Form6-7

Amend 1

Dated 27/10/06

 

STANDARD TERMS AND CONDITIONS

 

 

"Actual Carrier"                                       has the meaning given to that expression under the Carriage of Goods Act 1979.

 

"Carrier Rates"                                        means the rates or charges charged by Jeffs for Carrier 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 Jeffs for the statement of rates or charges for Carrier Services.

 

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

 

“Contract of Carriage”                              means contracts incorporating these Standard Terms and Conditions of Carriage of Jeffs as amended from time to time.

 

“Customer”                                            means the person or organisation described on the front page of these terms who has agreed to be bound by the contract terms and conditions contained herein, and includes that person’s permitted successors and assigns.

 

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

 

“The Act”                                               means the Carriage of Goods Act 1979.

 

These conditions shall apply to and govern the supply by Jeffs of Carrier 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 Jeffs, these conditions shall prevail unless otherwise agreed in writing by Jeffs.

 

These conditions may only be varied in writing signed by a duly authorised signatory of Jeffs and no other employee, agent or representative of Jeffs shall have any authority to amend, modify or add to these conditions. Amendments shall be effective upon receipt in writing by the Customer.

 

 

1          Liability

 

1.1        Any Carriage under this contract is deemed to be at Limited Carrier’s risk in accordance with section 8(1)(b) of the Act unless otherwise agreed in writing between the parties (pursuant to section 8 of the Act), which agreement shall be annexed hereto.

1.2        Maximum amount of liability

(a)                   Jeffs is not liable for any amount in excess of proved damages to the Vehicles; and

(b)            Jeffs is not liable for any such proved damages in excess of the sum provided in section 15(1) of the Act.

1.3            Exclusion of indirect and consequential loss

Jeffs is not liable for any form of indirect or consequential loss or damage arising out of or in respect of any Carrier Service. Any liability of the kinds specified in subsections 15(2)(b) and (c) of the Act is expressly excluded whether in respect of the Carriage of Goods or otherwise. Without limiting the foregoing, Jeffs is not liable for indirect or consequential loss or damage arising from:

(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 Customer.

1.4        Contributory negligence

Where there is contributory negligence on the part of a Customer, Jeffs’ liability is subject to the law relating to contributory negligence.

1.5        Immobile Vehicles

If any Vehicle presented for carriage does not start or is not able to be loaded onto a transporter, Jeffs may in its absolute and sole discretion refuse to carry that Vehicle. If the Vehicle is carried, it is on the basis that the Vehicle is carried at owner’s risk and Jeffs is not liable for any loss or damage involved in the movement of any immobile Vehicle.

1.6            Damaged Vehicles

            All damaged vehicles are carried at owner’s risk. While every endeavour is made to ensure there is not additional damage through the loading and unloading process, Jeffs undertakes no liability for any damage.

1.7            Actual Carriers

            Where Jeffs uses an Actual Carrier, Vehicles are carried subject to the Actual Carrier's conditions of contract and carriage, except that if there is any conflict between the Actual Carrier's conditions of contract or carriage and these Conditions, these Conditions prevail.

1.8        Securing devices

Jeffs is by law required to use securing devices to stabilise and secure any Vehicles. Jeffs 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 Jeffs to prevent loss or damage resulting from carriage. Any special requirements will only be catered for at the absolute discretion of Jeffs and by prior arrangement.

1.9            Errors, omissions and representations

Jeffs 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 Carrier Service. No agent, employee or representative of Jeffs has authority to give undertakings or make representations in relation to the provision or timing of any Carrier Service that are inconsistent with these Conditions. Any such undertakings or representations will not bind Jeffs except where Jeffs prior confirmation in writing is obtained.

1.10         Extension of exclusion or limitation to agents, etc

Any exclusion or limitation of the liability of Jeffs applies to and for the benefit of Jeffs' agents, employees, representatives and contractors and to any Actual Carrier and to the Actual Carrier's employees, agents, representatives and contractors. The aggregate amount recoverable from Jeffs, the Actual Carrier and their respective agents, employees, representatives and contractors shall not exceed the maximum amount of Jeffs' liability.

 

2          Payment

 

2.1        The Carrier Rate and any additional tax or charge payable by the Customer for a Carrier Service must be paid before commencement of the Carrier Service unless the Customer (or other Person liable for payment of freight) has a current written credit arrangement with Jeffs for payment, in which case payment is due by the 20th of the month following invoice date.

2.2        Prices in this contract are unless otherwise stated, expressed in New Zealand dollars, do not include Goods and Services Tax and are based on current Carrier Rates. Fluctuations in the cost of labour and raw materials, exchange rates and any variations are for the Customer’s account.

2.3        If there is no credit arrangement and payment is not made in advance of acceptance of the Vehicles for Carriage, or if the amount collected by Jeffs or its agent is not the applicable Carrier Rate plus any additional tax or charge, the difference must be paid by the Customer before commencement of the Carrier Service.

2.4            Credit arrangements - authorisation to collect information

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

2.5            Late Payment:  Time is of the essence in respect of the payment obligations of the Customer (or other Person liable for payment of freight). If payment is overdue that shall constitute a breach of these conditions and the Buyer will upon demand pay penalty interest to Jeffs on any overdue amount at the rate of 2.5% per month compounding interest from the date that payment was due until payment in full, including interest is received by Jeffs. Jeffs may charge this penalty interest without prejudice to its other rights and remedies.

2.6        Jeffs 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 Jeffs.

 

3          Rates and charges

 

3.1        Carrier Rates

Each Carrier Service is performed at and is subject to payment of the applicable Carrier Rate by the Customer, as the case may be. Jeffs may from time to time fix or impose special rates or vary existing Carrier Rates or terms of payment without notice.

3.2            Additional handling charges

If Jeffs 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, the costs of Customs inspection fees, demurrage, additional fuel, changing and repairing tyres and cutting keys.

3.3            Applicable Carrier Rates

            The applicable Carrier Rates are the current Carrier Rates as determined by Jeffs.

3.4            Quotations
Jeffs is not bound by quotations or estimates of Carrier Rates or conditions of contract or carriage given verbally unless they are confirmed by Jeffs in writing in accordance with these Conditions.

3.5            GST and other Government taxes and charges

            Any tax (including GST) or charge, which is not provided for or stated in a Carrier 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 Carrier Service, is payable in addition to the Carrier Rate by the Customer.

 

4          Inspection of Vehicles and Carrier’s rights

 

4.1        Inspection of Vehicles

Jeffs shall visually inspect Vehicles before their acceptance for carriage. The Customer must assist with the inspection, if required by Jeffs. Inspections are carried out in good faith and as the Vehicle is presented to Jeffs’ 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 Jeffs to inspect any Vehicle, at all or adequately, does not impose any additional liability upon Jeffs or affect any obligation of Jeffs in relation to that Vehicle. Jeffs accepts no liability for any pre-existing damage which may include:

(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 Jeffs washed and groomed.

4.2        Carrier's right to search Vehicles

Jeffs is entitled to inspect or search any Vehicle to be carried on a Carrier Service if Jeffs believes that the Vehicle contains Hazardous or Dangerous Goods, or any other Goods for which these Conditions or any other law have not been complied with. Jeffs may at its sole discretion remove any item that may be or may be considered hazardous or dangerous goods. Jeffs does not accept any liability for items carried within a Vehicle.

4.3        Carrier’s right to refuse to accept Vehicle for Carriage

Jeffs in its absolute discretion reserves the right to refuse to carry any Vehicle.

4.4            Jeffs reserves the right to charge for any Vehicles that are not available for the Carrier Service at the agreed time and place.

4.5            Vehicle acceptance

Acceptance of Vehicles by Jeffs for carriage 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 Carrier Services, or a signed Vehicle docket.

 

5          Delivery

 

5.1        Time for delivery shall not be of the essence of any contract, but Jeffs 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 Jeffs incur any liability due to any failure on its part to supply Vehicles by an agreed date.

5.2        Vehicle delivery

Delivery of Vehicles by Jeffs is deemed to occur at the time the Vehicles are left by Jeffs for collection by the Customer or the Receiver at the destination.

5.3        Delivery not collection

Jeffs is only responsible for delivery of Vehicles, not for their collection.

5.4        Unclaimed Property

If for any reason, Vehicles are not removed or collected from the destination as soon as possible after delivery by Jeffs:

(a)                  Jeffs is deemed to be the agent of the Customer (and/or of the owner of the Vehicles where relevant) and may store those Vehicles at the sole risk and expense of the Customer (and/or the owner of the Vehicles where relevant); and

(b)                  Jeffs may declare the Vehicles to be unclaimed and may sell those Vehicles and apply the proceeds of sale in payment of:

(i)                   any Carrier 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.  If, after the sale of the Vehicles, the Customer whose Vehicles have been sold presents himself or herself to Jeffs to collect the Vehicles, Jeffs 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.

5.5        Business customers

Where a Person is using a Carrier Service for business purposes, none of the rights or remedies provided under the Consumer Guarantees Act 1993 apply.

5.6        Jeffs use Trade plates only where it is either impossible of impractical to transport a vehicle that would otherwise be carried on a transporter.  The use of trade plates is restricted to 51 Km and only after the vehicle has passed a safety inspection as prescribed in the Annex A & B documentation and procedures.

 

 

 

 

6          Default and Remedies

 

6.1        If the Customer defaults in payment or performance of any of its obligations under these terms or any other agreement with Jeffs 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 Jeffs which in Jeffs’ 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 terms or any other agreement with Jeffs, then Jeffs:

(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; and

(b)             may require immediate payment of all amounts payable to Jeffs;

(c)             may withhold delivery of Vehicles without notice; and

(d)             may require cash payment for future services.

6.2        Carrier’s Lien

Jeffs reserves the right to withhold delivery of all Vehicles under a contract if the Customer is in default of any of its obligations under any contract or contracts with Jeffs. In any proceedings or actions relating to a default by the Customer, the Customer shall indemnify Jeffs upon demand for all claims by any third party for any losses resulting from Jeffs retaining possession of the Vehicles and for all costs and expenses incurred by Jeffs 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 Jeffs for all costs of collection that are incurred by Jeffs 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 Jeffs upon demand.

 

7          Claims

 

7.1            Notice of claim

Any claim against Jeffs in respect of alleged loss of or damage to Vehicles carried on a Carrier Service must be given in writing to Jeffs within 7 days after the date on which Jeffs’ responsibility for those Vehicles has ceased. Jeffs 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 Carrier Services.

7.2        If claims are not made before the Vehicles are repaired by the Customer or Jeffs is not given a reasonable period to investigate the claim and appoint an agent or obtain quotes as required under clause 7.1 above (for repair of Vehicles that are proven to be damaged in the course of Carrier Services), the Customer shall be conclusively deemed to have accepted the Vehicles as conforming with the contract in all respects and to have waived absolutely any claims for incorrectly delivered or damaged Vehicles and Jeffs shall not have any liability in respect of those claims or otherwise in respect of the Vehicles.

 

8          Assignment

 

8.1        Jeffs is entitled at any time to assign to any other person all or part of any debt owing by the Customer to Jeffs.

 

9          Governing Law

 

9.1           (a)            These Conditions are governed by New Zealand law in every particular including formation and interpretation; and

(b)            every contract incorporating these Conditions is deemed to be made in New Zealand; and

(c)            any proceedings relating in any way to these Conditions or to any Carrier Service must be brought in a court of competent jurisdiction in New Zealand; but

(d)            the submission by the parties to that jurisdiction does not limit Jeffs’ right to commence any proceedings arising out of these Conditions in any other court or jurisdiction that Jeffs considers appropriate.

9.2        Overriding law

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, that apply to the provision of a Carrier Service, or carriage under these Conditions (“other law”) and that other law cannot be waived or avoided by these Conditions, then that provision only remains applicable and part of these Conditions to the extent that that provision is not in conflict with the other law. The invalidity of any provision does not have the effect of invalidating any other provision of these Conditions.

9.3        No waiver

Nothing in these Conditions represents a waiver or surrender by Jeffs of any statutory or other legal right, immunity, exception, limitation, protection, privilege or defence.