Terms and Conditions - Dolphin Shipping New Zealand Ltd

‍1. Definitions and Interpretation

‍1.1 Definitions: In this agreement:

"Consignment" means the consignment ofGoods to be transported in accordance with this agreement.

"Goods" means the goods that comprise theConsignment.

"Representatives" means a party'semployees, consultants or agents.

"Services" means the services we agree toprovide to you which may include arranging the receipt, packing, storing,transporting, customs clearance, delivery and other handling of Goods.

"Subcontractor" includes any person engagedby Us to perform any part of the Services, including packing, storing,transporting, or otherwise handling the Goods.

"We", "Our", and "Us"refers to Dolphin Shipping New Zealand Ltd, and its successors and assigns.

"You" and "Your" refer toa customer that engages us to provide the Services, and its successors andassigns; and includes any consignee, notify party or other person or entitywhich at anytime has or acquires an interest in the Goods.

1.2 Interpretation: In this agreement, unless the contextrequires otherwise:

(a) the headings to clauses are inserted for convenienceonly and shall be ignored in interpreting this agreement;

(b) the word including and other similar words do not implyany 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 subordinatelegislation made under it and amendments to or replacement of any of them fromtime to time.

‍2. Services as agent

‍2.1 You acknowledge that we perform the Services in thecapacity of a freight forwarding and customs agent and not the actual carrier,and accordingly our relationship is one of principal and agent (except inrelation to incidental services provided directly by us to you).  

2.2 We reserve the right to refuse to provide Services toany person, or in respect of any type of Goods.

2.3 You authorise us to enter into any contracts on yourbehalf in respect of handling the Goods (including engaging contractors andsubcontractors, and entering into contracts for the carriage of goods), and tootherwise handle, deal with, or provide instructions in respect of the Goods aswe see fit. You agree that we may deviate from any specific instructionsprovided to us by you in relation to the Goods if we think it is necessary ordesirable to do so in the performance of the Services.

‍3. Subcontractors

‍3.1 Any contracts that we enter into on your behalf inrelation to the Goods or the performance of the Services, including contractsfor carriage, may be with any subcontractor of our choosing, and maybe on anyterms that we, in our absolute discretion, deem satisfactory. You agree thatyou shall be bound by the terms and conditions of any contract entered into byus on your behalf, and that any conditions, stipulations or limitationscontained in any such contract shall apply.

3.2 For the purposes of the Contract and Commercial Law Act2017, Part 2, subpart 1, every provision of this agreement that confers abenefit on us, including any limitations of liability, also confers a benefiton our subcontractors as if such provisions were expressly stated to be for thesubcontractor's benefit. You agree that you will not make any claim against anysubcontractor that seeks to impose liability on that subcontractor except tothe minimum extent permitted by the law, and if you make any claim, you willindemnify us for all costs, expenses, and damages suffered or incurred by usarising out of such claim by you against our subcontractors.

‍4. Pricing

‍4.1 You agree that you are liable for all of our chargesand those of any subcontractor (including shipping costs), and any other costs,disbursements or expenses reasonably incurred by us in relation to the Goods orthe provision of the Services (including any taxes, duties or other imposts,storage fees, demurrage fees, loading or unloading fees, crane hire, towage, orany other fees).

4.2 Unless we expressly state in writing that certain pricesare a fixed quote, any and all pricing information provided to you (includingfreight rates) are estimates only, and we reserve the right to pass on anyincrease in such prices, howsoever arising (including as a result of foreignexchange variations under clause 4.4). We will endeavour to keep you informedof 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 incurredby us in any currency other than in New Zealand Dollars, those costs may bebilled to you by us in New Zealand Dollars, in which case the relevant costsshall be converted to New Zealand Dollars at the rate notified by our tradingbankers at the date of our invoice to you. If there is any fall in the value of the New Zealand Dollar against thecurrency which has been converted between the date of the invoice and the dateof payment by you, we shall be entitled to recalculate such currency conversionas at the date of payment and you shall pay any additional amount resultingfrom that recalculation.

4.5 Without limiting clause 12, you agree that if we areprevented from performing and/or completing any Services directly as a resultof a breach of the warranty in clause 7.1(d)(i) ("Breach"),then we may invoice you for and recover from you the prices that we would havebeen entitled to charge had the Breach not occurred and all Services been fullyperformed by us.

5. Payment Terms

5.1 Unless otherwise agreed by us in writing, an invoice isdue 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 invoicesissued as follows:

a. in the case of a Consignment being imported into NewZealand, before the Consignment is released to you or your nominee andincluding if any Goods are held or seized by customs in New Zealand; or

b. in the case of a Consignment being exported from NewZealand, before the release of documents to you, or the consignee (asapplicable).

5.2 As your agent, we may require funds from you in advancein 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 andagree that:

a. we are under no obligation to pay any costs to a thirdparty on your behalf without first having received cleared funds from you tocover such costs; and

b. we are not liable or responsible in any way for any costsor losses arising directly or indirectly from any refusal or delay in us payingthe costs of a third party due to you not first providing us with adequatecleared funds.

5.3 Our preferred method of payment is by direct credit ofcleared funds to our nominated bank account. If you choose to make payment bycredit card, we reserve the right to pass on to you any costs reasonablyincurred by us in accepting such payments.

5.4 All payments of invoices by you (or on your behalf) mustbe 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 arefor your account and are not deducted from the amount on the invoice. We maydeduct 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 agreementis overdue:

a. we may at our discretion charge interest on any monieswhich are fourteen (14) or more days overdue, commencing on the due date untilthe day of actual payment. The interest rate will be the then current overdraftinterest 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 shallpay on demand all costs and expenses (including legal costs on a solicitor andown client basis) incurred by us in recovering any amounts owing by you to usunder this agreement; and

c. we may exercise any of our rights set out in clauses 5.6and 9 below.

5.6 If you fail to make a payment when it is due or if webelieve that you may not pay us when a payment is due, we may at our solediscretion suspend any Services (including suspending delivery of the Goods) orterminate this agreement. We are not liable to you in any way for any costs orlosses 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 wespecify and agree with you to use any particular means, route or procedures, wewill use reasonable endeavours to do so, but if circumstances arise such thatif, in our reasonable opinion, it is necessary or desirable to deviate from theagreed means, route or procedures, we may do so at your cost and withoutnotice, and without incurring any liability to you as a result of suchdeviation.

7. Warranties by You

7.1 You warrant and represent to us on a continuing basis:

(a) Ownership: that you are either the owner of theGoods, or the authorised agent of the owner of the Goods, and are authorised byany person who has or may acquire an interest in the Goods to enter into andaccept the terms of this agreement;

(b) Particulars: the accuracy and completeness of alldescriptions, values and other particulars of the Goods, and all otherinformation provided to us by you or your representatives in relation to theGoods or otherwise in connection with the Services, including in particular forcustoms clearance purposes;

(c) Packing: except where we are instructed by you inwriting to arrange for the packing of the Goods on your behalf, that the Goodshave been properly and sufficiently packed and prepared for transport, and suchpacking complies with any instructions for packing and preparation that we mayhave given you;

(d) Compliant Goods:

i. that the Goods fully comply with all New Zealandimportation and exportation laws  andregulations (as applicable), including Part 5 of the Customs and Excise Act1996; and

ii. subject to clause 10.1, that the Goods are notProhibited Goods as that term is defined in clause 10.1; and

(e) Anti-social Forces: that you or your officers,employees, parent company, major shareholders or subsidiaries are not an organisedcrime group, a member of an organised crime group, a related company orassociation of an organized crime member and related with such organised crimegroup.

7.2 You indemnify and hold us and our subcontractorsharmless in respect of any liability for costs, loss or damage suffered by usor our subcontractors arising out of a breach of the warranties set out inclause 7.1.

8. Insurance

8.1 Insurance shall be subject to any exceptions andconditions in the policies of the insurer taking the risk. In allcircumstances, if an insurer disputes its liability for any reason you shallhave recourse against the insurer only, and we shall not have anyresponsibility 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 bedelivered when they are delivered to the agreed place of delivery given to usby you or your representative for that purpose, or if the Goods are to becollected from a nominated place, from the date that we advise you that theGoods are available for collection from that nominated place.

9.2 Subject to you complying with all of your obligationsunder this agreement, we shall use all reasonable commercial endeavours todeliver the Goods to the designated address (or make the Goods available forcollection by you or your representative) in accordance with any agreedtimeframes. However, should delivery be delayed for any reason, we will not beresponsible for any loss or damage suffered or incurred by you or any otherperson as a result of such delay.

9.3 Without limiting and in addition to any of our rightsunder the Contract and Commercial Law Act 2017, Part 5, subpart 1 (including,for the avoidance of doubt, in respect of the carrier's lien set out in section285 of that Act), we reserve the right to withhold delivery of any of the Goodsor any official documentation regarding the Goods or the Consignment (forexample, bills of lading, airway bills, de-registration certificates or logcards) 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 wehave 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 usin our sole discretion) to recover all amounts payable to us (together with anydefault interest that may apply and any reasonable costs of exercising ourrights under this clause, including the costs of sale) and to anysubcontractor. If there is any surplus after paying all amounts owing to us andto our subcontractors, we will return such surplus to you within fourteen (14)days of receiving your bank account details. If there is a shortfall, youremain liable for all amounts payable.

‍9.4 If we elect to withhold the Goods under the terms ofthis agreement, we may transport the Goods to another location for storage, andall costs so incurred shall be for your account, including our reasonableadministration costs.

‍9.5 You agree that, to the extent the lien described aboveis a contractual lien, it may be registered by us on the Personal PropertySecurities Register and you will do all things reasonably required of you by usfor us to perfect our security interest. You waive your right to receive averification 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.

9.5 You agree that the contractual lien set out above may beregistered by us on the Personal Property Securities Register and you will doall things reasonably required of you by us for us to perfect our securityinterest. You waive your right to receive a verification statement or a copy ofany 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 deliveredeither because they are insufficiently or incorrectly addressed or because theyare not collected or accepted by the consignee or any other person afterfourteen (14) days’ notice in writing of intention to sell or dispose of thesame has been given to you. All charges and expenses arising in connection withthe storage and sale or disposal of the Goods shall be paid by you.

10. Prohibited Goods

10.1 Unless special prior arrangements have been agreed toby us in writing, we will not accept or provide Services in respect of any ofthe following ("Prohibited Goods"):

a. hazardous goods: any firearms, or any noxious,dangerous, defective, toxic or inflammable items that are likely to causedamage or are unlawful to carry or import, or any other item reasonablydetermined 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 orlighting products, livestock or animals, or any other item reasonably determinedby us as being valuable or fragile; or

c. perishable goods: any items of a perishablenature, plants and produce, flowers, chilled and refrigerated items or any itemthat needs to be delivered within a limited time span in order to preserve itsnature and quality.

10.2 If you provide us with any Goods that are or becomeProhibited 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 anycosts or losses suffered by you arising from the way in which we choose to dealwith any Prohibited Goods, and you indemnify us for any costs and lossessuffered or incurred by us or our subcontractors arising from the ProhibitedGoods, including the costs of dealing with or disposing of the Prohibited Goodsand any penalties or fines that may be imposed on us because of the ProhibitedGoods.

‍11. Warranties and liability

‍11.1 Except as expressly set out in this agreement, allterms, conditions, warranties and representations, expressed or implied bystatute, common law or otherwise are excluded to the maximum extent permittedby law.

11.2 If you are acquiring (or hold yourself out asacquiring) the Services for the purposes of a business, you agree that theprovisions of the Consumer Guarantees Act 1993 do not apply. If the ConsumerGuarantees Act 1993 does apply, then nothing in this agreement shall restrictthe application of that Act.

11.3 If the Contract and Commercial Law Act 2017, Part 5,subpart 1 applies to any Services provided under this agreement, the contractis at limited carrier's risk as that term is defined in that Act.

11.4 We are not liable to you or your Representatives forany direct or indirect loss resulting from:

a. the lawful seizure of any Goods by New Zealand customs;or

b. any Goods failing to meet all relevant New Zealand andoverseas regulatory and legislative requirements.

11.5 If the Civil Aviation Act 1991 or the MaritimeTransport Act 1994 applies to any Services, our liability for loss of or damageto the Goods shall be limited in the manner prescribed in these Acts.

11.6 Subject to clauses 11.3 and 11.5:

a. Under no circumstances shall we, or our Representatives,be liable in contract, in tort (including negligence), in equity, for a breachof statutory duty or otherwise, for any indirect or consequential loss ordamages suffered by you or your Representatives (including any loss of revenueor profit, or any other economic loss, or any loss of reputation oropportunity) in connection with or however arising under this agreement; and

b. Under no circumstances shall we, or our Representatives,be liable in contract, in tort (including negligence), in equity, for a breachof statutory duty or otherwise, or otherwise to any third party for any loss,injury or damage, direct or indirect, (including, without limitation, loss ofrevenue or profit or any other economic loss, or any loss of reputation oropportunity) or for any direct or indirect or consequential loss whatsoever,arising from any act, omission, error, default or delay in respect of theperformance or non-performance by either party of their respective obligationsunder this agreement or otherwise.

11.7 We shall have no liability to you or yourRepresentatives whatsoever unless:

a. We receive written notice of any claim, that includesfull particulars of any alleged damage, within three (3) days after thedelivery of the Goods, or in the case of the loss or destruction of the Goods,within seven (7) days of the date of delivery or the date when they should havebeen delivered; and

b. An action shall have been commenced by you in a Court ofcompetent jurisdiction and notice given to us within six (6) months from dateof delivery of the Goods or the date when they should have been delivered.

11.8 In any case where any liability has not beeneffectively limited or excluded, our liability shall be the lesser of:

a. $100; or

b. The cost of resupplying the Services.

11.9 Regulatory advice: Where we give New Zealandregulatory advice, we do so to provide helpful suggestions only and theprovision of such advice does not derogate from or limit your obligation toensure that the warranty in clause 7.1(d)(i) remains accurate. We assume no obligationor liability for any regulatory advice given. You agree that you accept suchregulatory advice entirely at your own risk based on your own judgement and notin reliance upon us.

11.10 Other legislation: This agreement shall be readsubject to the provisions of any legislation that compulsorily applies to theServices, provided that nothing in this agreement shall be construed as awaiver of any rights under such legislation or as an increase of any of itsliabilities or responsibilities.

12. Indemnity

12.1 You fully indemnify and hold harmless us and ourRepresentatives against any costs, losses, claims, liabilities, proceedings andexpenses (including legal costs incurred on a solicitor and own client basis)incurred and any loss or damage suffered by us or our Representatives:

a. by reason of any third party claims under clause 11.6(b);or

b. arising from your negligence; or

c. arising from any breach by you of the terms of thisagreement.

13. Privacy Act 1993

13.1 You authorise us to collect and retain informationabout you from any third party (including from any trade reference or creditreporting agency), for the purposes of assessing your credit worthiness anddetermining whether or not to extend or continue to extend any credit to you,and sending you marketing, promotional or other material relating to any goodsor 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 personalinformation held by us.

14. Dispute Resolution

14.1 Both parties agree to follow the below two-step disputeresolution process. Each party agrees not to start any court action in relationto a dispute until it has complied with the below process, unless that partyrequires urgent relief from a court. During the dispute each party willcontinue to perform its obligations as far as practical given the nature of thedispute.

The process starts when one party determines that there is adispute or difference arising out of or in connection with this contract, orthe subject matter of this contract, including any question about itsexistence, validity or termination, (the “dispute”) and notifies theother party in accordance with clause 15.2.

Each party is to escalate the dispute to their most senioremployee or a director who is tasked with resolving the dispute and to notifythe other party of this person’s contact details. These two persons are to meet(in person if practicable, or if not via a phone call or video call) in goodfaith to resolve the dispute to both parties’ mutual satisfaction.

Failing that, or if the dispute is not resolved within 30days of notification, the dispute shall be referred to mediation in accordancewith the Mediation Rules of the New Zealand Dispute Resolution Centre. Each partywill pay its own costs of mediation.

15. General

15.1 Force Majeure: A party shall not be liable forany breach of this agreement to the extent such breach is due to a circumstancebeyond the reasonable control of that party such as an Act of God (butexcluding lack of funds) ("Force Majeure Event"), providedthat it uses reasonable endeavours to mitigate the effect of the Force MajeureEvent and resumes full performance of its obligations under this agreement assoon as is reasonably practicable.

15.2 Notices: Each notice under this agreement shall be in writing and deliveredpersonally or sent by post, facsimile or email. A notice is deemed to bereceived: (a) if delivered personally, when delivered; (b) if posted, three (3)business days after posting; (c) if sent by facsimile, upon production of atransmission report which indicates the facsimile was sent in its entirety tothe facsimile number of the recipient; or (d) if sent by email, when actuallyreceived in readable form by the recipient.

15.3 Amendments: We reserve the right to update theseTerms and Conditions at any time. We endeavour to give you at least 30 days writtennotice of any material change. Any changes will be effective immediately uponposting the updated Terms and Conditions on our website. Your continued use ofour services following the posting of any update constitutes your acceptance ofsuch changes.

15.4 Assignment: You may not assign or transfer anyor part of this agreement without our prior written consent (consent not to beunreasonably withheld). If you are a company, a change in the effectivemanagement of the company, or a change of 30% or more of the ownership of theissued share of the company shall be deemed to be an assignment for thepurposes of this clause.  

15.5 Entire agreement: This agreement is the entireagreement of the parties and supersedes all prior agreements andrepresentations between the parties relating to the matters dealt with in thisagreement.

15.6 Further assurances: Each party shall, at its ownexpense, promptly sign and deliver any documents, and do all things, which arereasonably required to give full effect to the provisions of this agreement.

15.7 Remedies cumulative: The rights and remediesprovided in this agreement are cumulative and not exclusive of any rights orremedies provided by this agreement or law.

15.8 Severance: If any provision of this agreement isillegal, invalid or unenforceable, that provision shall be read down to theextent necessary to make it legal, valid and enforceable.

15.9 Waiver: A waiver of a right under this agreementis ineffective unless it is in writing.

15.10 Governing law and jurisdiction: This agreementis governed by New Zealand law and the parties irrevocably submit to thenon-exclusive jurisdiction of the New Zealand courts.

‍