Terms and Conditions
- Paramount Clause (Consumer Guarantees Act 1993)
Where the provisions of the Consumer Guarantees Act 1993 apply, the
provisions of these Conditions will be read subject to the application
of that Act, and in the case of any conflict, the provisions of that
Act will apply.
- Parties
This contract is made between the Customer (which term includes any
“contracting party” in terms of the Carriage of Goods Act
1979) and Messenger Services Limited (“the Company”). All
business undertaken by the Company, including the provision of any advice,
information or other services, is undertaken upon and subject to these
Conditions.
- Business Customers (Consumer Guarantees Act 1993)
Where the Customer is a business (as “Business” is defined
by the Consumer Guarantees Act 1993), it agrees that is acquiring the
Company's services for the purpose of a business and the Consumer
Guarantees Act 1993 does not apply.
- Application of Carriage of Goods Act 1979 (“the Act”)
Subject to the provisions of the Act, Sections 22, 23, 24, 25, 26 and
27 shall apply to the contract only to the extent that they extend or
enlarge the Company’s rights and powers in terms of these Conditions.
Sections 18 and 19 are modified by clause 15 of these Conditions and
the relevant sections shall, in relation to any matter arising out of
the provisions of those sections, have effect subject to the express
terms contained hereunder.
- Subcontractors
All or part of any work accepted by the Company may be fulfilled by
the Company engaging or entrusting the Customer’s goods to its
authorised subcontractors on such terms agreed between the Company and
its subcontractors. The Customer agrees that all work may be performed
on behalf of the Company by any subcontractor. In carrying out the work
on behalf of the Company, the Customer acknowledges that the subcontractor
has the right to rely on the benefit to the Company of these Conditions.
- Protection of Servants and Agents
The Customer undertakes that no claim or allegation shall be made against
any subcontractor, servant or agent of the Company 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 Company and any such subcontractor, servant or
agent against all consequences thereof. It is expressly agreed and declared
that for the purposes of section 4 of the Contracts (Privity) Act 1982
all provisions limiting or excluding the liability of the Company herein
contained shall be for the benefit of all servants, agents and subcontractors
of the Company.
- Ownership of Goods
The Customer expressly warrants to the Company that it is the owner
of the authorised agent of the goods and that it is authorised to accept
and does accept these Conditions not only for itself but also for and
on behalf of all other persons who are or may hereafter
become interested in the goods.
- Delivery
The goods shall be deemed to have been delivered when they are physically
deposited at the address given to the Company by the Customer or consignee
for that purpose. The Customer accepts that no form of acknowledgement
that delivery has occurred is required to be obtained except in those
instances where the Customer has specified, and the Company has agreed,
that the carrier obtain a signature from the consignee. Where the Company
obtains a signature on a signature ticket/signature sheet or on any
approved form used by the Company as a form of acknowledgement that
delivery has occurred, the Customer expressly agrees that the carrier
may obtain such signature from any person at that address.
- Packing
The Customer warrants that all goods have been labelled correctly and
properly and sufficiently packed and prepared for carriage in accordance
with the Company’s instructions issued from time to time.
- Insurance
Insurance of the goods is the responsibility of the Customer.
- Exclusion of Certain Items
Pursuant to section 28(1) of the Act:
- The Company will not accept or deal with bullion, cash, coins,
negotiable instruments, precious stones, jewellery, antiques, paintings
or other valuables (“Valuable Goods”) or as advised by
the Company to the Customer from time to time to be Valuable Goods
unless the Company has expressly agreed in writing to handle, deliver
or otherwise deal with certain Valuable Goods presented by the Customer
or the Customer’s authorised agent for consignment.
- The Company will not accept or deal with any noxious, hazardous,
dangerous or inflammable or perishable goods, firearms, any goods
likely to cause damage, any goods which it is unlawful to carry
or goods of any of the kinds specified in the Schedule to the Dangerous
Goods Act 1974 (“Dangerous Goods”) or as advised by the
Company to the Customer from time to time to be Dangerous Goods
unless the Company, its servants, subcontractors or agents have
expressly agreed to handle, deliver or otherwise deal with certain
Dangerous Goods presented by the Customer or the Customer’s
authorised agent for consignment and the Customer or the Customer’s
authorised agent has complied with all relevant law including the
Dangerous Goods Act 1974 and associated regulations, and the requirements/procedures
set out in the Standards Association of New Zealand Code of Practice
for the Transport of Hazardous Substances on Land as amended from
time to time. The Customer expressly warrants and agrees that it
will not give any such goods to the Company, its servants, subcontractors
or agents unless the Company, its servants, subcontractors or agents
have expressly agreed (such agreement being in writing in the case
of Valuable Goods) to handle, deliver or otherwise deal with certain
Dangerous Goods or Valuable Goods presented by the Customer or the
Customer’s authorised agent for consignment with all relevant
law including the Dangerous Goods Act 1974 and associated regulations,
and the requirements/procedures set out in the Standards Association
of New Zealand Code of Practice for the Transport of Hazardous Substances
on Land as amended from time to time. Notwithstanding the nature
of the Customer’s business, the Customer acknowledges that
the Company is not in a position to ascertain the contents of any
consignment given to it for delivery and will not under any circumstances
be deemed to be aware of the contents. If the Customer delivers
any Dangerous Goods to or causes such goods to be handled or dealt
with by the Company or any of its servants, subcontractors or agents
and an incident occurs which creates a threat of explosion or fire,
or creates a hazard which threatens the public safety or the safety
of any person or property, the Customer expressly acknowledges that
the Dangerous Goods may be destroyed or otherwise dealt with at
the sole discretion of the Company, its servants, subcontractors,
agents or any other person in whose custody they may be and at the
expense of the Customer without the Company, its servants, subcontractors,
agents or such other person being responsible or accountable for
the value thereof except where the Company, its servants, subcontractors
or agents have expressly agreed to handle, deliver or otherwise
deal with certain Dangerous Goods presented by the Customer or the
Customer’s authorised agent for consignment, in which case
the Company’s liability shall be limited to the amount determined
by clause 14(a).
- Payment of Charges
The Customer agrees to pay the Company’s standard charges and those
of any subcontractor engaged by the Company and any other costs incurred
or money expended by the company in connection with the goods. Except
under a special arrangement previously made in writing with the Company,
no credit will be given for the Company’s charges which are to
be paid to the Company at the time the goods are delivered to the Company
for carriage. Where the Company has offered to provide the Customer
with the e-direct service and the Customer has agreed to use the e-direct
service, and the Customer or any employee, agent of or independent contractor
to the Customer engages the Company to provide goods and/or services
using the e-direct service, the Customer must pay the Company’s
standard charges and those of any subcontractor engaged by the Company
and any other costs incurred or money expended by the Company in connection
with those goods and/or services so provided in accordance with the
Company’s terms of trade.
- Lien
All goods (and documents relating to goods) shall, immediately they
come into possession of the Company or any sub contractor be subject
to a particular and general lien and right of detention for all moneys
due to the Company by the Customer or the consignee, consignor or owner,
whether in respect of such goods or otherwise. If any moneys due to
the Company are not paid within fourteen (14) days after notice has
been given to the person from whom the moneys are due that such goods
are being detained, then they may be sold by auction or otherwise at
the sole discretion of the Company and at the expenses of such person,
and the net proceeds applied in or towards satisfaction of any such
indebtedness. Any such sale shall not prejudice the right to recover
the cost of the said detention and sale. If at anytime payment from
the Customer to the Company shall be in arrears, any subsisting obligation
of the Company shall be suspended and the Company shall not be under
any liability to the Customer during such period.
- Limited Carrier’s Risk
- This contract is “at limited carrier’s risk”.
- Subject to the provisions of the Act imposing liability in respect
of the loss or damage to the goods:
- the Company shall not be under any liability whatsoever (whether
in contract, tort or otherwise):
- for any losses, penalties, damages, costs or expenses
of any kind whatsoever brought, claimed, suffered or incurred
by the Customer or any third party, in connection with,
or resulting from, the carriage of the goods or any matter
or thing done, said or omitted by the Company, its servants,
sub contractors or agents, in connection with goods;
- for any damage to, loss, deterioration, misdelivery, delay
in delivery or non delivery of the goods (whether the goods
are or have been in the possession of the Company or not);
- 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;
- for any consequential or indirect loss or damage, loss
of market or consequences of delay;
- for any error or mistake in counting any currency or bullion,
or failure, delay or errors in banking any currency;
- for any breach by the Company of any term or provision
hereof;
- for any misrepresentation or any other matter or thing
whatsoever which may give rise to any cause of action against
the Company; howsoever caused or arising and (without limiting
the generality of the foregoing) whether caused intentionally
or arising as the result of negligence of the Company, its
servants, subcontractors or agents otherwise; and
- the Customer will indemnify the Company, its servants, subcontractors
and agents against all losses, penalties, claims, damages (including
damage or deterioration by or to any other consignment), costs
and expenses 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 Company,
its servants, subcontractors or agents or otherwise, brought
or claimed by any third party, and/or suffered or incurred by
the Company, in connection with, or resulting from, the carriage
of the goods or any matter or thing done, said or omitted by
the Company, its servants, subcontractors or agents in connection
with the goods.
- Actions against the Company
The Company shall be under no liability whatsoever unless:
- written notice of any claim, giving full particulars of any alleged
damage or destruction, is received by the Company within seven (7)
days after the delivery of the goods or, in the case of loss of
the goods, within fourteen (14) days of the date of despatch; and
- an action shall have been commenced by the Customer in a Court
of competent jurisdiction within six (6) months from the date of
despatch of the goods.
- Notice
Any notice to be given under the contract shall be deemed to be received
if delivered, or forwarded by registered post, to the registered office
of the party to receive it or the usual or last known residence or place
of business of such party.
- Review of Charges
All charges payable by the Customer hereunder may be varied by the Company
by giving notice in writing to the Customer at anytime. The notice shall
state the date from which the new charge or charges shall be effective.
- Variations
No variation of these Conditions shall be binding on the Company or
the Customer unless in writing signed by or on behalf of both parties.
- Force Majeure
The Company shall not be liable to the Customer for any failure to carry
out its obligations hereunder or for any loss or damage suffered by
the Customer where such failure or such loss or damage is caused by
mechanical breakdown of any equipment, weather conditions, strikes,
lockouts, labour disputes or restraint of labour, act of God, war (whether
declared or not), any act, regulation or restriction imposed by Government,
riot or civil commotion, any act or omission of the Customer, its servants,
subcontractors or agents, or any cause beyond the control of the Company.
- General
The terms and conditions set out herein shall prevail over the terms
and conditions set out in any document used by the Company (unless expressly
acknowledged to override these Conditions or expressed to be “on
declared terms”), the Customer, the owner or any other person having
an interest in the goods and purporting to have a contractual effect.
- These Conditions of Carriage shall be effective from the 1st
day of September 1999.
- Terms of Trade - Payment is required on the 20th of the month
following the period of provision of services.
