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Terms Of Trade (Page 1 of 3)



PART I: General Conditions
 
1. Application
 
1.1 Subject to Clause 1.2, all Services of the Company whether gratuitous or not are undertaken subject to these terms and conditions and not otherwise and:
(a) the provisions of Part I shall apply to all such Services.
(b) the provisions of Part II shall only apply to the extent that such Services are provided by the Company as agents.
(c) the provisions of Part III shall only apply to the extent that such Services are provided by the Company as principals.
 
1.2 Where a document is issued by or on behalf of the Company and bears the title of, or includes the words, "bill of lading" (whether or not negotiable), or sea or air “waybill” and provides that the Company contracts as carrier, the provisions set out in that document, if inconsistent with these Conditions, shall be paramount and prevail over these Conditions to the extent that such provisions are inconsistent but no further.
 
1.3 Any variation, cancellation or waiver of these terms and conditions (or any of them) must be in writing signed by a Director of the Company. No other person has or will be given any authority whatsoever to agree to any variation, cancellation or waiver of these terms and conditions.
 
1.4 The terms and conditions set out herein shall prevail over the terms and conditions set out in any document used by the Customer, the Owner or any other person having an interest in the Goods and purporting to have a contractual effect.
 
1.5 The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
 
2. Provision of Services
 
2.1 All Services are provided by the Company as agents only, except in the following circumstances where the Company acts as principal:
 
(a) where the Company performs any carriage, handling or storage of Goods, but only to the extent that the carriage is performed by the Company itself or its servants and the Goods are in the actual custody and control of the Company; or
(b) where, prior to the commencement of the carriage of Goods, the Customer in writing demands from the Company particulars of the identity, Services or charges of persons instructed by the Company to perform part or all of the carriage, and the Company fails to give the particulars demanded within 28 days. However, for the purposes of this sub clause, the Company shall only be deemed to be contracting as a principal in respect of that part of the carriage which the Company fails to give the particulars demanded; or
(c) to the extent that the Company expressly agrees in writing to act as a principal; or
(d) to the extent that the Company is held by a court of law to have acted as a principal.
 
2.2 Without prejudice to the generality of clause 2.1.
(a) the charging by the Company of a fixed price for any Services whatsoever shall not in itself determine or be evidence that the Company is acting as an agent or a principal in respect of those Services.
(b) the supplying by the Company of its own or leased equipment shall not in itself determine or be evidence that the Company is acting as agent or a principal in respect of any carriage, handling or storage of Goods;
(c) the Company acts as an agent where the Company procures a bill of lading, sea or air waybill or other document evidencing a contract of carriage between a person, other than the Company, and the Customer or Owner;
(d) the Company acts as an agent and never as a principal when providing Services as a Customs Broker in respect of or relating to customs requirements, taxes, licenses, consular documents, certificates of origin, inspection, certificates and other similar Services or when obtaining insurances for or on behalf of the Customer or relating to the Goods (other than where by law the Company is deemed to be an agent of the insurer) or when providing any other Services whatsoever for or on behalf of the Customer.
 
2.3 The Company is not a common carrier and will accept no liability as such and it reserves the right to accept or refuse the carriage of any Goods or any other Service at its discretion. All Services are performed subject only to these Conditions (and when applicable but subject to clause 21.6, the conditions on any Bill of Lading or Air Waybill issued by the Company as Principal).


3. Definitions
 
3.1 In these conditions:
(a) Company shall mean Champion Freight (NZ) Limited.
(b) “Customer” means any person at whose request or on whose behalf the Company provides a service.
(c) “Person” includes persons or any body or bodies corporate.
(d) “Owner” includes the owner, shipper and consignee of the Goods and any other person who is or may become interested in the Goods and anyone acting on their behalf.
(e) “Authority” means a duly constituted legal or administrative person, acting within its legal powers and exercising jurisdiction within any nation, state, municipality, port or airport.
(f) “Goods” includes the cargo and any container not supplied by or on behalf of the Company, in respect of which the Company provides a service.
(g) “Container” includes any Container, flexi tank, trailer, transportable tank, flat, pallet or any article of transport used to carry or consolidate goods and any equipment of or connected thereto.
(h) “Dangerous Goods” includes goods which are or may become of a dangerous, inflammable, radio-active or damaging nature and goods likely to harbour or encourage vermin or other pests.
(i) “Hague-Visby-Rules” means the provisions of the International Convention for the unification of certain rules relating to bills of lading signed at Brussels on 25th August 1924 as amended by the Visby Protocol of 23rd February 1968 and the SDR Protocol of 21st December 1979.
(j) “Incidental Matters” means anything done or to be done in relation to the Goods or the provision of any Services ancillary to the Goods including but not limited to moving, storing or leaving the Goods at any warehouse, terminal, yard, wharf or other place or area, loading or unloading the Goods from any vehicle, vessel or other conveyance, stowing or packing the Goods or fumigating, trans-shipping, inspecting or otherwise handling the Goods or anything done in relation thereto.
(k) “Instructions” means a statement of the Customer’s specific requirements.
(l) “Services” means the whole of the Services provided by the Company to the Customer and all matters necessarily related to the provision of the Services or ancillary to the provision of the Services.
(m) “Montreal Convention” means the Montreal Convention 1999 as applied respectively by the legislation of the Commonwealth of Australia and of New Zealand.
(n) “Guarantor” means that Person (or Persons), who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
 
4. Obligations of Customer
 
4.1 The Customer warrants that it is either the Owner or the authorized agent of the Owner of the Goods and that it is authorized to accept and accepts these Conditions, not only for itself, but also as agent for and on behalf of the Owner
 
4.2 The Customer warrants that it has reasonable knowledge of matters affecting the conduct of its business, including, but not limited to, the terms of sale and purchase of the Goods and all other matters relating thereto.
 
4.3 The Customer shall give sufficient and executable instructions.
 
4.4 The Customer warrants that the description and particulars of the Goods are complete and correct.
 
4.5 The Customer warrants that the Goods are properly packed and labelled, except where the Company has accepted instructions in respect of packaging and/or labelling.


5. Special Instructions, Goods and Services
 
5.1 Unless agreed in writing, the Customer shall not deliver to the Company, or cause the Company to deal with or handle, Dangerous Goods.
 
5.2 If the Customer is in breach of Clause 5.1:
(a) the Customer shall be liable for all loss or damage whatsoever caused by or to or in connection with the Goods howsoever arising;
(b) the Customer shall defend, indemnify and hold harmless the Company against all penalties, claims, damages, costs and expenses whatsoever arising in connection therewith; and
(c) the Company (or any other person in whose custody the Goods may be in at the relevant time) may, at the Company’s sole discretion, have the Goods destroyed or otherwise dealt with. For the purposes of this sub-clause, notice is not required to be given to any person of the intention to destroy or otherwise deal with the Goods.
 
5.3 If the Company agrees to accept Dangerous Goods and then it (or any other person) reasonably forms the view that those Goods constitute a risk to other goods, property, life or health, it may (without notice and without liability) have the Goods destroyed or otherwise dealt with at the expense of the Customer or Owner.
5.4 The Customer undertakes not to tender for transportation any Goods which require temperature control without previously giving written notice of their nature and the particular temperature range to be maintained and, in the case of a temperature controlled Container stuffed by or on behalf of the Customer, the Customer further undertakes that:-
(a) the Container has been properly pre-cooled or pre-heated as appropriate;
(b) the Goods have been properly stuffed in the Container; and
(c) the Container’s thermostatic controls have been properly set by the Customer.
 
5.5 If the requirements of Clause 5.4 are not complied with the Company shall not be liable for any loss of or damage to the Goods caused by such non-compliance.
 
5.6 Unless agreed in writing, the Company shall not be obliged to make any declaration for the purposes of any statute, convention or contract as to the nature or value of any Goods or as to any special interest in delivery or to make any declaration as to specific stowage requirements of any Goods.
 
5.7 Unless agreed in writing or otherwise provided for under the provisions of a document signed by the Company, instructions relating to the delivery or release of Goods against payment or against surrender of a particular document shall be in writing and the Company’s liability shall not exceed that provided for in respect of misdelivery of Goods.
 
5.8 Unless agreed in writing that the Goods shall depart by or arrive by a particular date, the Company accepts no responsibility for departure or arrival dates of Goods. Nor shall the Company be responsible for any charges arising out of any delay, including but not limited to, any delay due to the provision of incorrect documentation to any Customs Service, Quarantine Inspection Service or to any other relevant or equivalent authority.
 
6. Insurance
 
6.1 No insurance shall be effected except upon express instructions given in writing by the Customer and in effecting any such insurances, the Company shall be deemed to be an agent only of the Customer (other than where by law the Company is deemed to be an agent of the insurer) and not as an insurer, insurance broker or other form of intermediary.
 
6.2 All insurances effected by the Company are effected as agent only for the Customer (other than where by law the Company is deemed to be an agent of the insurer) and all such insurances are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk.
 
6.3 Unless agreed in writing, the Company shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy.
 
6.4 The Company is an agent only of the Customer in respect of the effecting of insurance (other than where by law the Company is deemed to be an agent of the insurer) and in any event should the insurers dispute their liability for any reason the insured shall have recourse against the insurers only and the Company shall not be under any responsibility or liability whatsoever in relation thereto, notwithstanding that the premium upon the policy may not be at the same rate as that charged by the Company or paid to the Company by the customer.


7. General Indemnities and Liabilities of the Customer and Owner
 
7.1 The Customer and Owner shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses howsoever arising:
(a) from the nature of the Goods, other than to the extent caused by the Company’s negligence, or
(b) out of the Company acting in accordance with the Customer’s or Owner’s instructions, or
(c) from a breach of warranty or obligation by the Customer or arising from the negligence of the Customer or Owner.
 
7.2 Except to the extent caused by the Company’s negligence, the Customer and Owner shall be liable for and shall defend, indemnify and hold harmless the Company in respect of all duties, taxes, imposts, levies, deposits and outlays whatsoever levied by any Authority and for all payments, fines, costs, expenses, loss and damage whatsoever incurred or sustained by the Company in connection therewith.
 
7.3 Advice and information, in whatever form it may be given, is provided by the Company for the Customer only and the Customer shall defend, indemnify and hold harmless the Company for all liability, loss, damage, costs and expenses arising out of any other person relying on such advice or information.
 
7.4 The Customer shall be liable for the loss, damage, contamination, soiling, detention or demurrage before, during and after the Carriage of property of;
(a) the Company (including, but not limited to, Containers),
(b) the Company’s servants, sub-contractors or agents,
(c) independent contractors engaged by the Company for performance of part or all of the Services,
(d) any person, or
(e) any vessel,
caused by the Customer or Owner or any person acting on behalf of either of them or for which the Customer is otherwise responsible.
 
7.5 Instructions to collect payment on delivery in cash or otherwise are accepted by the Company upon and on the condition that the Company in the matter of such collection will be liable for the exercise of reasonable diligence and care only. Unless express written instructions are received that the Goods are not to be delivered without payment, the Company accepts no liability if, upon delivery of the goods, payment is not made.
 
8. Subcontractors
 
8.1 The Customer undertakes that no claim will be made against any servant, sub-contractor or agent of the Company which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Goods. If any such claim should nevertheless be made, the Customer undertakes to indemnify the Company against all consequences thereof.
 
8.2 Without prejudice to Clause 8.1, every servant, sub-contractor or agent of the Company shall have the benefit of all provisions herein as if such provisions were expressly for their benefit. In entering into this contract, the Company, to the extent of those provisions, does so not only on its behalf, but as agent and trustee for such servants, sub-contractors and agents.
 
8.3 The Customer shall defend, indemnify and hold harmless the Company from and against all claims, costs and demands whatsoever and by whomsoever made or preferred, in excess of the liability of the Company under these Conditions.
 
8.4 Without prejudice to the generality of this Clause 8, the indemnity referred to in Clause 8.3, shall cover all claims, costs and demands arising from or in connection with the negligence of the Company, its servants, sub-contractors and agents.
 
8.5 In this Clause, “sub-contractors” includes direct and indirect sub-contractors and their respective employees, servants and agents.


9. Charges etc.
 
9.1 The Customer shall pay to the Company in cash, or as agreed, all sums immediately when due without deduction or deferment on account of any claim, counterclaim or set-off. Unless otherwise stated in writing payment shall be due seven (7) days following the date of the invoice.
 
9.2 When the Company is instructed to collect freight, duties, charges or other expenses from any third party, the Customer:
(a) shall remain responsible for these amounts; and
(b) shall pay these amounts to the Company on demand where these amounts have become due and have not been paid by the third party.
 
9.3 On all accounts overdue to the Company, the Company shall be entitled to liquidated damages, such liquidated damages to be calculated at 4 per cent above the base interest rate of the Company’s bank applicable during the periods that such amounts are overdue.
 
9.4 If any account remains overdue after fourteen (14) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
 
9.5 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Company.
 
9.6 The Customer shall be liable for and pay to the Company any additional costs or expenses the Company may incur and for any loss or damage occasioned either directly or indirectly to the Company as a result of the Company relying upon the description and particulars provided by the Customer or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods.


Terms Of Trade Page 2 +
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