STANDARD TERMS AND CONDITIONS

 

“Act”                                                    means the Contract and Commercial Law Act 2017.

"Actual Carrier"                                   has the meaning set out in the Act

“Bank Account”                                   means [ANZ Bank Limited Parnell, Auckland]

“Car Distribution Group” or “the CDG” or "HaulPlus Limited"  means the registered transport operations of Car Haulaways Limited, Auckland Vehicle Deliveries Limited, Nationwide Transport Limited t/a K&N Transport and Garden City Haulage who will provide the Transport Services depending on the region the service is being offered.

“Conditions”                                        means these Standard Terms and Conditions with any consequential additions or amendments.

“Contract of Carriage”                         means a contract incorporating these Conditions as amended from time to time, including any electronic form of contract or accepted quote.

“Customer”                                         means the person or organisation described in the Contract of Carriage who has agreed to be bound by the contract terms and conditions contained herein, and include that person’s permitted successors and assigns.

“Hazardous or Dangerous Goods”     means any item which the CDG believes to be or about to become dangerous in nature in terms of section 26 of the Act.

“PPSA”                                                means the Personal Property Securities Act 1999.

“Proved Damages”                             means damage that has been claimed by a Customer in accordance with clause 3.1 and accepted by the CDG through the appointment of a repair agent or by obtaining two repair quotes.

“Receiver”                                           means a consignee of Vehicles and includes the consignee's agent.

"Transport Rates"                               means the rates or charges charged by the CDG for Transport Services and where relevant shown in any current freight tables or any other document or means of publication (including electronic means) approved from time to time by the CDG for the statement of rates or charges for Transport Services.

"Transport Service"                            means any service provided by the CDG for the carriage of Vehicles by road or rail and includes any other service provided by the CDG relating to or incidental to that carriage.

“Vehicles”                                           means any motor vehicle or vehicles to which a Transport Service applies.

 

1              Carriage

                1.1        Where a Contract of Carriage is accepted by the CDG, the CDG agrees to provide the Transport Service requested by the Customer for the carriage of the Vehicle as set out in that Contract of Carriage.

                1.2        The Customer hereby warrants that they either have legal title to the Vehicle or express or implied consent of the legal owner of the Vehicle to request the CDG to undertake the Transport Service.

1.3        These Conditions shall apply to and govern the supply by the CDG of Transport Services to the Customer. If there is any conflict or inconsistency between these Conditions and the terms of any order submitted by the Customer or any price list, invoice or delivery docket issued by the CDG, these Conditions shall prevail unless otherwise agreed in writing by the CDG.

1.4        These Conditions may only be varied in writing signed by the Executive Chairman of CDG and no other employee, agent or representative of the CDG shall have any authority to amend, modify or add to these Conditions. Amendments shall be effective upon receipt in writing from the Customer.

2.             Inspection of Vehicles and Carrier’s rights

                2.1        Inspection of Vehicles: The CDG shall visually inspect Vehicles before their acceptance for carriage. The Customer must assist with the inspection if required by the CDG.  Inspections are carried out in good faith and as the Vehicle is presented to the CDG staff. Any clearly visible damage to or missing items from any Vehicle presented for Carriage shall be noted on the consignment note or condition report.  Failure of the CDG to inspect any Vehicle, at all or adequately, does not impose any additional liability upon the CDG or affect any obligation of the CDG in relation to that Vehicle. The CDG accepts no liability for any pre-existing damage which may include but is not limited to:

a)     any individual marks, blemishes or stone chips;

b)     any surface scratches, paint or minor damage that is under protection wax or film;

c)     any damage or marks found after the Vehicle has been washed and groomed unless the Vehicle was presented to the CDG washed and groomed.

                2.2        Carrier’s right to search Vehicles: The CDG is entitled to inspect or search any Vehicle to be carried on a Transport Service if the CDG believes that the Vehicle contains Hazardous or Dangerous Goods, or any other goods for which these Conditions or any other law have not complied with. The CDG may at its sole discretion remove, or have removed at the Customer’s expense, any item that it considered to be or may be considered Hazardous or Dangerous Goods. The CDG does not accept any liability for items carried within a Vehicle.

                2.3        Carrier’s right to refuse to accept Vehicle for Carriage: The CDG in its absolute discretion reserves the right to refuse to carry any Vehicle without the need to give any explanation to the Customer.

                2.4        The CDG reserves the right to charge a reasonable fee for any Vehicles that are not available for the Transport Service at the agreed time and place.  Any such fee will be charged to the customer after the event.

                2.5        Vehicle acceptance: Acceptance of Vehicles by the CDG for Transport Services is deemed to occur at the time the Vehicle or Vehicles are loaded on the transporter or other means of transport used to provide the Transport Service, or when a signed vehicle docket is completed with respect of the Vehicles.

3.             Claims

                3.1        Notice of claim: Subject to clause 4.1 any claim against the CDG in respect of alleged loss of or damage to Vehicles carried on a Transport Service must be given in writing to the CDG within twenty four hours after the date on which the CDG’s responsibility for those Vehicles has ceased. The CDG must be given a reasonable opportunity to investigate the claim and to appoint a repair agent or obtain two repair quotes to repair any Vehicles that are proven to be damaged in the course of Transport Services.

                3.2        If claims are not made before the Vehicles are repaired by the Customer or the CDG is not given a reasonable period to investigate the claim and appoint an agent or obtain quotes as required under clause 3.1 above (for repair of Vehicles that are proven to be damaged in the course of Transport Services and fall within the liability provisions set out in clause 4.1 the Customer shall be conclusively deemed to have accepted the Vehicles as conforming with the Contract of Carriage in all respects and to have waived absolutely any claims for incorrectly delivered or damaged Vehicles and the CDG shall not have any liability in respect of those claims or otherwise in respect of the Vehicles.

4.             Liability

                4.1        Any carriage under a Contract of Carriage is deemed to be at Owner’s risk in accordance with section 248(1)(a) of the Act unless otherwise agreed in writing between the parties (pursuant to section 248 of the Act), which agreement shall be confirmed in writing by the CDG and a copy supplied to the Customer. Notwithstanding any other provision of these conditions and in accordance with Section 248(2)(a) of the Act CDG is not liable for any loss or damage suffered to the customer’s vehicle except where the loss or damage is intentionally caused by CDG.  

                4.2        For the avoidance of doubt but without in anyway limiting the provisions of clause 4.1 such exclusion of liability includes:

a)     delay in delivery of any Vehicles for any reason; or

b)     damage to Vehicles from leakage, explosion, or the effects of climate or the elements; or

c)     damage to Vehicles of any Customer where such damage arises out of the actions, or omissions, of the Customer or any other person limited to the extent of the actions of the CDG.

                4.3        Contributory negligence: Subject to the provisions to clause 4.1 where there is contributory negligence on the part of a Customer, any liability of CDG   shall be limited to an amount that excludes the amount attributable to the contributing negligence.

                4.4        Immobile Vehicles: If any Vehicle presented for carriage does not start or is not able to be loaded onto a transporter, the CDG may in its absolute and sole discretion refuse to carry that Vehicle.

                4.5        Damaged Vehicles: No damaged Vehicles will be carried unless otherwise agreed. While every endeavour is made to ensure there is not additional damage through the loading and unloading process, the CDG undertakes no liability for any subsequent damage while carrying out the Transport Service.

                4.6        Securing devices: The CDG is required by law to use securing devices to stabilise and secure any Vehicles. The CDG is not liable for any loss or damage to any Vehicles if that loss or damage is caused by the chafing or moving of securing devices which have been attached by the CDG to prevent loss or damage resulting from carriage. Any special requirements must be accepted in writing by the CDG prior to carrying out the Transport Services.

                4.7        Errors, omissions and representations: The CDG is not liable for errors or omissions in publications of schedules or in statements, or representations made by any of its employees, agents or representatives in respect of any Transport Service. No agent, employee or representative of the CDG has authority to give undertakings or make representations in relation to the provision or timing of any Transport Service that are inconsistent with these Conditions. Any such undertakings or representations will not bind the CDG except where prior confirmation in writing is obtained from the Executive Chairman of CDG.

                4.8        Extension of exclusion or limitation to agents: Any exclusion or limitation of the liability of the CDG applies to and for the benefit of the CDG's agents, employees, representatives and contractors and to any Actual Carrier and to the Actual Carrier's employees, agents, representatives and contractors. Any aggregate amount of damages recoverable from the CDG, the Actual Carrier and their respective agents, employees, representatives and contractors shall not exceed the maximum amount of the CDG's liability. The liability of any Actual Carrier is determined pursuant to section 261 - 265 of the Act.

5.             Rates and Charges

                5.1        Each Transport Service is performed at and is subject to payment by the Customer of the applicable Transport Rate, current at the time of carriage. The CDG may from time to time fix or impose special rates or vary existing Transport Rates or terms of payment without notice.

5.2       The CDG is not bound by quotations or estimates of Transport Rates or conditions of contract or carriage given verbally unless they are confirmed by the CDG in writing in accordance with these Conditions.

5.3       Additional handling charges: If the CDG incurs any additional costs in handling any Vehicles, or if the Vehicles are not able to be started or loaded onto a transporter, the Vehicles will be treated as immobile and the Customer is liable to pay any additional costs on demand. Additional handling charges may include, but are not limited to additional fuel, changing and repairing tyres and cutting keys.

                5.4        GST and other Government taxes and charges: Any tax (including GST imposition) or fuel or other surcharge, which is not provided for or stated in a Transport Rate, and which is imposed by a Government or by any regional or other authority, in respect of or incidental to carriage of a Vehicle or the provision of any Transport Service, is due and payable in addition to the Transport Rate by the Customer.

6.             Payment

                6.1        The Transport Rate and any additional tax or handling charge payable by the Customer for a Transport Service must be paid before commencement of the Transport Service unless the Customer (or other person liable for payment with respect to the Transport Service) has a current written credit arrangement with the CDG for payment, in which case payment is due by the 20th of the month following invoice date.

                6.2        Prices any Contract of Carriage are unless otherwise stated, expressed in New Zealand dollars, do not include GST or any fuel surcharges applicable at the time and are based on current Transport Rates. To the extent they are applicable fluctuations in the cost of labour and raw materials, exchange rates and any variations are for the Customer’s account.

                6.3        If there is no credit arrangement and payment is not made in advance of acceptance of the Vehicles for the Transport Service, or if the amount collected by the CDG or its agent is not the applicable Transport Rate plus any additional tax or charge, the difference must be paid by the Customer before commencement of the Transport Service. Payment can be accepted through Visa, MasterCard, cheque or cash. Electronic banking direct to the Bank Account is also acceptable. Until payment is received the Transport Service will not be actioned.

                6.4        Credit arrangements - authorisation to collect information: In any situation where the CDG has a credit arrangement with a Customer in relation to the provision of Transport Services, or a Customer requests that a credit arrangement be entered into with the CDG, the CDG will be entitled to collect from sources other than that Customer any information the CDG considers relevant to assessing the creditworthiness or financial position of that Customer. The CDG will be entitled to disclose any such information to any of its subsidiaries, associated companies or any other person engaged in business with the CDG from time to time.

                6.5        Late Payment: Overdue payment shall constitute a breach of these Conditions and the Customer will, upon demand, pay penalty interest to the CDG on any overdue amount at the rate of 2.0% per month compounding from the date that payment was due until payment (including interest) is received in full. The CDG may charge this penalty interest without prejudice to its other rights and remedies.

                6.6        The CDG may at its discretion, apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer and it shall not be bound by any conditions or qualifications that the Customer may make in relation to payments made under this or any other contract with the CDG.

                6.7        Where a Customer has a credit arrangement with the CDG, the CDG may register a financing statement on the Personal Property Securities Register over any Vehicle subject to any Transport Service to secure payment of the Transport Rate.  The Customer waives any right to receive a verification statement pursuant to section 148 of the PPSA.        

7.             Delivery

                7.1        Time of delivery shall not be for the essence of any Transport Service, but the CDG will make all reasonable efforts to meet any date for delivery agreed with the Customer or otherwise to deliver the Vehicles within a reasonable time. In no event shall the CDG incur any liability due to any failure to deliver Vehicles by an agreed date.

                7.2        Vehicle delivery: Delivery of Vehicles by the CDG is deemed to occur at the time the Vehicles are left by the CDG for collection by the Customer or the Receiver at the agreed destination provided by the Customer in the Contract of Carriage.

                7.3        Delivery not collection: The CDG is only responsible for delivery of Vehicles, not for their collection.

                7.4        Unclaimed Property: If for any reason, Vehicles are not removed or collected from the agreed destination as soon as possible after delivery by the CDG then:

a)     The CDG is deemed to be the agent of the Customer (and/or of the owner of the Vehicle where relevant) and may store the Vehicle on behalf of and at the sole risk and expense of the Customer (and/or the owner of the Vehicles where relevant); and

b)     The CDG may declare the Vehicles to be unclaimed after the expiry of 14 days from the date agreed by the Customer that the Vehicles were to be collected and may sell those Vehicles and apply the proceeds of sale in payment of:

                                           I.        any Transport Rates, taxes or charges payable in respect of carriage of those Vehicles or the Customer whose Vehicles have been sold; and

                                          II.        the expense of storing and selling the Vehicles

                                         III.        If, after the sale of the Vehicles, the Customer whose Vehicles have been sold presents himself or herself to the CDG to collect the Vehicles, The CDG will, upon being provided with satisfactory proof of identity of the Customer, and the entitlement of the Customer to the Vehicles, pay the balance of the sale proceeds, if any, to that Customer.

                7.5        Business Purposes: Where a Customer is using a Transport Service for business purposes, none of the rights or remedies provided under the Consumer Guarantees Act 1993 apply, pursuant to section 43 of that Act.

8.             Default and Remedies

                8.1       If the Customer defaults in payment or performance of any of its obligations under a Contract of Carriage or any other agreement with the CDG or if the Customer shall before then become bankrupt or commit any act of bankruptcy or compound with its creditors, have judgement entered against it in any court or go into liquidation whether voluntary or otherwise or have a receiver or manager appointed to give a security over its stock or plant, or if information becomes known to the CDG which in the CDG’s opinion might materially affect the Customer’s creditworthiness, the value of the Vehicles or the Customer’s ability to comply with its obligations under these Conditions or any other agreement with the CDG, then the CDG:

a)     is irrevocably authorised by the Customer at any time thereafter to retain possession of and remove the Vehicles and to use the Customer’s name and to act on his/her behalf in exercising such rights without being liable in any way to the Customer;

b)     may require immediate payment of all amounts payable to the CDG; 

c)     may withhold delivery of Vehicles without notice; and

d)     may require cash payment for future services.

                8.2        Carrier’s Lien: The CDG reserves the right to withhold delivery of all Vehicles under a Contract of Carriage if the Customer is in default of any of its obligations under any Contract of Carriage with the CDG. In any proceedings or actions relating to a default by the Customer, the Customer shall indemnify the CDG upon demand for all claims by any third party for any losses resulting from the CDG retaining possession of the Vehicles and for all costs and expenses incurred by the CDG in connection with such proceedings or actions, including but not limited to solicitors’ costs and enforcement costs. In the event of any default in payment, the Customer will be liable to the CDG for all costs of collection that are incurred by the CDG including but not limited to costs incurred prior to any legal action, collection, agency costs, court costs, and solicitors’ costs and will pay these costs to the CDG upon demand.

9.             Assignment

                9.1        The CDG is entitled at any time to assign to any other person, all or part of any debt owing by the Customer to the CDG.

10.           Governing Law

               10.1       Any Contract of Carriage shall be governed by and construed in accordance with New Zealand law.

               10.2       Partial Invalidity: If any provision contained or referred to in these Conditions is in conflict with any statutes, regulations, rules, bylaws, ordinances, orders and all other requirements or conditions (“Other Law”) that apply to the provision of a Transport Service under these Conditions and that Other Law cannot be waived or avoided by these Conditions, then that provision only remains applicable to the extent that that provision is not in conflict with the Other Law. The invalidity of any provision of these Conditions does not have the effect of invalidating the whole or any other clause of these Conditions.

               10.3       No waiver: Nothing in these Conditions represents a waiver or surrender by the CDG of any statutory or other legal right, immunity, exception, limitation, protection, privilege or defence.