Terms

Dibble Transport 1997 Limited

  1. Definitions
    • “Charges” shall mean the Charges payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services, as agreed between the Service Provider and the Customer, subject to clause 6 of this Contract.
    • “Consignee” means the person to whom the Goods are to be delivered by way of the Services.
    • “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    • “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including personal information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Service Provider’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
    • “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer (including any sender, consignor, actual owner of the Goods, bailer, consignee/s or the Goods, as well as their agents) entering into this Contract (and is not limited to the person/s identified in the schedule) requesting the Service Provider to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Customer, is a reference to each Customer jointly and severally; and
      • if the Customer is a partnership, it shall bind each partner jointly and severally; and
      • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Customer’s executors, administrators, successors and permitted assigns.
    • “Dangerous Goods” means Goods so classified in the Dangerous Goods Code or which are or may become noxious, dangerous, hazardous, inflammable, explosive or damaging (including waste, contaminated or radioactive material, or capable of causing death, injury, or damage to any person or property whatsoever, and include (for the purpose of this Contract) Goods likely to harbour or encourage vermin or other pests and all such Goods as fall within the definition of hazardous and dangerous goods in the legislation governing carriage by road, rail, sea or air in New Zealand.
    • “Goods” means:
      • any goods created and/or processed, by way of the provision of the Services by the Service Provider (if applicable); and
      • any cargo, together with any container, packaging, or pallet(s), to be moved from one place to another by way of the Services.
    • “Service Provider” means Dibble Transport 1997 Limited, its successors and assigns.
    • “Services” means all services provided by the Service Provider to the Customer (including, but not limited to, anything done or to be done in relation to the Goods, or the provision of any services ancillary to the Goods such as moving, storing or leaving the Goods at any warehouse, yard, terminal, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods, or fumigating, transhipping, or otherwise handling the Goods, or anything else done in relation thereto, including the offering of any advice or recommendations.
    • “Sub-Contractor” means and includes:
      • railways or airways operated by the Commonwealth or any state or any other country or by any corporation; or
      • any other person or entity with whom the Service Provider may arrange for the carriage or storage of any Goods the subject of the Contract; or
      • any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in sub-clauses (a) and (b).

 

  1. Acceptance
    • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts, Services provided by the Service Provider.
    • These terms and conditions are to be read in conjunction with the Service Provider’s quotation, consignment note, agreement, airway bills, manifests, or any other forms as provided by the Service Provider to the Customer. If there are any inconsistencies between these documents, then the terms and conditions contained in this document shall prevail. In the absence of manifest error, a written notice by the Service Provider of the charges due and payable shall be conclusive evidence of the same.
    • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    • The Customer acknowledges and accepts that:
      • the supply of Services on credit shall not take effect until the Customer has completed a credit application with the Service Provider and it has been approved with a credit limit established for the account. In the event that the supply of Services request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Service Provider reserves the right to refuse delivery; and
      • the Service Provider shall have the sole right to deem Services requested by the Customer as being either too dangerous and/or too difficult for the Service Provider to undertake (such as, but not limited to, Services on steep terrain, treacherous surfaces, the presence of large overhangs or rock outcrops, etc.). In such situations the Service Provider shall notify the Customer as soon as is reasonably able of any Services then not performed by the Service Provider. Irrespective of whether the Service Provider chooses to continue the supply of further Services or to cease the supply of any further Services, the Customer shall remain liable to the Service Provider for all Services completed by the Service Provider and the Customer shall not be entitled to treat the ceasing of Services as an event of default or a breach by the Service Provider in respect of the performance of Services by the Service Provider under this Contract.
    • None of the Service Provider’s agents or representatives are authorised to make any representations, statements, promise, warranty, conditions, or agreements not expressed by the manager of the Service Provider in writing, nor is the Service Provider bound by any such unauthorised statements.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

 

  1. Authorised Representatives
    • Unless otherwise limited as per clause 2 the Customer agrees that should the Customer introduce any third party to the Service Provider as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Services on the Customer’s behalf and/or to request any variation to the Services on the Customer’s behalf (such authority to continue until all requested Services have been completed or the Customer otherwise notifies the Service Provider in writing that said person is no longer the Customer’s duly authorised representative).
    • In the event that the Customer’s duly authorised representative as per clause 1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Service Provider in writing of the parameters of the limited authority granted to their representative.
    • The Customer specifically acknowledges and accepts that they will be solely liable to the Service Provider for all additional costs incurred by the Service Provider (including the Service Provider’s profit margin) in providing any Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).

 

  1. Errors and Omissions
    • The Customer acknowledges and accepts that the Service Provider shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by the Service Provider in the formation and/or administration of this Contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Service Provider in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Service Provider; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

  1. Change in Control
    • The Customer shall give the Service Provider not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Service Provider as a result of the Customer’s failure to comply with this clause.

 

  1. Charges and Payment
    • At the Service Provider’s sole discretion, the Charges shall be either;
      • as indicated on invoices provided by the Service Provider to the Customer in respect of Services provided; or
      • the Charges as at the date of delivery of the Goods according to the Service Provider’s current hourly rate(s); or
      • the Service Provider’s quoted Charges (subject to clauses 2 and 6.3) which shall be binding upon the Service Provider provided that the Customer shall accept in writing the Service Provider’s quotation within thirty (30) days. Quarantine and statutory charges, origin or destination, additional Charges are not included, unless specifically stated at the time of quoting.
    • The Service Provider may by giving notice to the Customer, increase the Charges of the Services;
      • if a variation to the Service Provider’s quotation is requested or required (including as to the nature or quantity of the Goods, nature and location of the collection and/or delivery address, facilities available for packing, loading or unloading, weather conditions or delays beyond the control of the Service Provider, delivery times or dates or otherwise, etc.);
      • to reflect any increase in the cost to the Service Provider beyond the reasonable control of the Service Provider (including, without limitation, increases in the cost of labour or materials, foreign exchange fluctuations, administration costs (including photocopying, postage, etc.), or increases in fuel costs, increases in taxes, customs duties, insurance premiums, or warehousing costs or for any other services, facilities or resources provided by the Service Provider);
      • for any delay over thirty (30) minutes in either loading and/or unloading (from when the Service Provider arrives onsite), and/or any overnight or extended storage occurring other than from the Service Provider’s fault.
    • The Service Provider may charge freight by weight, measurement, or value, and may at any time re-weigh, or re-value or re-measure or require the Goods to be re-weighed, or re-valued or re-measured and charge proportional additional freight accordingly.
    • At the Service Provider’s sole discretion, a deposit may be required.
    • Time for payment for the Services being of the essence, the Charges will be payable by the Customer on the date/s determined by the Service Provider, which may be:
      • by way of instalments in accordance with the Service Provider’s payment schedule;
      • twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Service Provider.
    • Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Customer and the Service Provider.
    • Receipt by the Service Provider of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Service Provider’s ownership or rights in respect of the Services shall continue.
    • The Customer acknowledges and agrees that the Customer’s obligations to the Service Provider for the supply of Services shall not cease until:
      • the Customer has paid the Service Provider all amounts owing for the particular Services; and
      • the Customer has met all other obligations due by the Customer to the Service Provider in respect of all contracts between the Service Provider and the Customer.
    • Every special instruction to the effect that the Charges shall be paid by the Consignee shall be deemed to include a stipulation that if the Consignee does not pay the said Charges within the specified date for payment, then the Customer shall be liable for, and shall pay to the Service Provider, the said Charges, together with an account transfer fee.
    • The Service Provider may in its discretion allocate any payment received from the Customer towards any invoice that the Service Provider determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Service Provider may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Service Provider, payment will be deemed to be allocated in such manner as preserves the maximum value of the Service Provider’s Purchase Money Security Interest (as defined in the PPSA) in respect of the Services provided.
    • The Customer shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Customer by the Service Provider nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Charges does not include GST. In addition to the Charges the Customer must pay to the Service Provider an amount equal to any GST the Service Provider must pay for any provision of Services by the Service Provider under this Contract or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Charges. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.

 

  1. Nomination of Sub-Contractor
    • The Customer hereby authorises the Service Provider (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the Contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Service Provider. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled the Service Provider shall be deemed to enter into this Contract for its own benefit and also as agent for the Sub-Contractor.

 

  1. The Service Provider’s Servants or Agents
    • The Customer undertakes that no claim or allegation shall be made against any servant or agent of the Service Provider which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify the Service Provider and any such servant or agent against all consequences thereof.
    • The Service Provider shall have no liability, implied or otherwise, in respect of COD payments which may be collected by any of its servants or agents on behalf of the Customer or any of its clients when making deliveries, and if, notwithstanding this clause, any such liability does attach to the Service Provider, then the Customer will indemnify the Service Provider in respect of any such liability.

 

  1. Provision of the Services
    • The Service Provider shall be deemed to duly deliver the Goods, and discharge its obligations hereunder, by delivering the Goods to a person and location authorised or directed by the Customer in writing, or at any other location directed by the Customer orally. In the event the Service Provider is unable to deliver the Goods due to the Consignee not being in attendance at the delivery address during normal trading hours:
      • an additional charge may be made (at the Service Provider’s current rates) for each attempt for re-delivery until delivery is accomplished;
      • the Service Provider may hold the Goods as bailee, and shall be entitled to receive storage fees (at the Service Provider’s current rates), and as bailee shall not be under any liability for any loss of, or damage to, the Goods, howsoever caused, while in the possession of the Service Provider; and
      • the Service Prover may (at the Service Provider’s sole discretion) return the Goods to the Customer at the risk and expense of the Customer.
    • The Service Provider’s Charges shall be considered earned in the case of Goods for carriage as soon as the Goods are loaded and dispatched from the Customer’s premises.
    • The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
      • such discrepancy in quantity shall not exceed 5%; and
      • the Charges shall be adjusted pro rata to the discrepancy.
    • Any time specified by the Service Provider for the delivery of Goods is an estimate only and the Service Provider will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Service Provider is unable to deliver the Goods as agreed solely due to any action or inaction of the Customer then the Service Provider shall be entitled to charge the Customer any additional costs incurred by the Service Provider as a direct consequence of any resultant delay or rescheduling of the delivery.

 

  1. Freight Forwarding
    • Except to the extent that any of the Services shall be actually performed by the Service Provider, the Service Provider shall act as a forwarding agent only. The Service Provider shall be entitled, to enter into contracts on behalf of and as agent for the Customer and without notice to the Customer, for the carriage of the Goods by any route, means and Service Provider, for the storage, packing, trans-shipment, unloading, loading or handling of the Goods by any person at any place and for any length of time, and for such other matters as in the opinion of the Service Provider may be necessary or desirable to the performance of the Services. The Customer hereby appoints the Service Provider the agent of the Customer for the purpose of entering into any contract, upon such terms and conditions, as the Service Provider may in its absolute discretion think fit. The Customer shall be bound by the terms of any consignment note, air waybill or other contractual document which the Service Provider may receive for the Goods, or for any package, unit, or container in which the Goods may be packed, whether by the Customer, the Service Provider, or any other person.

 

  1. Dangerous Goods
    • Unless otherwise agreed in advance in writing with the Service Provider the Customer or their authorised agent shall not tender for carriage any Dangerous Goods, or anything which may encourage vermin or pests. The Customer shall be liable for and hereby indemnifies the Service Provider for all loss and damage and all additional charges and expenses incurred or sustained by the Service Provider arising out of the carriage of the Goods, any false, misleading, or inaccurate information or description of such Dangerous Goods, or any default or failure of the Customer to declare the Goods and Dangerous Goods and provide full particulars thereof.
    • Where Dangerous Goods and/or anything likely to encourage vermin or pests are accepted for carriage the Customer warrants that the carriage thereof is not prohibited and they have fully disclosed in writing to the Service Provider before the Service Provider has taken possession of the Goods the full particulars and description of the Goods, the nature and value of the Goods, all requirements of lawful authorities for such carriage and all other relevant information.
    • The Service Provider may, at its discretion, at the Customer’s expense and without compensation thereto or to any other person with an interest in the Goods and without prejudice to its charges or any other rights hereunder:
      • remove, sell, destroy, or otherwise dispose of any undeclared Dangerous Goods in its possession without being responsible or accountable for the value thereof to the Customer or any other person with an interest thereto; and
      • dispose of or destroy or abandon or render harmless any Goods which the Service Provider believes have deteriorated or become objectionable, unwholesome, infested with vermin or pests, or a source of danger or contamination, or any declared Dangerous Goods which are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive, or damaging nature.

 

  1. Carriage and/or Storage of Goods
    • The Customer shall be deemed to authorise any deviation from the usual route or manner of carriage of the Goods that may in the absolute discretion of the Service Provider be deemed reasonable or necessary in the circumstances.
    • The Service Provider will prepare an inventory of Goods received for storage and will ask the Customer to sign that inventory. The Customer will be provided with a copy of the inventory. If the Customer signs the inventory or does not do so and fails to object to its accuracy within seven (7) days of receiving it from the Service Provider, then the inventory will be conclusive evidence of the Goods received. The inventory will disclose only visible items and not any contents unless the Customer ask for the contents to be listed, in which case the Service Provider will be entitled to make a reasonable additional charge.
    • The Customer is entitled, upon giving the Service Provider reasonable notice, to inspect the Goods in store but a reasonable charge may be made by the Service Provider for this service.
    • Subject to payment for the balance of any fixed or minimum period of storage agreed, the Customer may require the Goods to be removed from the store at any time on giving the Service Provider not less than five (5) working days’ notice. If the Customer gives the Service Provider less than the required notice the Service Provider will still use their best endeavours to meet the Customer’s requirements, but shall be entitled to make a reasonable additional charge for the short notice.
    • The Customer agrees to remove the goods from storage within twenty-eight (28) days of a written notice of requirement from the Service Provider to do so. In default, the Service Provider shall provide the Customer with written notice of the Service Provider’s intention to SELL ALL OR ANY OF THE GOODS by public auction or, if that is not reasonably practicable by private treaty within two (2) months of such notice being issued, apply the net proceeds in satisfaction of any amount owing by the Customer to the Service Provider in accordance with Section 288 of the Contract and Commercial Law Act 2017.

 

  1. Customer’s Responsibility
    • It is the Customer’s responsibility to ensure:
      • that the site is free from, and not accessible by, children, livestock and/or pet animals at all times;
      • that the Service Provider always has clear and free access to the site to enable them to undertake the Services. The Service Provider shall not be liable for any loss or damage to the site (including, without limitation, damage to hidden obstructions, pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Service Provider; and
      • that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by the Service Provider. The Customer agrees to indemnify the Service Provider against all costs incurred by the Service Provider in recovering such vehicles in the event they become bogged or otherwise immovable.
    • The Customer expressly warrants, represents, confirms and/or acknowledges that:
      • the Service Provider has relied upon the Customer in its description of the Goods (including height, measure, standard, strength, quantity, quality, figures, dimensions, and values). Accordingly, the Service Provider accepts no liability for any discrepancy that may arise with the description; and
      • unless specified otherwise in writing, the Service Provider has relied upon the Customer’s skill in properly packaging, labelling, marking, securing and preparing the Goods, and that the Customer has complied with all applicable laws and regulations (including those applicable to Dangerous Goods) and shall furnish such information and provide such documents as may be necessary to comply with such laws and regulations;
      • the Customer is either the owner or the authorised agent of the owner of any Goods or property that is the subject matter of this Contract of cartage and/or storage and by entering into this Contract the Customer accepts these conditions of Contract for the Consignee as well as for all other persons on whose behalf the Customer is acting;
      • the Goods are fit for carriage, having undertaken due and careful enquiry the Goods are not dangerous, illegal, hazardous and do not contain any substance resulting in risks not readily apparent from the Customer’s description of the Goods;
      • it is the Customer’s sole responsibility to address adequately each consignment and to provide written delivery instructions to enable effective delivery; and
      • at the Service Provider’s discretion, where differences or omissions between address and/or contact information written on the consignment and/or other documentation or in any form of communication (including, but not limited to, email and telephone) provided by the Customer to the Service Provider, the Service Provider shall reserve the right to choose which delivery information is followed and shall not be held liable for any associated costs in relocation of the Goods if this address is the incorrect one.

 

  1. Customer-Packed Containers
    • If a container has not been stowed by or on behalf of the Service Provider, the Service Provider shall not be liable for loss of or damage to the Goods caused by:
      • the manner in which the container has been stowed; or
      • the unsuitability of the Goods for carriage or storage in containers; or
      • the unsuitability or defective condition of the container.

 

  1. Loss or Damage/Insurance
    • This Contract is “at limited Service Provider’s risk” unless:
      • the Customer has agreed in writing that the Goods are to be carried at ‘owner’s risk’, which means the Service Provider will pay no compensation if the Goods are lost or damaged unless the Service Provider intentionally loses or damages the Goods;
      • the Service Provider is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility to ensure that the Goods are insured adequately or at all;
      • under no circumstances will the Service Provider be under any liability with respect to the arranging of any such insurance and no claim will be made against the Service Provider for failure to arrange or ensure that the Goods are insured adequately or at all;
      • subject to any statutory provisions imposing liability in respect of the loss of or damage to the Goods, the Service Provider shall not be under any liability, howsoever caused or arising, and (without limiting the generality of the forgoing) whether caused or arising as a result of the negligence of the Service Provider or otherwise for any damage to, loss, deterioration, mis-delivery, delay in delivery or non-delivery of the Goods (whether the Goods are or have been in the possession of the Service Provider or not), nor for any instructions, 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 or expense, loss of market or consequences of delay suffered by the Customer arising out of a breach by the Service Provider of these terms and conditions. Alternatively, the Service Provider’s liability shall be limited to damages which under no circumstances shall exceed the Charges; and
      • the Customer shall indemnify the Service Provider against all claims whatsoever and howsoever caused or arising, and (without limiting the generality of the foregoing) whether caused or arising as a result of the negligence of the Service Provider or otherwise, brought by any person in connection with any matter or thing done, said or omitted by the Service Provider in connection with the Goods.

 

  1. Claims
    • Notwithstanding clause 15 in the event that the Customer believes that they have any claim against the Service Provider then they must lodge any notice of claim for consideration and determination by the Service Provider within thirty (30) days (as set out in Section 274 of the of the Contract and Commercial Law Act 2017) from the actual date of delivery or the anticipated date of delivery in the event of non-delivery or the removal or destruction of the Goods. The Service Provider will respond to that notice of claim within ten (10) days (as set out in Section 275 of the of the Contract and Commercial Law Act 2017) of receipt of the notice and will take all reasonable steps to resolve the matter. In the event that the Customer is not satisfied with the resolution provided, the Customer may commence court proceedings or arbitration proceedings to resolve the dispute.
    • The failure to notify a claim within the time limits under clause 1 is evidence of satisfactory performance by the Service Provider of its obligations.

 

  1. Lien
    • The Service Provider shall have a right to take a particular and general lien on any Goods the property of the Customer or a third party owner which are in the possession or control of the Service Provider (and any documents relating to those Goods) for all sums owed at any time by the Customer or a third party owner to the Service Provider (whether those sums are due from the Customer on those Goods or documents, or on any other Goods or documents), and the Service Provider shall have the right to sell such Goods or cargo by public auction or private treaty after giving written notice to the Customer. The Service Provider shall be entitled to retain the sums due to it, in addition to the Charges incurred in detention and sale of such Goods or cargo, from the proceeds of sale and shall render any surplus to the entitled person.
    • Notwithstanding clause 1 nothing shall prejudice the Service Provider’s rights to use any of the Service Provider’s other rights and remedies contained in this Contract to recover any outstanding Charges or fees payable in respect of the Goods that were not recovered out the sale of the Goods in accordance with clause 17.1 and no exception shall be taken upon the grounds that the Charges realised is less than the full market value of the Goods.

 

  1. Consumer Guarantees Act 1993
    • This Contract is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).
    • The Service Provider shall be under no liability whatsoever for loss or damage to Goods unless;
      • the Customer provides written notice to the Service Provider detailing the alleged damage, and that such written notice shall be received by the Service Provider within thirty (30) days after the delivery of the Goods; or
      • in the case where the Goods have been lost in transit then the Customer shall be required to provide written notice detailing the alleged loss within thirty (30) days of the date of dispatch of the Goods.

 

  1. Personal Property Securities Act 1999 (“PPSA”)
    • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA, and creates a security interest in:
      • all Goods being transported, carried or handled by the Service Provider, over which the Service Provider invokes a lien; and
      • all the Customer’s present and after acquired property being a charge, including anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Customer to the Service Provider for Services – that have previously been provided and that will be provided in the future by the Service Provider to the Customer in invoices rendered from time to time.
    • The Customer undertakes to:
      • sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Service Provider may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      • indemnify, and upon demand reimburse, the Service Provider for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without the prior written consent of the Service Provider.
    • The Service Provider and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    • The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
    • Unless otherwise agreed to in writing by the Service Provider, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    • The Customer shall unconditionally ratify any actions taken by the Service Provider under clauses 2 to 19.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 19), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of the Service Provider agreeing to supply Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
    • The Customer indemnifies the Service Provider from and against all the Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Service Provider’s rights under this clause.
    • The Customer irrevocably appoints the Service Provider and each director of the Service Provider as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Customer’s behalf.

 

  1. Default and Consequences of Default
    • 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 Service Provider’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes the Service Provider any money the Customer shall indemnify the Service Provider from and against all costs and disbursements incurred by the Service Provider in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Service Provider’s collection agency costs, and bank dishonour fees).
    • Further to any other rights or remedies the Service Provider may have under this Contract, if the Customer has made payment to the Service Provider, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Service Provider under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
    • Without prejudice to the Service Provider’s other remedies at law the Service Provider shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable in the event that:
      • any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion the Customer will be unable to meet its payments as they fall due; or
      • the Customer has exceeded any applicable credit limit provided by the Service Provider;
      • the Customer 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

  1. Cancellation
    • Without prejudice to any other remedies the Service Provider may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Service Provider may suspend or terminate the provision of Services to the Customer and any of its other obligations under the terms and conditions. The Service Provider will not be liable to the Customer for any loss or damage the Customer suffers because the Service Provider exercised its rights under this clause.
    • The Service Provider may cancel any contract to which these terms and conditions apply, or cancel delivery of Goods at any time before the Goods are delivered, by giving written notice to the Customer. On giving such notice the Customer shall repay to the Customer any sums paid in respect of the Charges. The Service Provider shall not be liable for any loss or damage whatever arising from such cancellation.
    • In the event that the Customer cancels the delivery of Goods, or the provision of any Services, then the Customer shall be liable for any loss incurred by the Service Provider (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.

 

  1. Privacy Policy
    • All emails, documents, images, or other recorded information held or used by the Service Provider is “Personal Information” as defined and referred to in clause 3 and therefore considered confidential. The Service Provider acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. The Service Provider acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Service Provider that may result in serious harm to the Customer, the Service Provider will notify the Customer in accordance with the Act.  Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to the Service Provider in respect of Cookies where the Customer utilises the Service Provider’s website to make enquiries. The Service Provider agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to the Service Provider when the Service Provider sends an email to the Customer, so the Service Provider may collect and review that information (“collectively Personal Information”)

If the Customer consent to the Service Provider’s use of Cookies on the Service Provider’s website and later wish to withdraw that consent, the Customer may manage and control the Service Provider’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

  • The Customer authorises the Service Provider or the Service Provider’s agent to:
    • access, collect, retain and use any information about the Customer;
      • (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
      • for the purpose of marketing products and services to the Customer.
    • disclose information about the Customer, whether collected by the Service Provider from the Customer directly or obtained by the Service Provider 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 Customer.
  • Where the Customer is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 2020.
  • The Service Provider will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  • The Customer can make a privacy complaint by contacting the Service Provider via e-mail. The Service Provider will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

 

  1. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

  1. Trusts
    • If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Service Provider may have notice of the Trust, the Customer covenants with the Service Provider as follows:
      • the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
      • the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      • the Customer will not without consent in writing of the Service Provider (the Service Provider will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        • the removal, replacement or retirement of the Customer as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

 

  1. Limitation of Liability
    • Subject to clauses 15 and 18 the Service Provider shall be under no liability whatever to the Customer for any indirect, direct, and consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Service Provider of these terms and conditions (including, any negligent or wilful act by the Service Provider). Without limiting the generality of the foregoing, this exclusion extends to any claim against the Service Provider for loss or damage or delay or payment of any cost, charge, fine, penalty, sales tax or duty, whether the claim be founded in contract, bailment or tort.
    • In the event of any breach of this Contract by the Service Provider the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Charges of the Services.
    • In all cases where liability has not been effectively excluded, whether by this contract or by statute, convention or otherwise, the total liability of the Service Provider for any loss or damage shall be as per:
      • the value stated under the Contract and Commercial Law Act 2017 (or subsequent amendments); or
      • the Service Provider’s declared value risk amount specified on the Service Provider’s documentation; and
      • where contents, and condition of contents, are unknown, claims will be considered only where there are signs of outside damage only.

 

  1. General
    • Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Service Provider’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Te Awamutu, New Zealand.
    • The Service Provider may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
    • The Customer cannot licence or assign without the written approval of the Service Provider.
    • The Service Provider may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Service Provider’s sub-contractors without the authority of the Service Provider.
    • The Customer agrees that the Service Provider may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Service Provider to provide Goods to the Customer.
    • Where the Service Provider is unable, wholly or in part, by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Service Provider, including but not limited to, any act of God, war, terrorism, strike, civil commotion, lock-out, general or partial stoppage, restraint of labour, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc. (“Force Majeure”) to carry out any obligation under this Contract and the Service Provider gives the Customer prompt notice of such Force Majeure with reasonably full particulars thereof and, insofar as is known, the probable extent to which it will be unable to perform or be delayed in performing that obligation and uses all reasonable diligence to negate or remove that Force Majeure as quickly as possible, that obligation is suspended, so far as it is affected by Force Majeure, during the continuance thereof. The requirement that any Force Majeure shall be negated or removed with all reasonable diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the Service Provider.
    • In the event that either party shall be rendered totally, or partially, unable to carry out their obligations under this Contract by reasons or causes beyond their reasonable control, that party shall be excused from performing their obligations during the continuance of any disability so caused, provided that the party concerned advises the other party in writing of its inability within seven (7) days after becoming aware of its inability to perform its obligations by reason of such cause.
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.