1. All and any business undertaken by Kalgin
International Services (NZ) Limited is transacted
subject to the conditions hereinafter set out
(“the Conditions”) and each and every
such condition shall be deemed to be a condition
of any agreement between the company and its
customers. No modification, amendment or other
variation of the conditions shall be valid and
binding on the company unless made in writing
and duly executed by or on behalf of the company.
Without limiting the foregoing, the use of a
customer’s own forms does not in any way
serve to modify, amend or vary the conditions,
nor does any letter of authority provided by
the customer.
2. The company is not a common carrier and will
accept no liability as such. The Company reserves
the right in its absolute discretion to refuse
the Carriage of Goods or any class of Goods for
any person. The Company carries on business as
a customs and forwarding agent and is not the
actual carrier unless the goods are carried on
an aircraft, ship or other conveyance owned or
operated by the Company. The obligations of the
Company are limited to arranging Carriage of
Goods by a reputable carrier. The Goods are carried
at the Client’s risk and the Client authorises
the Company to act as its agent to enter into
the terms and conditions in a transport document
on behalf of the customer.
3. Customer means the person, firm or corporation
who engages the company’s services or otherwise
has an interest in the shipment and includes,
without limiting the foregoing, Senders, Owners
and Consignees.
4. Subject to and in accordance with terms and
conditions and instructions contained herein,
the company agrees and the customer hereby employs
and authorizes the company as agent for the customer
to contact either in its own name as principal
or as agent with any person, firm or company
(hereinafter referred to as “the sub-contractor”)
for the carriage, movement, transport or storage
of the goods or for the performance of any other
service (“the services”) to be performed
by the company pursuant to or ancillary to this
contract. Any such contract may be made upon
the terms of contract used by the sub-contractor
with whom the company may contract for the services
and may be made upon the terms and subject to
the conditions of any special contract which
the sub- contractor may in any particular case
require, including in every case any term that
the sub-contractor may employ any person, firm
or company for performance of the services contracted
for.
5. The company may, and is hereby expressly
authorized by the customer, to delegate its authority
hereunder to contract for the services and the
performance of any of its obligations hereunder,
to such other person, firm or company as it may
think fit and also if it thinks fit may, and
is hereby expressly authorized by the customer,
to constitute the relation of principal and agent
between the customer and any such person, firm
or company for the purpose of contracting for
the services or for the performance of any such
obligation.
6. Pending forwarding, the goods may at any
time and from time to time be warehoused or otherwise
held at any place or places or at any time and
from time to time be removed from any place or
places at which they may be warehoused or otherwise
held to any other place or places there to be
warehoused or otherwise held at the sole discretion
of the company and in every case at the customers
risk and expense as a charge or charges of and
incidental to or in connection with the services.
7. The company shall not be liable for any loss
of or damage to or mis-delivery, delay in delivery,
failure to produce or non-delivery of goods,
either in transit or in storage or occurring
during the term of this contract or whether caused
by the negligence of the company or by some other
cause, whether the cause of damage or loss, mis-delivery,
delay in delivery, failure to produce or non
delivery is known or unknown to the company,
except as provided in these conditions and company’s
liability is limited accordingly. It is specifically
agreed that all rights, immunities and limitations
of liability granted to the company by the provisions
set forth in thee conditions shall continue to
have their full force and effect in all circumstances
and notwithstanding any breach of the contract
or any conditions hereof by the company.
8. If the customer instructs the company to
use a particular method or route for movement
of the goods, the company will give priority
to the method or route designated but if that
method or route cannot conveniently be adopted
by the company, the customer shall be deemed
to have authorized it to move or have the goods
moved by another method or methods or by any
other route.
9. Customers entering into transactions of any
kind with the company expressly warrant that
they are the owners or the authorized agents
of the owners of any goods or property the subject
matter of the transaction, and by entering into
the transaction they accept these conditions
for themselves as well as for all other parties
on whose behalf they are acting.
10. The company is entitled to retain and be
paid all brokerages, commissions, allowances
and other remuneration customarily retained by
or paid to shipping and forwarding agents and
insurance brokers.
11. All receivables due to the company in New
Zealand are payable in New Zealand dollars. The
company is entitled to charge a currency conversion
premium when converting receivables into New
Zealand dollars.
12. Quotations are given on the basis of immediate
acceptance and subject to the right of withdrawal
or revision; quotations are valid only for the
specified weight and volume ranges quoted and
for the designated services and standard of service
quoted. Quotations will be valid for a period
of 30 days and will be filed on receipt of written
acceptance and in the case of inbound freight
rates shall be valid only for the suppliers detailed
by the customer at each origin point. Where a
particular method of carriage or service with
a carrier is specified in the quotations, the
quotation is only valid for that method of carriage,
carrier or service specified in that quotation.
Rates are quoted on the basis that the cargo
is suitable for standard airline containers.
Over- dimensional, overweight or hazardous cargo
suitable for cargo aircraft or other specialized
aircraft is subject to airline schedules, which
may vary or be discontinued from time to time
on some routes. Freight rates are subject to
official airline, IATA, and seafreight company
rate increases, and insurance premiums are subject
to revision by the principal insurer. If any
changes occur in rates of freight, insurance
premiums, or any other cost or charges applicable
to the goods, quotations and charges shall be
subject to revision accordingly with or without
notice to the customer. Customer acknowledges
and agrees that the rates and service quotations
given by the company and its agents will be based
on information provided by customer, and that
final rates and service may vary based on the
shipment actually tendered and the application
of these conditions, company will not be liable
for nor will any adjustment, refund or credit
of any kind be made as a result of any discrepancy
in the rate or service quotation made prior to
the actual tender of the shipment.
13. The company relies solely on the information
provided by the customer, Sender, Owner and Consignee
of any goods and their agents, if any, in providing
advice to the customer, Sender, Owner and Consignee
and their agents, if any, and information to
the crown, the collector of customs or any other
statutory body or authority whether representing
the crown or not as well as any private body,
company or person regarding the classification
of or liability for the amount, scale or rate
of customs duty, excise duty or other impost
or tax applicable to any goods or property whatsoever
or as to the nature, type, quantity of goods
or any other matter material to the valuation
of the goods and/or the amount of duty properly
payable on the goods. The customer, Sender, Owner
and Consignee and their agents, if any, shall
be deemed to be bound by and to warrant the accuracy
of all descriptions, values and other particulars
furnished to the company for customs, consular
and other purposes. The customer undertakes to
indemnify the company against all losses, damages
penalties and fines arising out of or in connection
with any inaccuracy or omission in the information
provided to the crown, to the collector of customs
or any other statutory body or authority whether
representing the crown or not as well as any
private body, company or person, whether the
inaccuracy or omission is brought about wholly
or in part by the negligence or alleged negligence
or any act, omission, neglect, default or breach
of duty or breach of obligation of the company’s
servants or agents or not.
14. The Customer shall indemnify the company
against any duties, losses, costs, penalties
or other moneys which the company is called upon
or obligated to pay in respect of or in connection
with the goods, any documents relating to the
goods, the valuation of the goods or the amount
of duty payable on the goods, and the keeping
or failure to keep any documents relating to
the goods, the valuation of the goods or the
amount payable on the goods, and any statements
made in respect of the goods, the valuation of
the goods or the amount or duty payable on the
goods, howsoever rising, including but not limited
to, an obligation arising by reason of any statute
proclamation declaration rule of law or other
legislative or quasi-legislative act or by reason
of liability arising in contract to in tort or
by reason of the existence of any lien charge
bill of sale mortgage or other hypothecation
of the goods or under any hire purchase agreement
or by reason of the law relating to the companies,
bankruptcy, insolvency or executions or otherwise.
The indemnity hereby conferred upon by the company
shall continue in force and effect whether or
not the goods are or have been pillaged, stolen,
lost, damaged or destroyed and shall not be affected
in any way if such pillaging, stealing, loss,
damage or destruction has occurred or been brought
about wholly or in part by the negligence or
the alleged negligence or any default, omission,
neglect or default or breach of duty or obligation
of the company, it servants or agents.
15. The customer undertakes to reimburse to
the company any expenses incurred directly or
indirectly arising out of or in connection with
entry of a customs officer or authorised person
on the premises of the company for the purpose
of searching the premises and/or inspecting,
examining, making copies of or taking extracts
from documents found on the premises.
16. No insurance will be effected except upon
the express instructions given in writing by
the customer and all insurances effected by the
company are subject to the usual exceptions and
conditions of the policies of the insurance company
or underwriters taking the risk. The company
shall not be under any obligation to effect separate
insurance on each consignment but may declare
it in any open or general policy. 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 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 its customer.
17. The company shall not be liable for loss
of or damage to goods unless such loss or damage
occurs whilst the goods are in the actual custody
of the company and under its actual control and
unless such loss or damage is due to the willful
neglect or default of the company or its own
servants.
18. It is hereby agreed between the customer
and the company that the liability of the company
on whatsoever grounds shall be limited in amount
to the sum of $20.00 in total in respect of losses
or damages to all the goods listed in Forwarding
instructions, included on any commercial invoice,
or any other declaration of freight to be carried,
whether or not there has been any declaration
of value of the goods or of any of them by the
customer. Sender. Owner or consignee for purpose
of carriage or otherwise.
19. It is hereby agreed between
the customer and the company that the customer’s
right to compensation for damaged, lost or non-delivered
freight will only be maintained provided the
following is strictly adhered to:
a) Any claim
for damage must be lodged in writing to the company
within 2 days of delivery of goods.
b) Any claim
for loss/non-delivery of goods must be notified
in writing to the company within 90 days from
the date of issue of the airway bill/bill of
lading.
c) Any rights to damage against
the company shall be extinguished unless action
is brought within one year after the completion
of the services, delivery of the goods or the
date the goods should have been delivered, whichever
is shorter. To the extent that the Carriage of
Goods Act 1979 may apply, the company expressly
contracts out of section 19 (including section
19(4) of that Act, which shall be of no effect
whatsoever.
20. a) In the case of Carriage
by Sea, where the goods are of value exceeding
$200 per package or unit or the equivalent of
that sum in other currency, the value will not
be declared or inserted in the Bill of Lading
for the purpose of extending the shipowner’s
liability under Article IV, rule 5 of the Fifth
Schedule to the Maritime Transport Act 1994.
b)
In the case of Carriage by Air, no optional declaration
of value to increase the Air Carrier’s
liability under the Civil Aviation Act 1990,
Article 22(2) of the Fourth Schedule will be
made except on express instructions by the customer.
c)
In all other cases where there is a choice of
tariff rates according to the extent of the liability
assumed by the carriers warehousemen or others,
no declaration of value (where optional) will
be made for the purpose of extending liability
and goods will be forwarded or dealt with at
owner’s own risk or other
minimum charges, unless express instructions
in writing to the contrary are given by the customer.
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21 Notwithstanding clauses 17, 18 and 29 of
these Standard Trading Conditions, where the
liability of the company is governed by the mandatory
provisions of the Carriage of Goods Act 1979
the Company’s liability shall be at “limited
carrier’s risk” and the amount of
such liability calculated accordingly.
22. Instructions to collect payment on delivery
(C.O.D.) in cash or otherwise are accepted by
the company upon the condition that the company
in the matter of such collection will be liable
for the exercise of reasonable diligence and
care only.
23. Perishable goods, which are not taken up
immediately upon arrival or which are insufficiently
addressed or marked or otherwise not identifiable,
may be sold or otherwise disposed of without
any notice to the customer and payment or tender
of the net proceeds of any sale after deduction
of charges shall be equivalent to delivery.
24. Non-perishable goods which cannot be delivered
either because they are insufficiently or incorrectly
addressed or because they are not collected or
accepted by the consignee may be sold or returned,
at the company’s option, at any time after
the expiration of 21 days from notice in writing
sent to the address which the customer gave to
the company on delivery of the goods. All charges
and expenses arising in connection with the sale
or return of the goods shall be paid by the customer.
A communication from any agent or correspondent
of the company to the effect that the goods cannot
be delivered for any reason shall be conclusive
evidence of that fact.
25. Except under special arrangements previously
made in writing, the company will not accept
or deal with any noxious, dangerous, hazardous
or inflammable or explosive goods or any goods
likely to cause damage. Any customer delivering
such goods to the company or causing the company
to handle or deal with any such goods (except
under special arrangements previously made in
writing) shall be liable for all loss or damage
caused thereby and shall indemnify, defend and
hold the company harmless against all penalties
claims damages costs and expenses arising in
connection therewith and the goods may be destroyed
or otherwise dealt with at the sole discretion
of the company or any other person in whose custody
they may be in at the relevant time. If such
goods are accepted under arrangements previously
made in writing they may nevertheless be so destroyed
or otherwise dealt with if they become dangerous
to other goods or property. The expression “goods
likely to cause damage” includes those
likely to harbour or encourage vermin or other
pests, and any damaged freight that may be a
risk to the safety of the employees, servants
or agents of the company.
26. Except under special arrangements previously
made in writing, the company will not accept
bullion, coins, precious stones, jewellery, valuables,
antiques, pictures, livestock or plants, and
the company will not accept any liability whatsoever
for any such goods except under special arrangements
previously made in writing.
27. All goods (and documents relating to goods)
shall be subject to a particular and general
lien and pledge for moneys due eitherin respect
of such goods or for any particular or general
balance or other moneys due from the customer
to the company. If any moneys due to the company
are not paid within one calendar month after
notice has been given to the person from whom
the moneys are due that such foods are detained,
they may be sold by auction or otherwise at the
sole discretion of the company and at the expense
of the customer and the proceeds applied in or
towards satisfaction of such particular and general
lien. No sale or disposal pursuant to this provision
shall discharge any liability or lien to any
greater extent than the proceeds thereof, less
selling expenses, and the customer shall remain
liable for any deficiency.
28. It is hereby expressly agreed that no employee,
servant or agent of the company (including every
independent contractor from time to time employed
by the company) shall in any circumstances whatsoever
be under any liability whatsoever to the customer
and the customer indemnifies the company and
its employees, servants and agents (including
every independent contractor from time to time
employed by the company) in respect of any liability
to the sender, owner or consignee of the goods
for any loss or damage or delay of whatsoever
kind arising or resulting directly or indirectly
from any act, neglect or default on his part
while acting in the course of or in connection
with his employment and without prejudice to
the generality of the foregoing provisions in
this clause, every exemption, limitation, condition
and liability herein contained and right, exemption
from liability, defence and immunity of whatsoever
nature applicable to the company or to which
the company is entitled hereunder shall also
be available and shall extend to protect every
such employee, servant and agent of the company
(including every independent contractor from
time to time employed by the company) acting
as aforesaid and for the purpose of all the foregoing
provisions of this clause the company is or shall
be deemed to be acting as agents or trustee on
behalf of and for the benefit of all persons
who are or might be employees, servants or agents
of the company (including every independent contractor
from time to time employed by the company) and
all such persons shall, to this extent only,
be or deemed to be parties to this contract.
29. All agreements between the company and its
customers shall be governed by New Zealand Law
and within the exclusive jurisdiction of New
Zealand courts. Customer hereby irrevocably and
unconditionally consents to submit to the exclusive
jurisdiction of the courts of New Zealand for
any actions, suits or proceedings arising out
of this contract.
30. The company shall not be
liable for:
a) Any loss, injury or damage
in respect of the goods caused by destruction,
fire, explosion, stealing, fraud, burglary, theft,
storm, flood, tempest or water or by any other
cause whatsoever whether brought about wholly
or in part by the alleged negligence or any act,
omission, neglect, default, breach of duty or
breach of obligation of the company its servants
its agents or not.
b) Any loss, injury or damage
suffered by delayed delivery of goods.
c) Any
loss, injury or damage in respect of the goods
resulting from or contributed to by the contract
of the goods with or proximity to other goods
or sweating, freezing, defrosting, evaporation,
leakage, breakage, shrinkage, deterioration,
fermentation, wasting, decay, putrefaction, contamination,
vermin, strikes, lockouts, shortage of labour
or resulting from or contributed to by any circumstances
beyond the reasonable control of the company.
d) Any duties, losses, costs
or penalties or other moneys incurred or actions,
claims or proceedings arising out of or in connection
with the keeping or failure to keep documentation
relating to the goods, the valuation of the goods
or the amount of duty payable on the goods, whether
brought about wholly or in part by the negligence
or alleged negligence or any act, omission, neglect,
default, breach of duty or breach of obligation
of the company its servants or agents or not.
31. To the extent permitted by law, and subject
to the following clause, the company shall under
no circumstances be liable in any way whatsoever
to the customer or any third part for any loss,
damage, penalty or costs in respect of any claim
(whether contractual, tortuous, statutory or
otherwise) for any form of damages, losses, costs,
penalties or harm sustained or incurred by the
customer arising out of or in connection with
the relationship established by this agreement,
including (without limiting the generality of
the foregoing) any advice, quotation, statement,
representation, or information, whether oral
or in writing, made or given by or on behalf
of the company or by any servant, agent or employee
of the company as to the classification of or
the liability for, the amount, scale or rate
of customs duty, excise duty or other impost
or tax applicable to any goods or property whatsoever,
or as to the nature, type, quantity of goods
or any other matter material to the valuation
of the goods and/or the amount of duty properly
payable on the goods.
32. The company shall not in any circumstances
be liable in respect of any loss, penalty, costs,
claim, action or proceedings arising out of or
in connection with a failure by the company to
pass on to or provide the customer with any documents
relating to the goods, the valuation or the assessment
of liability for duty of the goods or any penalty
imposed on the customer.
33. The terms and conditions
hereof which exclude or limit the company’s
liability shall apply only to the extent permitted
by law Provisions of the Consumer Guarantees
Act, 1993 and other statues from time to time
in force in New Zealand may imply warranties
or conditions or impose obligations upon the
company which cannot be excluded, restricted
or modified except to a limited extent. This
agreement must be read and construed subject
to any statutory provision. If any such statutory
provisions apply, then to the extent to which
the company is entitled to do so, its liability
under those statutory provisions shall be limited
at its option to:
(i) the re-supply of the services
provided to the customer under this agreement;
(ii)
the payment of the cost of having such services
performed again; or
(iii) the refunding to the
customer of any sums paid in respect of such
services.
34. If any payment due under any agreement between
the company and the customer is not made within
seven days of the due date, the customer will
be in default and without limiting any other
rights of the company, the customer shall pay
to the company, by way of liquidated damages,
interest at the rate of 5 per cent per annum
above the company’s bank overdraft rate
on the amount outstanding calculated from the
due date of payment until payment is made in
full. All sums payable to the company must be
paid by the due date, without any deduction or
set-off whatsoever.
35. All freight moved by air is subject to volumetric
conversion on the basis of one kilo being the
equivalent of six thousand cubic centimetres.
Freight moved by other means is subject to volumetric
conversion on the basis of relevant industry
standards or as modified by the carrier’s
standard trading conditions.
36. The company reserves the right to offset
any amounts receivable from the customer against
any amounts payable to that customer or any company
affiliated with the customer. This right exists
irrespective of the date the liability has been
created or debt incurred with the company.
37. The company shall not be liable in any event
for specific, incidental, or consequential damages,
including, but not limited to, loss of profits,
income, utility, interest, or loss of market,
whether o not the company had knowledge that
such damage might be incurred.
38. The company and customer acknowledges that
goods moving by airfreight are subject to the
applicable international treaties including the
Convention for the Unification of Certain Rules
relating to International Carriage by Air, signed
at Warsaw, 12th October 1929, or that Convention
as amended by the Hague Protocol 1955. The customer’s
recovery of any loss or damage is against the
airline carrier and is limited in accordance
with these or any other conventions that may
be applicable. In the event of any loss or damage
suffered by the customer whilst the goods are
in the possession of the airline carrier, the
company will seek to recover on behalf of the
customer from the principal airline carrier amounts
payable by these conventions as they are applicable.
The customer will indemnify, defend, and hold
the company harmless against any claims for loss
or damage to their goods incurred whilst they
were in the possession of the airline carrier.
39. The company and customer acknowledges that
goods moving by seafreight are subject to the
applicable international treaties including International
Convention for the Unification of Certain Rules
relating to Bills of Lading signed at Brussels
on August 25. 1924 (the Hague Rules), or those
as amended by the Protocol signed at Brussels
on February 23, 1968 (the Hague Visby Rules)
and the SDR Protocol (1979). The customer’s
recovery of any loss or damage is against the
seafreight carrier and is limited in accordance
with these or any other conventions that may
be applicable. In the event of any loss or damage
suffered by the customer whilst the goods are
in the possession of the seafreight carrier,
the company will seek to recovery on behalf of
the customer from the carrier amounts payable
by these conventions as they are applicable.
The customer will indemnify, defend and hold
the company harmless against any claims for loss
or damage to their goods incurred whilst in the
possession of the seafreight carrier.
40. If any provision of these Standard Trading
Conditions is unenforceable, such unenforceability
shall not affect any other part of such provision
or any other provision thereof. However, for
the avoidance of doubt, sections 6-10 Contractual
Remedies Act 1979 are hereby excluded and shall
have no operation or effect in relation to this
contract.
41. If the client has acknowledged in writing
that the supply of Services is for the Client’s
business purposes (as that term is defined in
the Consumer Guarantees Act 1993) or if the Customer
has actually acquired the Services for such purposes,
the Consumer Guarantees Act shall not apply to
the transaction. Where the Act continues to apply
and there is a conflict between these terms and
conditions and the Consumer Guarantees Act, the
Consumer Guarantees Act shall prevail and any
such conflict shall not be deemed to be an attempt
out of the Consumer Guarantees Act.
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