Terms of Trade
1. Definitions and Interpretation
1.1 Definitions: In this agreement, unless the context requires otherwise:
“Consignment” means the consignment of goods to be transported in accordance with this agreement.
“Goods” means the goods that comprise the Consignment.
“Services” means arranging the receipt, packing, storing, transport, customs clearance, delivery and other handling of goods.
“subcontractor” includes any person engaged by us to perform any part of the Services, including packing, storing, transporting, or otherwise handling the Goods.
“we”, “our”, and “us” refers to McCullough Limited, and its successors and assigns.
“you” and “your” refer to a customer that engages us to provide the Services, and its successors and assigns.
1.2 Interpretation: In this agreement, unless the context requires otherwise:
(a) the headings to clauses are inserted for convenience only and shall be ignored in interpreting this agreement;
(b) the word including and other similar words do not imply any limitation;
(c) a person includes any company or body of persons (incorporated or not);
(d) the plural includes the singular and vice versa; and
(e) a reference to a statute includes any subordinate legislation made under it and amendments to or replacement of any of them from time to time.
2. Services as agent
2.1 You acknowledge that we perform the Services in the capacity of a freight forwarding and customs agent and not the actual carrier, and accordingly our relationship is one of principal and agent (except in relation to incidental services provided directly by us to you).
2.2 We reserve the right to refuse to provide Services to any person, or in respect of any type of goods.
2.3 You authorise us to enter into any contracts on your behalf in respect of handling the Goods (including engaging contractors and subcontractors, and entering into contracts for the carriage of goods), and to otherwise handle, deal with, or provide instructions in respect of the Goods as we see fit. You agree that we may deviate from any specific instructions provided to us by you in relation to the Goods if we think it is necessary or desirable to do so in the performance of the Services.
3.1 Subject to clause 8.2 (regarding insurance) any contracts that we enter into on your behalf in relation to the Goods or the performance of the Services, including contracts for carriage, may be with any subcontractor of our choosing, and may be on any terms that we, in our absolute discretion, deem satisfactory. You agree that you shall be bound by the terms and conditions of any contract entered into by us on your behalf, and that any conditions, stipulations or limitations contained in any such contract shall apply.
3.2 For the purposes of the Contracts Privity Act 1982, every provision of this agreement that confers a benefit on us, including any limitations of liability, also confers a benefit on our subcontractors as if such provisions were expressly stated to be for the subcontractor’s benefit. You agree that you will not make any claim against any subcontractor that seeks to impose liability on that subcontractor except to the minimum extent permitted by the law, and if you make any claim, you will indemnify us for all costs, expenses, and damages suffered or incurred by us arising out of such claim by you against our subcontractors.
4.1 You agree that you are liable for all of our charges and those of any subcontractor (including shipping costs), and any other costs, disbursements or expenses reasonably incurred by us in relation to the Goods or the provision of the Services (including any taxes, duties or other imposts, storage fees, demurrage fees, loading or unloading fees, crane hire, towage, or any other fees).
4.2 Unless we expressly state in writing that certain prices are a fixed quote, any and all pricing information provided to you (including freight rates) are estimates only, and we reserve the right to pass on any increase in such prices, howsoever arising (including as a result of foreign exchange variations under clause 4.4). We will endeavour to keep you informed of any increases in prices.
4.3 Unless otherwise stated, all prices exclude GST (if any) and other taxes and duties which, if payable, are payable by you.
4.4 If any of the costs to be invoiced to you are incurred by us in any currency other than in New Zealand Dollars, those costs may be billed to you by us in New Zealand Dollars, in which case the relevant costs shall be converted to New Zealand Dollars at the rate notified by our trading bankers at the date of our invoice to you. If there is any fall in the value of the New Zealand Dollar against the currency which has been converted between the date of the invoice and the date of payment by you, we shall be entitled to recalculate such currency conversion as at the date of payment and you shall pay any additional amount resulting from that recalculation.
5. Payment Terms
5.1 Unless otherwise agreed by us in writing, an invoice is due and payable by you immediately upon the invoice being issued by us to you. Without limiting the foregoing, we must receive full payment of all invoices issued as follows:
(a) in the case of a Consignment being imported into New Zealand, before the Consignment is released to you or your nominee; or
(b) in the case of a Consignment being exported from New Zealand, before the release of documents to you, or the consignee (as applicable).
5.2 As your agent, we may require funds from you in advance in order to pay various costs and fees arising in the course of the Services, for example shipping costs, port fees, taxes, duties etc. You acknowledge and agree that:
(a) we are under no obligation to pay any costs to a third party on your behalf without first having received cleared funds from you to cover such costs; and
(b) we are not liable or responsible in any way for any costs or losses arising directly or indirectly from any refusal or delay in us paying the costs of a third party due to you not first providing us with adequate cleared funds.
5.3 Our preferred method of payment is by direct credit of cleared funds to our nominated bank account. If you choose to make payment by credit card, we reserve the right to pass on to you any costs reasonably incurred by us in accepting such payments.
5.4 All payments of invoices by you (or on your behalf) must be made in full and without any deduction or right of set off or counterclaim. Please ensure any bank fees that may be incurred in relation to any payment are for your account and are not deducted from the amount on the invoice. We may deduct any amounts you owe to us against any amounts we owe to you.
5.5 If any amount payable to us by you under this agreement is overdue:
(a) we may at our discretion charge interest on any monies which are fourteen (14) or more days overdue, commencing on the due date until the day of actual payment. The interest rate will be the then current overdraft interest rate charged by our bank plus 9% per day;
(b) we may take steps to recover any overdue amounts (including engaging a debt collection agency), and you indemnify us and shall pay on demand all costs and expenses (including legal costs on a solicitor and own client basis) incurred by us in recovering any amounts owing by you to us under this agreement; and
(c) we may exercise any of our rights set out in clauses 5.6 and 9 below.
5.6 If you fail to make a payment when it is due or if we believe that you may not pay us when a payment is due, we may at our sole discretion suspend any Services (including suspending delivery of the Goods) or terminate this agreement. We are not liable to you in any way for any costs or losses arising directly or indirectly from such suspension or termination.
6. Alternate routes
6.1 You agree that we have full discretion as to the means, route and procedures to be followed in respect of the handling, storage, transport, and delivery of the Goods and the performance of the Services. If we specify and agree with you to use any particular means, route or procedures, we will use reasonable endeavours to do so, but if circumstances arise such that if, in our reasonable opinion, it is necessary or desirable to deviate from the agreed means, route or procedures, we may do so at your cost and without notice, and without incurring any liability to you as a result of such deviation.
7. Warranties by you
(a) Ownership: that you are either the owner of the Goods, or the authorised agent of the owner of the Goods, and are authorised by any person who has or may acquire an interest in the Goods to enter into and accept the terms of this agreement;
(b) Particulars: the accuracy and completeness of all descriptions, values and other particulars of the Goods, and all other information provided to us by you or your representatives in relation to the Goods or otherwise in connection with the Services, including in particular for customs clearance purposes;
(c) Packing: except where we are instructed by you in writing to arrange for the packing of the Goods on your behalf, that the Goods have been properly and sufficiently packed and prepared for transport, and such packing complies with any instructions for packing and preparation that we may have given you; and
(d) Prohibited Goods: subject to clause 10.1, that the Goods are not Prohibited Goods as that term is defined in clause 10.1.
7.2 You indemnify and hold us and our subcontractors harmless in respect of any liability for costs, loss or damage suffered by us or our subcontractors arising out of a breach of the warranties set out in clause 7.1
8.1 The Goods remain at your risk at all times, and you acknowledge that it is your responsibility to effect appropriate and adequate insurance for the Goods.
8.2 Any assistance provided by us in respect of arranging insurance for the Goods is provided to you strictly on a no-reliance basis. You are solely responsible for reviewing the terms of any such insurance and satisfying yourself of the adequacy and appropriateness of any insurance policy, and any insurance coverage effected by you is done so entirely at your own risk.
8.3 If for any reason, we or our subcontractors agree to effect insurance for you, such insurance shall be subject to any exceptions and conditions in the policies of the insurer taking the risk. In all circumstances, if an insurer disputes its liability for any reason you shall have recourse against the insurer only, and we shall not have any responsibility or liability to you in respect of any such matters.
9. Delivery and lien
9.1 Subject to clause 6.1, the Goods shall be deemed to be delivered when they are delivered to the agreed place of delivery given to us by you or your representative for that purpose, or if the Goods are to be collected from a nominated place, from the date that we advise you that the Goods are available for collection from that nominated place.
9.2 Subject to you complying with all of your obligations under this agreement, we shall use all reasonable commercial endeavours to deliver the Goods to the designated address (or make the Goods available for collection by you or your representative) in accordance with any agreed timeframes. However, should delivery be delayed for any reason, we will not be responsible for any loss or damage suffered or incurred by you or any other person as a result of such delay.
9.3 Without limiting and in addition to any of our rights under the Carriage of Goods Act 1979 (including, for the avoidance of doubt, in respect of the carrier’s lien set out in section 23 of that Act), we reserve the right to withhold delivery of any of the Goods or any official documentation regarding the Goods or the Consignment (for example, bills of lading, airway bills, de-registration certificates or log cards) until all amounts owing by you to us have been fully paid. Furthermore, you agree that if any amount remains outstanding twenty one (21) days after we have issued you a notice setting out the overdue amounts and requiring payment, we may sell the Goods either by private sale or public auction (elected by us in our sole discretion) to recover all amounts payable to us (together with any default interest that may apply and any reasonable costs of exercising our rights under this clause, including the costs of sale) and to any subcontractor. If there is any surplus after paying all amounts owing to us and to our subcontractors, we will return such surplus to you within fourteen (14) days of receiving your bank account details. If there is a shortfall, you remain liable for all amounts payable.
9.4 If we elect to withhold the Goods under the terms of this agreement, we may transport the Goods to another location for storage, and all costs so incurred shall be for your account, including our reasonable administration costs.
9.5 You agree that the contractual lien set out above may be registered by us on the Personal Property Securities Register and you will do all things reasonably required of you by us for us to perfect our security interest. You waive your right to receive a verification statement or a copy of any financing change statement. The terms “security interest”, “verification statement” and “financing change statement” have the meanings set out in the Personal Property Securities Act 1999.
9.6 We are entitled to sell or dispose of all Goods which, in our reasonable opinion and only after due inquiry, cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee or any other person after fourteen (14) days’ notice in writing of intention to sell or dispose of the same has been given to you. All charges and expenses arising in connection with the storage and sale or disposal of the goods shall be paid by you.
10.1 Unless special prior arrangements have been agreed to by us in writing, we will not accept or provide Services in respect of any of the following (“Prohibited Goods“):
(a) hazardous goods: any firearms, or any noxious, dangerous, toxic or inflammable items that are likely to cause damage or are unlawful to carry, or any other item reasonably determined by us as being hazardous;
(b) valuable and fragile goods: any bullion, currency, bearer securities or other negotiable instruments or similar items, passports, jewels or jewellery, antiques, paintings or works of art, glassware, china or lighting products, livestock or animals, or any other item reasonably determined by us as being valuable or fragile; or
(c) perishable goods: any items of a perishable nature, plants and produce, flowers, chilled and refrigerated items or any item that needs to be delivered within a limited time span in order to preserve its nature and quality.
10.2 If you provide us with any Goods that are or become Prohibited Goods, it will be at our discretion how we choose to deal with them. You agree that we and our subcontractors are not liable in any way for any costs or losses suffered by you arising from the way in which we choose to deal with any Prohibited Goods, and you indemnify us for any costs and losses suffered or incurred by us or our subcontractors arising from the Prohibited Goods, including the costs of dealing with or disposing of the Prohibited Goods and any penalties or fines that may be imposed on us because of the Prohibited Goods.
11.1 Except as expressly set out in this agreement, all terms, conditions, warranties and representations, expressed or implied by statute, common law or otherwise are excluded to the maximum extent permitted by law.
11.2 If you are acquiring (or hold yourself out as acquiring) the Services for the purposes of a business, you agree that the provisions of the Consumer Guarantees Act 1993 do not apply. If the Consumer Guarantees Act 1993 does apply, then nothing in this agreement shall restrict the application of that Act.
11.4 If the Civil Aviation Act 1991 or the Maritime Transport Act 1994 applies to any service provided by us, our liability for loss of or damage to the Goods shall be limited in the manner prescribed in these Acts.
11.5 Subject to clauses 11.1 and 11.3, and to any liability in respect of the loss of or damage to the goods imposed by the provisions of legislation referred to in clause 11.4:
(a) Under no circumstances shall we, or our employees, consultants or agents, be liable in contract, in tort (including negligence), in equity, for a breach of statutory duty or otherwise, for any indirect or consequential loss or damages suffered by you or anyone else (including any loss of revenue or profit, or any other economic loss, or any loss of reputation or opportunity) in connection with or however arising under this agreement; and
(b) Under no circumstances shall we, or our employees, consultants or agents, be liable in contract, in tort (including negligence), in equity, for a breach of statutory duty or otherwise, or otherwise to any third party for any loss, injury or damage, direct or indirect, (including, without limitation, loss of revenue or profit or any other economic loss, or any loss of reputation or opportunity) or for any direct or indirect or consequential loss whatsoever, arising from any act, omission, error, default or delay in respect of the performance or non-performance by either party of their respective obligations under this agreement or otherwise.
11.6 We shall be under no liability whatsoever unless:
(a) We receive written notice of any claim, that includes full particulars of any alleged damage, within three days after the delivery of the goods, or in the case of the loss or destruction of the goods, within seven days of the date of delivery or the date when they should have been delivered; and
(b) An action shall have been commenced by you in a Court of competent jurisdiction and notice given to us within six (6) months from date of delivery of the goods or the date when they should have been delivered.
11.7 In any case where any liability has not been effectively limited or excluded, our liability shall be the lesser of:
(a) $100; or
(b) The cost of resupplying the Services.
11.8 Other legislation: This agreement shall be read subject to the provisions of any legislation that compulsorily applies to the Services, provided that nothing in this agreement shall be construed as a waiver of any rights under such legislation or as an increase of any of its liabilities or responsibilities.
12.1 You fully indemnify and hold harmless us and our employees, consultants and agents against any costs, losses, claims, liabilities, proceedings and expenses (including legal costs incurred on a solicitor and own client basis) incurred and any loss or damage suffered by us or our employees, consultants or agents:
(a) by reason of any third party claims under clause 11.5(b); or
(b) arising from your negligence; or
(c) arising from any breach by you of the terms of this agreement.
13. Privacy Act 1993
13.1 You authorise us to collect and retain information about you from any third party (including from any trade reference or credit reporting agency), for the purposes of assessing your credit worthiness and determining whether or not to extend or continue to extend any credit to you, and sending you marketing, promotional or other material relating to any goods or services that we or any of our subcontractors may provide from time to time.
13.2 We acknowledge that under the Privacy Act 1993, individuals have rights of access to, and correction of, their personal information held by us.
14.1 Force Majeure: A party shall not be liable for any breach of this agreement to the extent such breach is due to a circumstance beyond the reasonable control of that party such as an Act of God (but excluding lack of funds) (“Force Majeure Event“), provided that it uses reasonable endeavours to mitigate the effect of the Force Majeure Event and resumes full performance of its obligations under this agreement as soon as is reasonably practicable.
14.2 Notices: Each notice under this agreement shall be in writing and delivered personally or sent by post, facsimile or email. A notice is deemed to be received: (a) if delivered personally, when delivered; (b) if posted, three business days after posting; (c) if sent by facsimile, upon production of a transmission report which indicates the facsimile was sent in its entirety to the facsimile number of the recipient; or (d) if sent by email, when actually received in readable form by the recipient.
14.3 Amendments: No amendment to this agreement will be effective unless it is in writing and signed by the parties.
14.4 Assignment: You may not assign or transfer any or part of this agreement without our prior written consent (consent not to be unreasonably withheld). If you are a company, a change in the effective management of the company, or a change of 30% or more of the ownership of the issued share of the company shall be deemed to be an assignment for the purposes of this clause.
14.5 Entire agreement: This agreement is the entire agreement of the parties and supersedes all prior agreements and representations between the parties relating to the matters dealt with in this agreement.
14.6 Further assurances: Each party shall, at its own expense, promptly sign and deliver any documents, and do all things, which are reasonably required to give full effect to the provisions of this agreement.
14.8 Severance: If any provision of this agreement is illegal, invalid or unenforceable, that provision shall be read down to the extent necessary to make it legal, valid and enforceable.
14.9 Waiver: A waiver of a right under this agreement is ineffective unless it is in writing.
14.10 Governing law and jurisdiction: This agreement is governed by New Zealand law and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.