1. DEFINITIONS
1.1. In these Terms and Conditions of Carriage, unless the context otherwise requires:
a) “Act” means the Carriage of Goods
b) “Contract” has the meaning set out in clause 2.1.
c) “Carrier” OTS and includes any subsidiary or related company.
d) “Customer” means the person purchasing the Services
from the Carrier.
e) “Person” includes a corporation, association, firm,
company, partnership or individual.
f) “Price” means the price of the Services as agreed
between the Carrier and the Customer relating to a
contract.
g) “Services” means the transportation of Vehicles by the
h) Carrier for the Customer.
i) “Vehicle(s)” means any motor vehicle (whether operational or not) and/or related machinery and equipment being transported by the Carrier for a customer.
1.2. References to one gender include the other genders and references to the plural including the singular and vice versa.
1.3. A reference to “these terms” is a reference to these Terms and Conditions of Carriage.
2. CONTRACT
2.1. These Terms together with the Carrier ‘s confirmation of order (if any) and the provisions of a quotation (if any) shall constitute the Contract between the Carrier and the Customer for the sale and purchase of services.
2.2. No agent or representative of the Carrier is authorised to make any representations, warranties, conditions, or agreements not expressly confirmed by the Carrier in writing and the Carrier is not in any way bound by any such unauthorised statements nor can any such statements be taken to form part of the Contract or part of a contract with the Carrier collateral to the Contract.
3. PRICE – Right to Weigh Vehicles
3.1. The Carrier reserves the right to check the weight of any Vehicles being transported by the Carrier for a Customer. If on weighing it is found the actual weight of Vehicles is greater than the weight estimated by the parties when agreeing the Price applicable to a contract, the price shall be increased appropriately to reflect correct weight of the Vehicle(s).
3.2. If the Customer requests any changes or variations to a Contract for the supply of Services, the Carrier is entitled to adjust and, if necessary, increase the Price to reflect the cost of the variation(s).
3.3. All prices included in any price list or catalogue for standard Services provided by the Carrier, are subject to change from time to time and should be checked prior to placing an order.
4. TAXES
4.1. Unless expressly included in any quotation given by the Carrier, GST and any other taxes and duties relating to the supply of the Services to a Customer, are not included in the Price and shall be payable by the Customer in addition to the Price of the Services at the rate(s) prevailing at the date of performance of the Services.
5. PAYMENT
5.1. Where Services are supplied on credit, invoices are payable strictly on the 20th of the month following the date of an invoice.
5.2. Failure to pay an invoice by due date shall be a breach of the Customer’s obligations under these Terms and the Carrier may in respect of such invoice, without prejudice to any other rights or remedies it may have, charge as liquidated damages interest plus GST (if GST is applicable) at a rate equal to 2% above the overdraft rate charged to the Carrier by its bankers from time to time, such interest to accrue and be chargeable on a daily basis from the date payment was due until payment is made in full.
5.3. The Customer is not entitled to withhold payment or to make any deduction from or set off any amount against any sum payable to the Carrier, without the prior written consent of the Carrier.
5.4. Receipt by the Carrier of any cheque or other form of payment shall not be deemed to be payment or conditional payment until the same has been honoured and cleared, and until such time shall not prejudice or affect the Carrier’s rights, powers or remedies against the Customer or the Vehicles.
6. DELIVERY
6.1. Delivery of Vehicles shall be made by the Carrier to the address indicated in the Contract.
6.2. Where it is not possible for the Carrier to enter onto the Customer’s property to unload Vehicles (by reason, for example, of the width of the driveway or lack of space in which to turn) delivery is deemed complete if the Vehicles are unloaded and left at the entrance to the address shown in the Contract. Where it is possible for the Carrier to enter onto the Customer’s property, delivery is deemed complete when the Vehicles are unloaded onto the Customer’s property.
7. NOTIFICATION OF CLAIMS
7.1. The Carrier has no liability for partial loss or damage caused to a vehicle in the performance of the Services by the Carrier, unless the customer gives written notice of the claim to the Carrier in writing within [48] hours after delivery of the Vehicle has been completed.
8. CUSTOMERS RESPONSIBILITIES
8.1. The Customer must ensure that:
a) All information it provides to the Carrier in connection with the Services is correct.
b) Any Vehicles entrusted to the Carrier for transportation contain no illegal or dangerous substances or any items capable of causing injury to any person.
8.2. The Customer indemnifies the Carrier and the Carrier’s agents and employees from all costs claims fines and damages incurred or suffered by the Carrier and for any of its employees or agents by reason of the breach by the Customer of its obligations contained in clause 8.1.
9. LIABILITY
9.1. Each Contract for the provision of the Services is “at limited carrier’s risk” as that term is defined in section 15 of the Act. The Carrier’s liability to the Customer is limited to a maximum of $1,500 for the loss or damage to any Vehicles which it transports however that loss or damage arises, including as a result of negligence.
9.2. The Carrier has no liability to the Customer for loss or damage to the extent that the loss or damage:
a) results from an event outside the Carrier’s control; or
b) occurs after delivery; or
c) results from any act or omission by the Customer including a breach of any of the Customers’ obligations under these Terms.
9.3. The Carrier has no liability for:
a) any indirect or consequential loss or damage or for any loss of profit (or any other form of economic loss) arising in connection with the carrying out of the Services under a Contract;
b) any delay in delivery of any Vehicles unless the Carrier expressly agreed otherwise in writing; or
c) loss or damage to any salvaged Vehicles.
d) any consequential damage to a vehicle where the carrier has been requested to gain entry to the vehicle by the customer due to lost or missing keys.
9.4. The exclusion of the Carrier’s liability set out in clause 9.3 applies however the loss or damage arises, including, without limitation, as a result of negligence.
9.5. No action may be brought against the Carrier by a Customer after the expiration of 6 months from the date Vehicles are delivered.
10. LIEN – Storage and Disposal of Unclaimed Vehicles
10.1. The Carrier has the rights set out in Sections 23 and 24 of the Act to claim a lien over a Customer’s Vehicle and to dispose of unclaimed vehicles.
11. GENERAL
11.1. The Customer shall be responsible for all costs and/or expenses incurred by the Carrier in instructing a solicitor and/or debt collecting agency to recover any amount overdue for payment and such costs and expenses shall bear interest at the default penalty rate then being charged by the Carrier pursuant to clause 5.2 above from the date upon which they are paid or incurred by the Carrier to and including the date upon which the Carrier shall pay or reimburse the Carrier.
11.2. No waiver of any breach or failure to enforce any provision of these terms by the Carrier shall in any way affect, limit or waive the Carrier’s rights subsequently to enforce these terms.
11.3. The Customer may not assign any of its rights or obligations under these terms without the prior written consent of the Carrier, which consent may be withheld at the Carrier’s sole discretion.
11.4. Should any of these terms become void or inoperative by operation of law, the remaining terms shall remain unaffected and valid.
11.5. If there is any inconsistency between these terms and any order submitted by the Customer (whether in writing, verbally or by electronic data exchange) or any other arrangement between the parties, there terms shall prevail unless otherwise agreed in writing by the parties.
11.6. If, due to any circumstance beyond its reasonable control, the Carrier is unable, either wholly or partly, to carry out any obligations under these terms, that obligation shall be suspended, so far as it is affected by and during the continuance of that circumstance. The provisions of sections 18 and 19 of the Act do not apply to Contracts between the Carrier and the Customer for provision of the services.