Terms and Conditions of Trade

1. Application

1.1 All services provided by the Forwarder to the Customer are subject to these terms and conditions (Terms).

1.2 By accepting the Forwarder’s quotation or offer to provide Services, or by otherwise instructing the Forwarder to provide Services (including the use by the Customer of the Services), the Customer agrees to be bound by these Terms.

1.3 The contract between the Forwarder and the Customer shall comprise the Forwarder’s quotation or offer (or if there is no quotation or offer, any other correspondence or documents in which the Forwarder sets out the nature of and / or basis upon which it will provide Services to the Customer) and these Terms (Contract).

1.4 These Terms supersede and prevail over any terms and conditions in any document issued by the Customer purporting to have contractual effect.

1.5 These Terms shall also benefit, and be enforceable by, any Contractor or Subcontractor, or any agent or employee of the Forwarder, Contractor or Subcontractor.

1.6 If the Forwarder issues a transport document in which the Forwarder is described as the carrier, the terms and conditions of the transport document (including all limitations and exclusions of liability) shall, to the extent of any inconsistency, prevail over these Terms.

1.7 The Forwarder may, in its absolute discretion, refuse to provide Services to the Customer, or, suspend Services, or only agree to provide Services under special conditions.

1.8 The Forwarder may vary these Terms from time to time without notice.

2. Definitions

"the Act" means the Contract and Commercial Law Act 2017.

“carriage” means the carriage, receipt, storage, transit, packaging and handling of Goods, the packing and loading of Containers, and any other service by or arranged by the Forwarder as the forwarding or customs agent of the Customer.

“charges” includes freight, deadfreight, demurrage, detention, bunker adjustment costs, cartage, port, dues / fees, agency or booking or management fees levied by the Forwarder, and any cost or expenses incurred by the Forwarder in the performance of the Services, but excludes the cost of insurance.

"container" includes any container, trailer, transportable tank, flat rack or pallet, or any similar article of transport used to carry, consolidate, store or package the Goods.

“Contractor” means any person carrying or handling the Goods for the Customer under a contract arranged by, or with the authority of, the Forwarder as agent for the Customer.

"the Customer" means any person acquiring Services from the Forwarder and includes the shipper, consignee, receiver, owner or bailor of the Goods, their agents or representatives.

"Dangerous Goods" includes noxious goods, explosives, poisons, corrosive, inflammable or radioactive substances, compressed gases, goods harbouring or likely to harbour or encourage vermin, borer or other pests, and any other goods, or substances which, in the opinion of the Forwarder, are likely to cause damage or injury to other goods, property or persons.

“Force Majeure Event” has the meaning given to it at clause 16.1.

"the Forwarder" means ‘Freight Management Solutions Ltd, its employees, officers, agents and subsidiary and related companies.

"Goods" means the goods or other cargo which are the subject of instructions issued to the Forwarder by the Customer and includes any container not supplied by or on behalf of the Forwarder.

"handling" includes any packing, storage, transshipment, unloading, loading, customs clearance, delivery and other similar services relating to the Goods.

“Services” means all services supplied by the Forwarder to the Customer (whether gratuitously or not) and includes but is not limited to any advice or information provided to the Customer, carriage, handling, storage, warehousing, and the arranging of contracts for such services.

"Subcontractor" means any person contracted by the Forwarder to perform any part of the Services.

“transport document” means any air waybill, bill of lading, sea waybill, warehouse receipt, consignment note or other documents issued in relation to the carriage of Goods.

"valuables" includes bullion, coins, negotiable instruments, securities of any kind, passports, precious stones, jewellry, antiques and works of art.

“working day” has the definition as set out in section 29 of the Interpretation Act 1999.

3. Services

3.1 The Forwarder carries on business as a customs and forwarding agent. Unless expressly stated otherwise, it provides Services to the Customer as an agent only.

3.2 The Customer authorises the Forwarder, as its agent, to enter into contracts for the carriage and/or handling of the Goods by any route or means with, and to entrust the Goods to, any Contractor or Subcontractor on terms agreed between them and the Forwarder, and agrees that such terms will bind the Customer as principal.

3.3 The Customer authorises the Forwarder to change or vary any instructions given by it or on its behalf in any respect and to take any actions that the Forwarder in its sole discretion considers are necessary, or in the Customer’s interests, for the performance of the Services, including to enter into or vary contracts on behalf of the Customer, and agrees to ratify such contracts or variations.

3.4 Without prior notification and written agreement, the Forwarder will not accept or deal with Goods with special requirements, including:

(a) Goods which it is unlawful to carry or handle, or which can only be carried or handled with a permit or license;

(b) Dangerous Goods or Goods likely to cause damage (by way of example only, liquids that may leak during transit, heavy weight cargo that is top heavy or heavy at one point, cargo not marked for specific handling);

(d) Valuables of any kind; or

(e) Household and personal effects.

3.5 If the Customer delivers any Goods referred to in clause 3.4, or causes the Forwarder to carry or handle the Goods, or arrange for the Goods to be carried or handled by any Contractor or Subcontractor without prior notification and written agreement:

(a) Neither the Forwarder nor any such Contractor or Subcontractor, nor any of their respective employees or agents shall be liable for any loss or damage whatsoever arising out of its dealings with the Goods;

(b) The Customer shall be liable for all loss or damage whatsoever caused by, to or in connection with the Goods however caused or arising;

(c) The Customer shall indemnify the Forwarder, any Contractor or Subcontractor, and their respective employees and agents against all penalties, claims, damages, costs and expenses whatsoever arising as a result; and

(d) The Goods may be destroyed or otherwise dealt with at the sole discretion of the Forwarder, any Contractor or Subcontractor, or any other person in whose custody they may be at the expense of the Customer without the Forwarder, any Contractor or Subcontractor, or such other person or any of their respective employees and agents being responsible or accountable in any way.

3.6 Where the Forwarder agrees to accept or deal with any Goods referred to in clause 3.4, the Customer warrants it will provide all documents and information relating to the Goods (including any relevant permits and a full description of the Goods and the nature and degree of their volatility and value) necessary to enable the Forwarder to:

(a) Comply with applicable law and regulations;

(b) Arrange for the Goods to be carried or handled safely and in a manner which is likely to minimise damage or loss; and

3.7 The Forwarder will determine whether it agrees to accept or deal with such Goods once it has received all of the information that it requires, including the information set out above.

3.8 During performance of the Services the Forwarder or its Contractor or Subcontractor may take images of the Goods to record the condition of the Goods before, during, or after carriage. The Customer authorises the taking of such images.

4. Customer Obligations

4.1 The Customer expressly warrants that:

(a) It is the owner or the authorised agent of the owner of the Goods and enters into the Contract on its own behalf or as agent for the owner of the Goods. Where it enters into this Contract as the agent for any other party, the Customer warrants that it is authorised to accept these Terms on behalf of that party. Where the Customer enters into this Contract as agent for any undisclosed principal, the Forwarder may look to the Customer or the principal or both of them for any cost, loss or damage whatsoever arising out of or incidental to or in connection with the Services provided by the Forwarder. The Forwarder will not be liable to any party, whether the Customer or any other party, other than to the extent set out in these Terms.

(b) It has all necessary knowledge of the matters affecting the carriage of the Goods, including its contractual and other obligations and the requirement to obtain the necessary insurances for the carriage of the Goods.

(c) All Goods have been properly and sufficiently packed and prepared to withstand the risks of carriage, storage and handling having regard to their nature and destination.

(d) All information provided to the Forwarder in relation to the Goods, including marks, weights, numbers, brands, contents, descriptions, values and other particulars furnished to the Forwarder are correct and complete.

(e) Any containers or other objects supplied by the Customer in or on which the Goods are stored, packaged, or contained conform with any requirements of the consignee, the receiver of the Goods, or any relevant person or authority, or any applicable laws or regulations.

(f) It will provide written directions to the Forwarder for the proper care of any Goods with special requirements (including Dangerous Goods, refrigerated, perishable or high value Goods).

(g) It will provide adequate written delivery instructions to the Forwarder to enable effective delivery of the Goods.

(h) It will:

(i) Comply with all applicable laws, regulations, orders or requirements of any country to, from, through or over which the Goods may be carried relating to the nature, packaging, labelling, documentation or carriage of Goods and relating to health and safety,

(ii) Provide to the Forwarder all assistance, information and documents as may be necessary to enable the Forwarder to comply with such laws, regulations, orders or requirements; and

(iii) Pay the charges of the Forwarder incurred in complying with the provisions of any such law, regulations, order or requirements.

4.2 The Customer will not tender any Dangerous Goods for carriage without giving notice in writing and receiving the Forwarder’s written agreement to accept such goods for carriage.

4.3 The Customer indemnifies and shall hold harmless the Forwarder on written demand from and against all:

(a) Claims, costs, damage, duties, expenses, fees, fines, loss, penalties, or taxes, which the Forwarder becomes liable to pay for any reason whatsoever in respect of the Goods unless such liability is due to the negligence of the Forwarder; and

(b) Claims, costs, damage, duties, expenses, fees, fines, loss, penalties, or taxes, or any liability arising, in the consequence of a breach by the Customer of any warranty, representation or obligation under these Terms.

4.4 Where the Customer provides the Forwarder with any data documentation or information, it is the Customer’s responsibility to retain a copy of it because it is possible that the data documentation or information may not be returned to the Customer. The Forwarder does not accept any responsibility or liability if the Customer does not retain copies of the data documentation or information.

5. Delivery

5.1 The Goods shall be deemed to have been delivered when they are delivered to the address, port of discharge or place of delivery (as applicable) given to the Forwarder by the Customer or consignee for that purpose or when collected by the Customer.

5.2 In all circumstances responsibility and liability for the Goods shall cease when they are delivered in accordance with this clause.

5.3 Any dates or times specified for departure or arrival of Goods are estimates only to / from port or airport of arrival and departure and will not bind the Forwarder. The Forwarder accepts no liability of any kind for delays in delivery.

5.4 If the Forwarder is unable to deliver the Goods as instructed, or the Customer fails or refuses to take delivery of the Goods at the time and place that the Forwarder or the Contractor or Subcontractor is entitled to effect delivery, the Forwarder shall be entitled with no notice requirement to unpack the Goods and store the Goods at the risk and cost of the Customer or to direct a Contractor or Subcontractor accordingly. Such storage shall constitute delivery, and the responsibility and liability of the Forwarder and Contractor or Subcontractor for the Goods shall cease.

5.5 If the Customer fails to take delivery of the Goods within 30 calendar days of the date that the Forwarder or the Contractor or Subcontractor is entitled to effect delivery or if in the reasonable opinion of the Forwarder or the Contractor or Subcontractor they are likely to deteriorate, decay, become worthless or incur any charges in excess of their value or if the Goods are insufficiently addressed, marked, or not identifiable, the Forwarder or the Contractor or Subcontractor may, without prejudice to any rights which it may have against the Customer, without notice and without any responsibility, sell or dispose of the Goods and apply any proceeds in reduction of any sums due to the Forwarder from the Customer.

5.6 The Customer shall indemnify the Forwarder on written demand for any claims, costs, damage, duties, expenses, fees, fines, loss, penalties, or taxes, or any liability that the Forwarder incurs or suffers as a result of any arrangements that the Customer has entered into with third parties or because of any failure by or delay in the Customer taking delivery or arranging for delivery to be taken of the Goods.

6. Credit Facilities

6.1 The Forwarder reserves the right to offer, suspend or cancel credit facilities should it so wish for any reason. Should the Forwarder suspend or cancel credit, it may require payment for all or any of its Services before commencing or continuing with all or any of its Services.

7. Charges

7.1 All quotations or offers shall lapse unless accepted by the Customer in writing, and confirmed by the Forwarder in writing, within seven (7) calendar days of the date of the quote or offer.

7.2 Charges are deemed payable upon acceptance of the Goods by the Forwarder or a Contractor, whether or not the Goods are lost or damaged.

7.3 The Forwarder reserves the right to check the weight and measurement of the Goods at any time and amend documentation accordingly. All packaging including pallets and other such items in which the Goods are packaged are deemed to form part of the shipment for the purposes of assessing the weight and measurement. The Forwarder reserves the right to revise its charges accordingly and the Customer agrees to pay the revised charges.

7.4 Where a Customer gives special instructions that the Forwarder’s charges are to be paid by a third party it shall be liable to pay the charges if the third party does not pay the Forwarder within seven (7) calendar days of delivery, tendered delivery, or where Goods should have been delivered.

7.5 The Customer shall pay the Forwarder for Services in accordance with the Forwarder’s invoice for charges. Credit Card payment will only be accepted by the Forwarder with prior approval and fees may apply.

7.6 All charges shall be paid by the Customer in full on the due date stated in the invoice, without set-off, counterclaim, or deduction, whether the Goods are damaged, or not delivered, Goods or vessel lost or not lost, and such charges shall be non-refundable in all circumstances.

7.7 If any amounts payable to the Forwarder are not paid by the due date, the Customer agrees to pay interest at rate 4 per cent above the Official Cash Rate of the Reserve Bank of New Zealand per month on the unpaid balance until payment is made in full.

7.8 The Forwarder reserves the right to recover from the Customer on an indemnity basis any expenses, legal costs or debt collection agency fees incurred by it in the enforcement of any rights contained in these Terms, including the recovery of outstanding amounts.

7.9 The Customer agrees that outside of the time allowed, all costs and expenses incurred for container detention, demurrage, hire, storage and waiting time shall be payable in full by the Customer and the Customer agrees to pay any interest or penalties that may be charged on an unpaid balance until full payment is received.

7.10 Charges for the Services may at the absolute discretion of the Forwarder be quoted and/or charged in the currency of origin or destination or another currency based on the higher of mass, volume or value.

7.11 The Forwarder shall be under no obligation to incur or pay any costs or expenses unless the Customer has provided the Forwarder with sufficient funds to meet the same.

7.12 The Customer authorises the Forwarder in its sole discretion to advance for the Customer any duties, taxes, or other disbursement costs for the Goods and undertakes to reimburse the Forwarder for such duties, taxes, or other disbursement costs. If it is necessary to make customs entry of Goods at any place, the Goods shall be deemed to be consigned at that place to the Customer, the Contractor or any person the Contractor designates as customs consignee.

7.13 The Customer agrees that the Forwarder may receive and retain all brokerage, commission, discounts, allowances and other remuneration paid or given by any other party who is engaged by the Forwarder on the Customer’s behalf in relation to the carriage of the Goods and need not disclose to the Customer the nature or amount.

7.14 If at any time any payment due by the Customer to the Forwarder is in arrears, the Forwarder shall in its sole discretion have the right to: (i) suspend any or all Services or obligations to the Customer until payment of the outstanding amounts is made in full, without any liability to the Customer during the period of suspension; or (ii) to terminate the Contract with immediate effect (including following any period of suspension) on giving written notice to the Customer, without any liability to the Customer; or (iii) enforce any security or other rights of the Forwarder that arise or may arise under these Terms or at law or in equity.

8. Lien

8.1 All Goods and documents relating to Goods shall be subject to a particular and general lien securing payment of any and all amounts due to the Forwarder by the Customer under any contract with the Forwarder and whether or not such amounts are overdue for payment.

8.2 If any amount due to the Forwarder is not paid within fourteen (14) calendar days after notice to the Customer that a lien is being exercised in respect of the Goods, the Goods may be sold by auction or otherwise at the Customer’s expense. The net proceeds shall be applied in reduction of the indebtedness. No such sale shall prejudice or affect the Forwarder's rights otherwise to recover any balance owing to the Forwarder for its Services or the cost of the detention and sale.

8.3 Notwithstanding any transfer of physical possession, the Goods are not released until all amounts owing have been paid to the Forwarder. In the event of any Goods for any reason being delivered to the owner or its nominee without payment having been made in full, the Forwarder retains a lien on such Goods and may re-take possession of them pending payment and may enter any premises for that purpose.

9. Personal Properties Security Act 1999 (PPSA)

9.1 Without limiting anything else in these Terms, the Customer acknowledges that:

(a) These Terms create, in favour of the Forwarder, a security interest in all Goods and documents relating to Goods, to secure the payment by the Customer to the Forwarder of all moneys due to the Forwarder by the Customer, or the consignee, consignor or owner, where in respect of such goods or otherwise and whether or not such money are overdue for payment ("the Amount Owing"); and

(b) These Terms will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order (or its equivalent, whatever called) of the Customer; and

9.2 The Customer undertakes to:

(a) Promptly do all things, sign any further documents and/or provide any information which the Forwarder may reasonably require to:

(i) enable the Forwarder to perfect and maintain the perfection of its security interest (including by registration of a financing statement); and

(ii) enforce its security interest.

(b) Give the Forwarder (addressed to the Financial Controller or equivalent) not less than fourteen (14) days prior written notice of any proposed 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, trading name or business practice).

9.3 The Customer waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest, in accordance with section 148 of the PPSA.

9.4 To the extent permitted by law,:

(a) the Customer and the Forwarder contract out of sections 114(1)(a), 133 and 134 of the PPSA; and

(b) the Customer waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

9.5 The Customer agrees that the security interest has the same priority in relation to all amounts forming part of the amount owing, including future advances.

9.6 If the Customer commits (i) a material default in relation to any of its obligations under these Terms, or (ii) a default which is incapable of remedy, or (iii) a default which is capable of remedy but is not remedied within 10 working days of the Forwarder giving notice to the Customer (together referred to as Events of Default):

(a) The Forwarder may suspend or terminate any contract;

(b) The Amount Owing shall immediately become due and payable notwithstanding that the due date for payment has not arisen;

(d) The Forwarder may (without the consent of the Customer) appoint a receiver in respect of any Goods and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.

9.7 The Customer agrees that, at any time after an Event of Default has occurred and is continuing or at any time if any goods are at risk, the Forwarder may (without limiting and in addition to any other rights the Forwarder may have under these Terms or at law or in equity):

(a) Take or retain possession of any Goods; and/or

(b) Sell or otherwise dispose of any Goods,

in each case in such a manner and generally on such terms and conditions as it thinks fit and, in each case, otherwise do anything the Customer could do in relation to those Goods. As the Customer's agent, the Forwarder (and its employees and agents) may, without prior notice, enter any land or premises where the goods are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so. The Customer agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Forwarder (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal. The Forwarder may resell any of the Goods and apply the proceeds of sale in reduction of the Amount Owing.

10. Insurance

10.1 Prices quoted will not include insurance unless requested. Insurance of Goods handled by the Forwarder is at all times the responsibility of the Customer. If requested by the Customer the Forwarder will endeavour to arrange insurance on the Goods as the agent of the Customer, provided there is an express written agreement (including a signed declaration as to the value and nature of the Goods) to do so between the Customer and the Forwarder. In doing so the Customer agrees to pay all costs of insurance. Any such insurance may, in the sole discretion of the Forwarder, be on a separate, or an open or general policy and will be subject to the usual exceptions and conditions of the policies of the insurer accepting the risk.

10.2 In so arranging any such insurance, the Forwarder is acting as an agent only, and not as an insurance intermediary. The Forwarder shall have no liability or responsibility whatsoever in respect of any insurance policy or insurance arrangements. The policy will be for the benefit of the named insured who shall assume responsibility for making any claims on such policy. If the insurer disputes liability for any reason, the Customer shall have recourse against the insurer only. The Forwarder shall not be under any responsibility or liability, notwithstanding that the premium on any policy may not be the same as that charged to or paid by the Customer.

11. Claims Handling

11.1 The Customer agrees that the Forwarder is not obliged to advise or assist the Customer or any other party to prepare or make a claim against a Contractor and accepts no liability for any loss or damage however caused. The Forwarder may agree in writing to provide advice or assistance and may invoice an additional cost for doing so.

12. Liability and Claims

12.1 In the event the Forwarder is deemed to be the carrier of the Goods under a contract compulsory subject to any applicable national legislation or international convention governing the carriage of the Goods, it shall be entitled to all rights, exceptions and limitations conferred on the carrier. Further:

(a) All carriage which is or is deemed to be subject to the Act shall be performed at “limited carrier's risk” as defined in the Act, unless otherwise agreed in writing. The provisions of sections 274 and 281 of the Act shall not apply.

(b) Where the Goods are subject to international sea carriage, the Forwarder shall have the benefit of any rights, exclusions of liability or limitations of liability contained in any bill of lading or waybill or other transport document issued in respect of the Goods, or conferred under any applicable national legislation or international convention governing the carriage of the Goods.

12.2 Subject to clause 12.1(a) and to any other mandatory provision of law which may apply, the Forwarder shall not be under any liability, howsoever caused or arising and whether arising or resulting from negligence, any other tort, bailment, breach of contract, equity, the law of restitution, statute, or arising or resulting from any other basis on the part of the Forwarder for:

(a) Any damage to or loss of the Goods, including without limitation, deterioration, contamination, evaporation, destruction, failure to produce the Goods, mis-delivery, delay in delivery or non-delivery of the Goods;

(b) Any damage to or loss of the Goods resulting from any act or omission of the Customer;

(c) Any loss of or damage to perishable Goods due to any failure or breakdown of machinery or plant, shortage of power or labour, or pilferage, theft or burglary (or any attempt at the same) whether by any servant or agent of the Forwarder or any other person;

(d) In connection with any instruction, advice, information or service given or provided to any person whether in respect of the Goods or any other matter or thing;

(e) Any damage to or loss of any other property arising in any way from or in connection with the Carriage of the Goods; or

(f) Any Force Majeure Event.

12.3 In no circumstance shall the Forwarder be liable for any indirect, consequential, exemplary or special loss or damage or cost or expense, including but not limited to loss of market, loss of profit, loss of revenue, or loss of use.

12.4 In all other circumstances, the Forwarder’s total liability for all claims for loss or damage is limited to the lesser of:

(a) NZ$2000;

(b) The cost of the Services; or

12.5 In all circumstances the maximum aggregate liability of the Forwarder for all claims arising out of any one incident or occurrence shall be limited:

(a) In any case where liability arises as a result of mis-delivery, delay in delivery or non- delivery of any Goods, to $10,000; and

(b) In any other case to $1,000,000.

12.6 All of the rights, immunities and limitations of liability in these Terms shall continue to have full force and effect in all circumstances and notwithstanding any breach of contract by, or any negligence on the part of, the Forwarder.

12.7 The Forwarder shall have no liability whatsoever pursuant to these Terms unless written notice of any claim, giving full particulars of any alleged loss, damage or non-delivery, is received by the Forwarder within three (3) Working Days after delivery of the Goods or the date when they should have been delivered.

12.8 In any circumstance the Forwarder shall be discharged of all liability unless an action is commenced in accordance with these Terms within six (6) months from the date of delivery of the Goods or the date upon which the Goods should have been delivered.

13. Legislation and Conventions

13.1 If the Customer acknowledges that the Services are both provided and acquired “in trade” for the purposes of the New Zealand Consumer Guarantees Act 1993 (CGA) and Fair Trading Act 1986 (FTA), all warranties, conditions and other terms implied by the CGA or sections 9, 12A, 13 and 14(1) of the FTA are excluded from these Terms to the fullest extent permitted by law. The parties acknowledge and agree that the exclusions contained in this clause are fair and reasonable.

13.2 Where any national or international convention and/or legislation compulsorily applies to the Services provided by the Forwarder then:

(a) These Terms shall be read subject to any provision which is mandatory; and

(b) The Forwarder shall be entitled to any rights, immunities from or limitations of liability under such convention or legislation.

13.3 These Terms are otherwise to be read subject to relevant statutory provisions having effect in New Zealand which by law cannot be excluded, restricted or modified. Any such term and condition of these terms and conditions, which is inconsistent with or repugnant to that legislation, shall be null and void to the extent (but no further) of such inconsistency or repugnance.

13.4 The Forwarder and Customer acknowledge that Goods moving by airfreight may be subject to international treaties including the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw, or that Convention as amended by the Hague Protocol 1955 and including any applicable amendments made time to time. The Customer’s recovery is limited against the carrier and is limited in accordance with these or any other conventions that may be applicable.

13.5 The Forwarder and Customer acknowledge that Goods moving by oceanfreight may be subject to international treaties including the Convention for the Unification of Certain Rules relating to Bills of Lading, signed at Brussels (the Hague Rules), or that Convention as amended by the Protocol 1968 (the Hague Visby Rules) and the SDR Protocol and including any applicable amendments made time to time. The Customer’s recovery is limited against the oceanfreight Carrier and is limited in accordance with these or any other conventions that may be applicable.

14. Subcontracting and Indemnity

14.1 The Forwarder shall be entitled to sub-contract on any terms the whole or part of the Services.

14.2 In doing so, the Forwarder assumes no responsibility or liability for the competency or otherwise of or the performance of any Services by any Subcontractor. The Customer must not do anything that would put the Forwarder in breach of any such contracts and will indemnify the Forwarder upon demand against any claims, costs, damages, expenses, liability or loss that the Forwarder incurs or suffers as a result of any such breach. The Forwarder will not liable to the Customer for any reason, under any head of law, under any contract entered into by it on the Customer’s behalf (whether entered into in the name of the Customer or of the Forwarder) for any delays, failure to produce, non-delivery, mis-delivery, or any other adverse consequences resulting from the breach of any such contracts by or caused by any action or inaction of the Customer.

14.3 If the Forwarder subcontracts the whole or part of the Services to a Subcontractor, the Services provided by the Forwarder are also subject to the terms and conditions of the contract between the Forwarder and the Subcontractor and the Forwarder shall have the benefit of all provisions benefiting the Subcontractor as if those provisions were expressly for the benefit of the Forwarder. In the event of and to the extent of any inconsistency between these Terms and the terms and conditions of the contract between the Forwarder and the Subcontractor, these Terms are paramount.

15. Termination

15.1 The Forwarder may terminate the Contract at any time by giving written notice to the Customer:

(a) If clause 7.14 applies;

(b) If the Customer is in material breach of the Contract; or

(c) If the Customer is unable to pay its debts as they fall due, goes into receivership or liquidation, or ceases to carry on its business.

15.2 If the Forwarder elects to terminate the Contract under this clause, termination shall be without prejudice to any rights, powers, or remedies it may have under these Terms or at law, existing at the date of termination.

15.3 Either party may terminate the Contract by giving written notice to the other if a Force Majeure Event continues for a period exceeding 90 calendar days, in which case termination shall be without prejudice to any rights, powers or remedies it may have under these Terms or at law, existing at the date of termination.

16. Force Majeure

16.1 For the purposes of this section, “Force Majeure Event” means a circumstance beyond a party’s reasonable control, including, without limitation:

(a) Fire; flood; explosion; epidemic; riot; civil commotion; any strike; lockout or other industrial action; act of God; war; warlike hostilities or threat of war; terrorist activities; accidental or malicious damage; and

(b) Any prohibition or restriction by any government or other authority which affects the Contract and which is not in force on the date of the Contract.

16.2 Neither party shall be liable to the other, or be deemed to be in breach of Contract, by reasons of any delay in performing, or failure to perform, any of its obligations (other than payment obligations) under the Contract, if the delay or failure was due to a Force Majeure Event.

16.3 The Forwarder may alter its Charges in order to perform any or all of its Services due to a Force Majeure Event.

16.4 A party claiming to be unable to perform its obligation under the Contract (either on time or at all) due to a Force Majeure Event shall notify the other party of the nature and extent of the circumstance in question as soon as practicable.

17. Law and Jurisdiction

17.1 These Terms, and any act or contract to which they apply, shall be governed by and interpreted in accordance with New Zealand law. Any disputes arising out of or in connection with the Contract shall be submitted to the exclusive jurisdiction of the New Zealand courts, save that the Forwarder may in its discretion commence proceedings in any other court of competent jurisdiction.

18. Privacy

18.1 Subject to the Privacy Act 2020 (where it applies), the Customer authorises the Forwarder to:

(a) Collect, retain and use any information about the Customer for the purpose of checking or maintaining records as to creditworthiness or of supply of products or Services to the Customer or of marketing (including by email) to the Customer about Services that can be provided;

(b) Disclose any information about the Customer to any other credit agency for purposes of debt collection, credit reference or notification of a default by the Customer.

18.2 The Customer has the right to request a copy of any information held about the Customer by the Forwarder and to correct any incorrect information about the Customer held by the Forwarder.

19. General

19.1 No modification or waiver of any term of these Terms shall bind the Forwarder unless in writing and signed by a director or other representative of the Forwarder holding written authority to sign for the Forwarder.

19.2 No delay or failure to act by the Forwarder shall be a wavier. No waiver by the Forwarder shall be effective unless it is in writing. A waiver of a breach is not a waiver of any other breach.

19.3 Any unlawful provision in these Terms will be severed, and the remaining provisions will be enforceable, provided that the severance does not materially affect the purpose or intent of the Contract.

19.4 The Forwarder’s rights, powers and remedies remain unrestricted and may be exercised without prejudice to every other right, power or remedy at any time. Each provision in these Terms survives to the extent it is unfulfilled and does not merge on performance of another provision.

19.5 Any notice given pursuant to these Terms from the Forwarder to the Customer may be given to the Customer either in person or posted, sent by fax or email to the Customer’s last known postal or email address (or where the Customer is a company, to any of its directors). Notices given to the Forwarder pursuant to these Terms must be sent by email to fmsolution1@outlook.com or post to the Forwarder’s address for service.

Terms and Conditions of Trade

This website uses cookies.