Terms of Trade:
Definitions & Interpretation:
Definitions: in this agreement, unless the context requires otherwise:
“Act” means the Contract and Commercial Law Act 2017 and any further legislative variations.
“Customer” means the Customer specified on the Company Forms.
“Company” means Smith & Silcock Limited (Company No: 132975) and employees agent or subcontractor of the Company who physically transports the goods.
“Services” means the services referred to in the Company Forms and any and all goods provided by the Company to the Customer from time to time.
“The Company Forms” means the credit application form, quotation, order form, packing slip and/or tax invoice used by the Company. If there is a conflict between the Company Forms and the tax invoice, the tax invoice prevails.
1. Services
1.1 Any instructions received by the Company from the Customer for the provision of services (including acceptance of a quotation by a Customer) will constitute a binding agreement and will be deemed to be acceptance by the Customer of the terms and conditions herein notwithstanding that anything may be stated to the contrary in the Customer’s instructions. If there is any conflict or inconsistency between these conditions and the terms of the order submitted by the Customer or any price list, invoice or delivery docket issued by us, these conditions shall prevail unless otherwise agreed in writing by us.
2. Pricing
2.1 You agree that you are liable for all our charges and those of any subcontractor (including shipping costs) and any other costs, disbursements or expenses, reasonably incurred by us in relation to the goods or the provision of the services (including any storage fees, demurrage fees, loading or unloading fees, towage, non-running vehicles or any other fees).
2.2 Unless we expressly state in writing that certain prices are a fixed quote, any and all pricing information provided to you (including freight rates) are estimates only, and we reserve the right to pass on any increase at such prices, howsoever arising.
2.3 Unless specified otherwise in the Company Forms, all purchase are plus GST and other taxes.
3. Payment
3.1 Unless otherwise agreed by us in writing, an invoice is due and payable by you immediately upon the invoice being issued by us to you.
3.2 As your agent, we may require funds from you in advance in order to pay various costs and fees arising in the course of the services. You acknowledge and agree that:
(a) we are under no obligation to pay any costs to a third party on your behalf without first having received clear funds from you to cover such costs; and
(b) we are not liable or responsible in any way for any costs or losses arising directly or indirectly from any refusal or delay in us paying the costs of a third party due to you not first providing us with adequate cleared funds.
3.3 Our preferred method of payment is by internet banking. We reserve the right to pass on any costs reasonably incurred by us in accepting any method of payment.
3.4 All payment of invoices by you (or on your behalf) must be made in full and without any deduction or right of set off or counterclaim. Please ensure any bank fees that may be incurred in relation to any payment are for your account and are not deducted from the amount on the invoice. We may deduct any amounts you owe to us against any amounts we owe to you.
3.5 If any amount payable to us by you under this agreement is overdue:
(a) Interest may be charged on any account owing after its due date at the rate of 4% above the base rate for the Company’s trading account per month or part month.
(b) we may take steps to recover any overdue amounts (including engaging a debt collection agency), and you indemnify us and shall pay on demand all costs and expenses (including legal costs on a solicitor and own client basis) incurred by us in recovering any amounts owing by you to us under this agreement; and
(c) if you fail to make a payment when it is due or we believe that you may not pay us when a payment is due, we may at our sole discretion suspend any services (including suspending delivery of the goods) or terminate this agreement. We are not liable to you in any way for any costs or losses arising directly or indirectly from such suspension or termination.
4. Quotation
4.1 Where a quotation is given by the Company for services:
(a) unless otherwise agreed, the quotation shall be valid for thirty (30) days from the date of issue;
(b) unless otherwise stated in the Company Forms, the price stated in the quotation is plus GST;
(c) theCompanyreservestherighttoalterthequotationbecauseofcircumstancesbeyondits control.
(d) Where services are required in addition to the quotation the Customer agrees to pay for additional costs of such services.
5. Alternate routes
5.1 You agree that we have full discretion as to the means, route and procedures to be followed in respect of the handling, storage, transport and delivery of the goods and the performance of the services. If we specify and agree with you to use any particular means, route or procedures, we will use reasonable endeavours to do so, but if circumstances arise such that if, in our reasonable opinion, it is necessary or desirable to deviate from the agreed means, route or procedures, we may do so at your cost and without notice, and without incurring any liability to you as a result of such deviation.
6. Warranties
6.1 You warrant and represent to us on a continuing basis:
(a)Ownership: that you are either the owner of the goods, or the authorised agent of the goods, and are authorised by any person who has or may acquire an interest in the goods to enter into and accept the terms of this agreement;
(b)Particulars: the accuracy and completeness of all descriptions, values and other particulars of goods, and all other information provided to us by you or your representatives in relation to the goods or otherwise in connection with the services.
6.2 If you are acquiring (or hold yourself out as acquiring) the services for the purposes of a business, you agree that the provisions of the Consumer Guarantees Act 1993 do not apply. If the Consumer Guarantees Act 1993 does apply, then nothing in this agreement shall restrict the application of that Act.
6.3 Other legislation: This agreement shall be read subject to the provisions of any legislation that compulsorily applies to the services, provided that nothing in this agreement shall be construed as a waiver of any rights under such legislation or as an increase of any of its liabilities or responsibilities.
7. Delivery and lien
7.1 Goods shall be deemed to be delivered to the Customer:
a. When the Company gives possession of the goods directly to the Customer or its consignee.
b. Possession of the goods is given to a carrier, courier or other bailees for purposes of transmission to the Customer or:
c. Goods are delivered to a nominated place as advised by the Customer.
7.2 Subject to you complying with all your obligations under this agreement, we shall use all reasonable commercial endeavours to deliver the goods to the designated address (or make the goods available for collection by you or your representative).
7.3 If we elect to withhold the goods under the terms of this agreement, we may transport the goods to another location for storage, and all costs so incurred shall be for your account, including our reasonable administration costs.
7.4 We are entitled to sell or dispose of all goods which, in our reasonable opinion and only after due inquiry, cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee or any other person after fourteen (14) days’ notice in writing of intention to sell or dispute of the same has been given to you. All charges and expenses arising in connection with the storage and sale or disposal of the goods shall be paid by you.
7.5 No claim shall be made by the Customer of account of late delivery of goods and any late delivery shall not be deemed to be a breach of the terms and conditions by the Company and the Customer shall not be entitled to cancel the terms and conditions because of late delivery.
7.7 You indemnify and hold us and our subcontractors harmless in respect of any liability for costs, loss or damage suffered by us or our subcontractors arising out of a breach of warranties.
7.8 Other legislation: This agreement shall be read subject to the provisions of any legislation that compulsorily applies to the services, provided that nothing in this agreement shall be construed as a waiver of any rights under such legislation or as an increase of any of its liabilities or responsibilities.
8. Exclusion of liability
8.1 Subject to the Company’s forms or to any specific exclusions or limitations of liability in these terms and conditions and the maximum extent permitted by law.
8.2 The provisions of services is at “Limited carriers risk” as defined in the Act. The Company’s limit of liability is the Threshold for each unit of goods lost or damaged. The Company is not liable to the extent that the loss or damage resulted directly and without fault on the Company’s part from:
(i) inherent vice being breach of warranties implied under the Act;
(ii) events outside the control of the Company;
(iii) events that occur after Delivery;
(iv) a breach by the Customer of any obligations under the Terms and Conditions, or the Company Forms;
(v) seizure under legal process or saving or attempting to save life or property.
8.3 Subject to the provisions of the Act, the Company has no direct or indirect liability whatsoever (whether in contract, tort or otherwise) for any direct losses, penalties, or damages, costs or expenses of any kind (including indirect consequential loss) arising out of or in respect of any carriage of goods, whether caused intentionally or arising as a result of our negligence or otherwise. This includes liabilities from delay in delivery of goods for any reason.
8.4 Where there is contributory negligence on your part, then our liability shall be limited to an amount that excludes the contributing negligence.
8.5 The Company accepts no responsibility if the carriage of goods is to a destination outside of New Zealand and the responsibility ends when the international carriage of the said goods begins. The Customer acknowledges that if more than one carrier is involved with the carriage of goods, subject to their respective contracts, both carriers will be jointly liable to the Customer for the loss of or damage to any goods occurring while carriers are jointly responsible for the goods, whether or not the loss or damage is caused wholly or partly by any or all of nay of the actual carriers. The liability will be in proportion to the amount of freight or other consideration payable to each party.
8.6 All terms, conditions and warranties (whether express or implied, statutory or otherwise) whether by the Company or its agents or employees or otherwise relating to the services are excluded or if not able to be excluded, only apply to the minimum extend required by the relevant statute.
8.7 The Company shall be under no liability whatsoever (whether direct, indirect or loss of profit) to the Customer for any loss, damage, liability or injury suffered by the Customer arising out of a breach by the Company of the Terms and Conditions.
8.8 If any part of the Terms and Conditions are found by a court to be invalid and unenforceable, the Company’s liability for loss or damage resulting directly or indirectly from a breach of its obligations under the Terms and Conditions, is limited at all times to the price of the Services.
9. Personal Guarantee
9.1 If the Customer is a Company or Trust, the Director(s) or Trustee(s) signing the Terms and Conditions, in consideration of the Company agreeing to provision of the services, also sign the Terms and Conditions in their personal capacity and jointly and severally personally undertake as principal debtors to the Company the payment of any and all moneys now and hereafter owed by the Customer to the Company and indemnify the Company against nonpayment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in the Terms and Conditions.
