1. Application
1.1 Any Goods received by the Company from the Customer and/or use of the Services shall be subject to, and constitute acceptance of, these Conditions.
1.2 Subject to clause 1.3, all Services provided by the Company are subject to these Conditions and:
•
the provisions of Part I shall apply to all Services.
•
the provisions of Part II shall only apply to the extent that Services are provided by the Company as agents.
•
the provisions of Part III shall only apply to the extent that Services are provided by the Company as principals.
1.3 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.
1.4 These Conditions may be amended, varied, waived or cancelled by a Director of the Company from time to time by notice in writing to the
Customer.
2. Provision of Services
2.1 All the 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; and
(e)
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 the
provision of any Services at its discretion. All Services are performed subject only to these Conditions (and when applicable the conditions on any bill of lading or
air waybill issued by the Company as principal).
3. Definitions In these Conditions:
(a) "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.
1
(b) “Conditions” means these terms and conditions of trade as may be amended from time to time. (c) "Company” is Azis Global Investments Ltd
(d) "Container" includes any container, flexitank, trailer, transportable tank, flat, pallet, airline unit load device, or any article of transport used to carry or
consolidate goods and any equipment of or connected thereto.
(e) "Contract Logistics Customer" means any person at whose request or on whose behalf the Company provides storage, inventory control, picking and
packing, blast freezing, labelling, container loading or unloading, installation, assembly, removal, or distribution.
(f) "Customer" means any person at whose request or on whose behalf the Company provides the Services.
(g) "Dangerous Goods" includes weapons or Goods which are or may become dangerous, noxious, explosive, inflammable, radio-active or capable by their
nature of causing damage or injury to their container, other goods or any persons, animals or property, or are goods likely to harbour or encourage vermin
or other pests.
(h) ‘Export Documentation” means any export related documentation in whatever form.
(i) "Goods" includes the cargo and any container not supplied by or on behalf of the Company, in respect of which the Company provides the Services.
(j) "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.
(k) "Owner" includes the owner, shipper or consignee of the Goods and any other person who is or may become interested in the Goods and anyone acting on
their behalf.
(l) “Perishable Goods” includes any substance or living organisms that may be vulnerable to deterioration, decay or death.
(m) "Person" includes persons or anybody or bodies corporate.
(n) “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.
(o) “Warsaw Convention” means the Convention for the Unification of Certain Rules Relating to International Carriage by Air dated 12 October 1929 as
amended at the Hague, 1955 and supplemented by the Guadalajara Convention dated 18 September 1961 as applied by the legislation of New Zealand.
(p) A reference to “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, transhipping, inspecting or otherwise handling the Goods
or anything done in relation thereto.
4. Obligations of Customer
4.1 The Customer warrants that it is either the Owner, or the authorised agent of the Owner, of the Goods and that it is authorised 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.
4.3 The Customer shall give sufficient and executable instructions in relation to the Goods and the Services to be carried out.
4.4 The Customer warrants that the description and particulars of the Goods are true, complete, and correct.
4.5 The Customer warrants that the Goods are properly packed and labelled, except where the Company has accepted written instructions in respect of
packaging and/or labelling.
4.6 The Customer shall comply with the requirements of any applicable law or Authority relating to the nature, condition and packaging of the Goods or
Dangerous Goods (as the case may be).
4.6 The Customer shall advise the Company of any alteration to the Customer's entity structure (including amendments to its constitution (if applicable) or sale
of the Customer’s business) or of any revocation of an agent's authority to purchase. Notification and acceptance of any such assignment or agency revocation
shall not be deemed delivered and accepted by the Company unless they confirm the same in writing. Until such written confirmation is received from the
Company, the Customer shall remain liable for any indebtedness and the Company’s conduct shall not be deemed acceptance or affirmation of an assignment or
revocation. Notwithstanding this clause, the Company undertakes not to withhold confirmation of the customer’s extinguished liability unless in its sole opinion,
it has due cause to do so.
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 or Perishable
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
2
(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 and no claims may be made by the Customer in relation to the actions of the Company.
5.3
Regardless of whether the Company had previously agreed to accept the Dangerous Goods or Perishable Goods, the Company may at any
time (without compensation or notice to the Customer and without prejudice to its rights to receive payment for the Services) destroy, dispose of,
abandon or otherwise deal with those Goods, that in the opinion of the Company or any other person constitutes a risk or become dangerous or of a
damaging nature to other goods, property, life or health.
5.4
The Customer undertakes not to tender for transportation any Perishable Goods without previously giving written notice of their nature
and conditions of carriage 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 noncompliance.
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 mis delivery of Goods.
5.8
Unless expressly agreed in writing that the Goods shall depart by or arrive by a particular date, but subject to clause 14.1(a), the Company
accepts no responsibility for departure or arrival dates of Goods.
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 effective as agent only for the Customer (other than whereby 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 affect 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.
6.5 The Company’s own insurance policies, including but not limited to public liability, marine liability, and any other operational insurance held by the Company,
do not cover loss of or damage to the Customer’s Goods. It is the sole responsibility of the Customer to arrange adequate insurance for the Goods at their own
cost. The Customer acknowledges that the Company’s insurance is for the Company’s operational risks only and does not extend to the value, condition, or loss
of the Goods.
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, claims, demands, costs and expenses
howsoever arising:
(a) from the nature of the Goods.
(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, its servants, sub-contractors and agents or the
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, claims, demands, 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);
3
(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 or aircraft 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 prior written instructions are received and agreed to in writing
by the Company 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 or the Services. 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. Payment Terms and Charges
9.1 Unless otherwise agreed by the Company in writing, the price for the Services shall be the Company's prices at the date on which the Services are provided.
9.2 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.
9.3 When the Company is instructed to collect freight, duties, charges or other expenses from any person other than the Customer, 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 such other person.
9.4
On all accounts overdue to the Company, the Company shall be entitled to liquidated damages, such liquidated damages to be calculated
at 2.5 percent per month, calculated daily, on all overdue amounts during the periods that such amounts are overdue.
9.5
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, weight, measurement, numbering or addressing of the Goods.
10. Liberties and Rights of the Company
10.1 Unless otherwise agreed in writing, the Company shall be entitled to enter into contracts on behalf of itself or the Customer and without notice to the
Customer:
(a) for the carriage of Goods by any route, means or person;
(b) for the carriage of Goods of any description, whether containerised or not, on or under the deck of any vessel;
(c) for the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place whether on shore or afloat and for any length of
time;
(d) for the carriage or storage of Goods in Containers or with other goods of whatever nature; and (e) for the performance of its own obligations, and to do such
acts as the Company reasonably considers may be necessary or incidental to the performance of the Company's obligations.
10.2
The Company shall be entitled (without incurring any additional liability), but shall be under no obligation, to depart from the Customer's
instructions in any respect if the Company considers there is good reason to do so in the Customer's interest.
10.3
The Company may at any time comply with the orders or recommendations given by any Authority. The responsibility and liability of the
Company in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.
10.4
The Company shall be entitled (but under no obligation) at any time and from time to time to inspect the Goods and for this purpose to
open or remove any Containers.
10.5
If at any time the Company reasonably considers that the carriage of the Goods should not be undertaken or continued or only continued
after carrying out necessary incidental matters or incurring additional expense or risk, the Company shall be entitled to:
(a) abandon the carriage of such cargo or to effect such additional incidental matters and incur such additional expense, as may be reasonably necessary in
order to enable the carriage to be effected or further effected; and
4
(b) be reimbursed by the Customer for the cost of all such additional incidental matters and all such additional expense incurred.
10.6 If the Company (or any person whose services the Company makes use of) considers:
(a) the performance of the Company’s obligations are likely to be affected by any hindrance, risk, delay, difficulty or disadvantage whatsoever; and
(b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by reasonable endeavours of the Company or such other person, the Company may
(upon giving notice in writing to the Customer or Owner) treat the performance of its obligations as terminated and may, at the Customer’s expense, place
the Goods or any part of them at the Customer’s or Owner’s disposal at any place which the Company deems safe and convenient.
10.7 The notice in writing referred to in clause 10.6 is not required where it is not reasonably possible to give such notice.
10.8 Where the Company exercises its rights and obligations under clause 10.6, responsibility and liability of the Company in respect of the Goods
shall thereupon cease absolutely.
10.9 Where the Company (or any person whose services the Company makes use of) is entitled to call upon the Customer or Owner to take delivery
of the Goods at a designated time and place and delivery of the Goods, or any part thereof, is not taken by the Customer or Owner at the
designated time and place the Company (or such other person) shall be entitled to store the Goods in the open or under cover at the sole risk
and expense of the Customer.
10.10
Notwithstanding clauses 10.6 to 10.9, the Company shall be entitled (but under no obligation) without any responsibility or liability to the
Customer and Owner, to sell or dispose of:
(a) all Goods which the Company considers cannot be delivered as instructed, but only upon giving 21 days notice in writing to the Customer, and
(b) without notice, Goods which have perished, deteriorated, decayed, or altered, or are in immediate prospect of doing so in a manner which has caused (or
may be reasonably expected to cause) loss or damage to any person or property or to contravene applicable regulations.
10.11
Where the Company sells or disposes of Goods pursuant to clause 10.10 the Customer shall be responsible for any costs and expenses of
the sale or disposal.
10.12
The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily
retained by or paid to freight forwarders without notice to the Customer.
10.13. The Company shall have the right to enforce against the Owner and the Customer jointly and severally any liability of the Customer under these
Conditions or to recover from them any sums to be paid by the Customer, as well as any costs, expenses or disbursements incurred by the Company in the
recovery of any sums, which upon demand have not been paid.
10.14
The Company shall be entitled without notice to terminate or suspend any credit arrangements’ granted to the Customer. In such event all
monies owing by the Customer to the Company shall be immediately due and payable notwithstanding that the time(s) for payment is yet to arrive.
10.15
Where any credit arrangements have been granted by the Company to the Customer, the Company shall be entitled to request such
security as the Company shall in its discretion think fit and shall be entitled to withhold or cancel the supply of any Services or credit until such
security is provided by the Customer.
10.16
The Company shall be at liberty to set off any funds owed by the Company to the Customer against any payment due from the Customer
to the Company, whether it be by way of set off, counterclaim, credit note or otherwise.
11. Lien
11.1 The Company shall have a particular and general lien on all Goods or documents relating to the Goods for all sums due at any time from the Customer or
Owner (whether those sums are due from the Customer on those Goods or documents or on any other Goods or documents).
11.2 Where any sum due to the Company from the Customer or Owner remains unpaid, the Company, on giving notice in writing to the Customer, shall be
entitled (without liability to the Customer and Owner) to sell or dispose of such Goods or documents by public auction or by private treaty at the risk and
expense of the Customer and Owner and to apply the proceeds of any such sale or disposal in or towards the payment of the sums due.
11.3 Notwithstanding any transfer of physical possession or delivery being deemed complete, the Goods shall be deemed to remain in the possession of the
Company and not to have been released until all moneys owing have been paid. In the event that the Goods are delivered to the Customer, Owner or a nominee
without payment being made, the Company retains a lien on such Goods and without notice may retake physical possession of them pending payment.
11.4 In order to execute the rights granted by clause 11.3, the Customer irrevocably grants the Company and its agents authority without the necessity of giving
any notice to enter all premises at which the Company on reasonable grounds believes the Goods to be stored, to inspect, remove, or retake physical possession
of the Goods. The Company shall not be liable for costs, damages or expenses or any other moneys or losses suffered by the Customer as a result of this action.
12. Containers
12.1 If a Container has not been packed or stuffed by the Company, the Company shall not be liable for loss of or damage to the contents if caused by:
(a) the manner in which the Container has been packed or stuffed;
(b) the unsuitability of the contents for carriage in Containers, unless the Company has approved the suitability;
(c) the unsuitability or defective condition of the Container, provided that where the Container has been supplied by or on behalf of the Company this paragraph
(c) shall only apply if the unsuitability or defective condition:
5
(i) arose without any negligence on the part of the Company; or
(ii) would have been apparent upon reasonable inspection by the Customer or Owner or person acting on behalf of either of them; or
(d) the fact that the Container is not sealed at the commencement of the carriage, except where the Company has agreed to seal the Container.
12.2 Where the Company is instructed to provide a Container, in the absence of a written request to the contrary, the Company is not under an obligation to
provide a Container of any particular type or quality.
13. General Liability
13.1 Except where otherwise provided in these Conditions, the Company shall not be liable for any loss or damage whatsoever arising from or incidental to or in
connection with:
(a) the act or omission of the Customer or Owner or any person acting on their behalf;
(b) compliance with the instructions given to the Company by the Customer, Owner or their agents or any other person entitled to give them;
(c) insufficiency of the packing or labelling of the Goods, except where such service has been provided by the Company;
(d) handling, loading, stowage or unloading of the Goods by the Customer or Owner or any person acting on their behalf; (e) inherent vice of the Goods;
(f) war, riots, civil commotions, strikes, lockouts, epidemic, stoppage or restraint of labour from whatsoever cause; (g)
fire, flood, explosion, earthquake, storm, act of God;
(h) gases or substances generated through denaturisation, decay, ripening or deterioration of any goods;
(i) noxious offensive or damaging gases or odours emanating from outside Company premises; (j) interruption of utilities services, water damage to coolstore,
coolstore equipment malfunction or breakdown; or
(k) any other cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
13.2 Except as otherwise provided in these Conditions, the Company shall not be liable for loss or damage howsoever caused (whether or not indirect or
consequential) to property other than the Goods themselves and shall not be liable for any pure economic loss or loss of profit, delay or deviation howsoever
arising.
14. Amount of Compensation
14.1 Except in so far as otherwise provided by these Conditions, the liability of the Company in respect of any claim or series of related claims, howsoever
arising, shall not exceed the following:
(a) In respect of claims for delay, where not excluded by these Conditions, the amount of the Company’s charges in respect of the Goods delayed.
(b) In respect of any claim for loss, damage, demands, costs or expenses arising solely from the provision by the Company of Export Documentation, where not
excluded by these Conditions, the amount of the Company’s charges in respect of the Export Documentation to which the claim relates.
(c) For transport-related claims: the lesser of
(i) the value of the Goods; or
(ii) NZD 2.00 per gross kilogram of the Goods lost, damaged, misdirected or misdelivered.
(d) For storage, handling, or 3PL-related claims: the lesser of
(i) the value of the Goods; or
(ii) NZD 1,000 per pallet; or
(iii) NZD 20,000 per event.
14.2 The limitation of liability referred to in clause 14.1 shall apply notwithstanding that the cause of the loss or damage is unexplained.
14.3 If agreed in writing prior to receipt of the Goods, the Company may accept liability in excess of the limits set out in these Conditions upon the Customer
agreeing to pay the Company’s additional charges for accepting such increased liability. Details of such additional charges will be provided upon request.
14.4 Any compensation shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid. If there is no invoice value,
compensation shall be calculated by reference to the value of the Goods at the place and time they were delivered or should have been delivered. The value
shall be fixed according to the current market price or, if none exists, by reference to the normal value of goods of the same kind and quality.
6
14.5 Unless agreed in writing prior to receipt, the Company will not accept or deal with tobacco, bullion, coin, precious stones, jewellery, antiques, works of art
or other valuable Goods. Should any Customer nevertheless deliver such Goods to the Company or cause the Company to handle or deal with such Goods
without prior written agreement, the Company shall be under no liability whatsoever for or in connection with such Goods, howsoever arising.
15. Notice of Loss, Timebar
15.1 The Company shall be discharged of all liability unless:
(a) notice of any claim is received by the Company or its agent in writing within 14 days after the date specified in clause e 15.2, or within a reasonable time
after that date if the Customer proves that it was impossible to so notify, and
(b) suit is brought in the proper forum and written notice thereof received by the Company within 9 months after the date specified in clause 15.2
15.2, For the purposes of clause 15.1, the applicable dates are:
(a)
in the case of loss or damage to Goods, the date of delivery of the Goods by the Company or the date the Goods cease to be
in the possession or control of the Company, whichever is the earlier,
(b)
in the case of delay or non-delivery of the Goods, the date that the Goods should have been delivered, (c) in any other
case, the event giving rise to the claim.
16. General Average
16.1 The Customer shall defend, indemnify and hold harmless the Company in respect of any claims of a General Average nature, including any claims or
demands for General Average security which may be made on the Company, and the Customer shall forthwith provide such security as may be required by the
Company in this connection.
17. General
17.1 Additional Provisions for Contract Logistics Customer
(a) Any instructions or requirements of a Contract Logistics Customer shall be in writing and agreed to in writing by the Company.
(b) In the event a Contract Logistics Customer or Owner wishes to terminate, or otherwise materially alter the nature or scope of, the Services provided by the
Company, the Contract Logistics Customer or Owner shall, unless otherwise agreed in writing by the Company, give written notice to the Company at least 3
months prior to the date of termination or material alteration. In lieu of a full 3 months notice, the Contracts Logistics Customer or Owner will, for the
balance of the 6 month notice period, continue to pay for the same level of Services as provided by the Company in the 3 month period prior to such
termination or material alteration of the Services. For the purposes of this clause, a material alteration in the nature or scope of the Services shall mean a
reduction of 20% or more of the total price of Services provided to the Contracts Logistics Customer or Owner over a rolling 3 month period when compared
to the immediately preceding 3 month period.
(c) In the event the Services provided to a Contract Logistics Customer are terminated for any reason, the Contract Logistics Customer or Owner shall
immediately pay all sums owing to the Company
(d) The Contract Logistics Customer shall take out and maintain at its own expense a policy or policies of insurance with reputable insurers in respect of
destruction or theft or loss of or damage to the Goods to their full value whilst in the custody of the Company.
17.2 Receipt of Goods
In respect of Goods delivered to the Company by the Customer, its servants, sub-contractors, agents or the Owner, all Goods shall be received by the Company
on the basis that the quality, quantity, weight, measurement, contents and condition of the Goods are unknown to the Company. Where a receipt is issued by
the Company such particulars are deemed to be those supplied by the Customer and are for the purpose of identification only. The Company accepts no
responsibility for the correctness of such particulars nor is it obliged to check or enquire into the quantity, nature or condition of the Goods.
17.3 Non-Solicitation
The Customer shall not, at any time during which the Company provides the Services to it or within the 6 month period after the Company ceases to provide the
Services, without the prior written consent of the Company, solicit, canvass, employ, engage or approach any person who is employed by or contracted to the
Company for the purposes of being employed or contracted by, or providing any services to, the Customer, or any associated entity of the Customer.
17.4 Notice
A Notice shall be deemed to be served if by courier, at the time of delivery and, if posted, at 10.00 am on the third day following the day on which it was posted
to the address last known to the Company to be the address of the recipient of the notice. If sent by facsimile transmission, it shall be deemed to be served at
the expiration of two hours after the time of despatch, if despatched before 3.00 pm and in any other case at 10.00 am on the day after the date of despatch.
17.5 Defences and Limits of Liability
The defences and limits of liability provided in these Conditions shall apply in any action against the Company whether founded in contract or in tort or
howsoever otherwise founded.
7
17.6 Legislation
If any legislation is compulsorily applicable to any business undertaken, these Conditions shall, as regards such business, be read as subject to such legislation
and nothing in these Conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities
or liabilities under such legislation and if any part of these Conditions is held to be repugnant to such legislation to any extent such part shall as regards such
business be over-ridden to that extent and no further.
17.4 Headings
Headings of clauses or groups of clauses in these Conditions are for indicative purposes only.
17.5 Severability
Each clause and its provisions of these Conditions shall be severable from each other and if for any reason any clause or provision is invalid or unenforceable it
shall not prejudice or affect the validity or enforceability of any other clause or provision.
18. Governing Law and Jurisdiction
18.1 These Conditions and any claim or dispute arising out of or in connection with the Services shall be subject to New Zealand law and the New Zealand Courts
shall have the non-exclusive jurisdiction in respect of all matters.
18.2 When New Zealand law has application to these Conditions, the Services provided by the Company as a carrier (within the meaning of the Carriage of Goods
Act 1979 (as amended)) of New Zealand are provided at limited carrier’s risk in accordance with these Conditions and (other than when Clause 14.4 applies) the
provisions of that Act shall prevail over any inconsistency in these Conditions to the extent of such inconsistency but no further
18.3 The Consumer Guarantees Act 1993 shall not apply where the Customer acquires goods or services from the Company for the purposes of a business (as
defined in the Consumer Guarantees Act), otherwise nothing in these Conditions shall diminish the rights of the Customer under the Consumer Guarantees Act.
18.4 To the fullest extent permitted by law: (a) the Company's liability under these Conditions is in substitution for, and to the exclusion of, all other warranties,
representations, conditions or obligations imposed or implied by law, statute or otherwise; and (b) all liability for any indirect, special or consequential loss or
damage of any kind is expressly excluded.
18.5 For the purposes of the Privacy Act 1993, the Customer authorises the Company to collect and hold personal information from any source the Company
considers appropriate to be used for credit, administration, service and marketing purposes. The Customer further authorises the disclosure of that information
for these purposes to any Person. The Customer understands that it has a right of access to, and may request correction of, the information held by the
Company.