Standard bill of lading conditions - New Zealand Post

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Standard Terms and Conditions for International Freight Forwarding
Interpretation and Application
1 Defined terms
Agreement means the agreement between NZ Post and the Customer for the
provision of Services, comprising these terms and conditions, any “bill of lading” or
“waybill” issued by or on behalf of NZ Post as Carrier and any agreement between NZ
Post and the Customer which incorporates these terms and conditions;
Business Day means any week day apart from Saturdays, Sundays and New Zealand
public holidays;
Carriage means carriage of Goods, and any incidental services, including any
packaging, storage, trans-shipment, customs-clearance, unloading, handling and
delivery and other services in connection with the implementation of the Customer’s
Instructions;
Carrier means a person who undertakes an aspect of Carriage;
COGA means the New Zealand Carriage of Goods Act 1979;
Customer means the person at whose request or on whose behalf any Services are
performed, and also includes any successors and assigns of that person;
Customer’s Instructions means the instructions or series of instructions given by or on
behalf of the Customer to NZ Post with respect to the Goods;
Dangerous Goods means Goods that:
(i) are or may become explosive, flammable, poisonous, corrosive, acidic,
radioactive or infectious;
(ii) are highly magnetic, polymerisable or otherwise unsuitable for carriage;
(iii) harbour or are likely to harbour or encourage vermin, borer or other pests;
(iv) may cause damage or injury to any property or persons; or
(v) are considered to be dangerous or hazardous by any applicable law,
convention or regulatory authority;
Goods means each individual consignment of goods accepted by NZ Post under the
Agreement, and includes any containers, pallets and other packaging other than that
supplied by or on behalf of NZ Post;
GST means goods and services tax chargeable under the New Zealand Goods and
Services Tax Act 1985;
Loss includes any loss or liability including all duties, taxes, penalties, fines,
payments, claims, demands, costs (including full legal costs) and expenses, and other
liabilities or losses of whatever kind including any liability to indemnify any other
person, in connection with Services;
NZ Post means New Zealand Post Limited, a New Zealand company with its
registered office at 7 Waterloo Quay, Wellington and any of its related companies
which enters into an Agreement with the Customer, and includes their respective
successors and assigns;
NZ Post’s Charge means the amount to be paid by the Customer to NZ Post for the
Services, and includes NZ Post’s agency fees and any amounts payable to any Third
Party Carrier;
Restricted Goods means Dangerous Goods, perishable goods and valuable goods
(which includes currency, bonds, negotiable instruments and securities, precious
metals, stones and jewellery, antiques, works of art and historical artifacts, human
remains, livestock, plants, and any other comparable goods), together with any other
types of Goods which NZ Post deems to be Restricted Goods or prohibited Goods
from time to time (including by posting a list of such Goods on NZ Post’s website);
Services means all of the operations, activities and services undertaken by or on
behalf of NZ Post in respect of the Customer’s Instructions;
Third Party Carrier means any third party Carrier who is engaged by NZ Post on
behalf of the Customer for the purposes of the Customer’s Instructions;
Unit of Goods has the same meaning as defined in the COGA (whether or not the
Carriage is subject to the COGA).
2 Construction
Currency: a reference to any monetary amount is to New Zealand currency;
Negative Obligations: a reference to a prohibition against doing any thing includes a
reference to not permitting, suffering or causing that thing to be done;
Related Terms: where a word or expression is defined in these terms and conditions,
other parts of speech and grammatical forms of that word or expression have
corresponding meanings;
Singular, Plural and Gender: the singular includes the plural and vice versa, and
words importing one gender include the other genders;
Statutes and Regulations: a reference to an enactment or any regulations is a
reference to that enactment or those regulations as amended, or to any enactment or
regulations substituted for that enactment or those regulations;
Time: a reference to time is to New Zealand time.
3 Application
3.1 These terms and conditions shall apply to any Carriage carried out or arranged by NZ
Post (whether as principal or agent) and, except to the extent expressly agreed
otherwise, shall be deemed to be incorporated in any agreement between NZ Post
and the Customer in respect of any Carriage.
3.2 Where a “bill of lading” or “waybill” is issued by or on behalf of NZ Post and provides
that NZ Post contracts as Carrier, the provisions of such document shall prevail to the
extent of any inconsistency with these terms and conditions.
3.3 NZ Post is not a common carrier and may at any time at its sole discretion:
(a) refuse to accept any Goods for Carriage or any other Service; and/or
(b) open and inspect any Goods.
Agency
4 New Zealand Post role as agent
4.1 In providing the Services, NZ Post acts solely as agent of the Customer, and not as
Carrier, except to the extent that NZ Post directly performs any aspect of Carriage.
4.2 The Customer acknowledges that NZ Post does not assume a role as Carrier by
giving a quote, estimate or invoice for NZ Post’s Charge. The difference between NZ
Post’s Charge, and the amounts payable to Third Party Carriers together with the
disbursements and expenses referred to in clause 15.1, represents NZ Post’s agency
fee. On request, NZ Post will provide a breakdown of NZ Post’s Charge.
5 Authority to act on Customer’s behalf
5.1 The Customer appoints NZ Post as its agent and authorises NZ Post to act on the
Customer’s behalf to arrange contracts of Carriage and take such other steps to carry
out the Customer’s Instructions by any route, means and Carrier and at any place for
any length of time and on such terms as NZ Post, in its absolute discretion sees fit.
The Customer agrees to ratify and confirm any such contracts and steps if required by
NZ Post.
5.2 The Customer authorises NZ Post to depart from the Customer’s Instructions in any
respect if, in NZ Post’s absolute discretion, NZ Post considers it reasonable or
necessary to do so.
5.3 A contract arranged by NZ Post with a Third Party Carrier will be:
(a) subject to the terms, conditions, stipulations and limitations of that Third Party
Carrier;
(b) a direct contract between the Customer and that Third Party Carrier so that the
Customer and Third Party Carrier are legally bound by the terms of that
contract, whether or not the Customer is identified in the contract.
Customer’s responsibilities
6 Customer’s warranties
6.1 The Customer warrants that:
(a) it has the full and exclusive legal title in the Goods or is the authorised agent of
the person or persons with such title;
(b) the Goods are fit and safe to be Carried in the condition and packaging in which
they are tendered for Carriage and will not directly or indirectly soil,
contaminate or otherwise harm or reduce the value of other property;
(c) it is competent and has all necessary knowledge of the matters affecting the
conduct of its business insofar as relevant to the Services, including its
contractual and other obligations and the need for insurance;
(d) all information it has given NZ Post about the nature and character of the
Goods is accurate and complete at the time the Goods were received by NZ
Post or the relevant Third Party Carrier;
(e) it has complied with all applicable laws and obligations and obtained all
necessary authorisations in relation to the provision by NZ Post of the Services
and the Carriage of the Goods.
6.2 The Customer will provide such information and documentation as NZ Post may
request in respect of the Goods or as may be necessary to carry out the Customer’s
Instructions in compliance with all applicable laws.
6.3 NZ Post may require information to be provided in connection with this Agreement by
EDI messaging in the format specified by NZ Post from time to time. NZ Post is
entitled to rely on, and not responsible for verifying, the accuracy and completeness
of any EDI message received by NZ Post which appears to have originated from or
on behalf of the Customer, any of the Customer’s employees, agents, contractors or
other persons acting under the apparent authority of the Customer or any
governmental or regulatory authority. NZ Post is not responsible for any unauthorised
access to or interference with any EDI message whether such access or interference
occurs in transit or on NZ Post’s, the Customer’s or any Third Party Carrier’s systems.
7 Indemnity
Without limiting any other provisions in the Agreement, the Customer will on demand
indemnify NZ Post against all Losses incurred by NZ Post which arise in connection
with the performance of the Services or the implementation of the Customer’s
Instructions, whether or not arising out of the negligence of NZ Post, any Third Party
Carrier or their respective employees, agents or contractors.
Additional services
8 Services only available by special arrangement
Unless the Customer has provided written notice to NZ Post in advance and obtained
NZ Post’s written agreement, NZ Post is not obliged:
8.1 to arrange for the departure or arrival of Goods by a specific date;
8.2 to make any declarations as to the nature or the value of any Goods or as to
any other matter;
8.3 to arrange for Goods to be Carried separately from any other thing;
8.4 to hold Goods (or to direct Third Party Carriers to hold Goods), including until
payment of any amount or until surrender of a document;
8.5 to arrange Carriage of, or provide any Services for, any Restricted Goods;
8.6 to arrange insurance of Goods on behalf of the Customer.
9 Restricted Goods
9.1 The Customer undertakes not to tender any Restricted Goods for Carriage without
obtaining prior agreement in writing from NZ Post. In any event, NZ Post may destroy
or otherwise deal with such Goods if, in its sole discretion in all the circumstances, NZ
Post considers it necessary or prudent to do so.
9.2 Where NZ Post has agreed to arrange the Carriage of Restricted Goods, the
Customer undertakes to ensure those Goods are marked and packaged in
accordance with all laws and regulations (and NZ Post’s directions and instructions).
9.3 Any Restricted Goods are Carried at “owner’s risk” for the purposes of the COGA or,
where COGA does not apply, on the basis set out in clause 11.1.
10 Insurance
10.1 If the Customer wishes to insure the Goods, it is the Customer’s sole responsibility to
arrange that insurance, whether under clause 8.6 or otherwise.
10.2 Any insurance arranged by NZ Post under clause 8.6 will be subject to the
exemptions and conditions of the policies of the insurer or underwriter accepting the
risk and may be subject to additional charges. Should the insurer dispute liability for
any reason, the Customer shall have recourse against the insurer only and NZ Post
shall not be under any responsibility or liability notwithstanding any fee or margin
charged by NZ Post.
New Zealand Post liability
11 Limitation of Liability
11.1 Subject to clause 11.2, NZ Post will have no liability whatsoever to the Customer or
any other person for any Loss, however caused or arising and whether or not there
has been negligence or breach of contract on the part of NZ Post, any Third Party
Carrier or their respective employees, agents, or contractors.
11.2 In relation to any aspects of Carriage where NZ Post is a Carrier and the Carriage is
subject to the COGA and subject to clause 9.3, the contract between NZ Post and the
Customer is at “limited carrier’s risk”, as set out in the COGA.
11.3 If for any reason, despite clause 11.1 above, NZ Post has any liability to the Customer
for Loss otherwise than as a Carrier under the COGA, subject to any mandatorily
applicable statute or convention of law, the maximum amount of NZ Post’s liability
shall be limited to the lesser of:
(a) the value of the Goods at the time the Goods were received by NZ Post;
(b) the cost of repairing or replacing the Goods (or acquiring equivalent Goods);
(c) NZ Post’s agency fee for providing the relevant Services; and
(d) $250 per shipment.
11.4 NZ Post shall have no liability for any delay, loss of profits, revenue, anticipated
savings, goodwill or other economic Loss, or for any consequential or indirect Loss,
any Loss incurred by a third party or any Loss arising from any act or omission by or
on behalf of the Customer (including any breach of this Agreement).

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11.5 The Customer must take all reasonable steps to avoid or mitigate any Loss that might
give rise to any claim under this Agreement, including by fully exercising any liability
limitation or exclusion to which the Customer is entitled by contract or applicable law
(including any convention) against any third party. NZ Post will not be liable for any
Loss that could have been avoided by the Customer.
11.6 Any claim against NZ Post is deemed to have been waived unless NZ Post receives
written notice of the claim, including full particulars of the events giving rise to the
claim and any alleged Loss, within 10 Business Days of:
(a)
(b)
the date of delivery of the Goods; or
in the case of non-delivery, the date on which the Goods should have been
delivered.
11.7 In any event, NZ Post will be discharged of any liability whatsoever unless the
Customer issues proceedings in a court of competent jurisdiction within 6 months of
the date on which notice of the claim was required under clause 11.6. Section 19 of
the COGA is hereby expressly excluded.
12 Exclusion of Consumer Guarantees Act in business transactions
Where the Services are provided for the purposes of a business, the provisions of the
New Zealand Consumer Guarantees Act 1993 do not apply.
Charges and expenses
13 Estimates subject to change
Any quote for NZ Post’s Charge is valid for 30 days (or such other period specified in
the quote or otherwise agreed in writing) and applies only to NZ Post’s agency fee.
Third party charges (including Third Party Carrier charges and disbursements and
expenses referred to in clause 15.1) are estimated only and may be revised at any
time.
14 Charges
14.1 Unless otherwise stated, NZ Post’s Charge is stated before the calculation of GST
which, if payable, shall be payable at the same time as the payment to which it relates
is due.
14.2 NZ Post’s Charge is deemed to be fully earned when the Customer tenders the
Goods for Carriage. The Customer will pay NZ Post’s Charge on a non-refundable
basis, irrespective of whether the Goods are delivered to the consignee.
14.3 NZ Post’s Charge may be fixed by weight, measurements or value, and NZ Post may
at any time arrange for Goods to be re-weighed, re-measured or re-valued and may
re-fix NZ Post’s Charge accordingly. NZ Post’s assessment of weight, measurement
or value is final and binding.
14.4 NZ Post’s Charge, and any other amounts payable to NZ Post, shall be paid in full on
or before the due date for payment specified in the relevant invoice, without deduction
or deferment on account of any claim, counterclaim or setoff. The Customer remains
liable for any amount owing to NZ Post even if the Customer has directed that the
amount owing is to be paid by another person.
15 Disbursements and expenses
15.1 NZ Post may at its sole discretion pay, and the Customer will on demand reimburse
NZ Post for, any duties, taxes or other charges, costs or disbursements paid, or any
expenses incurred, by NZ Post in connection with the performance of the Services.
15.2 Notwithstanding clause 15.1, NZ Post is not required to incur or pay any costs,
expenses or charges unless the Customer has put NZ Post in sufficient funds to meet
such amounts in advance of the relevant requirement arising.
16 Late payment - suspension of services and penalty interest
16.1 If at any time payment of NZ Post’s Charge is in arrears or the Customer is otherwise
in breach of its obligations under this Agreement, NZ Post may suspend any Services
and NZ Post will have no liability to the Customer during that period of suspension.
16.2 The Customer will pay interest on any amount owing from the date that amount is
due. The rate of the interest will be 2% above NZ Post’s bank’s indicator lending rate
from time to time, calculated on a daily basis from such date until the date on which
payment is actually received by NZ Post in full. NZ Post’s right to claim interest
pursuant to this clause shall be without prejudice to NZ Post’s other rights and
remedies.
General terms
17 NZ Post’s right to subcontract work
The Customer authorises NZ Post to subcontract on any terms the whole or any part
of the Services.
18 Benefit of the Agreement
The Agreement applies for the benefit of NZ Post, any Third Party Carrier and any
employee, agent or contractor who acts on behalf of NZ Post or a Third Party Carrier.
19 Right of detention and lien
NZ Post will have the right of detention and a particular and general lien on the
Goods, any documents relating to the Goods and any other property of the Customer
in the possession or control of NZ Post, any Third Party Carrier or any contractor or
agent of NZ Post at any time for all sums due and payable to NZ Post by the
Customer (whether or not such sums are overdue or relate to the Goods, documents
or property over which the lien is exercised).
20 Disposal of and inability to deliver Goods
20.1 NZ Post is entitled, in its sole discretion and at the expense of the Customer, to
dispose of any Goods, by sale, destruction or otherwise:
(a) which cannot be delivered for any reason; or
(b) over which NZ Post has exercised its rights under clause 19; or
(c) which, in the opinion of NZ Post, are perishable and:
(i) are not collected immediately on arrival; or
(ii) are insufficiently or incorrectly addressed; or
(iii) would be likely to perish during the course of the Carriage of the Goods; or
(iv) appear to be deteriorating; or
(d) which, in the opinion of NZ Post, are in or may enter a dangerous state or may
otherwise pose a risk to any persons or property.
20.2 In the case of non-perishable Goods to be disposed of under clause 20.1(a) and (b),
NZ Post will endeavour to give 7 days’ notice to the Customer before exercising its
rights under clause 20.1.
20.3 The Customer is liable to NZ Post for any Loss incurred by NZ Post in connection with
the disposal of any Goods. After settling all of the Customer’s debts to NZ Post, NZ
Post will pay any balance of any net proceeds derived from the disposal of the Goods
to the Customer.
20.4 The disposal of any Goods will not limit NZ Post’s rights to recover from the Customer
or any person any amount due or payable to NZ Post in respect of the Services.
20.5 If, in the opinion of NZ Post or any Third Party Carrier, the Services are or are likely to
be affected by any hindrance, risk, delay, difficulty or disadvantage whatsoever and
which cannot be avoided by reasonable endeavours by NZ Post or any Third Party
Carrier, NZ Post will not be liable for any failure to perform the Services and may
terminate and/or abandon the Services and place the Goods at any place notified by
NZ Post for the Customer to dispose of the Goods, whereupon NZ Post’s
responsibility in respect of the Goods shall cease.
21 Brokerages and remunerations from Third Party Carriers
21.1 The Customer acknowledges that NZ Post may have a pecuniary interest in any
contract entered into by NZ Post pursuant to the Agreement.
21.2 The Customer expressly consents to the receipt and retention by NZ Post of any
brokerage, commission, discount, rebate, bonus, deduction, allowance and other
remuneration. NZ Post is not bound to disclose or account to the Customer the nature
or amount of any such remuneration received or receivable by NZ Post.
22 Notices
22.1 Any notice or other communication to be given by NZ Post or by the Customer under
the Agreement must be in writing addressed to the recipient at any physical, postal or
email address or facsimile number from time to time notified by the intended recipient
in writing.
22.2 A notice or other communication will be deemed to have been received:
(a) in the case of hand delivery, at the time of actual delivery to the recipient’s
address;
(b) in the case of delivery by pre-paid post within New Zealand, on the 2nd
Business Day after posting;
(c) in the case of delivery by pre-paid international post, on the 5th Business Day
after posting;
(d) in the case of delivery by facsimile, at the time of transmission specified in a
transmission report from the sending machine which indicates that the facsimile
was sent in its entirety to the facsimile number of the recipient;
(e) in the case of delivery by email, the earlier of:
(i) the sender’s receipt of confirmation of successful delivery; or
(ii) one day after dispatch, provided the sender does not receive any
indication of the failure of, or delay in, delivery, or non-receipt by the
intended recipient, within one day after dispatch. Dispatch occurs when the
relevant email first leaves the sender’s network for delivery to the
recipient’s address.
22.3 If a notice or other communication is received or deemed to have been received after
5 pm on a Business Day in the place to which it is sent, or on a day which is not a
Business Day in that place, it will be deemed to have been received on the next
Business Day.
23 Severability of terms
If any provision of the Agreement is invalid or unenforceable, that invalidity will not
affect the validity and enforceability of the remainder of the Agreement.
24 Terms subject to amendment
24.1 NZ Post may change these terms and conditions at any time by amending the form of
the terms and conditions posted on NZ Post’s website. The amended terms and
conditions will apply from the time they are published on NZ Post’s website.
24.2 Other than by amendment under clause 24.1, the Agreement cannot be altered,
modified or waived except in writing, signed by a duly authorised representative of NZ
Post.
25 No Partnership
Nothing in the Agreement shall evidence or be deemed to constitute a partnership or
fiduciary relationship between the parties.
26 Contracts (Privity) Act 1982
Subject to and without limiting clause 18, the Agreement shall not and is not intended
to confer any benefit on or create any obligation enforceable at the suit of any person
not a party to the Agreement.
27 Entire Agreement
This Agreement is the entire agreement between the parties on the provision of
Services and replaces all earlier negotiations, representations, warranties,
understandings and agreements (including any Customer terms and conditions),
whether oral or written, between the parties relating to the Services.
28 No assignment
The Customer may not assign or otherwise transfer this Agreement without NZ Post’s
prior written consent.
29 Disputes
Any dispute or difference arising out of or in connection with this Agreement which
cannot be resolved by negotiation may be referred by NZ Post to arbitration under the
Arbitration Act 1996 (NZ) in Wellington, New Zealand (unless the parties agree
otherwise in writing) before an arbitrator agreed between the parties or, failing
agreement, appointed by the President of the New Zealand Law Society. In the case
of any failure by the Customer to pay any disputed amount, NZ Post may issue
proceedings in any court of competent jurisdiction instead of arbitration.
30 Submission to New Zealand Jurisdiction
Subject to clause 29, each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and
determining any disputes or proceedings arising out of or in connection with the
Agreement.