Schedule of terms and conditions
IMPORTANT: PLEASE READ
Taurus Logistics Limited ("Company") and the other party(s) hereto ("Customer")agree that the procurement of ("Procurement") the receipt, packing,storage, transportation, delivery and/or other handling ("Handling") of the goods("Goods") the subject hereof is provided by the Company subject to the terms and conditions set forth in the schedule of Terms and Conditions attached hereto.
1.1 These conditions apply to all business undertaken by the Company. All other terms and conditions are expressly excluded. If a Customer wishes to contract with the Company on other terms, special arrangements must be made and revised prices quoted. However, such arrangements will only apply when in writing and signed by a Director for the time being of the Company.
1.2 The terms and conditions set out herein will prevail over the terms and conditions set out in any other document whether used by the Customer, or any other person having an interest in the Goods.
1.3 This agreement will be governed by New Zealand law and will be within the exclusive jurisdiction of the New Zealand Courts. No proceedings shall be instituted against the Company in respect of any dispute except in New Zealand.
1.4 If any part hereof shall be repugnant to any binding law from time to time in force such shall be deemed varied in such manner as not to be repugnant but as shall otherwise best serve the interests of the Company.
2. Customer Warranties
2.1 The Customer in dealing with the Company expressly warrants that:-
(a)The Customer is the owner or the duly authorised agent of the owner of the Goods.
(b)The Customer is duly authorised to, and does accept these terms and conditions for the Customer and as agent for and on behalf of all parties from time to time having an interest in the Goods.
(c)All markings, brandings, descriptions, values and other particulars furnished to the Company whether for agricultural consular, storage, carriage, customs and any and all other purposes are in fact complete, full, true and accurate.
(d)All Goods are fully, properly, suitably and sufficiently prepared, packed and labelled.
(e)All Goods which are or might become during Handling, perishable, noxious, likely to affect or taint other goods, harbour or encourage vermin or pests, be dangerous, inflammable or likely to cause damage or which are in any jurisdiction through which the Goods might during Handling pass be unlawful, or consists of human remains, anything of particular value, weapons, animals, birds, fish, plants ("Special Goods") have been specifically drawn to the attention of the Company.
(f)The owner of the Goods is jointly and severally liable with the Customer for the observance and compliance with all the terms hereof.
3. Sub Contractors
3.1 The Company shall be entitled, at the absolute discretion of the Company, to sub contract all or any of the Procurement on such terms and conditions as it sees fit. The Customer accepts that any conditions, stipulations and limitations imposed by such sub contractor including contained in but not limited to consignment notes, bills of lading, airway bill, and/or other conditions of carriage shall be deemed a term hereof. In addition, any such sub contractor shall be afforded all the rights, defences, exceptions, exemptions from liability and immunities available under these terms and conditions as if a party to this contract.
4. Route and Method
4.1 The Company reserves the right to without notice to the Customer and in its absolute discretion to in whole or part depart from the Handling agreed, including departing from the customers instructions in any and every respect if, in the opinion of the Company, such is reasonably necessary and/or desirable.
4.2 If any event occurs or appears likely to occur, whether or not it existed or could be foreseen when this contract was entered into, which for any reason in the sole judgement of the Company is likely to or will delay any whole or part of the Handling of the Goods or render it in any way impracticable, imprudent, unlawful or against the best interests of the Customer for the Company to continue the Procurement in the manner intended, the Company will be entitled to consent to the Goods being discharged at any alternative port or place, including the port of lading, which may be selected by the Company at its absolute discretion. Such port or place will then be deemed for all purposes to be the contractual place of delivery for the Goods, or that part of the goods which has been discharged or retained, and freight and the Company's charges shall be deemed to be earned. The Customer shall there take delivery of the Goods and pay any additional costs and expenses incurred by the Company or the subcontractors in the carriage of the goods to and the discharge at the port or place. If after the discharge of the Goods, the Company makes arrangements for their storage, forwarding or transhipment it is agreed that it will do so as forwarding agent only for and at the sole risk and expense of any Customer in respect of any storage, fright and/or other charges thereby incurred and to pay the Company's customary charges in respect thereof and these conditions of contract will continue to apply to such services. Where freight is discharged and the Company' charges are incurred pursuant to this clause at any alternative port or place under the provisions of this clause the consignee or the Customer at the option of the Company for the Company's services. The Company shall have a lien on the Goods for all freight charges and expenses payable by the consignee or the Customer under the provisions of this clause.
5. Noxious Goods
5.1 The Company may at its absolute discretion and without giving any reason therefore decline to provide any whole or part of the Procurement.
5.2 Without restriction to anything foregoing the Company will not, except in terms of special arrangements previously made in writing, accept or deal with any Special Goods.
5.3 The Company reserves the right to inspect Goods at any time for any reason whatsoever, but will not be liable for any loss or damage arising from its doing or not doing so.
5.4 The Company is entitled to sell or dispose of any Goods which, in the opinion of the Company:-
(a)Appear to be deteriorating and likely to become offensive, contaminate, taint, noxious, harbour or encourage vermin or pests, dangerous, or likely to cause damage or
(b)Are incorrectly or insufficiently addressed, marked or port marked, or
(c)Are not taken up immediately upon arrival, or
(d)Are not readily identifiable. without any notice to the Customer.
5.5 All Goods which the Company is in terms of these conditions, entitled to sell or dispose of, may be sold by auction or otherwise at the discretion at the Company. All charges and expenses in connection of the sale or disposal of the Goods shall be paid by the Customer and payment or tender of the net proceeds of the sale or disposal, after deduction of all such charges and expenses and any other indebtedness of the Company to the Customer shall be equivalent to delivery. Any such sale or disposal shall not prejudice or affect the Company's right to recover from the Customer and/or any other person any balance due or payable to the Company in respect of any services provided by it or to the cost of the detention and sale of the Goods.
6. Liability of Company
6.1 The Handling will be "at limited carrier's risk" unless:
(a)The Customer or its agent has signed on the face hereof or any other documents relating to the carriage of the goods, a statement in the following terms:- "These goods are to be carried at "owners risk". This means that the carrier will pay no compensation if the goods are lost or damaged unless it intentionally loses or damages them" or
(b)There is a contract in writing expressed to be "at owner's risk" signed by the parties or their agents relating, but not necessarily exclusively, to the carriage of goods. or
(c)The Customer is a "carrier" as defined in the Act in which case the contract will be "at owner's risk".
6.2 The Company will not be liable whether or in respect of or in connection with any loss or damage whatsoever or howsoever arising without restriction to the foregoing whether such loss or damage arises out of any Goods, instructions, advice, information, quotations, statements, services, representations or otherwise whether directly or indirectly suffered consequential loss, loss of market or consequences of delay or deviation wheresoever, whatsoever howsoever caused and/or occurring.
6.3 In the eventuality that the Company shall admit liability or notwithstanding the terms hereof the Company shall be held by any Court of competent jurisdiction liable for loss or damage whatsoever howsoever then the Company's liability will not exceed such amount as shall be from time to time set by law (if any) or if no law shall be applicable $1.00.
6.4 Without prejudice to the terms hereof, any claim by the Customer or owner of the Goods against the Company must be made in writing and notified to the Company:
(a)in the case of damage to Goods within 14 days of their delivery;
(b)in the case of delay in delivery or non-delivery within 14 days of the date when the Goods should have been delivered; and
(c)in any other cases within 14 days of the event giving rise to the claim. Any claim not so made and notified will be deemed to be waived and absolutely barred. In addition, the Company will in any event be discharged from all liability whatsoever in respect thereof unless legal proceedings are instituted in New Zealand against the Company within 6 months of the applicable aforesaid date.
6.5 The Customer for itself and the owner of the Goods undertakes that no claim or allegation will be made against any servant, agent or subcontractor of the Company which attempts to impose upon any of them any liability whatsoever in connection with the Goods Handling and/or Procurement. In the eventuality that notwithstanding the terms hereof such claim or allegation shall be made every servant, agent or subcontractor shall be afforded the rights, defences, exceptions, exemptions from liability and immunities available under these terms and conditions as if a party.
6.6 Without prejudice to the exceptions and limitations contained in these Conditions, the Company will be entitled to the benefit of all exceptions and limitations in favour of the carrier or other person storing or handling the goods (such other person together with the carrier being hereinafter called "the Carrier"), contained in the Company's contract with the Carrier. The Customer will not seek to impose on the Carrier any liability greater than that accepted by the Carrier under such contract.
6.7 No act or omission (save the deletion of this clause) shall have the effect of creating any relationship between the Company and Customer except that of Principal and Agent. The Company is a procuring agent only whereby it secures the Handling services the subject hereof for the Customer and enters into contracts on the Customer's behalf. The Company is not a carrier and does not make or purport to undertake any receipt, packing, storage, transportation, deliver and/or other handling itself.
6.8 Every servant agent and/or sub contractor of the Company, will have the benefit of all the provisions of this contract benefiting the Company as if such provisions were expressly for their benefit and on entering into this contract the Company, to the extent of these provisions, does so not only on its own behalf but also as agent and trustee for such servants agents and sub contractors.
7 Liability of Customers
7.1 The Customer is liable and responsible for anything and everything not expressly assumed by the Company in the terms hereof.
7.2 Without prejudice to any other term hereof, the Company will have the right to enforce any liability of the Customer under these conditions or to recover any sums to be paid by the Customer under these conditions not only against or from the Customer but also, if it thinks fit, against or from the consignor and/or the consignee and/or the owner of the goods.
7.3 In addition to and without prejudice to the foregoing conditions, the Customer will be liable for and undertakes that it will in any event and hereby does indemnify the Company against all liabilities whatsoever suffered or incurred by the Company, arising directly or indirectly from or in connection with the Goods, Handling and/or Procurement including but without restriction to the generality of the foregoing;
(a) The Customers instructions or their implementation and in particular any liability whatsoever it may be under to the servants, agents or subcontractor of any haulier, carrier, warehouseman or other person whatsoever at any time involved with the Goods arising out of any claim made directly or indirectly against any such by the Customer or by any consignor or consignee or owner of the goods or by any person interested in the Goods or by any person whatsoever.
(b) Any allegation or claim made by the Customer.
(c) All duties, taxes, imposts, levies, deposition, demurrage or outlays of any kind whatsoever levied by any authorities and any port or place for or in connection with the Goods and/or the Handling.
(d) Payments, fines, expenses, loss or damage whatsoever incurred or sustained by the Company due to industrial strikes, lockouts, civil commotions, riots or other-cause outside the reasonable control of the Company or subcontractor.
(e) Any claims, loss, damage, expense and fine arising from any inaccuracy or omission relating to the Goods, Handling and/or Procurement, whether caused, contributed to or arising from the negligence of the Company or otherwise.
8. Power of Sale or Disposal
All goods which the Company is, in terms of these conditions, entitled to sell or dispose of, may be sold by auction or otherwise at the sole discretion of the Company or subcontractor. All charges and expenses in connection with the sale or disposal of the goods shall be paid by the Customer and payment or tender of the net proceeds of the sale or disposal, after deduction of all such charges and expenses and any other indebtedness of the Customer or owner of the goods to the Company or subcontractor, shall be equivalent to delivery. Any such sale shall not prejudice or effect the Company's right to recover from any person any balance due or payable to the Company in respect of any services provided by it or the cost of the detention and sale of the goods.
9.1 The Company is authorised to deliver the goods to the consignee or his agent at the address nominated to the Company by the customer or consignee or his agent and it is expressly agreed that the Company shall be deemed to have delivered the goods in accordance with this contract if he obtains a receipt or signed delivery docket for the goods from any person at that address.
9.2 If the nominated place of delivery is unattended or delivery cannot otherwise be effected for any other reason, the Company may but shall not be required to in its sole discretion store the goods at the risk and expense of the Customer.
10.1 All contracts are made upon the basis that the work to be performed will be carried out in ordinary working hours without interruption and the Company shall be entitled to make an extra charge to cover any extra costs or extra time incurred by the Company due to delay on the part of the Customer, the consignor or the consignee of the Goods.
10.2 The Company may charge freight by weight, measurement or value and may at any time reweigh, re-value or re-measure the Goods and charge additional freight calculated upon such basis.
10.3 Even though the Company may agree to collect any freight, duty, charge or other amount from the consignee or any other person, if the consignee or other person does not pay any amount promptly when due (for any reason) the Customer will pay that amount to the Company, without prejudice to the Company's rights against the consignee or other person.
10.4 The Company's charges and those of any sub contractor or any other costs incurred or money expended by the Company in connection with the Goods shall be paid to the Company in cash immediately prior to delivery of the Goods and without deduction and payment shall not be withheld or deferred on account of any claims, current claim or set off.
10.5 If at any time payment from the Customer to the Company is in arrears,any subsisting obligations of the Company will be suspended and the Company will not be under any liability to the customer during such period.
10.6 Should payment of the Company's charges not be paid in full within seven days of the due date, the Customer shall pay penalty interest on all monies outstanding at a rate equal to 4% above the Company's Banker's overdraft rate from time to time calculated on a daily basis from such date until the date payment is received by the Company but without prejudice to the Company's other rights and remedies in respect of the customer's default in failing to make payment on the due date.
10.7 The Company is not required to accept payment in the form of any foreign currency and retains the right to raise all debits in New Zealand currency whereby the release of Goods and performance of services will be undertaken by the Company only against payment in New Zealand currency.
10.8 All foreign exchange transactions are undertaken at the shipping line rate or published Bank selling rate in force at the time of conversion and are subject to a currency adjustment loading as set by the Company from time to time. The level of currency adjustment loading remains entirely at the discretion of the Company.
10.9 Should extra costs or extra time be incurred by the Company due to the delay on the part of the customer or the consignor or the Goods the Company shall be entitled to make an extra charge to cover such costs.
10.10 Quotations are given on the basis of immediate acceptance and may be withdrawn or revised. If at any time after acceptance there is any cost increase due to any change in rates of freight, rates of exchange, insurance premiums or other costs or charges affecting the goods, quotations and prices may be increased by the Company with or without notice (even where previously fixed).
11.1 The Company shall have a particular and general lien on the Goods and any documents relating thereto and on any other goods or cargo of the Customer in the possession and/or under the control of the Company or any documents relating thereto and on any other goods or cargo of the Customer which may come into the possession of the Company or any documents relating thereto for all sums payable by the customer to the Company and for that purpose the Company shall have the right to sell any such goods by public auction treaty without further notice to the Customer.
11.2 The Company shall have an absolute right to register a financing statement on the Personal Properties Securities Register against the customer over any Goods or cargo of the Customer being carried or dealt with by the Company in order to ensure that any outstanding bill, of the Company's is promptly paid
12. Retention of Brokerages and Remunerations
12.1 The Company is entitled to retain and be paid all brokerages, commissions,allowances and other remuneration's arising out of the services undertaken hereunder.
13.1 No insurance will be effected on the Goods except upon express instruction given in writing by the customer and accepted by the Company in writing.. All insurances effected by the Company or the sub contractors are subject to the usual exceptions and conditions of the policies of the insurer or underwriter taking the risk. Should for any reason insurers dispute liability the customer as insured will have recourse against the insurer only and shall have no recourse against the Company whatsoever and any recourse by the customer shall be against the insurers.
14. Goods Declarations
14.1 Unless expressly instructed in writing by the customer to do so, and accepted by the Company in writing the Company will not be obliged to make any declaration for the purpose of statute, convention, contract or otherwise regarding the value or nature of any Goods or as to any special interest in delivery.
15.1 The Customer will be responsible for returning the containers, pallets or other packaging delivered with the goods ("The Packaging") to the Company or any other person notified to the Customer within the time specified by the Company (time being of essence). The Customer will either:
(a)Be liable for indemnify the Company against any claims of any kind whatsoever arising out of; or where applicable.
(b)Be required, at the absolute discretion of the Company, to pay the Company's charges for, the late return of, loss of, or damage to the packaging while the packaging is in the possession or control of the Customer, it's employees, agents or subcontractors.
16. Application of the Carriage of Goods Act 1979 ("the Act")
16.1 Sections 10, 18, 19, 20 and 21 of the Act will not apply to the contract.
16.2 Sections 22, 23, 24, 25, 26 and 27 of the Act will apply to the contract only to the extent that they extend or enlarge the Company's rights and powers in terms of the contract.
17. Default & Consequences Of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Seller.
17.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
17.4 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
17.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
17.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
18. Privacy Act 1993
18.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
(a) collect, retain and use any information about the Buyer and/or Guarantors, for the purpose of assessing the Buyer’s and/or Guarantors creditworthiness or marketing products and services to the Buyer and/or Guarantors; and
(b) disclose information about the Buyer and/or Guarantors, whether collected by the Seller from the Buyer and/or Guarantors directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Buyer and/or Guarantors.
18.2 Where the Buyer and/or Guarantors are an individual the authorities under clause 2.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Buyer and/or Guarantors shall have the right to request the Seller for a copy of the information about the Buyer and/or Guarantors retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer and/or Guarantors held by the Seller.