FLIWAY TRANSPORT LTD & SUBSIDIARIES - TERMS AND CONDITIONS
1. Price Estimates - All price estimates are based on prices ruling at the time for freight services and disbursements. All price estimates will be exclusive of GST and are valid for 30 days except where the written consent of Fliway is obtained. Price estimates are subject to change should the requirements of the service differ to our understanding when preparing such estimate.
2. Requests for Refunds - Should there be a request for a refund or a dispute this request must be lodged in writing addressed to our Credit Control Department within 2 months of invoice date. Disputes or refund requests received outside this period will not be considered.
3. Cancellation - All freight services ordered shall be charged and payable and will not be credited without the consent of Fliway provided that such consent may not be unreasonably withheld. If consent to a refund is given, then the refund will exclude any costs incurred by Fliway as a result of the cancellation.
4. Lien - All Goods (and documents relating to Goods) shall, immediately they come into possession of Fliway, be subject to a particular and general lien and right of detention for all moneys due to Fliway by the Customer or the consignee, consignor or owner, whether in respect of such Goods or otherwise. If any moneys due to Fliway 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 Fliway and at the expense of such person, and the net proceeds applied in or towards satisfaction of any such debt. Any such sale shall not prejudice the right to recover any balance due or payable in respect of the services provided hereunder or the cost of the said detention and sale. If Fliway reasonably believes any Goods are unsalable, Fliway may dispose of them as it sees fit.
5. Privacy Act 1993- This contract is the only document of interpretation.
5.1 The Customer authorises Fliway to:
(a) Collect, retain and use any information about the Customer for the purpose of assessing the Customers creditworthiness or marketing products or services to the Customer; and
(b) Disclose information about the Customer, whether collected by Fliway from the Customer directly or obtained by Fliway from any other source, to any other credit reporting agency for the purpose or obtaining a credit reference, debt collection or notifying a default by the Customer.
5.2 Where the Customer is an individual the authorities under (clause 5.1) are authorities or consents for the purpose of the Privacy Act 1993.
5.3 The Customer shall have the right to request from Fliway a copy of the information about the Customer retained by Fliway and the right to request Fliway to correct any incorrect information about the Customer held by Fliway.
5.4 The obligations of Fliway in this clause do not extend to information which:
i. Was rightfully in the possession of Fliway prior to the earliest agreement between Fliway and the Customer;
ii. Was already public knowledge, or becomes so after execution of this contract (otherwise than as a result of a breach of this contract); or
iii. Is required by law to be disclosed where failure to disclose would constitute a breach of the law; in these circumstances only the minimum information necessary to comply with the law must be disclosed.
6. Severability – In the event that any provision of the agreement is held to be invalid or unenforceable, the remaining provisions of this agreement remain in full force.
7. Parties - This contract is made between the Customer and Fliway. All business undertaken by Fliway, including the provision of any advice, information or other services, is undertaken upon and subject to these conditions. This agreement constitutes the entire understanding of the parties in regards to the provision of services and supersedes all prior agreements and understandings, whether written or oral between the parties. The terms and conditions herein may not be altered, supplemented or amended by the use of any additional documents(s) that purport to be an agreement of the parties. Any attempt to amend these terms and conditions or to enter an order for service(s) which is subject to additional or altered terms and conditions shall be null and void.
8. Variation of Terms – Fliway reserve the right, in our sole discretion, to change these Terms and Conditions from time to time. The Customer agrees that we may notify you of the updated terms by posting them on Fliway’s website www.fliway.com and that use of our service after the effective date of the updated terms constitutes the Customers agreement to the updated terms.
9. Compliance with Law - The goods shall comply with the requirements of any applicable law relating to the nature, labelling and packaging and carriage of goods, and the expenses and charges of the Carrier in complying with the provisions of any such law or with any order or requirement there under or with the requirement of any harbour, dock, railway, shipping, customs, warehouse or other authority or company, or the expenses, charges, levies or fines arising out of the breach of any applicable law, shall be paid by the Customer.
10. Paramount Clause: Consumer Guarantees Act 1993 - Where the Customer is a business (as defined by the Consumer Guarantees Act 1993), it agrees that it is acquiring the Company’s services for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply. Where the provisions of the Consumer Guarantees Act 1993 apply, the provisions of this Agreement will be read subject to the application of that Act, and in the case of any conflict, the provisions of that Act will apply.
11. Hazardous Products
(a) The Customer warrants to Fliway that none of the Products carried or stored are or will be Hazardous Products.
(b) The Customer shall not tender any potentially Hazardous Products for carriage or storage without presenting a full description of the goods to Fliway along with supporting documentation that complies with all current New Zealand laws.
(c) If any of the Products are, notwithstanding the warranty in clause 11(a), Hazardous Products, the Customer will indemnify Fliway against Loss, damage, disability or costs it sustains or incurs as a result of those Products being Hazardous Products.
12. Force Majeure - Fliway is not liable for any delay or reduction in providing the goods or services (or inability to provide the goods or services) caused by any Force Majeure Event. Fliway may alter rates in order to perform services due to a Force Majeure Event. In this clause, a Force Majeure Event means an event or circumstance beyond Fliway’s reasonable control, including fire, floods, storms, tempest, earthquake or other act of God, any act of a public enemy, war, riot, terrorism, acts of civil or military authority, any act of a person engaged in subversive activity or sabotage, epidemics or quarantine restrictions, failure or defect of electrical power or telecommunications connections or services, prohibition or restrictions on the import or export of goods or services, industrial and labour disputes or stoppages or any act or omission (including laws, regulations, disapprovals or failures to approve) of any governmental agency.
13. Contract and Commercial Law Act 2017 - Subject to the provisions of the Act, Sections 284-292 shall apply to the contract only to the extent that they extend or enlarge the Carrier’s rights and powers in terms of these conditions. Sections 281 and 283 shall not apply to the contract. Sections 274-280 are modified by clause 14 of these conditions and shall, in relation to any matter arising out of the provisions of those sections; otherwise have effect subject to the express terms contained in these conditions.
14. Liability of the Carrier
(a) The goods are deemed to be carried “at limited carrier’s risk”.
(b) Fliway has no liability to the Customer for any loss or damage to the extent that the loss or damage:
i. Results from any event outside of Fliway’s control
ii. Occurs after delivery of the relevant goods; or
iii. Results from any act or omission by the Customer, including a breach of any of the Customers obligations under these terms
(c) Fliway is not liable (whether in contract, tort – including negligence, or otherwise) for:
i. Any amount exceeding the lesser of proven damage / loss or the sum provided in Section 259(2) of the Contract and Commercial Law Act.
ii. Any loss of profits or loss of opportunity or any indirect or consequential loss or damage of any kind including, without limitation, any loss or damage of the kinds referred to in section 259(3)(b) and (c) of the Contract and Commercial Law Act.
iii. Second-hand equipment of any kind, and glass.
iv. Any items mentioned in clause 22.
15. Notification of Claims and Limitation of Actions - The Carrier shall be under no liability whatsoever unless:
(a) Written notice of any claim giving reasonable particulars of the event giving rise to the claim, and any alleged damage or loss, is received by the Carrier within 7 days after delivery to the delivery address on the consignment note or, in the case of non-delivery, within 14 days after the date of despatch; and
(b) An action shall have been commenced by the Customer in a Court of competent jurisdiction within six months of delivery or, in the case of non-delivery, within six months and fourteen days of the date of dispatch.
Immediately following your written notice referred to in (a) above, you will receive an acknowledgement of the claim and a request to provide various documents and other information necessary to process your claim; including a tax invoice and returning the product to Fliway. Failure to provide evidence of value within 3 months of request date will negate the claim. Please be aware we have a duty both to our insurance company and to our own internal quality and loss prevention procedures to investigate how any one claim has occurred. We will do our best to process this claim within 4 weeks of receiving the information requested above. At no time may payment be withheld or reversed pending the outcome of a claim.
16. Subcontractors - All or part of any work accepted by Fliway may be fulfilled by Fliway engaging or entrusting the Customer’s goods to its authorised subcontractors on such terms agreed between Fliway and its subcontractors. The Customer agrees that all work may be performed on behalf of Fliway by any such subcontractor. In carrying out the work on behalf of Fliway, the Customer acknowledges that the subcontractor has the right to rely on the benefit of these conditions.
17. Protection of Servants and Agents - The Customer undertakes that no claim or allegation shall be made against any servant or agent of the Carrier 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 Carrier and any such servant or agent against all consequences thereof.
18. Ownership of Goods - The Customer expressly warrants to the Carrier that it is the owner or the authorised agent of the owner 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.
19. Delivery - The goods shall be deemed to have been delivered when they are delivered to the delivery address specified on the consignment note. In the event that the customer refuses to accept delivery through no fault of Fliway, delivery will be deemed to be effected and the customer will be responsible for payment for freight and storage costs until the items can be delivered. Fliway reserves the right to refuse delivery where their employee or agent deems it unsafe, and the customer will be responsible for payment for freight and storage costs until the items can be delivered.
20. Insurance - Insurance of the goods is the responsibility of the Customer.
21. Weight and Measurement – Fliway has the right to check the weight and measurement of the Customers freight at any time and alter any consignment note accordingly. The cost of carrying out the check may be charged to the customer if the weight and measurement of the freight, as determined by the check, exceeds the declared weight or measurement of the freight. All packaging, pallets and other such items in which freight is packaged or stored are deemed to form part of the freight for the purposes of assessing the weight and measurement of the freight.
22. Exclusion of Certain Items - Pursuant to Section 293(1) of the Contract and Commercial Law Act, unless the Carrier otherwise agrees in writing, the Carrier will not accept or deal with any:
(a) Bullion, cash, negotiable instruments, precious stones, jewellery, antiques, paintings, passports, or other valuables; or
(b) Noxious, dangerous inflammable/perishable goods, firearms or any goods likely to cause damage or which it is unlawful to carry; or
(c) Freight that is not packaged adequately for transit. (e.g. glass)
The Customer expressly warrants and agrees that it will not give any such goods to the Carrier. If the Customer delivers such goods as contained in clause 22(b) to, or causes such goods to be handled or dealt with by, the Carrier or any subcontractor or agent of the Carrier, the Customer shall be liable for all loss, damage or deterioration whatsoever caused by, to or in connection with any other consignment, and shall indemnify the Carrier and any subcontractors and agents of the Carrier against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith, and the goods may be destroyed or otherwise dealt with at the sole discretion of the Carrier and any subcontractor and agent of the Carrier or any other person in whose custody they may be, at the expense of the Customer, without the Carrier and the subcontractor, agent or such other person being responsible or accountable for the value thereof.
23. Packaging Valuable Items - It is recommended that any art pieces over 1m long are crated. Bubble wrap alone is not substantial enough for artwork. Bubble wrap, covered with card, and any corners capped may be appropriate for specific items. If the packaging of a piece is below standard, Fliway reserves the right not to accept the item in its current state, or, to undertake and charge on the costs of organising appropriate packaging. Insurance of the goods is the responsibility of the Customer.
24. Indemnity - Should any loss consequential or otherwise be sustained by the Carrier or its subcontractors or agents, the Customer hereby indemnifies the Carrier and its subcontractors and agents against all such losses and claims of whatsoever nature that may be so incurred.
25. Residential Deliveries - When doing residential deliveries, Fliway is responsible for products until they are delivered through the front entrance of the property (provided they fit through this entrance unhindered). No liability will be accepted for damage to furniture or property in any other circumstances. Fliway will make additional charges for or refuse to deliver products to upper levels, over balconies or through windows. If no prior advice is given to Fliway relating to deliveries of this nature, products may be returned to the point of collection and a charge made as if this delivery was made.
26. Exclusion of implied warranties
Except for such guarantees as cannot be excluded by virtue of the Consumer Guarantees Act 1993 (“Act”), all warranties, descriptions, representations or conditions whether implied by law, trade custom or otherwise, are expressly excluded to the fullest extent permitted by law. The guarantees implied by the Act are expressly excluded where the Customer is acquiring goods or services for the purposes of a business.