NOW Couriers - Conditions of Carriage

CONTRACT AND CONDITIONS OF CARRIAGE

1 THIS CONTRACT

1.1 This contract of carriage is made between the Consignor and the Carrier. The Carrier’s obligations under this contract of carriage (including the consequences of providing any advice, information or other services) are undertaken upon and subject to these Conditions, which constitute the entire agreement between the Consignor and the Carrier in relation to the provision of the services.

1.2 In this contract of carriage unless the context otherwise requires:

(a) ‘The Act” means the Carriage of Goods Act 1979, and unless modified every word or expression defined in the Act bears the same meaning in this contract.

(b) “Carrier” includes the owner/driver with whom the Consignor contracts for the carriage of goods under this contract, as contracting carrier, and otherwise includes (where the context requires) any Sub-contractor of the contracting carrier and any “Actual Carrier” or “Carrier” as defined in the Act.

(c) “Goods” includes any item or items of freight which are the subject of this contract of carriage and includes any “unit of goods” or “unit” as defined by the Act.

(d) “Services” includes “Carriage” and “Incidental Service” as defined in the Act and any advice, information or other services provided by the Carrier.

(e) The singular number includes the plural and vice versa and words importing one gender only includes the other genders.

(f) Reference to any Act or Regulation extends to and includes any statutory or other modification or re‑enactment thereof and any other like provision for the time being in force in New Zealand.

(g) Any headings of any clauses or paragraphs herein will not affect the interpretation given to this contract.

2. APPLICATION OF THE ACT

2.1 Sections 10, 18 and 19 of the Act do not apply to this contract of carriage.

2.2 Sections 21, 22, 23, 24, 25, 26 and 27 of the Act shall apply to this contract of carriage only to the extent that they extend or enlarge the Carrier’s rights and powers under these conditions.

2.3 No person has any authority from the Carrier to waive or vary these conditions unless such waiver or the variation is in writing by the Carrier (if a natural person) or an executive officer of the Carrier.

2.4 The terms of the Consignors documentation shall not diminish or negate the application of these Conditions to the provision of the services.

3. SUB‑CONTRACTORS

3.1 The Carrier and any Sub‑contractor may sub‑contract on such terms as they think fit the whole or any part of the services.

3.2 Every exemption, limitation or condition contained in these conditions and every right power, authority, exemption from liability, defence and immunity applicable to the Carrier or to which the Carrier is entitled shall also be available to and extend to protect:

(a) Any Sub‑contractors,

(b) Every Agent, servant or officer of the Carrier and every Sub‑contractor,

(d) All persons who are or may be vicariously liable for the acts or omissions of any of these persons in (a) (b) or (c) and/or the Carrier, and for the purpose of this clause the Carrier is or shall be deemed to be acting as an agent or trustee on behalf of each such persons who shall to that extent be deemed to be parties to this contract of carriage.

3.3 The Consignor:

(a) Warrants that no claim inconsistent with Clause 3.2 shall be made by the Consignor or any other person interested in the Goods, and

(b) Indemnifies and shall keep indemnified by the Carrier and each Sub‑contractor from and against all such claims including legal costs incurred by the Carrier or any Sub-contractor in relation to any such claim on a full indemnity basis, and

(c) Expressly agrees that any of the parties referred to in clause 3.2 may claim the benefit of these Conditions if any claim is made against them by the Consignor or Consignee or any person claiming through or under them.

4. OWNERSHIP OF GOODS

4.1 The Consignor expressly warrants to the Carrier that the Consignor is the owner or the authorised agent of the owner of the goods and is authorised to and does accept these Conditions Not only for the Consignor but also for and on behalf of all other persons who are or may hereafter become interested in the goods.

5. INSURANCE

5.1 Insurance of the goods is the responsibility of the Consignor not of the Carrier.

6. WARRANTIES

6.1 The Consignor warrants.

(a) That it has complied with all laws and regulations relating to the nature, packaging, labeling and carriage of the goods, and

(b) That the goods are packed in a manner to withstand the ordinary risks associated with the services having regard to the nature of the goods, and

(c) The accuracy of all markings, branding and labeling of the goods, descriptions, value and other particulars furnished to the Carrier for carriage. Customs. consular or any other purpose and indemnifies and shall keep indemnified the Carrier against all loss, damage, expense and fines arising from any inaccuracy or omission in that respect.

6.2 The Consignor has complied and shall comply with all requirements of any Act, Regulation or otherwise, and specifically (without limiting the generality of the foregoing) section 70G of the Transport Act 1962. All IATA regulations for items offered for carnage by air. other provisions of the Transport Act 1962 relating to the transportation of hazardous substances, the Dangerous Goods Act 1974, The Toxic Substances Act 1979, and the Code of Practice for the Transportation of Hazardous Substances on Land (NZS5433:1988).

6.3 Where the Consignor enters into this contract of carriage for the purposes of a business nothing in the Consumer Guarantees Act 1993 shall apply to this contract of carriage.

7. DELIVERY

7.1 The carrier shall be conclusively deemed to have delivered the goods in accordance with these conditions if either the carrier obtains a receipt or signed delivery sheet from any person following delivery of the goods, or delivery is effected in any one or more of the following authorised ways:

(a) By delivery to any place nominated by the Consignor (including any mail box at that place), or

(b) By delivery to any actual or ostensible agent of the Consignee or Consignor. Or

(c) In the case of a Consignee accustomed to receiving courier deliveries, by delivery according to the custom or direction of the Consignee, or

(d) In the case of a Consignee with a rural delivery address, by delivery into the Consignee’s mail box or to the Consignee’s rural delivery contractor’s depot or agent.

(e) Rural deliveries will from the 1st of February 2003 be deemed to be delivered by being available at the Courier Contractors depot or rural delivery contractor’s depot, whereupon the freight will be available for collection by the consignee unless a prepaid Rural Delivery Coupon is affixed to said freight.

7.2 If the place for delivery in terms of clause 7.1 is unattended at the time delivery is attempted or if delivery cannot otherwise be effected the Carrier may:

(a) Leave the goods at that place which shall be conclusively presumed to be delivery of the goods in accordance of these Conditions, or

(b) Without being obliged to do so, store the goods at the risk and expenses of the Consignor so that:

(i) The Consignor shall pay on demand to the Carrier all costs and expenses incurred in or about storage, and

(ii) The Carrier may redeliver the goods to the Consignor from the place of storage at the Consignor’s further expense.

7.3 Where the goods are collected or consigned for collection, the Carrier may release the goods to any person who presents himself to the Carrier as the Consignee or its agent, servant or officer and the Carrier shall be conclusively presumed to have delivered the Goods in accordance with these conditions if the Carrier obtains from that person a receipt or signed delivery run sheet for the goods.

8. RESPONSIBILITY FOR CHARGES

8.1 The Consignor agrees to pay and shall be liable to the Carrier for all proper charges incurred for any reason in the provision of the Services.

8.2 The Carrier’s charges shall be deemed fully earned as soon as the goods are received by or on behalf of the Carrier and shall be immediately payable and then non refundable.

8.3 The Consignor shall not defer or withhold any payment or deduct any amount from the account of the Carrier by reason of any claim the Consignor alleges against the Carrier.

8.4 The Consignor shall be liable to the Carrier for any legal fees or collection costs incurred to recover outstanding charges.

9. LIEN

9.1 The Carrier shall have a lien on the goods (and any documents relating to the goods) and any other items (and any documents relating thereto) of the Consignor in the custody or control of the Carrier for any monies owing to the Carrier by the Consignor whether in connection with the carriage of goods or otherwise and the Carrier may sell the goods or any of those items by public auction or private treaty without further notice to the Consignor, or any other person having an interest in them towards satisfaction of that obligation and all costs incurred by the Carrier for storage, carriage or in relation to the sale, including legal costs on a full indemnity basis. Any such sale shall not prejudice or extinguish the right of the Carrier to recover all the monies to which the Carrier may be entitled.

10. NATURE OF GOODS

10.1 The Consignor shall not tender for carriage or storage any volatile spirits, explosive goods or goods which are or may become dangerous, inflammable or offensive (including radioactive materials) or which may damage or become liable to damage any property whatsoever without providing to the Carrier a full description disclosing the nature of the goods, and in any event shall be liable for all loss, damage or destruction caused thereby.

10.2 If in the opinion of the Carrier the goods are or are liable to become dangerous, explosive, volatile, or offensive or of a damaging nature, the goods may at any time be destroyed, dispensed of, abandoned or rendered harmless by the Carrier without compensation to, but at the cost in all things of the Consignor, and without prejudice to the Carriers right to its charges under these conditions.

10.3 The Consignor will indemnify and keep indemnified the Carrier from and against all actions, suits, costs, damages, claims, proceedings or injunctions made or brought against the Carrier including any penalties imposed upon the Carrier following any prosecution arising out of the carriage, storage, spillage, escape, destruction, disposal or abandonment of any goods referred to in clauses 10.1 and 10.2 or arising out of the actions of the Consigner contrary to the provisions of clause 6.2.

10.4 The Carrier does not accept for carriage livestock, perishables (excluding plant life but including food plants), second hand motor vehicle and engine parts, windscreens, glass, cash (including vouchers, tickets, coupons and other similar negotiable documents), jewellery or other similar valuables, and any such items consigned are carried wholly at the risk of the Consignor without any obligation being accepted in respect thereof by the Carrier.

11. PACKAGING

11.1 All goods are carried by NOW Couriers on the understanding that they have been packed properly, safely, securely, and all reasonable care has been taken to limit damage.

12. EXPORT CONTROL AND CUSTOMS

12.1 The Consignor authorises the Carrier to act as the Consignors agent for export control and customs purposes and to complete all documents as may be necessary or desirable in connection with the provision of the services on any terms provided that the Carrier shall not be liable to act as the Consignor’s agent in this respect.

12.2 The Carrier may (but without obligation to do so) advance any duties, taxes, imports, outlays or charges at any port or place in respect of the goods and the Consignor shall on demand pay that amount so paid by the Carrier.

13 ENFORCEABILITY

13.1 All rights, powers, authorities, immunities and limitations of liability in these conditions shall continue to have full force and effect in all circumstances and notwithstanding any breach of these conditions or negligence of any person entitled to the benefit of these conditions or any of their respective agents, servants or officers.

14 INDEMNITY

14.1 The Consignor indemnifies and shall keep indemnified the Carrier its agents, servants and officers in respect of all liabilities arising from any breach of these conditions by the Consignor or the provision of the service except for liabilities expressly assumed by the Carrier under these conditions.

15 LIMITED CARRIER’S RISK

15.1 This contract for carriage is at limited carrier’s risk, and subject to the provisions of the Act imposing liability in respect of the loss of or damage to the goods:

(a) The Carrier shall not be under any liability howsoever caused or arising and (without limiting the generality of the foregoing) whether caused or arising as a result of the negligence of the Carrier, breach of contract or otherwise for any damage or loss, deterioration, mis-delivery, delay in delivery of the goods (whether the goods are or have been in the possession of the Carrier or not), nor for any instruction, advice, information or service given or provided to any person, whether in respect of the goods or any other thing or matter nor for any consequential or indirect loss, loss of market or consequences of delay, and

(b) The consignor will indemnify and keep indemnified the Carrier from and against all claims of any kind whatsoever, howsoever caused or arising and (without limiting the generality of the foregoing) whether caused or arising as a result of the negligence of the Carrier, breach of contract or otherwise, brought by any person in connection with any matter or thing done, said or omitted by the Carrier in connection with the goods.

16 CLAIMS

16.1 (a) The Carrier shall be under no liability unless written notice of any claim giving full particulars of any alleged loss or damage is received by the Carrier within seven (7) days after and exclusive of the date of delivery of the goods or in the case of the loss or destruction of the goods within fourteen (14) days after and exclusive of the date of despatch, and unless in either case any proceedings are commenced within three (3) months after and exclusive of the date of the despatch of the goods.

(b) No claims of any type will be recognised after a period of 15 days from original date of despatch.

16.2 The Carrier shall not be liable in any event, for any consequential or special damages or other indirect loss however arising, whether or not the Carrier had knowledge that such damages might be incurred, including but not limited to loss of income, profits, interest or loss of market.

16.3 No claim or proceeding whatsoever may be made against NOW Couriers if the labels used have not been paid for, or are stolen, or the account is overdue.

16.4 Claims will not be paid out where the Client has outstanding monies.

16.5 Satchel and Super Saver Products are insured to a maximum value of $100 GST inclusive.

17 CUBIC CONVERSIONS & MAXIMUM LENGTH

17.1 167kg per m3.

17.2 Maximum length 1.9m wrapped.

18 NOTICE

18.1 Any notice given under this contract shall be deemed to be received if delivered by courier or forwarded by registered post to the registered office of the party to which it is addressed or the usual or last known place of residence or business of that party.

19 PRIVACY ACT 1993

19.1 Pursuant to the provisions of the Privacy Act 1993, I/We authorise any person, agency or company to provide you with such information as you may require at any time in response to your credit enquiries concerning any aspect of this trading account. I/We authorise you to furnish to any third party details of this application being actioned by you and/or any subsequent details concerning your credit enquiries.