by AEC over which AEC invokes a lien.
25.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AEC may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 26.3(a)(i) or
(b) indemnify, and upon demand reimburse, AEC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of AEC;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of AEC.
26. Security And Charge
26.1 Despite anything to the contrary contained herein or any other rights which AEC may have howsoever:
(a) where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to AEC or AEC’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer acknowledges and agrees that AEC (or AEC’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should AEC elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify AEC from and against all AEC’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint AEC or AEC’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 26.1.
27. Privacy Act 1988
27.1 The Customer agrees for AEC to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by AEC.
27.2 The Customer agrees that AEC may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
27.3 The Customer consents to AEC being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
27.4 The Customer agrees that personal credit information provided may be used and retained by AEC for the following purposes (and for other purposes as shall be agreed between the Customer and AEC or required by law from time to time):
(a) the provision of Services; and/or
(b) the marketing of Services by AEC, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services.
27.5 AEC may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
27.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that AEC is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of AEC, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by AEC has been paid or otherwise discharged.
28.1 AEC may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Customer shall repay to the Customer any sums paid in respect of the Price. AEC shall not be liable for any loss or damage whatever arising from such cancellation.
28.2 In the event that the Customer cancels the delivery of Goods or the provision of any Services then the Customer shall be liable for any loss incurred by AEC (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.
29.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
29.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
29.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
29.4 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by AEC.
29.5 AEC reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which AEC notifies the Customer of such change. Except where AEC supplies further Services to the Customer and the Customer accepts such Services, the Customer shall be under no obligation to accept such changes.
29.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
29.7 The terms and conditions set out herein shall prevail over the terms and conditions set out in any document used by the Customer, the owner or any other person having an interest in the Goods and purporting to have a contractual effect.
29.8 The failure by AEC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AEC’s right to subsequently enforce that provision.