The Customer’s attention is drawn to the clauses below which exclude or limit EIF International Limited’s liability and which require the customer to indemnify EIF International Limited in certain circumstances.
1. In these Terms of Trade (“Terms”):
“Forwarder” means EIF International Limited and includes third parties entitled to the benefit of these terms. “Owner” means the owner of the goods to which the Forwarder provides any Services and any other person who is or may become interested in them. “Goods” means all or any part of the goods (including any packaging, containers or equipment supplied by the Customer or Owner) which are the subject of any Services. “Service(s)” means all or any business undertaken by the Forwarder for the Customer including the provision of advice or information or any services whatsoever. “Customer” means any person at whose request or on whose behalf the Forwarder provides any Services.
2. These Terms replace in their entirety any previous terms and conditions published, issued or used by the Forwarder.
3. Subject to clause 4 below, to the extent that any inconsistency exists between these Terms and any terms and conditions appearing in the Customer’s documents or any other documentation issued by the Forwarder (including, but not limited to any air waybill or consignment note), these Terms shall be paramount and prevail.
4. If any legislation or international convention applies to any Services, these Terms shall be read as subject to such legislation or international convention.
5. Nothing in these Terms shall be construed as a surrender by the Forwarder of any of its rights or immunities as an increase of any of its responsibilities or liabilities under such legislation or international convention.
6. Where any part of these Terms is rendered void, unenforceable or otherwise ineffective by such legislation, whether in respect of the whole or part of the Service, that will not affect the enforceability or effectiveness of any other part of these Terms or any other part ofthe service.
7. The customer warrants that he is either the owner or the authorized agent of the Owner and also that he is accepting these Terms not only for himself but also as agent for and on behalf of the Owner.
8. In authorizing the Customer to obtain Services from the Forwarder and or in connection with such Services, the Owner and consignee accept these Terms for themselves and their agents and for any parties on whose behalf they or their agents may act.
9. In particular, but without prejudice to the generality of clause 8, the Owner and consignee accept that the Forwarder shall have the right to enforce against them jointly and severally any liability of the Customer under these Terms or to recover from them any sums, which the customer has not paid.
Status of the Forwarder
10. Unless otherwise agreed between the Customer and the Forwarder in accordance with Clauses 11-16 below, the Forwarder shall be entitled to procure any or all Services as an agent or to provide Services as a principal, in either case subject to the appropriate Terms herein
11. The Forwarder shall be entitled to perform any of its obligations herein by itself or by its parent, subsidiary, or associated Companies. In the absence of agreement to the contrary any contract to which these Terms apply is made by the Forwarder on its own behalf and also as agent for and on behalf of any such parent, subsidiary or associated Forwarder, and any such forwarder shall be entitled to the benefit of these terms.
12. The agreement of a price for the Services is not of itself an indication of whether the Forwarder is acting as a principal or as an agent.
13. Where and to the extent that the Forwarder has agreed to act as principal, then it will perform or in its own name procure the performance of the Services and accepts liability for loss or damage to goods subject to the totality of these Terms and in particular to Clauses 55-62 below.
14. The Forwarder reserves to itself a reasonable liberty as to the means, route and procedure to be followed in the handling, storage and transportation of goods.
15. Where and to the extent that the Forwarder acts as an agent, it shall be entitled and the Customer hereby expressly authorizes the Forwarder, to enter into contracts with third parties on behalf of the Customer:
15.1 for the carriage of goods by any route or means or person;
15.2 for the storage, packing, trans-shipment, loading, unloading, or handling of the goods by any person at any place and for any length of time;
15.3 the carriage or storage of goods in or on transport units as defined in clause 33.3 and with other goods of whatever nature; and
15.4 to do other such acts as may in the operation of the Forwarder be reasonably necessary in the performance of its obligations in the interests of the Customer.
16. When acting as a agent the Forwarder does not make, or purport to make, any contact with the Customer for the carriage, storage, packing or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing services by establishing contracts with their parties so that direct contractual relationships are established between the Customer and such third parties.
17. If there is a choice of prices according to the extent or degree of the liability assumed by third parties, no declaration of value will be made and the goods may be dealt with at customer’s risk or other minimum charges, except under instructions received in writing and accepted by the Forwarder.
18. The Forwarder shall not be under any liability to the Customer by reason of having entered into any contract on behalf of the Customer, whereby the extent or degree of the liability assumed by a third party is in any respect excluded or limited, unless such contract is entered into contrary to instructions received in writing and accepted by the Forwarder.
19. The Forwarder shall on demand by the Customer provide evidence of any contract entered into as agent for the Customer. Insofar as the Forwarder may be in default of this obligation, it shall be deemed to have contracted with Customer as a principal for the performance of the Customer’s instructions.
20. If delivery of the Goods is not taken by the Customer, Consignee or Owner, at the time and place when and where the Forwarder is entitled to call upon such person to take delivery thereof, the Forwarder shall be entitled to store the said Goods at the sole risk of the Customer, whereupon the liability of the Forwarder for the Goods shall wholly cease. The cost of such storage, if paid for or payable by the Forwarder or any agent of sub-contractors, shall upon demand be paid forthwith by the Customer to the Forwarder.
21. The Forwarder shall be entitled at the expense of the Customer to dispose of any Goods at the expense of the Customer (by private sale or public auction or otherwise as may be reasonable in all the circumstances):
21.1 On 28 days notice in writing to the Customer; or
21.2 when the Goods have been held by the Forwarder for 90 days and the Goods cannot be delivered as instructed because the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Forwarder to have any interest in the Goods; or
21.3 Without prior notice, goods which have perished, deteriorated or altered or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to third parties or to contravene any applicable laws or regulations.
22. Upon accounting to the Customer for any balance remaining after payment of the costs of sale and disposal, the Forwarder shall be discharged of any liability whatsoever in respect of the Goods.
23. Except under special arrangements previously made in writing or under the terms of a printed document signed by the Forwarder, any instructions relating to the delivery or release of goods in specified circumstances only, such as (but without prejudice to the generality of this Clause) against payment or against surrender of a particular document, are accepted by the Forwarder only as agents for the Customer where third parties are engaged to effect compliance with the instructions.
24. The Forwarder shall not be under any liability in respect of the performance or arranging the performance of any instructions as referred to under clause 23 above shall not exceed that provided for in these Terms in respect of loss of or damage to goods.
25. In any event, the Forwarder’s liability in respect of the performance or arranging the performance of any instructions as referred to under clause 23 above shall not exceed that provided for in these Terms in respect of loss of or damage to goods.
26. No insurance will be effected except upon express instructions given in writing by the Customer and all insurances effected by the forwarder are subject to the usual exceptions and conditions of the policies of the insurance company or underwriters taking the risk. Unless otherwise agreed in writing, the Forwarder shall not be under any obligation to effect a separate insurance on each consignment but may declare it on any open or general policy held by the Forwarder.
27. Insofar as the Forwarder agrees to arrange insurance, the Forwarder acts solely as agent for the Customer using its best endeavours to arrange such insurance.
Advice and Information
28. Advice and information, in whatever form it may be given, is provided by the Forwarder for the Company only and the Customer shall indemnify the Forwarder against any liability, claims, loss, damage, costs or expenses arising out of any other persons relying upon such advice or information. Except under special arrangements previously made in writing, advice and information which is not related to specific instructions accepted by the Forwarder is provided gratuitously and without liability.
High Value and Hazardous Goods
29. Except under special arrangement previously made in writing, the Forwarder will not accept or deal with bullion, coin, precious stones, jewellery, valuables, antiques, pictures, human remains, livestock or plants (hereafter together called “High Value Goods”).
30. Except under special arrangements previously made in writing, the Forwarder will not accept or deal with goods of a dangerous or damaging nature, nor with goods likely to harbour or encourage vermin or other pests, nor with goods liable to taint or affect other goods (hereafter together called “Hazardous Goods”)
31 Should the customer nevertheless deliver to the Forwarder or cause the Forwarder to handle or deal with High Value Goods or Hazardous Goods otherwise than under special arrangements previously made in writing, the Customer shall indemnify the Forwarder against all penalties and the Forwarder shall under no liability whatsoever for or in connection with the High Value Goods or Hazardous Goods howsoever arising.
32. If Hazardous Goods are accepted pursuant to a special arrangement and in the opinion of the Forwarder they later constitute a risk to other goods, property, life or health, the Forwarder shall where reasonably practicable contact the Customer, but reserves the right at the expense of the Customer to remove or otherwise deal with the Hazardous Goods.
Packing/Marking of Goods
33. The Customer warrants that:
33.1 the description and particulars of any Goods furnished by or on behalf of the Customer are full and accurate;
33.2 all Goods have been properly and sufficiently prepared, packed, stowed, labeled and/or marked, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the goods;
33.3 where the Forwarder receives the goods from the Customer already stowed in or on a container, trailer, tanker or any other device specifically constructed for the carriage of goods by land, sea or air (each hereafter individually referred to as “transport unit”), the transport unit is in good condition and is suitable for the carriage to the intended destination of the goods loaded therein or thereon.
Promise not to sue
34. The Customer undertakes that no claim shall be made against any Director, Servant, or Employee of the Forwarder whichimposes or attempts to impose upon them any liability in connection with any services which are the subject of these Terms and if any such claim should nevertheless be made, to indemnify the Forwarder against all consequences thereof.
Customer’s general indemnities
35. The Customer shall save harmless and keep the Forwarder indemnified from and against:
35.1 All liability, loss, damage, costs and expenses whatsoever (including without prejudice to the generality of the foregoing, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Goods) arising out of the Forwarder acting in accordance with the Customer’s instructions or arising from any breach by the Customer of any warranty contained in these Terms or from the negligence of the Customer, and
35.2 Any claims of a General Average nature, which may be made on the Forwarder.
36. Payment for carriage or other services performed by the Forwarder under any contract to which these Terms apply is due on or before the 20th day of the month following the date of the Forwarder’s invoice. Payment of disbursements incurred by the Forwarder are due on receipt of the Forwarders invoice.
37. The Customer shall pay to the Forwarder in cash or as otherwise agreed all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set-off and notwithstanding that the total sums due exceed any credit limited imposed by the Forwarder.
38. In respect of all sums which are overdue the Customer shall be liable to pay to the Forwarder interest calculated at 5% above the Bank of New Zealand Limited rate for commercial overdrafts over $100,000 from the date that payment was due until payment is received by the Forwarder and such interest shall be compounded monthly.
39. Where the Customer or other party tenders payment by cheque, payment shall not have been made until the cheque has been honoured and the moneys payable under it are received in the Forwarder’s bank account as cleared funds.
40. The Customer shall be liable for the payment of all indebtedness to the Forwarder whether the services of the Forwarder are supplied to the Customer or some other person or company at the Customer’s request and notwithstanding that the Customer may have incurred all or any part of the indebtedness as agent for any other person or company.
41. Despite the acceptance by the Forwarder of instructions to collect freight, duties, charges, or other expenses from the consignee or any other person, the Customer shall remain responsible for such freight, duties, charges or expenses on receipt of evidence of proper demand and in the absence of evidence of payment (for whatever reason) by such consignee or other person when due.
42. The Forwarder may at its discretion apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer and it shall not be bound by any Terms or qualifications that the Customer may make in relation to payments made to the Forwarder.
43. The Customer will indemnify the Forwarder against and pay upon demand all expenses and legal costs (on a solicitor/agent/client basis) incurred by the Forwarder in the collection of overdue moneys or in the exercise of any rights or remedies under any contracts to which these Terms apply.
44. Demand may be made by the Forwarder posting a letter or invoice to the Customer at the postal address given on Application for Credit Facilities or the customer’s last known address. The letter or invoice shall be deemed to be received by the customer two days after the date of posting.
45. The Forwarder shall be entitled to assign to any other person or company all or any part of the Customer’s indebtedness to the Forwarder and the assignee shall be entitled to claim all or part of the indebtedness and shall have the same rights or recovery as the Forwarder.
46. The Forwarder may grant or decline to grant credit to any Customer. Any credit limit may be altered, suspended or cancellation at the Forwarder’s discretion with effect from the date of notification to the Customer where the Forwarder considers the credit worthiness of the Customer to be unsatisfactory.
47. The Forwarder may require the Customer to arrange for the Customer’s liability to the Forwarder to be guaranteed by third persons or secured by securities on terms satisfactory to the Forwarder. This requirement may be imposed by the Forwarder at any time and the Forwarder may suspend the Customer’s entitlement to credit pending its fulfillment to the satisfaction of the Forwarder.
48. The Forwarder may suspend or cancel all or part of any contract with the Customer if:
48.1 any amounts payable by the Customer to the Forwarder under any contract are overdue;
48.2 the customer fails to meet any obligation under any contract to which these Terms apply;
48.3 the customer is declared bankrupt, resolves to go into liquidation or has a petition for bankruptcy or the appointment of a liquidator presented against it;
48.4 if any liquidator, provisional liquidator, administrator, receiver, receiver and manager, or official manager is appointed in respect of the assets of the Customer.
48.5 the Customer enters into a scheme of arrangement with its creditors.
49. Upon cancellation of this contract all of the Customer’s indebtedness to the Forwarder under any contract or contracts shall become immediately due and payable.
Rights of lien
50. Subject to clause 48 of these Terms, the Forwarder shall have a general lien on all goods and documents relating to goods in its possession, custody or control for all sums due at any time from the Customer or owner, and shall be entitled to sell or dispose of such Goods or documents as Agent for and at the expense of the Customer and apply the proceeds in or towards the payment of such sums. Upon accounting to the Customer for any balance remaining after payment of any sum due to the Forwarder and the costs of sale and disposal the Forwarder shall be discharged of any liability whatsoever in respect of the Goods or documents.
51. When the goods are liable to perish or deteriorate the Forwarder’s right to sell or dispose of the goods shall arise immediately upon any sum becoming due to the Forwarder subject only to the Forwarder taking reasonable steps to bring the Customer’s attention its intention of selling or disposing of the Goods before doing so.
Brokerage and commissions
52. The Forwarder shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by or paid to freight forwarders.
53. Should the Forwarder be delayed, hindered, or otherwise prevented from providing the Services to the Customer in accordance with these Terms by reason of events or circumstances beyond the reasonable control of the Forwarder including but not limited to acts of God, wars, riots, strikes, lockouts, trade disputes or labour disturbances, accident, storm, fire, flood then the Forwarder shall not be liable to the customer for any loss or damage which may be suffered by the Customer whether as a direct or indirect result of any such occurrences.
54. Except under special arrangements previously made in writing, the Forwarder accepts no responsibility for departure or arrival dates of the Goods.
Limitation of liability
55. The Forwarder only accepts liability under clauses 56-57 below for loss of or damage to Goods occurring between the time when it takes the goods into its charge and the time when it is entitled to call upon the Customer, Consignee or Owner to take delivery of the Goods.
56. Subject to clauses 2-6, the Forwarder’s liability howsoever arising and notwithstanding that the cause of loss or damage be unexplained, shall not exceed:
56.1 in the case of claims for loss or damage to goods:
56.1.1 the value of any good lost or damaged, or
56.1.2 a sum at the rate of two Special Drawing Rights as defined by the International Monetary Fund (hereinafter referred to as SDR’s), per kilo of gross weight of any Goods lost or damaged whichever shall be the least.
56.2 In the case of all other claims
56.2.1 The value of the Goods the subject of the relevant Service, or
56.2.2 a sum of the rate of two SDR’s per kilo of the gross weight of the Goods the subject of the said Service or
56.2.3 75,000 SDR’s in respect of any one transaction whichever shall be the least.
57. For the purposes of clause 56 the value of the Goods shall be their value at the place and time they are delivered to the Consignee in accordance with the relevant service or should have been so delivered. The value of the SDR’s shall be calculated as at the date when they claim is received by the Forwarder in writing.
58. Subject to clause 59 below, the Forwarder shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profits, loss of market or the consequences of delay or deviation however caused.
59. Where there is a special arrangement relating to departure or arrival dates, the Forwarder’s liability for loss or damage as a result of failure to adhere to those dates shall not in any circumstances whatever exceed a sum equal to twice the amount of the Forwarder’s charges in respect of the relevant Services.
60. By special arrangement agreed in writing, the Forwarder may accept liability in excess of the limits set out in clause 56 above upon the Customer agreeing to pay the Forwarder’s additional charges for accepting such increased liability. Details of the Forwarder’s additional charges will be provided upon request.
Limitation of action
61. Any claim by the Customer against the Forwarder arising in respect of any Service must be made in writing and notified to the Forwarder within 14 days of the date upon which the Customer became or should have become aware of any event or occurrence alleged to give rise to such claim and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred except where the Customer can show that it was impossible for him to comply with this time limit and that he has made the claim as soon as it was reasonably possible for him to do so.
62. Notwithstanding the provisions of clause 61 above the Forwarder shall in any event be discharged of all liability whatsoever howsoever arising in respect of any Service provided for the Customer or which the Forwarder has undertaken to provide unless suit be brought and written notice thereof given to the Forwarder within one year from the date of the event or occurrence alleged to give rise to a cause of action against the Forwarder.
63. If at any time the Forwarder does not enforce any of these terms this will not prevent the Forwarder from being able to enforce that term or any term at any other time. A waiver of any of these terms must be in writing and signed by an authorized officer of the Forwarder.
Jurisdiction and law
64. These Terms and any Services to which they apply shall be governed by New Zealand law and any dispute arising out of any Services to which there terms apply shall be subject to the exclusive jurisdiction of the New Zealand Courts.
65. Storage of Goods
65.1 Where Goods are stored by the carrier at the request of the Consignor, the Consignor will furnish an address to which notices shall be sent, and will provide samples of the signatures of persons entitled to collect the Goods.
65.2 The carrier will be entitled to remove the Goods from a place of storage to another place of storage at its discretion.
65.3 The Consignor must be given 48 hours’ notice to the carrier of its intention to remove Goods from Storage.
65.4 The Carrier will not be obliged to deliver any Goods except to the Consignor or to a person authorized in writing by the Consignor to receive the Goods without:
(a) A direction in writing from the Consignor; and
(b) Payment of all amounts due by the Consignor to the carrier on any account whatsoever.
65.5 The Consignor will remove its Goods from Storage within seven days of receipt of written notice from the Carrier.
65.6 If any identifying document or mark is lost, damaged, destroyed or defaced, the Carrier may open any document, wrapping, packaging or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership.