Terms of Trade
1. Terms of contract
1.1 By requesting us (Peter Fletcher Transport Limited) to provide any Services to you, you acknowledge and agree (or you are deemed to acknowledge and agree) that:
(a) you have assented or agreed to our standard form terms of trade (these Terms) forming part of each contract and order notwithstanding anything that may be stated to the contrary in your enquiries or your order;
(b) you warrant that you are the owner or the authorised agent of the owner the Goods and that you are authorised to accept these terms not only for yourself but also for and on behalf of all other persons who are or may hereafter become interested in the Goods; and
(c) except as expressly agreed between you and us in writing:
(i) any other document entered into between you and us must be interpreted consistently with these Terms; and
(ii) to the extent that there is any inconsistency between these Terms and any other document, the terms of these Terms shall prevail.
2.1 The price for the Services will be either as quoted to you in writing or, if no written quote is provided, at our standard charges applying at the time. Unless otherwise agreed in writing, any quoted price may be altered prior to provision of Services to you if our costs fluctuate materially. We may withdraw any quotation before it is accepted, and in any event any quotation will lapse without notice 30 days after it is given. Goods and services tax will be payable by you as an additional amount on all prices and charges.
2.2 In addition, you shall also be liable as an additional amount on all prices and charges for any duty, levies, charges (including and fuel charges or levies), tax impost or outlays of whatsoever nature levied by any authority at any port or place for or in connection with the Goods or Services and for any payments, fines, expenses, loss or damage incurred or sustained by us in connection therewith.
2.3 Unless deemed to be a variation under these Terms, any variation to any order must be agreed by us in writing, and the price may alter as a result. Any variation may or may not be charged on the same basis as any work already ordered.
3.1 If you have a credit account with us you must pay for our Services by the 20th day of the month following the date of the invoice relating to the performance of the Services.
3.2 If you do not have a credit account us, payment for our Services must be made prior to the performance of the Services unless other arrangements are agreed to by us.
3.3 Any deposit required by us is due by the date specified by us, or if no date is provided, before supply the provision of any Services. Any such deposit is non-refundable.
3.4 If full payment for the Services and/or any other money owed is not made on the due date then without prejudice to any other remedies available to us:
(a) we may cancel or withhold the provision of further Services;
(b) interest on monies overdue shall be charged on a daily basis and be calculated by adding 5% per annum to the overdraft rate payable by us to our bankers at the time of and during such default, and interest shall continue to accrue both before and after judgement; and
(c) you shall be responsible for all costs incurred by us in recovering such monies.
(a) you are in breach of any of these Terms; or
(b) you become insolvent, bankrupt, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect to you or any of your assets,
all payments for the Services shall become immediately due and payable to us and we may without prejudice to any other remedies available to us, terminate these Terms and cancel any Services to you, including any outstanding delivery orders.
3.6 If you have a credit account with us, we may from time to time vary your credit limit with us at our sole discretion, in relation to further orders for Services. If any order would be in excess of your credit limit, we reserve the right to require, prior to performance of the Services, payment in cash of the amount by which the cost exceeds your credit limit.
3.7 We may set off against any monies owed by us to you any monies which you owe to us or any of our subsidiaries, related companies or shareholders so that our obligation to you shall be to pay the net balance only.
3.8 Your obligation under these Terms shall be to pay the full amount owing under these Terms free of all deductions or rights of set off.
3.9 You may not cancel any order for the Services or part of it without our written consent. If you do so, in addition to any other rights we may have, we may retain any deposit paid and recover any losses incurred by us (including loss of profits).
4.1 All Goods delivered to us or in our possession in relation to the provision of Services are subject to an active, particular and general lien for any sums owing by you to us. If any monies due to us are not paid within one calendar month after notice has been given to you at the last address known by us, we may, without further notice, sell or dispose of any Goods subject to the lien in such a manner and such terms as we think fit, and may from any sale proceeds repay the amounts owing to us (including any additional storage costs) and any expenses of sale. If the Goods are not owned by you, you hereby indemnify us against any claim of whatever nature by the owner or owners of the Goods.
Risk and Delivery
4.2 Unless otherwise agreed in writing between you and us the carriage of any Goods shall be “at limited carrier’s risk” under the Carriage of Goods Act 1979.
4.3 Our responsibility for the Goods begins when we take control of the Goods for the purpose of performing the Services, and ends when the Goods are delivered.
4.4 Delivery is deemed to have taken place when the Goods are physically deposited at the address specified by you. In the event that you have arranged to collect the Goods from us, our responsibility for the Goods ends when you collect the Goods, or on the expiry of the fifth working day after the date on which we notify you that the Goods are available for collection.
4.5 You agree that any person that delivers any Goods to the destination specified by you is authorised to sign the consignment note and any other applicable delivery documents on your behalf.
4.6 We shall endeavour to carry and store Goods in the manner agreed. In the event that this manner is unsuitable, inconvenient or unavailable for your particular Goods or requirements (determined in our absolute discretion), we may use any other manner of carriage or storage which shall be deemed to be a variation and we shall be entitled to any additional costs that result from this variation.
4.7 Time shall in no case be of the essence in respect to the delivery of any of Goods. We shall not be responsible for any delay in the delivery of Goods and you shall not be entitled to repudiate any contract or order with us because of any such delay. Dates for delivery of Goods are given in good faith and are not to be treated as a condition of sale or purchase.
4.8 In the event that the Goods are not able to be delivered due to any reason caused by you, we shall be entitled to store the Goods at your risk and cost pursuant to these Terms. It will be your responsibility to arrange with us a second delivery which shall be deemed to be a variation and clause 2.3 shall apply.
4.9 We are not required to effect insurance over any Goods that are stored or carried with us. It is your responsibility to obtain insurance over such Goods. We will only arrange insurance if we agree to do so as a Service and we receive written instructions from you.
5.1 You acknowledge and agree that all or part of the Services may be performed by our authorised subcontractors and that any such subcontractor shall be entitled to the full benefit of these Terms.
6.1 Subject to any terms implied by law which cannot be excluded, we shall not be responsible or liable, in contract, tort (including negligence), equity or otherwise for any direct, indirect, incidental, consequential, special or punitive damage or loss, loss of profit, income or savings, or any costs or expenses incurred or suffered by you or any other person, arising out of, or in connection with, the Goods or the performance or non-performance of the Services.
7.1 If we are storing the Goods for you, you authorise us to store the Goods at the premises owned and managed either by us or by a third party and to move the Goods from one storage premises to another if required in our sole discretion.
7.2 We, nor any third party, shall not be liable for, nor owe any duty of care (fiduciary or otherwise) or owe any obligation to you (whether as a bailee or otherwise) in relation to, Goods stored with us or any third party to the maximum extent permitted by law, whether or not due to our own negligence.
8. Access and Compliance with Acts and Regulations
8.1 Where you grant access to us over your property or any other person’s property for the purposes of our providing Services to you, you shall ensure:
(a) convenient access. If access is not convenient we may make a further charge to you that we consider reasonable in the circumstances to cover the additional costs that arise due to such inconvenience;
(b) that the property that the Services are to be undertaken on is suitable for such Services to be performed and will not cause any damage to any property;
(c) that there is no delay in loading or unloading any Goods; and
(d) compliance with all legislation and regulations in relation to the property, including ensuring the property is in a safe state for us perform the Services.
8.2 If we have any concerns regarding the safety of any person, in relation to the access and use of your property, we shall be entitled to halt all work on your property, until such time as our safety concerns have been resolved. In that case you shall be responsible for payment of work undertaken by us to that point and we shall not be liable to you on any basis arising from us having halted work.
8.3 We are not responsible for, and you agree to assume all liability and indemnify us for any damage caused to any property by us as a result of the performance of any of our Services, including, without limitation, the pick-up and delivery of any Goods, except for any damage caused by our wilful negligence.
9. Dangerous Goods
9.1 Unless otherwise agreed in writing on terms acceptable to us, you shall not deliver to us or cause us to deal with, handle or carry Dangerous Goods.
9.2 You shall be liable for any loss or damage caused by any breach of clause 9.1 and indemnify us against all losses, penalties, damages, claims and costs (howsoever arising) arising as a consequence of such a breach. In such circumstances you authorise us to destroy, dispose or otherwise deal with any such Dangerous Goods in our sole discretion at your expense.
10.1 You warrant that all descriptions, values and other particulars furnished to us for customs, consular and other purposes are accurate and indemnify us against all losses, damages, expenses and fines arising from any inaccuracy or omission.
11.1 If you believe there to be to be any damage to or loss of any Goods, or default by us, you must give written notice to us of your claim, including reasonable particulars of the alleged damage, partial loss or such other details in relation to your claim within 5 working days of the date the Goods were delivered or should have been delivered (time being of the essence). If you fail to comply with this clause 11 the Goods shall be deemed to be free of any defect or damage and you shall have no valid claim or action against us in respect of those Goods.
11.2 No valid action may be brought against us in relation to any damage to or loss of any Goods or default by us after the expiration of a period of 6 months from the date on which the Goods were delivered or should have been delivered.
12. The Privacy Act 1993
12.1 You authorise us to collect and hold personal information from any source we consider appropriate to be used for the purposes of determining credit approval, providing you with the Services you have requested, maintaining your account, debt collection and any other related purpose. You further authorise us to disclose personal information held by us for the purposes set out above to any other parties including external credit reference, reporting and debt collection agencies, our subsidiaries, related companies and shareholders.
12.2 You can access any personal information by making a request to us in writing (PO Box 11-174, Christchurch, 8443). If any information that we hold is inaccurate, incomplete or not up to date you may make a request to us to correct that information.
13. Variation of Terms
13.1 These Terms may not be amended by you unless we agree (in our sole discretion) to any such amendment in writing by an authorised person.
13.2 We reserve the right to amend any or all of these terms at any time by giving you written notice of any such change.
14.1 Waiver of any of these Terms by us will only be effective if given in writing by an authorised person. If we waive any of these Terms the waiver shall apply to and operate only in the particular transaction, dealing or matter in respect of which it was given, and will not affect our rights under these Terms at any future time.
15.1 Each clause in these Terms is severable and if any clause is held to be illegal or unenforceable then the remaining clauses will remain in full force and effect.
16 Consumer Guarantees Act 1993 (CGA)
16.1 If the CGA applies, these terms and conditions shall be read subject to your rights under the CGA, provided that where you are acquiring Goods or Services in trade the CGA shall not apply.
17. Governing Law
17.1 These Terms are governed by New Zealand law.
“Dangerous Goods” means any Goods which are dangerous, noxious, hazardous, explosive, radioactive inflammable, capable by their nature of causing damage or injury to other goods, any person, animal or property or likely to harbour or encourage vermin, borer or other pests.
“Goods” means the whole or part of any chattels, articles or any other thing tendered under these Terms or related to or incidental to any Services.
“Services” means any Services provided to you by us (whether gratuitously or not) including, without limitation, the transportation and storage of Goods.