Terms Of Trade (Page 2 of 3)

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 containerized or not, on or under the deck of any vessel,
(c) for the storage, packing, trans-shipment, 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,
(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 Companyís obligations.
10.2 The Company shall be entitled (without incurring any additional liability), but shall be under no obligation, to depart from the Customerís instructions in any respect if the Company considers there is good reason to do so in the Customerís 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 effecting any 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
(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 Companyís obligations are likely to be effected 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 Customerís expense, place the Goods or any part of them at the Customerís or Ownerís 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 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 which upon demand have not been paid. The Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing such sums including legal costs on a solicitor and own client basis and the Companyís collection agency costs.
10.14 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
10.15 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Companyís right to subsequently enforce that provision.
11. Privacy Act 1988
11.1 The Customer and/or the Guarantor/s agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Company.
11.2 The Customer and/or the Guarantor/s agree that the Company may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
11.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
11.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and the Company or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by the Company, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Customerís credit, payment and/or status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customerís account and/or the collection of amounts outstanding in the Customerís account in relation to the Services.
11.5 The Company may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

12. Lien
12.1 The Company shall have a particular and general lien on all Goods or documents relating to Goods in its possession the property of the Customer or Owner 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).
12.2 Where any sum due to the Company from the Customer or Owner remains unpaid, the Company, on giving 28 days 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.
13. Containers
13.1 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 arose:
(i) 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.
(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.
13.2 The Customer shall defend, indemnify and hold harmless the Company against all liability, loss, damage, costs and expenses arising from one or more of the matters referred to in Clause 13.1, except for Clause 13.1(c) (i).
13.3 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.
13.4 For Full Container Loads (FCL) by sea the Customerís entitlement to use the container(s) ends at the terminal of arrival. The Company shall however (but strictly as set out in this clause) allow the Customer to use the Container(s) for the purposes of transporting the Customerís goods away from the terminal for unpacking on the following understanding:
(a) the Company may be liable to the ocean carrier for the clean and prompt return of the Container(s) in good condition to the nominated depot.
(b) the ocean carrier has allowed a number of free days use of the Container(s) after which daily detention charges shall apply.
(c) the Company may be liable for any damage done to the Container(s), cleaning, or fumigation requirements.
Accordingly in consideration of the Companyís agreement to make the Container(s) available the Customer beyond the terminal gate, the Customer agrees to indemnify the Company for all charges, fees, or any other liability of whatsoever nature (including without limitation, interest charges and any legal costs) directly or indirectly arising from the use of the Container(s) beyond the terminal gate by the Customer, or by all or any agents, acting on the Customerís behalf either directly or indirectly.

14. General Liability
14.1 Except where otherwise provided in these Conditions, the Company shall not be liable for any loss or damage whatsoever arising from:
(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 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) riots, civil commotions, strikes, lockouts, stoppage or restraint of labour from whatsoever cause,
(g) fire, flood, storm, explosion or theft or
(h) any cause which the Company could not avoid and the consequences whereof it could not prevent by the exercise of reasonable diligence.
14.2 Subject to Clause 5.8, 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.
15. Amount of Compensation
15.1 Except in so far as otherwise provided by these Conditions, the liability of the Company, howsoever arising, shall not exceed the following:
(a) in respect of all claims other than those subject to the provisions of Clause 15.4 whichever is the lesser of:
(i) the value of the Goods, or
(ii) the equivalent of NZD $2.50 per gross kilogram, of the Goods lost, damaged, misdirected, misdelivered or in respect of which a claim arises (the exchange rate to apply being the rate as at the date of the delivery of the Goods).
(b) in respect of claims for delay where not excluded by the provisions of these Conditions, the amount of the Companyís charges in respect of the Goods delayed.
15.2 The limitation of liability referred to in Clause 15.1 shall apply notwithstanding that the cause of the loss or damage is unexplained.
15.3 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 Companyís additional charges for accepting such increased liability. Details of the Companyís additional charges will be provided upon request.
15.4 Compensation shall be calculated by reference to the invoice value of the Goods plus freight and insurance if paid.
15.5 If there be no invoice value for the Goods, the compensation shall be calculated by reference to the value of such Goods at the place and time when they were delivered to the Customer or Owner or should have been so delivered. The value of the Goods shall be fixed according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.
15.6 Unless agreed in writing prior to receipt, the Company will not accept or deal with bullion, coin, precious stone, jewellery, antiques, and works of art or other valuable Goods. Should any Customer nevertheless deliver any such Goods to the Company or cause the Company to handle or deal with any such Goods other than in accordance with prior written agreement, the Company shall be under no liability whatsoever for or in connection with such Goods howsoever arising.

16. Notice of Loss, Time bar
16.1 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 fourteen (14) days of the date specified in Clause 16.2, or within a reasonable time after that date if the Customer proves that it was impossible to so notify, excepting that in the case of delay the claim must be received by the Company or its agent within twenty-one (21) days of the date specified in Clause 16.2, and
(b) suit is brought in the proper forum and written notice thereof received by the Company within nine (9) months after the date specified in Clause 16.2, unless a longer period is specified by relevant legislation in which case the suit must be brought within the period specified.
16.2 For the purposes of Clause 16.1, the applicable dates are:
(a) in the case of loss or damage to Goods, the date of delivery of the Goods,
(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.
17. General Average
17.1 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.
18. Miscellaneous
18.1 Notice
Any notice served by post shall be deemed to have been given 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.
18.2 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.
18.3 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.
18.4 Headings
Headings of clauses or groups of clauses in these Conditions are for indicative purposes only.
19. Governing Law and Jurisdiction
19.1 These Conditions and any claim or dispute arising out of or in connection with the Services of the Company shall be subject to the laws of New Zealand and to the exclusive jurisdiction of the courts of New Zealand.
19.2 All Services provided by the Company which are subject to the Carriage of Goods Act 1979 (as amended) of New Zealand are provided at limited carrierís risk (other than when Clause 15.5 applies) and the provisions of that Act shall prevail over any inconsistency in these Conditions to the extent of such inconsistency but no further.

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