Terms of Contract
1.
PARTIES
1.1 The parties to this contract are the Customer and the Company.
1.2 The Customer agrees that the Company all or any part of any work accepted by it by engaging or entrusting the goods to any subcontractor of the Company on terms agreed between the subcontractor and the company, and that such terms will bind the Customer.
1.3 The Customer warrants that it is either the owner or authorized agent of the owner of the goods, and is authorized to accept and does accept those conditions of contract on behalf of all persons who are or may become interested in any Goods in relation to which it requests any services from the Company.
2.
APPLICATION OF CONDITIONS
2.1 These conditions govern all dealings between the Company and the Customer including, without limitation, the provision of any advice or information.
2.2 Where the Consumer Guarantees Act 1993 governs the dealings between the Company and the Customer, these conditions shall apply only so far as permitted by the act. Where the Customer carries on a “business” as defined in that act it agrees that it is aquiring the services of the Company for the purposes of that business and nothing in the Consumer Guarantees Act 1993 shall apply.
3.
APPLICATION OF
THE ACT
3.1 Where these conditions conflict with the provisions of the Act then, to the extent permitted by law, the terms of this contract shall prevail, and the parties shall be deemed to have contracted out of the provisions of the Act.
3.2 Without limiting the generality of paragraph 3.1, sections 18, 19, 20, 21 and 23 of the Act shall not apply to this contract.
4.
PACKING
4.1 The customer warrants that:
4.1.1 A full description of the Goods has been provided to the Company;
4.1.2 The Goods, having regard to their nature, are sufficiently packed and labelled for the purpose for which the Company is to receive them;
4.1.3 The Goods are packed and labelled in compliance with any applicable laws and regulations
5.
PROHIBITED AND DANGEROUS GOODS
5.1 Without prior notification and agreement in writing the company will not accept or deal with:
5.1.1 Goods in which it is unlawful to carry or otherwise handle, or can only be carried or handled with a permit;
5.1.2 Any noxious, dangerous or inflammable goods or goods likely to cause damage;
5.1.3 Any perishable goods or goods which require unique bundling or packaging;
5.1.4 Bullion, cash, coins, negotiable instruments, securities of any kind, precious stones, jewellery, antiques, works of art or other valuables, or
5.2 Where the company agrees to accept or deal with any of the goods referred to in paragraph 5.1, the Customer shall provide all documents and information relating to the goods (including any relevant permits) necessary to enable the company to:
5.2.1 Comply with the law; and
5.2.2 Handle the goods safely and in a likely manner to minimize loss.
5.3 The Customer shall further ensure in the case of Goods described in paragraph 5.1.3 that the container or other covering in which the Goods are to be packed, as well as the Goods themselves, are distinctly marked on the outside so as to indicate the character of any such goods and so as to comply with any applicable laws, regulations or requirements.
5.4 If the Customer delivers any Goods referred to in paragraph 5.1 or causes them to be handled or dealt with by the company without prior notification and written agreement:
5.4.1 The Company shall not be liable for any loss or damage whatsoever arising out of the dealings with the Goods;
5.4.2 The Customer shall be liable for all loss or damage caused by, to or in connection with the Goods howsoever caused or arising;
5.4.3 The Customer shall indemnify the company against all penalties, claims, damages, costs and expenses whatsoever arising as a result; and
5.4.4 In the case of the goods refereed to in paragraphs 5.1.1, 5.1.2, and 5.1.3 above, the Goods may be destroyed or otherwise dealt with at the sole discretion of the company or any other person in whose custody they may be at the expense of the Customer without the company, or such other person being responsible or accountable in any way.
6.
DELIVERY
The Goods shall be deemed to have been delivered when they are delivered to the address given to the Company by the customer or Consignee for that purpose.
7.
PAYMENT OF FREIGHT AND CHARGES
7.1 The Customer agrees to pay all freight and charges levied by the company in terms of any separate agreement relating to the services provided or, if there is no such agreement, the company’s standard charges, and any other costs reasonably occurred by the company in connection with the Goods or the services provided by the company.
7.2 Freight and charges will be considered fully earned upon receipt of the goods by the company, and all freight and charges shall be paid, without any deduction, whether by way of set-off or counterclaim or otherwise, by the 20th of the month following the date of the invoice. If not paid, the Customer agrees to pay the company at 0.25% interest per week on the unpaid balance until payment is made.
7.3 If at any time, payment from the Customer to the company is in arrears, any substituting obligations of the company to the Customer shall be suspended, and the company may, without limiting any other rights available to it:
7.3.1 Demand payment of all outstanding amounts;
7.3.2 Require security for such obligations to its satisfaction before any further services are rendered; or
7.3.3 Withhold deliveries or services ordered by the Customer without notice.
8.
LIEN
8.1 Immediately they come into the possession of the Company or any subcontractor, all Goods and documents relating to the Goods shall be subject to a particular and general lien securing payment of all money due to the Company by the Customer or the consignee, consignor or owner, whether in respect of such goods and otherwise.
8.2 if any money due to the Company is not paid within 14 days after notice to the debtor that the lien is being exercised, the Goods may be sold by auction or otherwise at the debtor’s expense, and the net proceeds applied in reduction of the indebtedness. No such sale shall prejudice or effect the Company’s right to recover any balance owing to the Company for its services or the cost of the retention and sale.
9.
INSURANCE
Insurance of the Goods is the sole responsibility of the Customer.
10.
LIMITATION OF LIABILITY
10.1 All carriage subject to the Act is undertaken at “limited carriers risk”.
10.2 Any other service (including carriage which is not subject to the Act or any different compulsory applicable carriage regime) is provided on the basis that the liability of the Company in account to the sum specified in a15(1) of the Act for each unit of goods lost or damaged.
10.3 Subject to provisions of paragraphs 10.1 and
10.2:
10.3.1 The Company shall not be under any liability, howsoever caused or arising and (without limiting the generality of foregoing) whether resulting from the negligence of the Company or otherwise, for any damage to, loss, deterioration, misdelivery, delay in delivery, or non-delivery of, or failure to consolidate the Goods (whether the Goods are, or have been in possession of the Company or not) nor for any instructions, advice, information or service provided to anyone, whether in respect of any loss or other thing or matter nor for any consequential or indirect loss; and
10.3.2 The Customer shall indemnify the Company against claims of any kind whatsoever, howsoever caused or arising (without limiting the generality of the foregoing) whether caused or arising at the negligence of the Company or otherwise, brought by any person in connection any matter with any thing done, said or permitted by the Company in connection with its dealing with the Customer or the Goods.
11.
HIRE OR SUPPLY OF EQUIPMENT
11.1 Any equipment we supply or hire to you, whether for a cost or free, remains our property and is supplied subject to these terms.
11.2 You must use the equipment safely in the manner intended and comply with all manuals, instructions and applicable laws.
11.3 While our equipment is in your possession, you are liable for the equipment and its physical security. You must keep it fully insured in our name against all risks of every usual description & such other risks as we may request. You can’t attempt to sell, assign, mortgage, sublet, lend, hire, lease or otherwise deal with or part with the possession or control of our equipment (or part of it) and you must immediately notify us of any action which aims to affect our ownership rights.
11.4 You can not interfere with or modify our equipment, including attempting to deface or erase any identifying mark, plate or number that helps identify the equipment as ours. You will immediately notify us of any breakdown, damage, destruction, theft or loss of our equipment and assist our inquiries regarding the same (including filing a Police report). If our equipment is damaged and requires repair for reasons which we think are beyond fair wear and tear, you will be liable for the cost of those repairs. If our equipment is lost, stolen or damaged while it is meant to be in your possession, you will be liable to pay all costs to replace our equipment, with no consideration for the depreciated state our goods were in before that event happened.
11.5 If we ask you to do so, you will return the equipment to us immediately.
12.
FAILURE TO MEET YOUR OBLIGATION TO US
12.1 It is important that you always comply with our Terms. If you do not, the results can be severe for you. Talk to us if you are having difficulties meeting your responsibilities under these terms or any other agreement with us. We may be able to work with you or give you support and information that could help.
12.2 When you don’t meet your responsibilities to us, you will be in default of these terms of our agreement. That includes if you fail to pay us on time or you have anything happen to you that impacts on your ability not to perform any other obligation under these terms, or if you: Examples include if you:
- Don’t pay us on time.
- Are unable to pay your debts as they fall due.
- Suffer what we consider a material adverse change in your financial position or stability.
- Act in any way which we believe is detrimental to us.
- Tell someone that you intend to cease trading.
- Propose a meeting of creditors’ scheme of arrangement or composition for the benefit of creditors.
- Take steps (or have steps taken by someone else) to have a receiver, liquidator, voluntary administrator or other statutory manager appointed.
- Are convicted of a criminal offence.
- Have all or most of your assets acquired by another entity.
- Lose effective control of your business.
- Indicate that you no longer intend to comply with your obligations under these terms.
12.3 If you do not pay our charges or meet any responsibilities you have to us, all amounts you owe us must be paid to us immediately (even if their original due date has not arrived yet). We may also, at any time, enforce any of our rights without telling you, such as:
- Immediately suspend or terminate any credit facilities and agreements we have with you.
- Ask for additional security to ensure you continue to meet your responsibilities to us.
- Charge your interest on the amount owing at the rate of 5.0% accrued and compounding daily and/or a late payment charge (which reflects the costs of recovering money owed to us). Billing you these charges does not extend your due date for payment.
- Disallow any discounts we previously offered you.
- Take action against you to recover any amount you owe us, for example, court proceedings.
- Enforce any of our rights against you.
- Seek damages for any loss we incur.
12.4 You are liable and will indemnify us for all costs & losses we incur because of your default on us. That means being liable to pay the full cost of any expenses or losses we incur when we enforce or attempt to enforce any of our legal rights against you. Examples include any attempts by us to collect any money you owe us and any debt recovery commissions or legal fees we incur or are about to incur as part of our recovery process. However, it may also mean any other losses or damages we incur due to you breaching your responsibilities, e.g. interest, penalties, loss of profits, damages or other sums paid or payable.
13.
CONFIDENTIAL INFORMATION
You must keep confidential any information you receive from us, which you would expect to be confidential or commercially sensitive. This not only includes information & pricing but also how we carry on business. You can only disclose confidential or commercially sensitive information if the law requires you or if we agree in writing.
14.
CHANGE TO YOUR LEGAL STRUCTURE
You must tell us in writing of changes in your legal structure or ownership.
15.
SPECIAL NOTICE
All Customers are encouraged to read, sign and return these conditions, which are enclosed with the Account Application form and sent prior to the commencement of services.
16.
ACTIONS AGAINST THE COMPANY
The Company shall be under no liability unless Written notice of any claim, giving full particulars of any alleged loss or damage, is received by the Company within seven days after delivery of the Goods or, in the case of loss or destruction of the Goods, within 28 days of dispatch.
17.
ENTIRE AGREEMENT AND WAIVER
The provisions herein constitute the entire agreement between the parties in relation to the Goods. The Company shall not be bound by any waiver or variation of these conditions of the contract unless such waiver or variation is in writing or signed by a duly authorized person on behalf of the Company. The referral of business to the Company and the acceptance of services provided by the Company will be deemed to be acceptance of the conditions of the contract. All parties are alerted to the existence of the conditions by a reminder printed on Company stationery and dockets, including letterhead, Releases of freight, proofs of delivery and on the account application form.
18.
RIGHT TO REFUSE CARRIAGE
The Company may, in its sole discretion, refuse carriage or storage for any person or for any class of goods.
19.
ENDING OUR AGREEMENT
BETWEEN US
If you want to end your agreement, please contact us. Our agreement will terminate once you meet all your outstanding obligations to us. We may terminate the agreement at any time if you do not:
- Pay our invoices by the agreed due date for payment, or
- Meet your other responsibilities to us. We may end the agreement for any other reason by giving you at least 30 days’ notice.
20.
DEFINITIONS
Terms and expressions not defined below shall have the meanings set out in the Act. In these conditions: “Act” means the Carriage of Goods Act 1979 as amended; “Company” means Carroll’s Cartage Limited, including employees, agents, subcontractors & or any actual carriers the case may be; “Customer” includes any contracting party as that term is defined in the Act; “Goods” means Goods delivered to the Company for carriage, storage or handling in accordance with provisions of this contract.
2 Mahunga Drive Mangere
Bridge 2022 Auckland
(+64) 9 622 3000
office@carrolls.co.nz
7 John Glenn Ave, Rosedale
Albany 0632 Auckland
(+64) 9 444 0313
north@carrolls.co.nz
Account Application & Terms & Conditions
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