Conditions for Transport and Subcontracted Transported Services

DEFINITIONS

1. In these Conditions the following definitions apply:

  • a. The legal meanings of these terms are those in the Carriage of Goods Act 1979.

    • i. This includes “Goods,”
    • ii. “Consignment Note” means any document issued by us, or any record made by us, (including any information in electronic form) in connection with the performance of the Services
    • iii. “Dangerous Goods” includes Goods which are or may become of a dangerous, inflammable, radioactive, volatile, explosive, offensive or damaging nature
    • iv. “Contract” means any document or agreement (oral or written) between us and you which agrees or documents how Services are to be provided;
  • b. When you see references to “the Act” it means the Carriage of Goods Act 1979.

  • c. Services means transport Services.

  • d. Charges include any fees, charges, interest, expense reimbursement or other money or consideration payable to ContainerCo by the Customer.

  • e. Subcontractor means any person (including a person operating a railway) we use to perform all or part of the Services instead of us, and any person who is an agent or subcontractor of such a person.

  • f. “The Carrier,” Us, we, or our means ContainerCo (NZL) Ltd (NZBN 9429035842477), any of our agents or subcontractors, and any related body corporate of ContainerCo NZL Ltd.

  • g. Customer means the person, firm, company or organisation by whom or on whose behalf Container Services are performed.

  • h. You or your includes your employees, agents, contractors, sub-contractors, assignees or representatives.

2. In these conditions of agreement, any word suggesting a singular/plural number or assigning a gender shall be read as meaning either or both a plural/singular number, and any gender, the case may require.

3. The Customer and ContainerCo agree that these conditions of agreement are the standard terms and conditions for all work done or services rendered by or on behalf of ContainerCo and they may not be varied except by written agreement.

4. These Terms apply to all Services undertaken by us for you, and must also be read subject to any specific Contract made between us and you.

5. If the you are using our service for business purposes none of the rights or remedies provided under the Consumer Guarantees Act 1993 apply.

6. Where the Carrier uses an Actual Carrier (as defined in the Act) your Goods are carried subject to the Actual Carrier's conditions of Contract.

  • a. Where there is a conflict between the Actual Carrier's conditions of Contract and these Terms, these Terms will prevail.

1. APPLICATION OF CONDITIONS

1.1 These conditions apply to any services we perform for you, or any services a third party performs for you.

1.2 They also apply to any work we have to do, or reasonably do, in addition to the work we quote for.

1.3 These conditions continue to apply despite any breach by us or a Subcontractor.

1.4 We may refuse to transport or deal with certain Goods for any reason.

1.5 When you (including one of your Subcontractors) give us Goods for the provision of Services, you are acting as agent for each person who has an interest in the Goods.

  • 1.5.1 Everyone involved is a party to the contract and is bound by these conditions in the same way as you are.

1.6 When you ask us to provide Services, you or any person who signs any document on your behalf has authority to accept these conditions.

2. OUR SERVICES

2.1 We are entitled to open (within reason) Goods in order to inspect them; this might be to find out their nature, condition, for the provision of services, or to establish who owns them.

2.2 If we think that Goods may become dangerous or offensive, we may do anything we believe appropriate to avoid or minimise any loss, damage, deterioration, or offence.

  • 2.2.1 This includes removing or rejecting Goods.
  • 2.2.2 This does not affect any other rights we may have if the Goods are dangerous or offensive.

2.3 We are entitled to use a Subcontractor to perform all or part of the Services instead of us.

  • 2.3.1 We enter into this contract as an agent or trustee for that Subcontractor.
  • 2.3.2 Each of them is a party to the contract we enter into with you.
  • 2.3.3 The contract applies as if the Subcontractor were us.
  • 2.3.4 The Subcontractor might have terms additional to the ones in this set. Those terms will be binding on you.

2.4 We intend to perform transport Services to the location and at the time you nominate.

  • 2.4.1 We intend to follow any instructions you give us in relation to the handling, storage, acceptance, and release of Goods. However, we are entitled to depart from those instructions if it is reasonable to do so.
  • 2.4.2 This might include refusing Service to a location you’ve nominated, or altering the route taken to get there. We will inform you if we depart from your instructions, and give you the reason.
  • 2.4.3 We also reserve the right to depart from those instructions in order to comply with a relevant government authority. We will inform you if we depart from your instructions, and give you the reason.

2.5 If you do not collect or arrange for the collection of Goods at the completion of the Services within a reasonable time, we may choose to store the Goods at your cost.

2.6 We reserve the right to limit the numbers of simultaneous Services we are providing for you.

2.7 Without prior arrangement in writing we reserve the right to;

  • 2.7.1 ask that Goods stored for you on our premises are uplifted, or apply additional charges after they have been stored longer than 30 days.
  • 2.7.2 Return Goods to you at your cost.

2.8 When performing transport Services, we reserve the right to perform and charge for reasonable related activities necessary for the completion of that service, at our standard rate for those related activities. (For examples, charges relating to using plant to load the Goods onto our Service).

2.9 We have the right to ban anyone from our premises at any time and for any reason, but especially in regards to potential Health and Safety problems, or a failure to follow reasonable Containerco Staff instructions.

2.10 We reserve the right to apply levies for costs applied to Containero that are outside of its control; this includes compliance costs related to legislation, fuel charges, and infrastructure charges.

3. GOODS

3.1 You must:

  • 3.1.1 fully and accurately describe the Goods;
  • 3.1.2 give prior written notice if any of the Goods are Dangerous Goods, high value Goods or require special handling;
  • 3.1.3 comply with all applicable standards and laws in relation to the Goods;
  • 3.1.4 give prior written notice if any of the Goods are liable to customs duties or official restrictions;
  • 3.1.5 ensure that the Goods are properly and safely packed for pickup, transport and delivery; and
  • 3.1.6 ensure that the Goods are ready for pickup so that there is no delay in performing the Services.

3.2 We may at our discretion, at your cost, undertake any testing or analysis of the Goods.

3.3 If, in our opinion, Goods subsequently become Dangerous Goods, then we may, at your cost, destroy, dispose of or render harmless the Goods without prejudice to our rights under these Terms.

3.4 Our acceptance of the Goods for storage pending carriage shall not bind us to carry the Goods.

  • 3.4.1 We may at any time require you to remove the Goods at your cost (whether in the case of non-shipment or otherwise) and if you fail to do so within seven days you will be liable to pay the Carrier a fee for storage from the date of notice until the date of removal.
  • 3.4.2 This does not limit our rights to other remedies.
  • 3.4.3 The Goods are at your risk at all times.
  • 3.4.4 We make no warranty or representation as to the physical or structural state and condition of the Goods or their fitness for the purpose for which they will be used.

4. RECEIPT AND HANDLING

4.1 Our liability for carriage starts when we accept your Goods for carriage and stops when we deliver, or you collect, the Goods.

  • 4.1.1 The Carrier's liability is subject to the Act and to these conditions.

4.2 Goods are accepted when the last of these occurs:

  • 4.2.1 The time we receive a Consignment Note containing all the information we require;
  • 4.2.2 or the time we takr possession of all Goods referred to in the Consignment Note.

4.3 You are responsible for unloading Goods

4.4 If you ask us to use a particular method of handling, storage or transportation of the Goods, we will give priority to that method, but if we cannot do it or it is inconvenient then you agree we can reasonably handle, store or transport the Goods by another method or methods.

4.5 You understand we may need to alter a usual route or method of transport of the Goods, and give us permission to do so.

5. DELIVERY

5.1 Unless agreed otherwise:

  • 5.1.1 Delivery of the Goods occurs the earlier of these two situations;

    • 5.1.1.1 we deliver the Goods (whether unloaded or not) to the delivery address on the Consignment Note;
    • 5.1.1.2 Goods are collected by you or an agent within 5 working days of us notifying that its available to be collected
  • 5.1.2 We will obtain a receipt or signed delivery docket for the Goods, and this will be proof of delivery.

  • 5.1.3 If the address given us delivery is unattended or if delivery cannot otherwise be completed at that address, we will do one of two things:

    • 5.1.3.1 deposit the Goods at that address (which shall be conclusively deemed to be delivery under these Terms);
    • 5.1.3.2 store the Goods and re-deliver them to you at your cost.

5.2 When our responsibility ceases (on the date provided by s9(3) of the Act,) we may hold the Goods if undelivered as bailee, and will be entitled to storage fees at normal rates. As bailee, we will not be under any liability for any loss of or damage to the Goods

5.3 At our discretion we may, if undeliverable, instead return the Goods to you at your risk and expense.

LIEN

The Goods are accepted subject to a general lien for all charges now due or which may become due to the Carrier by the Contracting Party in respect of the Services. If the lien is not satisfied and/or the Goods are not collected, the Carrier may at its option and, in the case of perishable Goods immediately and in any other case upon the expiration of 7 days notice either:

  • 1. remove such Goods or part thereof and store them in such place and manner as the Carrier shall think proper at the risk and cost of the Contracting Party; or
  • 2. open any package and sell such Goods or part thereof upon such Terms as it shall think fit and apply the proceeds in or towards discharge of the lien and the cost of sale without being liable to any person for any loss or damage thereby caused.

EXTENSION OF EXCLUSIONS

very exemption, exclusion or limitation in these Terms of whatsoever nature applicable to the Carrier or to which the Carrier is entitled under these Terms shall also be available and shall extend to protect:

  • 1. all Subcontractors engaged by the Carrier to perform the Services;
  • 2. every employee, representative or agent of the Carrier or of a Subcontractor;
  • 3. every other person by whom the Services are performed or undertaken; and
  • 4. all persons who are or might be vicariously liable for the acts or omissions of any person falling within clauses 10(a), (b), or (c) and for the purposes of this clause 10 the Carrier is or shall be deemed to be acting as an agent on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be deemed to be parties to these Terms.

WAIVER

A provision of or right under these Terms in favor of the Carrier may not be waived or varied expect in writing signed by a director of the Carrier.

FORCE MAJEURE

If the Carrier is wholly or partially precluded from performing the Services or otherwise complying with its obligations under these Terms by anything outside the Carrier’s reasonable control (the “Force Majeure Event”), then the Carrier’s obligation to perform its obligations under these Terms will be suspended for the duration of the delay arising out of the Force Majeure Event..

SEVERABILITY

If for any reason a provision of these Terms shall be invalid or unenforceable, the validity and enforceability of all other provisions shall in no way be affected and these Terms shall otherwise continue to be of full force and effect and shall be construed subject only to such invalidity or unenforceability.

NOTICES

Any notice necessary or required to be given by either party shall be served by sending the same by facsimile transmission (in which case it shall be deemed to have been served at the time of transmission), or prepaid fastpost (in which case it shall be deemed to have been served four days after posting).

AUTHORITY

The Contracting Party authorises any person or company to provide the Carrier with such information as it may require in response to its credit enquires.

LAWS

New Zealand law applies. The parties submit to the non-exclusive jurisdiction of the courts of that country .

6. YOUR OBLIGATIONS IN RELATION TO SERVICES

6.1 You must comply with all laws relevant to Transport Services.

  • 6.1.1 You, and all your contractors and subcontractors, must comply with our reasonable requests, standards, policies and procedures.

6.2 To help us comply with the law, and complete services safely and efficiently, you must:

  • 6.2.1 give us an accurate description of the Goods, and pre-advise us of its arrival
  • 6.2.2 tell us if the Goods are, or could be, dangerous or offensive
  • 6.2.3 provide us all with necessary documents and information to enable us to comply with the law;
  • 6.2.4 provide us all with necessary documents and information (including packing declarations, manifests, etc) to ensure we can safely and properly transport the Goods and deliver accurate documentation at its destination.
  • 6.2.5 If there is an investigation or enquiry from a relevant government authority for any reason, you will help us comply with that investigation or enquiry.

6.3 Where the conditions contained in these Terms differ from the provisions of the Act, then so far as the parties are able, both you and we agree agree that these Terms prevail over any relevant provisions of the Act. Both you and we are therefore deemed to have contracted out of the relevant provisions of the Act

6.4 Sections 18, 19 and 20 of the Act will not apply to Contracts made with us.

6.5 We have obligations under quarantine and customs laws, as well as accreditation programs, compliance agreements, and other schemes. You agree that you must not do anything that puts these at risk, or has the potential to put these at risk.

6.6 You are liable if we suffer loss or damage to our plant, equipment, or property if you fail to provide us with the information necessary to prevent that damage.

  • 6.6.1 This is whether that equipment or property is in your possession or otherwise

6.7 These terms cannot be waived by you without our prior written consent.

7. PAYMENTS

7.1 You must pay us for our Services in accordance with our charges.

7.2 You must pay us when we complete the Services and issue you with an invoice for those Services.

7.3 Unless otherwise agreed in writing by ContainerCo (NZL) Ltd, the Customer will pay all charges within 30 days of the date of statement

  • 7.3.1 Late payment will mean the customer pays interest at 10% pa on any charges not paid by the due date, plus any costs or expenses incurred by ContainerCo (NZL) Ltd in recovering payment.

7.4 You can arrange for someone else to pay any charges you incur. However, you remain liable to us if they do not pay.

7.5 You must pay us an additional reasonable charge in each of the following cases:

  • 7.5.1 We (or a Subcontractor) perform Services (reasonably) in addition to the Services we quote for.
  • 7.5.2 You fail to pick up your Goods, and we’ve held them longer than 30 days, and you have not arranged in writing for an extension of storage.
  • 7.5.3 We are required to perform services for third-party contractors arranged by you operating on our premises.

7.6 Unless with a written agreement, you must pay us the amount we have to pay, or a relevant Subcontractor has to pay, for any product or part of product purchased in the course of providing the Services that wasn’t covered by the Service charge.

7.7 You agree that we have a lien over Goods (and any related documents), and over any other Goods or property of yours in our possession. This acts as security for payment of any money you owe us.

  • 7.7.1 If you do not pay your charges, we may sell these without giving you notice after thirty days. We will offset the amount we receive against the money you owe us.
  • 7.7.2 This does not affect any other rights we may have.

7.8 We may charge freight by weight, measurement or value.

  • 7.8.1 To determine any of these, we may re-weigh or re-value or re-measure or require the Goods to be re-weighed, re-valued or re-measured to charge proportional additional freight accordingly.

7.9 The charges do not include any applicable taxes (including but not limited to goods and services tax, import duties and export duties).

7.10 We reserves the right to increase the standard rates used to calculate the charges from time to time.

7.11 Quotations are given on the basis of immediate acceptance and may be withdrawn.

8. LIABILITY

8.1 The Services are supplied by us "at limited Carrier's risk" as per the Act.

  • 8.1.1 Sometimes we will ask you to sign a statement that certain Goods are to be carried "at the owner's risk".
  • 8.1.2 Sometimes we will set out in a written contract that Goods will be carried only “at the owner’s risk”.
  • 8.1.3 Third party providers outside of ourselves who are operating on your behalf and contracted by you undertake those services entirely at your risk.
  • 8.1.4 We are not liable for losses suffered because of factors outside of our control; for example we cannot control third-party delays when trying to deliver Goods to your nominated location, mis-delivery by a third-party, or Goods that are lost after we have delivered it to your nominated location.

8.2 Although we intend to complete the Services to a high standard, ContainerCo cannot guarantee exact uplift or delivery times.

8.3 For our Transport Services, our liability is limited to the lesser of:

  • 8.3.1 The sum provided in section 15(1) of the Act.
  • 8.3.2 the replacement or cost of the Goods, or the supply of equivalent Goods;
  • 8.3.3 the repair or cost of repair of the Goods;
  • 8.3.4 supplying the Services again;
  • 8.3.5 payment of the cost of having the Services supplied again.

8.4 The aggregate amount recoverable from any carrier listed will not exceed the maximum amount of the Carrier's liability as defined in the Act.

8.5 ContainerCo shall not be liable for any consequential loss (including loss of profit).

8.6 As a condition or us providing our Service, any action must be commenced within 12 months of the start date of the Service;

8.7 We are not liable for damage or the deterioration of Goods that occurred before uplift, or that could be due to length of time they were stored before we uplifted them.

8.8 In relation to accepting Goods as a part of our Service no signature granted by us to you or to a third party can be taken as an indication of the Goods having been received in good order, or as proof of the Goods condition at that time.

9. CLAIMS

9.1 If you think you have a claim against us or a Subcontractor, you must make it against us and no-one else.

9.2 The claim must be in writing.

9.3 It must reach us within 7 days of the date the Goods were delivered or should have been delivered.

9.4 You have no claim in any circumstances against any person (including a Subcontractor) except us.

9.5 Legal proceedings must be commenced and written notice of those proceedings received by us within 6 months of the date of delivery or collection

9.6 Under no circumstances will any payment be refunded or credited without written permission from us; no claim or counter claim shall constitute any ground for deferring, off-setting, or withholding payments owed by you.

9.7 ContainerCo will act in accordance with the relevant laws of New Zealand

10. YOUR INDEMNITY TO US

10.1 You continually indemnify us against any liability or expense we incur as a result of:

  • 10.1.1 a breach of these conditions by you;
  • 10.1.2 any breach or failure by you regarding New Zealand law,
  • 10.1.3 any loss or damage suffered by you or any other person that is caused by or arises because the Container was dangerous or offensive, whether or not you informed us that those Containers could be dangerous or offensive;
  • 10.1.4 Any loss or damage suffered by you or any other person that arises out of the performance of Services by us.

10.2 You agree that if something outside our reasonable control (a “Force Majeure Event”), then our obligations under these Terms will be suspended for the duration of the delay arising out of the Force Majeure Event..

10.3 If for any reason a provision of these Terms becomes invalid or unenforceable, you agree the remainder of the Terms continue to be of full force and effect.

11. JURISDICTION

11.1 The contract between you and us is governed by the law of New Zealand regardless where it was entered into. A proceeding in respect of any matter or thing dealt with by these conditions must only be instituted in New Zealand.

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