Bobs Trailer Transport Ltd
TERMS AND CONDITIONS OF TRADE
The terms of trade set out below govern all of the supplies of goods and services from Bobs Trailer Transport Ltd (“Company”, “we”, “us”) to the Customer (“you”). They will replace any terms and conditions contained in any document used by you and purporting to have contractual effect.
1. WHERE THESE TERMS APPLY
1. Purchase or use of any of our services by you constitutes acceptance of these Terms. These terms replace any terms and conditions contained in any document used by you and purporting to have any contractual effect.
“Act” the Contract and Commercial Law Act 2017. “Carrier” shall mean Bobs Trailer Transport Ltd, and its successors and assigns or any person acting on behalf of and with the authority of Bobs Trailer Transport Ltd “Company” Bobs Trailer Transport Ltd. “Consignee” shall mean the person to whom the Goods are to be delivered by way of the Carrier’s Services. “Customer” means any person/s requesting the Carrier to provide the Services (or person/s acting on behalf of and with the authority of the Customer) as specified in any invoice, document or order, and ifthere more than one person requesting the Services is a reference to each person jointly and severally. “Dangerous Goods” goods listed in the IATA Dangerous Goods Regulations, any substance or article prescribed as Dangerous Goods for the purposes of the Hazardous Substances and New Organisms Act 1996 and associated regulations, any goods listed as such on our Website and any other goods as advised by us from time to time. “Delivery” has the meaning in clause 3.2. “event outside our control” includes any delay in acceptance of any goods by an addressee; our inability to gain access to a delivery address; secure or destruction of any goods by customs or any other regulatory or government authority an act of God; earthquake, volcanic activity flood, fire, storm or adverse weather condition; sabotage, riot, civil disturbance, epidemic, national emergency or act of war; Governmental action; strike, lock-out, work toppage or other industrial problem; traffic congestion; or delay in aircraft or other transport. “Goods” goods you request us to deliver.
“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
“PPSA” shall mean the Personal Property Securitas Act 1999. “PPSR” shall mean the Personal Property Securities Register. “Services” shall mean all services supplied by the Carrier 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.
“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 the Carrier 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 clause 1.2(a) and 1.2(b). “Terms of Trade” shall mean these written terms and conditions of trade. “Unit” has the meaning given to that term in the Act.
“we”, “our”, “us” is Bobs Trailer Transport Ltd. “you”, “your” is the customer.
3. ACCEPTANCE AND CONTRACT
1. The signing of this Contract by or on behalf of the Customer, and/or the giving of any instructions by the Customer to the Company for the supply of Goods and/or Services, and/or the Customer’s acceptance of Goods and/or Services supplied by the Company shall constitute acceptance of these Terms of Trade.
2. Following the Customer’s acceptance of the Terms of Trade, any future contract arising from any subsequent orders for Goods and/or Services placed by the Customer with the Company shall be subject to these Terms of Trade unless expressly agreed otherwise in writing, and all references in these Terms of Trade to the “Contract” shall be read as also referring to all such future contracts.
3. Where a quoted Price is given by the Company for the Goods and/or Services to be supplied, such quoted Price is valid for and may be accepted by the Customer within thirty (30) days from the date the quotation is given. The Company shall have the right, at any time before the quotation is accepted by the Customer, to vary the quoted Price.
4. Where more than one Customer has entered into this Contract, the Customers shall be jointly and severally liable for all payments of the Price and all other obligations of the Customer under this Contract.
5. Upon acceptance of these Terms of Trade by the Customer the Terms of Trade are binding and can only be varied with the written consent of the Company.
6. The Company and the Customer may agree to vary the Goods and/or Services to be supplied to the Customer, and L.C. Contractors may vary the Price for the Goods and/or Services the subject of such variation.
7. The Customer shall give the Company 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 the Company as a
result of the Customer’s failure to comply with this clause.
8. The company reserves the right in its absolute discretion to refuse the carriage of goods for any person.
9. The company is not required to provide its services, or carry out any of its obligations referred to in these terms, if it is not practical for it to do so because of an event outside its control.
10. All or part of any work accepted by the company may be fulfilled by the company engaging or entrusting the customer’s goods to its authorised subcontractors (“subcontractors”) on such terms as are agreed between the company and its subcontractors. The customer acknowledges that in carrying out the work on behalf of the company, subcontractors have the right to rely on the benefit of these
11. The customer warrants that it is the owner or the authorised agent of the owner of the goods and that it is authorised to accept and does accept these conditions not only for itself but also for and on behalf of all other persons who are or may hereafter become interested in the goods.
4. PRICE AND PAYMENT
1. At the Carrier’s sole discretion the Price shall be either:
a. as indicated on invoices provided by the Carrier to the Customer in respect of Services provided; or
b. Carrier’s quoted Price (subject to clause 5.2) which shall be binding upon the Carrier provided that the Customer shall accept in writing the Carrier’s quotation within thirty (30) days.
2. The Carrier reserves the right to change the Price:
a. if a variation to the Carrier’s quotation is requested or required (including as to the nature and location of the collection and/or delivery address, loading or unloading, delivery times or date or otherwise, etc.);
b. to reflect any increases to the Carrier in the cost of providing the Services which are beyond the reasonable control of the Carrier (including, without limitation, increases in the cost of labour, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums or warehousing costs);
c. for any delay over fifteen (15) minutes in either loading and/or unloading (from when the Carrier arrives onsite), and/or any overnight or extended storage occurring other than from the Carrier’s default.
3. At the Carrier’s sole discretion, a deposit may be required prior to provision of the Services.
4. Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by the Carrier, which may be:
a. twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
b. the date specified on any invoice or other form as being the date for payment; or
c. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Carrier.
5. Payment may be made by cash, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Carrier.
6. Unless we agree otherwise in writing, you must not withhold any payment or make any setoff or deduction from any payment due. If you dispute any invoice or any part of any invoice, you must advise us of the reasons in writing within fourteen days of receipt of that invoice. We may at our sole discretion allow you to hold the disputed portion of an invoice pending determination of the dispute, provided that once the dispute is resolved you must within seven days of the date of determination or resolution of any disputed invoice, pay the amount of the disputed portion of the invoice as determined or agreed must be paid. If you have not paid in full by the due date, the Company may charge you interest compounding monthly on the unpaid overdue balance at the rate of 2.5% per month. The customer shall, on demand, reimburse the company for any costs incurred in obtaining or attempting to obtain payment for any outstanding amounts due to the company by the customer on a solicitor/client indemnity basis.
7. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Carrier an amount equal to any GST the Carrier must pay for any provision of Services by the Carrier under this or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8. Receipt by the Carrier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Carrier’s ownership or rights in respect of the Services, and this
agreement, shall continue.
9. Where the Customer requesting or organising the Carrier to provide the Services is acting on behalf of any third party, and that third party is intended to be responsible for the payment of the Price, then in the event that the third party does not pay for the Services when due, the Customer acknowledges that they shall be liable for the payment of the Price as if they had contracted for the provision of the Services on their own behalf.
10. If at any time, payment from the customer to the company shall be in arrears, any subsisting obligation of the company shall be suspended and the company shall not be under any liability to the customer during such period.
11. The company is entitled to set off any amounts due to the customer. The right to any set-off shall apply irrespective of any receivership or liquidation of the customer. The customer has no right to set off any amounts due from the company whether liquidated or contingent (including for goods claimed to be damaged by the company or its subcontractors or agents) against any amounts due by the customer to the company.
5. CUSTOMER’S RESPONSIBILITIES
1. The company will not insure the goods. Insurance of the goods is the sole responsibility of the customer. The Company shall only be liable for losses as provided for in this agreement.
2. It is the responsibility of the customer to ensure the goods comply with any applicable laws relating to the nature, labelling, packaging and carriage of goods. Any expenses or charges incurred by the company in compliance with any such laws and/or requirements of any authority shall be met by the customer.
3. You must ensure all information given to us is correct and complete.
4. You must not give us any Goods that:
a. are inadequately or incorrectly packaged;
b. contain anything that is illegal or is capable, as packed, of causing injury or damage to any person or property;
c. contains cash;
d. is a Dangerous Good or Prohibited Item;
e. is Valuable, fragile or perishable;
5. If you give us any of the Goods referred to above for Delivery, you agree that the carriage of those Goods shall be at “owners risk” and we are not liable to pay any compensation to you for any loss or damage, or any delay in delivery of, those Goods (unless we have consented to carry it in accordance with clause 5.9).
6. It is your responsibility to check whether the Goods you are sending complies with clauses 5.3 and 5.4. Our acceptance of any Goods does not release you from this obligation.
7. You acknowledge that we cannot ascertain the contents of any Goods given to us for Delivery and we will not in any circumstances be deemed to be aware of the contents.
8. You warrant that all personal information (including all information about your customers) you disclose to us has been collected and disclosed in accordance with the Privacy Act 1993.
9. Notwithstanding the above, we may, at our sole discretion, agree in writing to carry Goods which contain or are Dangerous Goods or Valuable, fragile or perishable items.
10. You must disclose to us in advance that your Goods contain Dangerous Goods or Valuable, fragile or perishable items. If we agree in writing to carry such Goods then any carriage of such Goods will be at declared value risk. Our liability for loss or damage to Goods in such case is limited to $250.00 including GST per unit of Goods, unless otherwise agreed to.
11. The Customer expressly warrants to the Company 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.
6. GENERAL LIEN
1. All Goods shall, immediately they come into our possession, be subject to a particular and general lien and we may detain such Goods until you have fully paid all amounts you owe us under these Terms.
2. If payment is not received within thirty (30) days of the due date for payment we may, at our option:
a. remove any Goods and store them in such a place and in such manner as we think fit at your expense; or
b. sell any Goods or part thereof at your expense and on such terms as we think fit, and apply the proceeds in or towards payment of the outstanding amount; or
c. if we deem the Goods to be unsaleable or dangerous, dispose of the Goods as we think fit, and all cases without any liability to you.
7. SECURITY INTEREST
1. You agree that all Goods in our possession and all your present and future rights in relation to those Goods are subject to a security interest in our favour for the payment of all amounts owing, and the performance of all your obligations under these Terms or any other contract between you and us.
2. You acknowledge that we may, at your cost, register our security interest in the Goods and all your present and future rights in relation to the Goods on the Personal Property Securities Register (PPSR).
3. You must do all things and provide all information we require for the purpose of securing the Goods, the payment of all amounts owing and the performance of all your obligations under these Terms and any other contract between you and us. You shall not change your name or other details without first notifying us in writing atleast 14 days before such change takes effect.
a. agree that nothing in sections 114(1)(a) (to receive notice of sale of goods), 116 (to receive a statement of account), 120(2) (to receive notice of proposal to take goods), 133 (to reinstate security agreement) and 134 (limit on reinstatement) of the Personal Property Securities Act (PPSA) applies to these Terms or the security interest under these Terms;
b. waive all your rights under sections 121 (to object to proposal) and 132 (redemption of collateral) of the PPSA; and
c. waive your right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under these Terms.
5. The terms accessions, financing statement, personal property, verification statement and security interest have the meanings given to them under the PPSA.
8. OUR LIABILITY
Limitation of our Liability
1. Subject to any specific exclusions or limitations of liability in these Terms the provision of our services is “at limited carrier’s risk”. Our liability is limited to the statutory limitation provided by the Contract and Commercial Law Act 2017.
2. Any vehicles carried by us will be carried “at declared value risk” as defined in theAct. Our liability to you is limited to a maximum of $100,000 for the loss of or damage to the Goods however the loss or damage arises (including as a result of negligence).
3. The Company may not be liable for any losses of any kind or any delay in supplying goods or services which are caused in whole or in part by force majeure including (but not limited to) any act of God, natural disaster, flood or earthquake, strike, lockout, fire, war, civil commotion, network service failure, inability to obtain products or supplies including the imposition of any export or import bans, or any
other cause beyond its reasonable control. The Company shall not be required to settle a strike or lockout or other industrial disturbance against its wishes in order to benefit from this clause.
4. Where the goods or services that you acquire from the Company are not a kind ordinarily acquired for personal household or domestic use or consumption, or where you acquire, or hold yourself out as acquiring the goods or services for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or implied by common law will not apply and are excluded from these terms of trade.
5. Subject to clause 5.1, the Company’s liability to you in respect of any vehicles carried by the Company shall be at “ declared value risk” pursuant to the Part 5 of the Contract and Commercial Law Act 2017 (hereinafter called “the Act”). The maximum amount covered under this agreement shall be $100,000 or the value of the goods carried, whichever is lower. Any boats transported by the Company shall be
transported at “limited carriers risk” only .
6. Subject to the provisions of the Act imposing liability in respect of the loss of damage of the goods:
a. The company shall not be under any liability, howsoever caused or arising, and whether caused or arising as a result of the negligence of the company or otherwise for any damage to, loss, deterioration, misdelivery, delay in delivery or non-delivery of the goods (whether the goods are or have been in the possession of the company 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 or market or consequences of delay.
b. The customer will indemnify the company against all claims or any kind whatsoever, howsoever caused or arising and whether caused or arising as a result of the negligence of the company or otherwise, brought by any person in connection with any matter or thing done, said, or omitted by the company in connection with the goods.
9. EXCLUSIONS OF OUR LIABILITY
1. We have no liability to you for any loss or damage to the extent that the loss or damage:
a. results from any event outside our control ;
b. occurs after Delivery of the relevant Goods; or
c. results from any act or omission by you, including a breach of any of your obligations under these Terms.
2. Subject to the provisions of the Act in respect of loss of or damage to Goods, we have no direct or indirect liability whatsoever (whether in contract, tort or otherwise) for any direct or indirect losses, penalties, damages, costs or expenses of any kind (including indirect or consequential loss) brought, claimed, suffered or incurred by you or any third party in connection with the carriage of goods however caused or arising and (without linking the generality of the foregoing) whether caused intentionally or arising as a result of our negligence or otherwise.
3. You agree that where you are using our services and/or acquiring products from us for your business purposes the provisions of the Consumer Guarantees Act 1993 are excluded.
10. NOTIFICATION OF CLAIMS
1. Sections 274 and 278 of Part 5, Subpart 1 of the Contract and Commercial Law Act (hereinafter called “the Act”) are modified such that the company shall assume no liability whatsoever, unless:
a. Written notice of any claim, giving reasonable particulars of the event giving rise to the claim and any alleged damage or loss, is received by the company within seven days after delivery at the destination or, in the case of non-delivery, within fourteen days after the date of despatch; and
b. an action is brought by the customer in a court of competent jurisdiction within six months of delivery or, in the case of non-delivery, within six months and fourteen days of the date of despatch.
2. The provisions of sections 274-281 of the Act do not apply to these Terms. Sections 282-292 of the Act shall apply to these Terms to the extent they extend or enlarge our rights and powers under these Terms.
3. We reserve the right to obtain salvage of any damaged goods prior to payment of any claim, and the payment of any such claim may be refused should the salvage not be available.
1. You indemnify us against all losses, claims, damages, costs, and expenses of any kind whatsoever (including legal costs on a solicitor/own client basis), howsoever caused or arising and without limiting the generality of the foregoing, whether caused or arising:
a. out of your breach of any obligation, warranty or other provision in these Terms, including a failure to pay any amount owing ;
(b)your default or negligence; and
(c)out of any claim by a third party including any claim arising from us detaining or repossessing Goods, and/ or suffered or incurred by us in connection with or resulting from our provision of services.
12. EVENTS OUTSIDE OUR CONTROL
1. We are not required to provide our services, or carry out any of our obligations referred to in these Terms, if it is not practical for us to do so because of an event outside our control.
1. If any provision of these conditions is unenforceable such unenforceability shall not affect any other part of such provision or any other provision hereof.
14. APPLICABLE JURISDICTION
1. The parties agree that the law that shall apply in respect of the terms and conditions herein, or any matter arising in relation to the carriage of goods, shall be the law of New Zealand and the appropriate jurisdiction in respect of any claim or dispute arising hereunder shall be that of the Courts of New Zealand.