TERMS & CONDITIONS
Terms & Conditions
means the Carriage of Goods Act 1979.
has the meaning set out in the Act
means [Westpac Bank Limited, Queenstown]
“Picture Vehicles 2011 NZ Limited”
means the registered transport operations of Picture Vehicles 2011 NZ Ltd (PVL) who will provide the Transport Services depending on the region the service is being offered.
means these Standard Terms and Conditions with any consequential additions or amendments.
“Contract of Carriage”
means a contract incorporating these Conditions as amended from time to time, including any electronic form of contract or accepted quote.
means the person or organisation described in the Contract of Carriage who has agreed to be bound by the contract terms and conditions contained herein, and include that person’s permitted successors and assigns.
“Hazardous or Dangerous Goods”
means any item which PVL believes to be or about to become dangerous in nature in terms of section 26 of the Act.
means the Personal Property Securities Act 1999.
means damage that has been claimed by a Customer in accordance with clause 3.1 and accepted by PVL through the appointment of a repair agent or by obtaining two repair quotes.
means a consignee of Vehicles and includes the consignee's agent.
means the rates or charges charged by PVL for Transport Services and where relevant shown in any current freight tables or any other document or means of publication (including electronic means) approved from time to time by PVL for the statement of rates or charges for Transport Services.
means any service provided by PVL for the carriage of Vehicles by road or rail and includes any other service provided by PVL relating to or incidental to that carriage.
means any motor vehicle or vehicles to which a Transport Service applies.
1.1 Where a Contract of Carriage is accepted by PVL, PVL agrees to provide the Transport Service requested by the Customer for the carriage of the Vehicle as set out in that Contract of Carriage.
1.2 The Customer hereby warrants that they either have legal title to the Vehicle or express or implied consent of the legal owner of the Vehicle to request PVL to undertake the Transport Service.
1.3 These Conditions shall apply to and govern the supply by PVL of Transport Services to the Customer. If there is any conflict or inconsistency between these Conditions and the terms of any order submitted by the Customer or any price list, invoice or delivery docket issued by PVL, these Conditions shall prevail unless otherwise agreed in writing by PVL.
1.4 These Conditions may only be varied in writing signed by a duly authorised signatory of PVL and no other employee, agent or representative of the PVL shall have any authority to amend, modify or add to these Conditions. Amendments shall be effective upon receipt in writing from the Customer.
2. Inspection of Vehicles and Carrier’s rights
2.1 Inspection of Vehicles: PVL shall visually inspect Vehicles before their acceptance for carriage. The Customer must assist with the inspection if required by PVL. Inspections are carried out in good faith and as the Vehicle is presented to PVL staff. Any clearly visible damage to or missing items from any Vehicle presented for Carriage shall be noted on the consignment note or condition report. Failure of PVL to inspect any Vehicle, at all or adequately, does not impose any additional liability upon PVL or affect any obligation of PVL in relation to that Vehicle. PVL accepts no liability for any pre-existing damage which may include but is not limited to:
(a) any individual marks, blemishes or stone chips;
(b) any surface scratches, paint or minor damage that is under protection wax or film;
(c) any damage or marks found after the Vehicle has been washed and groomed unless the Vehicle was presented to PVL washed and groomed.
2.2 Carrier’s right to search Vehicles: PVL is entitled to inspect or search any Vehicle to be carried on a Transport Service if PVL believes that the Vehicle contains Hazardous or Dangerous Goods, or any other goods for which these Conditions or any other law have not complied with. PVL may at its sole discretion remove, or have removed at the Customer’s expense, any item that it considered to be or may be considered Hazardous or Dangerous Goods. PVL does not accept any liability for items carried within a Vehicle.
2.3 Carrier’s right to refuse to accept Vehicle for Carriage: PVL in its absolute discretion reserves the right to refuse to carry any Vehicle without the need to give any explanation to the Customer.
2.4 PVL reserves the right to charge a reasonable fee for any Vehicles that are not available for the Transport Service at the agreed time and place for any reason unless otherwise agreed with PVL. Any such fee will be charged to the Customer directly.
2.5 Vehicle acceptance: Acceptance of Vehicles by PVL for Transport Services is deemed to occur at the time the Vehicle or Vehicles are loaded on the transporter or other means of transport used to provide the Transport Service, or when a signed vehicle docket is completed with respect of the Vehicles.
3.1 Notice of claim: Any claim against PVL in respect of alleged loss of or damage to Vehicles carried on a Transport Service must be given in writing to PVL within twenty four hours after the date on which PVL’s responsibility for those Vehicles has ceased. PVL must be given a reasonable opportunity to investigate the claim and to appoint a repair agent or obtain two repair quotes to repair any Vehicles that are proven to be damaged in the course of Transport Services.
3.2 If claims are not made before the Vehicles are repaired by the Customer or PVL is not given a reasonable period to investigate the claim and appoint an agent or obtain quotes as required under clause 3.1 above (for repair of Vehicles that are proven to be damaged in the course of Transport Services), the Customer shall be conclusively deemed to have accepted the Vehicles as conforming with the Contract of Carriage in all respects and to have waived absolutely any claims for incorrectly delivered or damaged Vehicles and the PVL shall not have any liability in respect of those claims or otherwise in respect of the Vehicles.
4.1 Any carriage under a Contract of Carriage is deemed to be at Limited Carrier’s risk in accordance with section 8(1)(b) of the Act unless otherwise agreed in writing between the parties (pursuant to section 8 of the Act), which agreement shall be confirmed in writing by PVL and a copy supplied to the Customer.
4.2 Maximum amount of liability: PVL is not liable for any amount in excess of Proved Damages to the Vehicles; and PVL is not liable for any such Proved Damages in excess of the sum provided in section 15(1) of the Act.
4.3 Exclusion of indirect and consequent loss: PVL is not liable for any form of indirect or consequential loss or damage arising out of or in respect of any Transport Service. Any liability of the kinds specified in subsections 15(2)(b) and (c) of the Act is expressly excluded whether in respect of the carriage of goods or otherwise. Without limiting the foregoing, PVL is not liable for indirect or consequential loss or damage arising from:
(a) delay in delivery of any Vehicles for any reason; or
(b) damage to Vehicles from leakage, explosion, or the effects of climate or the elements; or
(c) damage to Vehicles of any Customer where such damage arises out of the actions, or omissions, of the Customer or any other person limited to the extent of the actions of PVL.
4.4 Contributory negligence: Where there is contributory negligence on the part of a Customer, PVL’s liability shall be limited to an amount that excludes the contributing negligence.
4.5 Immobile Vehicles: If any Vehicle presented for carriage does not start or is not able to be loaded onto a transporter, PVL may in its absolute and sole discretion refuse to carry that Vehicle.
4.6 Damaged Vehicles: No damaged Vehicles will be carried unless otherwise agreed. While every endeavour is made to ensure there is not additional damage through the loading and unloading process, PVL undertakes no liability for any subsequent damage while carrying out the Transport Service.
4.7 Securing devices: PVL is required by law to use securing devices to stabilise and secure any Vehicles. PVL is not liable for any loss or damage to any Vehicles if that loss or damage is caused by the chafing or moving of securing devices which have been attached by PVL to prevent loss or damage resulting from carriage. Any special requirements must be accepted in writing by the PVL prior to carrying out the Transport Services.
4.8 Errors, omissions and representations: PVL is not liable for errors or omissions in publications of schedules or in statements, or representations made by any of its employees, agents or representatives in respect of any Transport Service. No agent, employee or representative of PVL has authority to give undertakings or make representations in relation to the provision or timing of any Transport Service that are inconsistent with these Conditions. Any such undertakings or representations will not bind PVL except where prior confirmation in writing is obtained from PVL.
4.9 Extension of exclusion or limitation to agents: Any exclusion or limitation of the liability of PVL applies to and for the benefit of PVL's agents, employees, representatives and contractors and to any Actual Carrier and to the Actual Carrier's employees, agents, representatives and contractors. Any aggregate amount of damages recoverable from PVL, the Actual Carrier and their respective agents, employees, representatives and contractors shall not exceed the maximum amount of PVL’s liability. The liability of any Actual Carrier is determined pursuant to section 10 of the Act.
5. Rates and Charges
5.1 Each Transport Service is performed at and is subject to payment by the Customer of the applicable Transport Rate, current at the time of carriage. PVL may from time to time fix or impose special rates or vary existing Transport Rates or terms of payment without notice.
5.2 PVL is not bound by quotations or estimates of Transport Rates or conditions of contract or carriage given verbally unless they are confirmed by PVL in writing in accordance with these Conditions.
5.3 Additional handling charges: If PVL incurs any additional costs in handling any Vehicles, or if the Vehicles are not able to be started or loaded onto a transporter, the Vehicles will be treated as immobile and the Customer is liable to pay any additional costs on demand. Additional handling charges may include, but are not limited to additional fuel, changing and repairing tyres and cutting keys.
5.4 GST and other Government taxes and charges: Any tax (including GST imposition) or fuel or other surcharge, which is not provided for or stated in a Transport Rate, and which is imposed by a Government or by any regional or other authority, in respect of or incidental to carriage of a Vehicle or the provision of any Transport Service, is due and payable in addition to the Transport Rate by the Customer.
6.1 The Transport Rate and any additional tax or handling charge payable by the Customer for a Transport Service must be paid before commencement of the Transport Service unless the Customer (or other person liable for payment with respect to the Transport Service) has a current written credit arrangement with PVL for payment, in which case payment is due by the 20th of the month following invoice date.
6.2 Prices any Contract of Carriage are unless otherwise stated, expressed in New Zealand dollars, do not include GST or any fuel surcharges applicable at the time and are based on current Transport Rates. To the extent they are applicable fluctuations in the cost of labour and raw materials, exchange rates and any variations are for the Customer’s account.
6.3 If there is no credit arrangement and payment is not made in advance of acceptance of the Vehicles for the Transport Service, or if the amount collected by PVL or its agent is not the applicable Transport Rate plus any additional tax or charge, the difference must be paid by the Customer before commencement of the Transport Service. Payment can be accepted by cheque or cash. Electronic banking direct to the Bank Account is also acceptable. Until payment is received the Transport Service will not be actioned.
6.4 Credit arrangements - authorisation to collect information: In any situation where PVL has a credit arrangement with a Customer in relation to the provision of Transport Services, or a Customer requests that a credit arrangement be entered into with PVL, PVL will be entitled to collect from sources other than that Customer any information PVL considers relevant to assessing the creditworthiness or financial position of that Customer. PVL will be entitled to disclose any such information to any of its subsidiaries, associated companies or any other person engaged in business with PVL from time to time.
6.5 Late Payment: Overdue payment shall constitute a breach of these Conditions and the Customer will, upon demand, pay penalty interest to PVL on any overdue amount at the rate of 2.0% per month compounding from the date that payment was due until payment (including interest) is received in full, including interest is received by PVL. PVL may charge this penalty interest without prejudice to its other rights and remedies.
6.6 PVL may at its discretion, apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer and it shall not be bound by any conditions or qualifications that the Customer may make in relation to payments made under this or any other contract with PVL.
6.7 Where a Customer has a credit arrangement with PVL, PVL may register a financing statement on the Personal Property Securities Register over any Vehicle subject to any Transport Service to secure payment of the Transport Rate. The Customer waives any right to receive a verification statement pursuant to section 148 of the PPSA.
7.1 Picture Vehicles 2011 NZ Limited recognizes its responsibility to keep confidential at all times any information which it acquires in connection with any credit card transaction.
7.2 Picture Vehicles 2011 NZ Limited uses any information obtained for the purposes of tracking a transaction, ensuring payment and being able to process refunds to the customer. Picture Vehicles 2011 NZ Limited will not use any information obtained for any purpose other than the transaction with the cardholder, and will not divulge or provide any information to any other entity unless required by law or authorised by the cardholder.
8.1 Time of delivery shall not be for the essence of any Transport Service, but PVL will make all reasonable efforts to meet any date for delivery agreed with the Customer or otherwise to deliver the Vehicles within a reasonable time. In no event shall PVL incur any liability due to any failure to deliver Vehicles by an agreed date.
8.2 Vehicle delivery: Delivery of Vehicles by PVL is deemed to occur at the time the Vehicles are left by PVL for collection by the Customer or the Receiver at the agreed destination provided by the Customer in the Contract of Carriage.
8.3 Delivery not collection: PVL is only responsible for delivery of Vehicles, not for their collection from the delivery destination.
8.4 Unclaimed Property: If for any reason, Vehicles are not removed or collected from the agreed destination as soon as possible after delivery by PVL, or Vehicles are unable to be delivered to the destination address (for any reason other than the fault of PVL) then:
(a) PVL is deemed to be the agent of the Customer (and/or of the owner of the Vehicle where relevant) and may store the Vehicle on behalf of and at the sole risk and expense of the Customer (and/or the owner of the Vehicle where relevant); and
(b) PVL may declare the Vehicles to be unclaimed after the expiry of 14 days from the date agreed by the Customer that the Vehicles were to be collected and may sell those Vehicles and apply the proceeds of sale in payment of:
(i) any Transport Rates, taxes or charges payable in respect of carriage of those Vehicles or the Customer whose Vehicles have been sold; and
(ii) the expense of storing and selling the Vehicles.
(iii) If, after the sale of the Vehicles, the Customer whose Vehicles have been sold presents himself or herself to PVL to collect the Vehicles, PVL will, upon being provided with satisfactory proof of identity of the Customer, and the entitlement of the Customer to the Vehicles, pay the balance of the sale proceeds, if any, to that Customer.
8.5 Business Purposes: Where a Customer is using a Transport Service for business purposes, none of the rights or remedies provided under the Consumer Guarantees Act 1993 apply, pursuant to section 43 of that Act.
9. Default and Remedies
9.1 If the Customer defaults in payment or performance of any of its obligations under a Contract of Carriage or any other agreement with PVL or if the Customer shall before then become bankrupt or commit any act of bankruptcy or compound with its creditors, have judgement entered against it in any court or go into liquidation whether voluntary or otherwise or have a receiver or manager appointed to give a security over its stock or plant, or if information becomes known to PVL which in PVL’s opinion might materially affect the Customer’s creditworthiness, the value of the Vehicles or the Customer’s ability to comply with its obligations under these Conditions or any other agreement with PVL, then PVL:
(a) is irrevocably authorised by the Customer at any time thereafter to retain possession of and remove the Vehicles and to use the Customer’s name and to act on his/her behalf in exercising such rights without being liable in any way to the Customer;
(b) may require immediate payment of all amounts payable to PVL;
(c) may withhold delivery of Vehicles without notice; and
(d) may require cash payment for future services.
9.2 Carrier’s Lien: PVL reserves the right to withhold delivery of all Vehicles under a Contract of Carriage if the Customer is in default of any of its obligations under any Contract of Carriage with PVL. In any proceedings or actions relating to a default by the Customer, the Customer shall indemnify PVL upon demand for all claims by any third party for any losses resulting from PVL retaining possession of the Vehicles and for all costs and expenses incurred by PVL in connection with such proceedings or actions, including but not limited to solicitors costs and enforcement costs. In the event of any default in payment, the Customer will be liable to PVL for all costs of collection that are incurred by PVL including but not limited to costs incurred prior to any legal action, collection, agency costs, court costs, and solicitors costs and will pay these costs to PVL upon demand.
10.1 PVL is entitled at any time to assign to any other person, all or part of any debt owing by the Customer to the PVL.
11. Governing Law
11.1 Any Contract of Carriage shall be governed by and construed in accordance with New Zealand law.
11.2 Partial Invalidity: If any provision contained or referred to in these Conditions is in conflict with any statutes, regulations, rules, bylaws, ordinances, orders and all other requirements or conditions (“Other Law”) that apply to the provision of a Transport Service under these Conditions and that Other Law cannot be waived or avoided by these Conditions, then that provision only remains applicable to the extent that that provision is not in conflict with the Other Law. The invalidity of any provision of these Conditions does not have the effect of invalidating the whole or any other clause of these Conditions.
11.3 No waiver: Nothing in these Conditions represents a waiver or surrender by PVL of any statutory or other legal right, immunity, exception, limitation, protection, privilege or defence.