Terms & Conditions – Simple Freight

DEFINITIONS
1. In these terms and conditions, unless the context otherwise requires:
  1. “Carriage” means and includes carriage to, beyond or within New Zealand.
  2. “Carrier” means any carrier who is engaged by the Freight Forwarder on behalf of the Owner to undertake any part of the Carriage of the Goods;
  3. “Container” includes any container, trailer, transportable tank, flat or pallet, or any similar article of transport used to consolidate goods;
  4. “Contractor” means any person who is engaged by the Freight Forwarder on behalf of the Owner to undertake any part of the Handling of the Goods;
  5. “Customer” means the person who instructs the Freight Forwarder to undertake Freight Forwarding Services and who is, as the case may be, either the consignee or the consignor of the Goods, or the person acting on behalf of any such person;
  6. “Dangerous Goods”: includes explosive, inflammable liquids or materials, poisons, corrosive substances and liquids, compressed gases, acids, radioactive substances and any other goods, substances or liquids likely in the opinion of the Freight Forwarder to cause damage or injury to other goods or to property or persons, or any goods harbouring or likely to harbour or encourage vermin, borer or other pests;
  7. “Freight Forwarder” means Simple Freight Services Limited and, where appropriate, also includes all other persons entitled to the benefit of these terms and conditions;
  8. “Freight Forwarding Services” means and includes the whole of the operations and services to be performed by the Freight Forwarder (including any incidental part of the Handling of the Goods) in connection with the implementing of the On-forwarding Instructions and procuring or otherwise making the arrangements for the Carriage and Handling of the Goods by other persons;
  9. “Goods” means the goods or other cargo accepted from or which are the subject of instructions issued to the Freight Forwarder by the Customer, and includes any Container not supplied or on behalf of the Freight Forwarder;
  10. “Handling” means and includes any packing, storage, trans-shipment, unloading, loading, handling and delivery and includes any other incidental services;
  11. “On-Forwarding Instructions” means any instructions given by the Customer to the Freight Forwarder with respect to the Carriage and Handling of the Goods;
  12. “Owner” includes the Customer, consignee, receiver of the Goods, any person now or hereafter owning or entitled to possession of the Goods, and all other persons who are or may hereafter become otherwise interested in the goods;
  13. “Valuables” includes bullion, coins, precious stones, jewellery, antiques and works of art.
2. References to the masculine gender shall include feminine gender and the neuter and vice versa.
3. Headings are inserted for the sake of convenience only and shall not affect the interpretation of these terms and conditions.
4. Simple Freight Service Limited (SFSL)

2. CREDIT TERMS – ALL DISBURSMENT AND SERVICES FEES ARE PAYABLE WITHIN AGREED CREDITS TERMS (INCLUDING SEA FREIGHT/ORIGIN CHARGES AND CLEARANCE COST AS QUOTED)

I/We, being authorized person/s of the above business stated in section 1 & 2, agree and guarantee payments of all accounts/invoices received from SFSL. stated credit terms and conditions.
Any claims or disputes with any invoices must be made within seven (7) working days.
Privacy Act (1993) – I/We authorize any person or company to provide SFSL with such information as maybe required in response to credit enquiries.
If payments are not made as provided in the our terms and conditions, any other unpaid accounts with SFSL,at its option, be declared and become due and payable immediately.
In the event of any default in payment due, you agree to pay full collection costs and in the event the account is referred to any Lawyer for legal enforcement of collections, to pay full legal fees and costs.
I/We grant SFSL security interest and in any of our property, which is, has been, or will be in SFSL’s possession or control, until full payment is made on any unpaid balance owed to SFSL to retain the property, or stop it in transit to secure full payment.
I/We authorize SFSL to lodge a caveat/collateral on any of our land/property/business/chattels interest if I/we fail to make the full payment on demand for debt owed to SFSL.
I/We agree to Interest (3% per month or part thereof) which, may be charged on any balance unpaid. This, together with all costs of collection and recovery of any overdue debt.
I/We understand that it is the sole responsibility of the owner of goods/cargo to arrange appropriate insurance cover against any weather damage, fire and theft while goods/cargo is being stored and in the care of SFSL.
I/We have been advised by SFSL and I/We fully understand that Maximum Gross Weight including container Tare weight should not exceed 29000KG in any 40HC Export container from our yard to Port of loading.
I/We confirm that the terms of this agreement has been explained to me/us and we fully understand all the terms and condition of this agreement.
I/We undertake that information given on this application is true and correct.

3. CONSUMER GUARANTEES ACT 1993

The provisions of the Consumer Guarantees Act 1993 are hereby expressly excluded and shall not apply in any circumstances where Freight Forwarding Services are acquired for the purposes of a business (as “business” is defined by Consumer Guarantees Act 1993.)
Where in any other circumstances the provisions of the Consumer Guarantees Act 1993 apply, the provisions of the terms and conditions shall be read subject to the application of the Act and, in the case of any conflict or inconsistency, the provisions of the Act will apply.

4. WARRANTIES BY THE CUSTOMER

The customer hereby represents and warrants that:
1. he is either the Owner or the authorised agent of the Owner;
2. he is authorised to accept and is accepting these terms and conditions not only for himself but also as agent for and on behalf of the Owner.
The owner hereby warrants;
1. the accuracy of all marks, weights, numbers, brands, contents, descriptions, values and other particulars furnished to the Freight Forwarder with respect to the Goods;
2. that the Goods are fit to be carried and stored in the condition and packed in the manner in which they are intended to or received by the Freight Forwarder;
3. that, where the Freight Forwarder has not been instructed to arrange for the goods to be packed the Owner has complied with all applicable laws and government.
The Owner hereby indemnifies the Freight Forwarder from against all claim, losses, costs and expenses, penalties and fines, or any other liability arising in consequence of a breach of any warranty set out in clauses 4.1 and 4.2.

5. FORWARDING AGENT

The Freight Forwarder is not a common carrier and will not be liable as such. Freight Forwarding Services are performed by the Freight Forwarder only to these terms and conditions, and the Freight Forwarder reserves the right to refuse to perform its services for any person, or to arrange carriage, storage, packing or handling for any class of goods.
The Freight Forwarder is not a carrier and does not purport to make any contact with the Owner of the Goods. On behalf of the Owner the Freight Forwarder shall as a forwarding agent only procure or arrange Carriage and Handling of the Goods to be undertaken by other persons except to the extent that any part of the Handling of the Goods is incidentally performed by the Freight Forwarder.
Where, in any circumstances, the Freight Forwarder acts as a principal in entering into a contract with any other person for the Carriage or Handling of the Goods, the Freight Forwarder does so as an agent for and on behalf of, and does not purport to make any contact with, the Owner for the Carriage, storing, packing, or Handling of the Goods.
The Carriage and Handling of the Goods by any Carrier or Contractor are and shall be regarded as operations and services distinct from the Freight Forwarding Services provided by the Freight Forwarder.

6. SUBCONTRACTING

The Freight Forwarder and any subcontractor shall be entitled to subcontract on any terms the whole or any part of the Freight Forwarding Services.
The Owner undertakes that no claim or allegation shall be made by the Owner against any persons (other than the Freight Forwarder) by whom (whether as subcontractor, principal, employer, servant, agent or otherwise) the Freight Forwarding Services or any part thereof are performed or undertaken which imposes or attempts to impose upon any such person any liability whatsoever in connection with the Goods whether or not arising out of negligence on the part of such person and if such claim or allegation should nevertheless be made to indemnify the Freight Forwarder and the person against whom such claim or allegation is made against the consequences thereof. Without prejudice to the foregoing every such person shall have the benefit of all provisions herein benefiting the Freight Forwarder as if such provisions were expressly for his benefit and in entering into this contract the Freight Forwarder is and shall be deemed to be acting as agent and trustee on behalf of and for the benefit of all such persons and each of them shall to this extend be deemed to be parties to this contract.

7. FREIGHT FORWARDING SERVICES

The Freight Forwarder shall be entitled to enter into contracts for:
1. the Carriage of Goods by any route, means and carrier;
2. the Handling of the Goods by any person at any place and for any length of time.
3. And to do all such other acts as the Freight Forwarder may in its absolute discretion consider necessary or incidental thereto and to depart from the On-forwarding Instructions in any respect if in the opinion of the Freight Forwarder it is necessary or desirable to do so.
The Owner hereby expressly appoints the Freight Forwarder as his forwarding agent and authorises the Freight Forwarder to do all such acts and to enter into all such contacts as are referred to in or contemplated by Clause 7.1 as agent for and on behalf of the Owner and the Owner agrees to ratify and confirm all such aspects and contracts, notwithstanding any departure by the Freight Forwarder from On-forwarding Instructions as mentioned.
The Owner agrees that the Carriage and Handling of the Goods will be subject to and the Owner will be bound by the terms, conditions, stipulations and limitations, arising at law in connection with the Carriage and Handling of the Goods, or contained in any documents issued by or customarily relied upon by a Carrier or Contractor including without limitation any consignment note, air waybill or other contractual document or conditions of carriage.
The owner will not seek to impose on any Carrier or Contractor any liability greater than that accepted or undertaken by virtue of the contract entered into by the Freight Forwarder.
The Freight Forwarder shall not be obliged to make any declaration as to the nature or the value of any goods, or as to any other matter or things unless required by law or expressly instructed to do so by the Customer in writing.
The Freight Forwarder shall not be obliged to arrange for the Goods to be carried, stored or handled separately from other goods or cargo.
Except by a special arrangement previously agreed in writing, the Freight Forwarder will not accept any business relating to Dangerous Goods, Valuables, livestock or plants. Should the Customer nevertheless delivery any such goods to the Freight Forwarder to handle or deal with any such goods otherwise than by special arrangement previously agreed to in writing then the Owner shall be liable for all loss or damage whatsoever caused by or to or in connection with any such goods howsoever caused or arising and the Owner shall indemnify the Freight Forwarder from and against all penalties, claims, demands, damages, costs and expenses whatsoever arising in connection therewith which are imposed upon, or suffered or incurred by the Freight Forwarder.
Any livestock, plants or Dangerous Goods which are not the subject of a special arrangement previously agreed in writing may be destroyed or otherwise dealt with in accordance with the sole discretion of the Freight Forwarder or any other person in whose custody any such goods may be at the relevant time. If such goods are accepted by special arrangement previously agreed in writing they may nevertheless be destroyed or otherwise dealt with if it is deemed necessary or prudent to do so in the sole and absolute discretion of the Freight Forwarder or any other person in whose custody they may at the relevant time.

8. CHARGES

The Freight Forwarder’s charges shall be deemed to be fully earned on receipt of the Goods by the Freight Forwarder and shall be paid and non-refundable in any event irrespective of whether the Goods are delivered to the consignee.
The Freight Forwarder may fix its charges by weight, measurements or value, and may at any time re-weigh, re-measure or re-value or require the Goods to be re-weighed, re-measured or re-valued and may re-fix its charges accordingly.
All quotations given by the Freight Forwarder are based on costs prevailing at the date of the quotation in respect of freight, insurance and other charges, rates of exchange or currency conversion, taxes, duties and other imposts, and on the latest available quotations from carriers utilised by the Freight Forwarder. Any increase at any time in costs due to variations in any of the foregoing shall be to the Owners account and that price payable by the Owner shall be increased accordingly.
The Freight Forwarder’s charges, and any other amounts payable to the Freight Forwarder, shall be paid on or before the due date for payment without deduction or deferment on account of any claim, counterclaim or setoff. The due date for all amounts payable to the Freight Forwarder is the date or dates communicated by the Freight Forwarder in writing and shall be strictly observed.
Notwithstanding any direction that the whole or any part of the Freight Forwarder’s charges shall be payable by any particular person, the Owner shall remain liable to the Freight Forwarder for all of the Freight Forwarder’s charges.
Should payment of the Freight Forwarder’s charges not be made by the due date, the owner shall pay penalty interest on all monies outstanding at a rate equal to 3% above the Freight Forwarder’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 the Freight Forwarder but the Freight Forwarder’s right to claim interest pursuant to this clause shall be without prejudice to the Freight Forwarder’s other rights and remedies in respect of the default in failing to make payment by the due date.
If at any time payment of the Freight Forwarder’s charges is in arrears, any subsisting obligations of the Freight Forwarder may be suspended and the Freight Forwarder shall not be under any liability to the Owner during any such period of suspension.

9. DISBURSEMENTS AND EXPENSES

The Freight Forwarder may at its discretion pay and the Owner shall on demand reimburse the Freight Forwarder for any duties, taxes or other charges, costs or disbursements paid, or any expenses incurred, by the Freight Forwarder in connection with the performance of the Freight Forwarding Services and procuring the Carriage and Handling of the Goods.
All costs, expenses or charges incurred by the Freight Forwarder in respect of any arrangement made, or any contract entered into or any other form of liability shall be recoverable from the Owner pursuant to clause 9.1, notwithstanding that any such arrangement, contract or liability was not known or to be contemplated by the Owner at the time of entering into this contract.
Notwithstanding clauses 9.1 and 9.2, the Freight Forwarder shall be under no obligation to incur and pay any costs, expenses or charges except where the Owner has put the Freight Forwarder in sufficient funds so as to meet that same.

10. INSURANCE

The Freight Forwarder will arrange insurance on the Goods as the agent of the Owner only if the Owner gives the Freight Forwarder express written instructions to do so.
The Freight Forwarder may, in its discretion, effect separate insurance cover or cover on an open or general policy.
All such insurances shall be at the expense of the owner and will be subject to the usual exemptions and conditions of the policies of the insurer or underwriter accepting the risk. Should the insurer dispute liability for any reason, the Owner shall have recourse against the insurer only and the Freight Forwarder shall not be under any responsibility or liability in relation thereto notwithstanding the premium on any policy may be not the same as that charged or paid by the Owner.

11. RETENTIONS OF BROKERAGES AND REMUNERATIONS

The Owner hereby acknowledges that the Freight Forwarder may have a pecuniary interest in any contract entered into by the Freight Forwarder as agent for or on behalf of the Owner pursuant to the provisions of these terms and conditions.
The Freight Forwarder shall be entitled to receive, be paid and retain, and the Owner hereby expressly consents to the receipt by the Freight Forwarder of, all brokerages, commissions, discounts, rebates, bonuses, deduction, allowances and other remunerations customarily received or retained by or paid to forwarding agents.
The Freight Forwarder shall not be bound to disclose to the Owner the nature or amount of any such other remunerations received or receivable by the Freight Forwarder.

12. LIEN

The Freight Forwarder shall have the right of detention of, and a particular and general lien on, the Goods and any other goods (and any documents relating thereto) of the Owner in the possession or control of the Freight Forwarder at any time for all sums payable to the Freight Forwarder in respect of the Goods or for any particular transaction or general balance or other monies due from the Owner. If any monies due to the Freight Forwarder are not paid forthwith after notice has been given to any person from whom the monies are due that the Goods or any other goods of the Owner are being detained, they may be sold by auction or otherwise at the sole discretion of the Freight Forwarder and at the expense of such persons, and the net proceeds of sale applied in or towards satisfaction of such indebtedness. Failing the giving of any such notice, the Freight Forwarder shall have the right to sell any such goods by auction or otherwise after the Freight Forwarder has informed or made reasonable endeavours to inform the Owner that it will dispose of the goods and apply the proceeds as mentioned. Any such sale or disposition shall not prejudice or affect the Freight Forwarder’s right to recover from such persons any balance due or payable to the Freight Forwarder hereunder in respect of services provided hereunder or the costs of any such detention and sale or other disposition.

13. STORAGE OF PERISHABLE GOODS ON SITE

Clauses 13.2 to 13.5 apply to all perishable goods which may at any time be held or stored at the Freight Forwarder’s premises.
All perishable goods are held, handled and stored at the Owner’s risk.
The Freight Forwarder shall be entitled to refuse to handle any perishable goods which in its opinion are unfit for storage and may, if any perishable goods subsequently become unfit for storage, have such goods removed from the premises at the Owner’s expense and, where appropriate, dispose of them in accordance with clause 14.1(b).
The Owner warrants that any perishable goods stored by the Freight Forwarder are and will remain free from any deleterious or objectionable matter, stance or odour which may soil, contaminate or otherwise prejudicially affect other goods in the store.
The Owner hereby indemnifies the Freight Forwarder from and against all claims, losses, costs and expenses, penalties and fines, or any other liability arising in the consequence of a breach of the warranty set out in clause 13.4.

14. SALE AND DISPOSAL OF GOODS

The Freight Forwarder shall be entitled at the expense of the Owner to sell or dispose of;
1. on 21 days’ notice in writing to the Owner or where the Owner cannot be traced, after such goods have been held by the Freight Forwarder for 90 days, all goods which in the opinion of the Freight Forwarder cannot be delivered, either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee or for any other reason;
2. without notice to the Owner, any perishable goods which are not taken up immediately on arrival or which are insufficiently or incorrectly addressed or marked or otherwise are not readily identifiable, or which in the opinion of the Freight Forwarder appear to be deteriorating or would be likely to perish during the course of the Carriage and Handling of the Goods.
All goods which the Freight Forwarder is, in accordance with these terms and conditions, entitled to sell or dispose of, may be sold by auction or otherwise at the discretion of the Freight Forwarder. All charges and expenses in connection with the sale or disposal of the goods shall be paid by the Owner and payment or tender of the net proceeds of the sale or disposal, after deduction of all such charges and expenses and any other indebtedness of the Owner to the Freight Forwarder, shall be equivalent to delivery. Any such sale or disposal shall not prejudice or affect the Freight Forwarder’s rights to recover from any person balance due or payable to the Freight Forwarder in respect of any services provided by it or any costs associated with the detention and sale of the goods.

15. LIABILITY OF THE FREIGHT FORWARDER

Where, and to the extent that, the provisions of the Carriage of Goods Act 1979 (hereinafter called “the Act”) apply to this contract, the contract shall be “at limited carrier’s risk” as that term is defined by the Act. The provisions of sections 1 to 27 of the Act shall apply only to the extent that such provisions are not consistent with these terms and conditions.
Subject to clause 2.2 and the provisions of the Act imposing liability on the Freight Forwarder in respect of loss or damage to the Goods, the Freight Forwarder shall not be under any liability whatsoever and howsoever caused or arising and (without limiting the generality of the foregoing) whether caused by or arising as a result of negligence or breach of contract on the part of the Freight Forwarder or otherwise for:
1. any damage to or loss, deterioration, contamination, mis-delivery, delay in delivery or non-delivery of the goods.
2. any loss of or damage to perishable goods due to any failure or breakdown of machinery or plant, shortage of power or labour, or pilferage, theft or burglary (or any attempt of the same) whether by an servant of the Freight Forwarder or any other person;
3. any loss or damage caused by any failure to carry out or in carrying out the On-forwarding Instructions;
4. any failure to perform or in performing the Freight Forwarding Services and in particular in connection with any instruction, advice, information or service given or provided to any person whether in respect of the Goods or any other matter or thing;
5. any direct, indirect or consequential loss or damage caused by or arising from delay, loss of market or loss of or damage to the Goods, or otherwise howsoever.
In respect of any claim pursuant to clause 15.1, the Freight Forwarder shall be under no liability whatsoever unless written notice of any claim, giving full particulars of the events giving rise to the claim and any alleged damage or loss, is received by the Freight Forwarder within fourteen (14) days after delivery of the Goods or, in the case of non-delivery or loss or destruction of the Goods, within fourteen (14 days) of the date on which the Goods should have been delivered, and in any other case within fourteen (14 days) of the event giving rise to the claim.
Any claim which has not been made strictly in accordance with the provisions of clause 15.3 shall be deemed to be waived and absolutely barred.

16. INDEMNITY

Without prejudice to clauses 4, 6.2, 7.7 and 13.5 the Owner shall on demand indemnify the Freight Forwarder from and against all duties, taxes, penalties, fines, payments, claims, demands, costs and expenses, and other liabilities of whatever kind, whether or not arising out of the negligence of the Freight Forwarder, its servants or agents, which are imposed on, or suffered or incurred by the Freight Forwarder and which arise directly or indirectly from or in connection with the performance of the Freight Forwarding Services, the implementation of the On-forwarding Instructions, the procurement of the Carriage and Handling of the Goods, or otherwise, including any liability to indemnify any other person against claims made against such other person by the Owner.

17. NOTICES

Any notice to be given under this contract will be deemed to have been properly served if delivered or sent by registered post or facsimile transmission to the registered office of the party to receive it or the usual or last known residence or place of business of such party.
Any notice sent by registered post will be deemed to have been properly served two days after the date upon which it was posted. Any notice sent by facsimile will be deemed to have been properly served on the date of transmission or, if the transmission was made after 5.00pm or on a day other than a normal working day, then on the next working day following the date of transmission. Any notice delivered to the appropriate address will be deemed to have been properly served on the date upon which the notice was so delivered.

18. MISCELLANEOUS MATTERS

To the extent that any provisions of these terms and conditions is contrary to law, it shall be void but any such provisions shall remain in full force and effect to the extent that it is not contrary to law and the invalidity of any such provision or part thereof shall not affect the validity and enforceability of any other provision of these terms and conditions.
No servant, agent or representative of the Freight forwarder has any authority to alter, modify or waive any provision of these terms and conditions unless such alterations, modification or waiver is reduced to writing and signed by a duly authorised representative on behalf of the Freight Forwarder.
All of the rights, immunities and limitations of liability in these terms and conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of contract or of any of these terms and conditions by, or any negligence on the part of, the Freight Forwarder or any other person entitled to the benefit of any of the provisions of these terms and conditions.

19. GOVERNING LAW

These terms and conditions, and any act or contract to which they apply, shall be governed by and interpreted in accordance with the laws of New Zealand and any proceedings in respect of any dispute, matter or thing shall be instituted in New Zealand.

Signatures: _____________________________
Full Name: ______________________________
Date of Application: ______________________