Terms of Trade
Definitions: In this agreement, unless the context requires otherwise:
“Act" means the Contract & Commercial Law Act 2017.
“Non-Runner” means a vehicle that cannot be driven on or off a truck or trailer under its own power, including vehicles with defective brakes.
“Consignment” means the consignment of goods to be transported in accordance with this agreement.
“Goods” means the goods that comprise the Consignment.
“Services” means arranging the receipt, packing, storing, transport, customs clearance, delivery and other handling of goods.
“subcontractor” includes any person engaged by 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 Limited t/a Dolphin Cartage, and its successors and assigns.
“you” and “your” refer to a customer that engages us to provide the Services, and its successors and assigns.
1.1 Where a Contract of Carriage is accepted by us, we agree to provide the Transport Service requested by the Customer for the carriage of the Vehicle as set out in that Contract of Carriage.
1.2 The Customer hereby warrants that they either have legal title to the Vehicle or express or implied consent of the legal owner of the Vehicle to request us to undertake the Transport Service.
1.3 These Conditions shall apply to and govern the supply by us of Transport Services to the Customer. If there is any conflict or inconsistency between these Conditions and the terms of any order submitted by the Customer or any price list, invoice or delivery docket issued by us, these Conditions shall prevail unless otherwise agreed in writing by us.
2.1 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 we specify and agree with you to use any particular means, route or procedures, we will use reasonable endeavours to do so, but if circumstances arise such that if, in our reasonable opinion, it is necessary or desirable to deviate from the agreed means, route or procedures, we may do so at your cost and without notice, and without incurring any liability to you as a result of such deviation.
3.1 You acknowledge that we perform the Services in the capacity of a freight forwarding agent and not the actual carrier
3.2 We reserve the right to refuse to provide Services to any person, or in respect of any type of goods.
3.3 You authorise us to enter into any contracts on your behalf in respect of handling the Goods (including engaging contractors and subcontractors, and entering into contracts for the carriage of goods), and to otherwise handle, deal with, or provide instructions in respect of the Goods as we see fit.
4.1 You agree that you are liable for all of our charges and those of any subcontractor (including shipping costs), and any other costs, disbursements or expenses reasonably incurred by us in relation to the Goods or the provision of the Services (including any storage fees, demurrage fees, loading or unloading fees, towage, non-running vehicles or any other fees).
4.2 Unless we expressly state in writing that certain prices are a fixed quote, any and all pricing information provided to you (including freight rates) are estimates only, and we reserve the right to pass on any increase in such prices, howsoever arising
5.1 Unless otherwise agreed by us in writing, an invoice is due 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 invoices issued as follows:
5.2 As your agent, we may require funds from you in advance in order to pay various costs and fees arising in the course of the Services. You acknowledge and agree that:
(a) we are under no obligation to pay any costs to a third party on your behalf without first having received cleared funds from you to cover such costs; and
(b) we are not liable or responsible in any way for any costs or losses arising directly or indirectly from any refusal or delay in us paying the costs of a third party due to you not first providing us with adequate cleared funds.
5.3 Our preferred method of payment is by credit card, we reserve the right to pass on to you any costs reasonably incurred by us in accepting such payments.
5.4 All payments of invoices by you (or on your behalf) must be 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 are for your account and are not deducted from the amount on the invoice. We may deduct 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 agreement is overdue:
(a) we may take steps to recover any overdue amounts (including engaging a debt collection agency), and you indemnify us and shall pay on demand all costs and expenses (including legal costs on a solicitor and own client basis) incurred by us in recovering any amounts owing by you to us under this agreement; and
5.6 If you fail to make a payment when it is due or if we believe that you may not pay us when a payment is due, we may at our sole discretion suspend any Services (including suspending delivery of the Goods) or terminate this agreement. We are not liable to you in any way for any costs or losses arising directly or indirectly from such suspension or termination.
6.1 You warrant and represent to us on a continuing basis:
(a) Ownership: that you are either the owner of the Goods, or the authorised agent of the owner of the Goods, and are authorised by any person who has or may acquire an interest in the Goods to enter into and accept the terms of this agreement;
(b) Particulars: the accuracy and completeness of all descriptions, values and other particulars of the Goods, and all other information provided to us by you or your representatives in relation to the Goods or otherwise in connection with the Services;
6.2 You indemnify and hold us and our subcontractors harmless in respect of any liability for costs, loss or damage suffered by us or our subcontractors arising out of a breach of the warranties.
7.1 The Goods remain at your risk at all times, and you acknowledge that it is your responsibility to effect appropriate and adequate insurance for the Goods.
7.2 Any claim for loss or damage to a vehicle must be noted at the time of delivery by you on the delivery docket. You accept that any claim given to us after delivery has occurred is likely to be declined by us as it could have occurred after we delivered your vehicle.
7.3 You acknowledge that this is a contract for carriage on declared terms per the Act.
7.4 Where we are unwilling to accept any liability for any loss or damage to your vehicle then we need you or your agent to sign confirming the following terms:
(a) before or at the time of collection that "This Vehicle is to be carried at owner’s risk. This means that the carrier will pay no compensation if the Vehicle is lost or damaged unless we intentionally lose or damage it."; or
(b) There is a contract in writing stating at “owners risk” and signed by the parties or their agents relating, but not necessarily exclusively, to the carriage of vehicle, in which case the contract shall be ‘at owner’s risk”.
7.5 Where we are liable to pay for damage or loss then the maximum amount payable by us is $1,739 + GST.
7.6 We do not accept any responsibility, claim or liability for the following items:
(a) Damage caused by leaking fluids, battery acids, cooling system and anti-freeze solution, industrial fallout;
(b) Damage caused by acts of war, civil unrest or God;
(c) Hidden damage or damage that is undetectable at time of pickup due to vehicles dirty condition, or weather-related condition;
(d) Damage or failure of vehicle mechanical, electrical, alignment, suspension, exhaust system, muffler, or tail pipes;
(e) Damage or loss to audio or video equipment not installed at the factory, including antenna that does not retract to within 10 cm of the vehicle’s body;
(f) Damage or loss of personal or household items left in a vehicle;
(g) Damage caused by fluids or objects flying up from the roadway, or out of the sky e.g. broken windscreens;
(h) Damage to a vehicle that is a non-runner;
(i) Damage to a vehicle that is a caravan;
(j) Damage of any sort to a vehicle that has been picked up in an existing state of damage;
(k) Damage to the underside of a vehicle that has less than 150 millimetres ground clearance; or
(l) Damage arising from your own or any other person’s actions or omissions excluding our own actions.
7.7 We are not liable for any form of indirect or consequential loss or damage arising out of or in respect of any Transport Service. This includes liability from delay in delivery of a vehicle for any reason.
7.8 Where there is contributory negligence on your part, then our liability shall be limited to an amount that excludes the contributing negligence.
8.1 Goods shall be deemed to be delivered when they are delivered to the agreed place of delivery given to us by you or your representative for that purpose, or if the Goods are to be collected from a nominated place, from the date that we advise you that the Goods are available for collection from that nominated place.
8.2 Subject to you complying with all of your obligations under this agreement, we shall use all reasonable commercial endeavours to deliver the Goods to the designated address (or make the Goods available for collection by you or your representative
8.3 If we elect to withhold the Goods under the terms of this agreement, we may transport the Goods to another location for storage, and all costs so incurred shall be for your account, including our reasonable administration costs.
8.4 We are entitled to sell or dispose of all Goods which, in our reasonable opinion and only after due inquiry, cannot be delivered either because they are insufficiently or incorrectly addressed or because they are not collected or accepted by the consignee or any other person after fourteen (14) days’ notice in writing of intention to sell or dispose of the same has been given to you. All charges and expenses arising in connection with the storage and sale or disposal of the goods shall be paid by you.
8.5 If you select a ready date for your vehicle, and it is not ready when our driver comes to collect, you will be charged . Once our driver has contacted you and scheduled in a time for collection/delivery, you are then liable for any additional charges if you miss this collection/delivery due to nobody being there or the delay of more than 30 minutes. The hourly rate of $200 + GST will be charged. If it is our driver who is late or no showed, you will not be charged this penalty.
9.1 If you are acquiring (or hold yourself out as acquiring) the Services for the purposes of a business, you agree that the provisions of the Consumer Guarantees Act 1993 do not apply. If the Consumer Guarantees Act 1993 does apply, then nothing in this agreement shall restrict the application of that Act.
9.2 If the Carriage of Goods Act 1979 applies to any Services provided under this agreement, the contract is at limited carrier’s risk as that term is defined in that Act.
9.3 Other legislation: This agreement shall be read subject to the provisions of any legislation that compulsorily applies to the Services, provided that nothing in this agreement shall be construed as a waiver of any rights under such legislation or as an increase of any of its liabilities or responsibilities.
10.1 You fully indemnify and hold harmless us and our employees, consultants and agents against any costs, losses, claims, liabilities, proceedings and expenses (including legal costs incurred on a solicitor and own client basis) incurred and any loss or damage suffered by us or our employees, consultants or agents:
(a) by reason of any third party claims; or
(b) arising from your negligence; or
(c) arising from any breach by you of the terms of this agreement.
11.1 Force Majeure: A party shall not be liable for any breach of this agreement to the extent such breach is due to a circumstance beyond the reasonable control of that party such as an Act of God (but excluding lack of funds) (“Force Majeure Event“), provided that it uses reasonable endeavors to mitigate the effect of the Force Majeure Event and resumes full performance of its obligations under this agreement as soon as is reasonably practicable.
11.2 Governing law and jurisdiction: This agreement is governed by New Zealand law and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.
12.1 We reserve the right to charge a transaction fee of 2.5% of the amount you have paid if your money is refunded.