SCALES LOGISTICS LIMITED Including BALANCE CARGO
TERMS OF TRADE
1 TERMS OF CONTRACT
1.1 These terms and conditions shall apply to all Services carried out or arranged by Scales (whether as principal or agent) and, except to the extent expressly agreed otherwise, shall be deemed to be incorporated in any agreement between Scales and the Customer in respect of any Services.
1.2 Where a “bill of lading” or “waybill” is issued by or on behalf of Scales and provides that Scales contracts as Carrier, the provisions of such document shall prevail to the extent of any inconsistency with these terms and conditions.
1.3 Scales is not a common carrier and may at any time at Scales’ sole discretion:
(a) refuse to accept any Goods for any Service; and/or
(b) open and inspect any Goods.
2 AGENCY AND AUTHORITY FOR CARRIAGE
2.1 In providing Carriage, Scales acts as an agent only and not as Carrier, except to the extent that Scales directly performs any aspect of Carriage.
2.2 The Customer acknowledges that Scales does not assume a role as Carrier by giving a quote, estimate, or invoice for Charges. The difference between the Charges and the amounts payable to Third Party Carriers represents Scales’ agency fee.
2.3 The Customer appoints Scales as its agent and authorises Scales to act on the Customer’s behalf to arrange the relevant contracts for Carriage and take other steps to carry out the Customer’s Instructions by any route, means and Carrier and at any place for any length of time and on such terms as Scales, in its absolute discretion sees fit. The Customer agrees to ratify and confirm such contracts and steps if Scales requires.
2.4 The Customer authorises Scales to depart from the Customer’s Instructions in any respect if, in Scales’ absolute discretion, Scales considers it reasonable or necessary to do so.
2.5 A contract arranged by Scales with a Third Party Carrier will be:
(a) subject to the terms, conditions, stipulations and limitations of that Third Party Carrier; and
(b) a direct contract between the Customer and that Third Party Carrier so that the Customer and Third Party Carrier are legally bound by the terms of that contract, whether or not the Customer is identified in the contract.
2.6 Scales may in its sole discretion and in its capacity as agent for the Customer, assist the Customer at the Customer’s cost to resolve any issue that may arise with a Carrier (including, without limitation, the loss of Goods or Goods delivered to the incorrect location). The Customer acknowledges that in providing such assistance, Scales does not accept any liability whatsoever and the provisions of clause 12 apply.
3.1 Scales may change the premises from which it provides Storage at any time.
3.2 Scales gives no warranty or undertaking of any kind in relation to any of the following matters:
(a) the method of stacking, or the height or size of any of the stacks;
(b) the use of dunnage in the creation of any stacks;
(c) the distance of the Customer’s Goods from any ceilings, walls or doors of the relevant premises;
(d) the segregation of the Customer’s Goods from any other goods.
3.3 Scales can:
(a) carry, store, handle, remove, assemble, erect, pack, unpack, load, unload or consolidate the Goods with others;
(b) do anything appropriate including selling, disposing of or destroying Goods if the Goods appear to be deteriorating and are likely to become offensive; or if they in or are about to enter a dangerous state and such action is necessary to avoid the threat of harm to persons or property;
(c) subcontract the whole or any part of the Storage; and
(d) complete any documents required to comply with any laws.
4 CUSTOMER RESPONSIBILITY
4.1 The Customer warrants that:
(a) it has the full and exclusive legal title in the Goods or is the authorised agent of the person or persons with such title;
(b) the Goods are fit and safe to be carried, stored or handled in the condition and packaging in which they are tendered for the Services and will not directly or indirectly soil, contaminate or otherwise harm or reduce the value of other property;
(c) it is competent and has all necessary knowledge of the matters affecting the conduct of its business insofar as relevant to the Services, including its contractual and other obligations and the need for insurance;
(d) all information it has given Scales about the nature and character of the Goods is accurate and complete at the time the Goods were received by Scales or the relevant Third Party Carrier;
(e) it has complied with all instructions or directions issued by Scales and all applicable laws and obligations and obtained all necessary authorisations in relation to the provision by Scales of the Services.
4.2 Subject to these terms and conditions the Goods are and remain at all times at the Customer’s risk and are and remain at all times the Customer’s property.
4.3 If the Customer wishes to insure the Goods, it is the Customer’s sole responsibility to arrange that insurance.
4.4 The Customer will provide such information and documentation as Scales may request in respect of the Goods or as may be necessary to carry out the Customer’s Instructions in compliance with all applicable laws.
4.5 Scales is entitled to rely on, and is not responsible for verifying, the accuracy and completeness of any information received from the Customer (including, without limitation, the verified gross mass of the Goods or where information is received in electronic format which appears to have originated from or on behalf of the Customer, any of the Customer’s employees, agent, contractors, or other persons acting under the apparent authority of the Customer or any governmental or regulatory authority).
5 DANGEROUS GOODS
5.1 The Customer undertakes not to tender any Dangerous Goods or Goods that otherwise require any special care for Services without obtaining prior written agreement in writing from Scales. In any event, Scales may destroy or otherwise deal with such Goods if, in its sole discretion in all the circumstances, Scales considers it necessary or prudent to do so.
5.2 Where Scales has agreed to provide Services in relation to Dangerous Goods, the Customer undertakes to ensure those Goods are marked and packaged in accordance with all laws and regulations (and Scales’ directions and instructions).
5.3 Any Dangerous Goods or Goods that otherwise require any special care are Carried at “Owners’ Risk” for the purposes of the CCLA, or, where the CCLA does not apply, on the basis set out in clause 12.1.
Without limiting any other provisions in the Agreement, the Customer will on demand indemnify Scales against all loss or liability including all duties, taxes, penalties, fines, payments, claims, demands, costs (including full legal costs) and expenses and other liabilities or losses of whatever kind including any liability to indemnify any other person, which arises in connection with the performance of the Services or the implementation of the Customer’s Instructions, whether or not arising out of the negligence of Scales, any Third Party Carrier or their respective employees, agents or contractors.
7 VARIATION AND CANCELLATION OF BOOKING
7.1 After a Customer accepts a Quotation, any variation (including cancellation) to a booking made in connection with that Quotation must be agreed by Scales in writing. If Scales consents to a cancellation, all Charges for Services due up to the date of consent are payable immediately.
7.2 The Customer will be responsible for paying any cancellation fee charged by a Third Party Carrier for cancelling or changing a booking.
8.1 Our charges for the Services are set out in the Quotation. A Quotation may be withdrawn, without notice, at any time before it is accepted or is otherwise valid for 30 days (or such other period specified in the Quotation or otherwise agreed in writing) and is binding on Scales only as to its agency fee and Storage fees. Third party charges (including Third Party Carrier charges and disbursements and expenses referred to in clause 8.5) are estimated only and may be revised at any time.
8.2 Despite clause 8.1 above, we may vary our quoted charges:
(a) in the circumstances (if any) set out in the Quotation;
(b) where the Charges are fixed by weight, measurements or value, Scales may at any time arrange for Goods to be re-weighed, re-measured or re-valued and may re-fix Scales’ Charges accordingly;
(c) if Scales agrees to any variation to the Services or the Services are performed outside of standard operating procedure including, without limitation, under urgency or outside of usual hours of work.
8.3 Unless otherwise agreed in writing, our charges are exclusive of GST, which will be charged to the Customer at the prevailing rate (where applicable).
8.4 In relation to Carriage, Scales’ Charges are deemed to be fully earned when the Customer tenders the Goods for Carriage. The Customer will pay Scales’ Charges on a non-refundable basis, irrespective of whether the Goods are delivered.
8.5 Scales may at its sole discretion pay, and the Customer will on demand reimburse Scales for, any duties, taxes or other charges, costs or disbursements paid, or any expenses incurred, by Scales in connection with the performance for the Services.
8.6 Notwithstanding clause 8.5, Scales is not required to incur or pay any costs, expenses or charges to a third party unless the Customer has put Scales in sufficient funds to meet such amounts in advance of the relevant requirement arising.
9.1 The basis of invoicing is set out in the Quotation and/or Credit Application (unless agreed otherwise in writing).
9.2 Unless otherwise agreed in writing, invoices must be paid in full, without deduction or set off, by the due date on the relevant invoice. Payment is made only when funds have fully cleared through the bank’s system into Scales’ bank account.
9.3 If full payment is not made by the due date, then without prejudice to any other rights or remedies Scales may have, Scales may:
(a) cancel or suspend all or any part of the Services;
(b) charge interest on overdue monies on a daily basis at 5% per annum above the current overdraft rate charged by Scales’ bankers at that time, and interest shall continue to accrue both before and after judgment.
9.4 The Customer will be responsible for all costs (including legal costs on a solicitor/client basis) incurred by Scales in recovering such monies.
9.5 Scales may accept and apply payments from the Customer in respect of any indebtedness, and Scales will not be bound by any conditions or qualifications attaching to the payments.
10 RIGHT OF DETENTION AND LIEN
10.1 Where the Services are subject to a common law or statutory lien, that lien shall take precedence over the provisions of clause 10.2, which shall have no effect.
10.2 Subject to clause 10.1, Scales will have the right of detention and a first and paramount particular and general lien on the Goods, any documents relating to the Goods and any other property of the Customer in the possession or control of Scales, any Third Party Carrier or any contractor or agent of Scales at any time for all sums due and payable to Scales by the Customer (whether or not such sums are overdue or relate to the Goods, documents or property over which the lien is exercised).
10.3 If the Customer does not pay, in full, any amounts owing to Scales on or before the due date, or if the Customer fails to collect its Goods when the Customer is required to do so, Scales may exercise all or any of the following rights and remedies without liability or notice to the Customer:
(a) remove such Goods or part thereof and store them in such place and manner as Scales considers proper and at the Customer’s risk and expense;
(b) dispose or sell the Goods, either at one time or from time to time, individually or in such lots as Scales considers fit, by private sale or public auction and on such terms and conditions and at such price(s) as Scales’ think fit; and
(c) apply the proceeds of sale of the Customer’s Goods towards the satisfaction of all debts and liabilities owed by the Customer to Scales (including under clause 10.4).
10.4 The Customer shall be liable for and shall indemnify Scales against, all costs and expenses (whether direct or indirect) of removal, storage, sale or attempted sale of the Customer’s Goods under clause 10.3 above. Storage charges at Scales’ prevailing rates will continue to accrue to the Customer’s account for so long as the Goods are held and stored pursuant to Scales’ rights under this clause 10.
11 SECURITY INTEREST
11.1 The Customer acknowledges that the lien in clause 10.2 above is a security interest for the purposes of the PPSA.
11.2 The Customer undertakes to:
(a) do all acts and provide Scales on request all information it requires to register a financing statement or financing change statement on the Personal Property Securities Register; and
(b) advise Scales immediately in writing of any proposed change in the Customer’s name or other details on the Personal Property Securities Register.
11.3 The Customer:
(a) waives the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interests created under these terms and conditions;
(b) agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions and, with Scales’ agreement, contract out of such sections; and
(c) waive the Customer’s rights and, with Scales’ agreement, contract out of your rights under sections 116, 120(2), 121, 125, 129 and 131 of the PPSA.
11.4 Unless the context otherwise requires, the terms and expressions used in this clause 11 have the meanings given to them in, or by virtue of, the PPSA.
12 WARRANTY AND LIABILITY
12.1 Subject to clause 12.5, Scales will have no liability whatsoever to the Customer or any other person for any loss or liability including all duties, taxes, penalties, fines, payments, claims, demands, costs (including full legal costs) and expenses and other liabilities or losses of whatever kind (including any liability to indemnify any other person), howsoever caused or arising and whether or not there has been negligence or breach of contract on the part of Scales, any Third Party Carrier or their respective employees, agents or contractors.
12.2 In relation to any aspect of Carriage where Scales is a Carrier and the Carriage is subject to the CCLA the contract between Scales and the Customer is at “limited carrier’s risk” as set out in the CCLA.
12.3 If for any reason, despite clause 12.1, Scales has any liability to the Customer otherwise than as a Carrier under the CCLA, subject to any mandatorily applicable statute or convention of law, the maximum amount of Scales’ liability shall be limited to the lesser of:
(a) the value of the Goods at the time the Goods were received by Scales;
(b) the cost of repairing or replacing the Goods (or acquiring equivalent Goods);
(c) Scales’ agency fee for providing the relevant Services; and
(d) $250 per consignment of Goods.
12.4 Where Scales is providing Storage or otherwise providing Services as principal, the Company shall only be liable for physical loss or damage to the Goods which occurs while the Goods are under Scales’ control under these terms (from the time Scales receives and accepts the Goods for Storage under these terms to the time the Goods are tendered to the Customer at the relevant delivery point). All other liability (whether arising in contract, tort (including negligence), statute or otherwise) to the Customer or any other person is excluded to the maximum extent permitted by applicable law.
12.5 Subject to clause 12.2, if Scales provides Storage as principal (being where Scales is physically in possession of the Goods) then it shall only be liable for loss or damage caused by Scales’ negligence and, subject to any mandatorily applicable statute or convention of law, the maximum amount of Scales’ liability shall be limited to the lesser of:
(a) $2,000 per Unit; and
(b) the amount charged by Scales for providing Storage.
12.6 Scales is not liable for any delay, loss of profits, revenue, anticipated savings, goodwill or other economic loss or for any consequential or indirect loss, any loss incurred by a third party or any loss arising from any act or omission by or on behalf of the Customer (including any breach of this Agreement).
12.7 The Customer must take all reasonable steps to avoid or mitigate any loss that might give rise to any claim under this Agreement, including by fully exercising any liability limitation or exclusion to which the Customer is entitled by contract or applicable law (including any convention) against any third party. Scales will not be liable for any loss that could have been avoided by the Customer.
12.8 Any claim against Scales is deemed to have been waived unless Scales received written notice of the claim, including full particulars of the events giving rise to the claim and any alleged loss, within 14 days of (as applicable):
(a) the date of delivery of the Goods;
(b) the date Scales tendered the Goods to the Customer; or
(c) in the case of non-delivery, the date on which the Goods should have been delivered,
whichever is earlier.
12.9 In any event, Scales will be discharged of any liability whatsoever unless the Customer issues proceedings in a court of competent jurisdiction within 6 months of the date on which notice of the claim was required under clause 10.6. Section 278 of the CCLA is expressly excluded.
12.10 Where the Customer is acquiring the Services in trade, the parties agree that the provisions of the Consumer Guarantees Act 1993 do not apply.
13 FORCE MAJEURE
Scales is not liable for delay in performing or failure to perform its obligations under the Agreement if that delay or failure results from anything beyond Scales’ reasonable control. Any such delay or failure will not be a breach of the Agreement and the time for performance of Scales’ obligations will be extended by a period equal to that during which performance is prevented.
14 BROKERAGES AND REMUNERTAION
14.1 The Customer acknowledges that Scales may have a pecuniary interest in any contract entered into by Scales pursuant to the Agreement.
14.2 The Customer expressly consents to the receipt and retention by Scales of any brokerage, commission, discount, rebate, bonus, deduction, allowance and other remuneration. Scales is not bound to disclose or account to the Customer the nature or amount of any such remuneration received or receivable by Scales.
15 GENERAL TERMS
15.1 Amendments: Scales may amend these terms and conditions from time to time by amending the form of the terms and conditions posted on Scales’ website. The amended terms and conditions will apply from the time they are published on the website.
15.2 Waiver: No delay or failure by Scales to exercise its rights under these terms and conditions operates as a waiver of those rights. A partial exercise of those rights does not prevent their further exercise in the future.
15.3 Entire agreement: This Agreement is the entire agreement between the parties on the provision of Services and replaces all earlier negotiations, representations, warranties, understandings and agreements (including any Customer terms and conditions), whether oral or written, between the parties relating to the Services.
15.4 Severability: If a court decides that part of these Terms is unenforceable, the part concerned shall be deleted from the rest of these terms and conditions, which will then continue in force.
15.5 Law: These terms and conditions will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters.
16 DEFINED TERMS AND INTERPRETATION
16.1 In these terms, the following words have the following special meanings:
“Agreement” means the agreement between Scales and the Customer for the provision of Services, comprising these terms and conditions, a Quotation, any “bill of lading” or “waybill” issued by or on behalf of Scales as Carrier and any agreement between Scales and the Customer which incorporates these terms and conditions
“Carriage” means carriage of Goods and any incidental services, including any packaging, storage, trans-shipment, customs clearance, unloading, handling and delivery and other services in connection with the implementation of the Customer’s Instructions;
“Carrier” means a person who undertakes an aspect of Carriage;
“CCLA” means Part 5, Subpart 1 of the Contract and Commercial Law Act 2017 (dealing in the carriage of goods);
“Charges” means the amount to be paid by the Customer to Scales for the Services, and includes Scales’ agency fees and any amounts payable by any Third Party Carrier;
“Credit Application” means an application for credit accepted by Scales on the terms set out on the application and this Agreement;
“Customer” means the person at whose request or on whose behalf any Services are performed, and also includes any successors and assigns of that person;
“Customer’s Instructions” means the instructions or series of instructions given by or on behalf of the Customer to Scales with respect to the Goods;
“Dangerous Goods” means Goods that:
(a) are or may become explosive, flammable, poisonous, corrosive, acidic, radioactive or infectious;
(b) are highly magnetic, polymerisable or otherwise unsuitable for carriage;
(c) harbour or are likely to harbour or encourage vermin, borer or other pests;
(d) may cause damage or injury to any property or persons; or
(e) are considered to be dangerous or hazardous by any applicable law, convention or regulatory authority;
“Goods” means each individual consignment of goods accepted by Scales under this Agreement, and includes any containers, pallets and other packaging other than that supplied by or on behalf of Scales;
“PPSA” means the Personal Property Securities Act 1999;
“Quotation” means a quotation for the supply of the Services;
“Scales” means Scales Logistics Limited including Balance Cargo, and any of its related companies (as defined in the Companies Act 1993) from time to time;
“Services” means Carriage, Storage and all of other operations, activities and services undertaken by or on behalf of Scales in respect of the Customer’s Instructions;
“Storage” means the storage of Goods by Scales as principal rather than agent;
“Third Party Carrier” means any third party Carrier who is engaged by Scales on behalf of the Customer for the purpose of the Customer’s Instructions; and
“Unit” has the definition contained in section 247 CCLA provided that “Unit” shall also always include the relevant container, pallet or other packaging.