1. Terms and conditions
1.1 Subject to clause 1.2, these terms apply to all services provided to you by FreightLink Limited, trading as SeaLink Logistics (SeaLink Logistics, us), in relation to the transport of goods (Goods) to and from Waiheke Island, Great Barrier Island, and other Hauraki Gulf Islands that may be agreed between us, and/or road transport on Waiheke Island, Great Barrier Island, Auckland and other Hauraki Gulf Islands (Services). By placing an order with SeaLink Logistics you agree to be bound by these terms.
1.2 Where you have entered into a formal written agreement for carriage of goods with us, the contractual relations between SeaLink Logistics and you will be governed by the terms of that agreement.
2. Service Standards
2.1 Except as expressly set out in these terms, we shall:
(a) endeavour to deliver the Goods to the agreed address within the delivery targets agreed with you (or, if no agreement, as notified to you) for the relevant Service and otherwise within a reasonable time; and
(b) ensure our drivers are fit for work and hold all required licences.
2.2 To the extent the Services include ferry transportation:
(a) except as expressly set out in these terms, we shall:
- provide a suitable vessel(s) for the Services and assign to such vessels appropriate crew; and
- use all reasonable endeavours to ensure that at all times the vessels and operations comply with all legal obligations in respect of operation of a vehicular ferry service; and
(b) we reserve the right to:
- change our schedule of sailings at any time and without any prior notice;
- cancel any sailing without any notice; or
- refuse carriage of any person, vehicle, or any class of goods,
including, without limitation, due to health and safety, weather and/or unavailability of vessel or crew reasons. In the event we do so, we will use reasonable endeavours to accommodate the relevant goods on the next appropriate sailing by us but shall not otherwise have any liability to you.
3. Rates and charges
3.1 The price for Services are calculated from the weight, measurement or value of the freight, as declared by you to SeaLink Logistics. All packaging, pallets and other such items in which Goods are packed or stored are deemed to form part of the Goods for the purposes of assessing the weight and measurement of the freight and calculating the charges payable by you.
3.2 If you misrepresent the quantity, weight, measurement, nature or value of any Goods to be shipped, then regardless of whether that misrepresentation is wilful or not:
we may change the price to a more appropriate rate; and
you will be liable for any fines or penalties that may arise from carriage of the Goods.
3.3 Rural delivery fees will be applicable for any Waiheke outer zone delivery locations. These include Awwawaroa Bay, Te Matuka Bay, Connell’s Bay, Orapiu, Garden Bay, Man O War Bay, Stony Batter, Cactus Bay, Hooks Bay, Cowes Bay and Owhiti Bay and may be subject to change.
3.4 SeaLink Logistics reserve the right to charge a non-pickup fee to you in the event that SeaLink Logistics has been instructed to collect Goods at a certain location and Goods are not available for collection at such location at the time agreed by us.
3.5 From the date on which SeaLink Logistics’ responsibility for the Goods ceases as defined in section 258 of the Contract and Commercial Law Act 2017 (Act), we may hold all Goods not picked up by you, and/or any undelivered Goods, and we shall be entitled to:
(a) charge storage fees at our normal storage rates at your expense and risk; and/or
(b) sell, destroy or otherwise dispose of the Goods, where in our opinion the Goods appear to be deteriorating and are likely to become offensive, or entering into a dangerous state, and you will be held liable for the full expense of such sale, destruction or disposal; and/or
(c) return the Goods to you at your own expense and risk, and we shall not be under any liability for any loss or damage to the Goods however they may be caused.
4.1 Payment of any invoice is due on the 20th of the month following the date of the invoice.
4.2 Payment must not be withheld or deferred by you on account of any claim, counter-claim or set-off. Should payment in full not be made to us by the 20th of the month following the date of the relevant invoice, then (without prejudice to any other remedies we may have) you must pay interest to us on all amounts outstanding, at a rate of 1.5% per month or part thereof from the time of such carriage.
5.1 All Goods carried by us pursuant to these terms will be carried at “limited carrier’s risk” for the purposes of the Act.
5.2 Subject to the provisions of the Act imposing liability for loss or damage to the Goods carried by SeaLink Logistics, and to the extent permitted by the Consumer Guarantees Act 1993:
(a) we will be under no liability, however caused or arising and (without limiting the foregoing) whether caused or arising as a result of our negligence or otherwise for any damage to, loss or deterioration nor for any instructions, advice, information or service given or provided to any person, whether in respect of the Services or any other thing or matter, nor for any consequential or indirect loss, loss of market, profits or opportunity (including any liability for consequential loss under section 259(3)(c) of the Act) or consequences of delay; and
(b) you will indemnify us against all claims of any kind whatsoever, however caused or arising and (without limiting the foregoing) whether caused or arising as a result of our negligence or otherwise, brought by any person in connection with any matter or thing done, said or omitted by us in connection with the Services.
5.3 There is a greater risk of loss or damage to Goods if such Goods are improperly packaged or are missing some or all packaging. Without limiting any other provision of this agreement, SeaLink Logistics is not liable for any loss or damage to the Goods arising from your failure to appropriately package the Goods prior to sending with SeaLink Logistics.
6. Notification of claims and limitation of actions
6.1 Our obligations to you end on delivery of the Goods to you (being delivery at the relevant wharf or depot, except where otherwise agreed with you). If there are any issues with the Services, you must notify SeaLink Logistics prior to leaving with the Goods. We may require a signature for the handover of the goods into your possession. If you collect the Goods and (irrespective of whether you sign for the same) do not provide any such notification prior to leaving with the Goods, you are deemed to have accepted the Goods and we shall not have any liability to any party in respect of the state of the Goods. References in this clause to “you” are deemed to include people acting, or purporting to act, on your behalf.
6.2 SeaLink Logistics will be under no liability whatsoever unless written notice of any claim, giving reasonable particulars of the event giving rise to the claim, and any alleged damage or loss, is received by us within 21 days after completion of the carriage (which is when our responsibility for the goods ceases as provided by section 258 of the Act), and an action has been commenced by you in a Court of competent jurisdiction within six months of your voyage with us.
6.3 You undertake that no claim or allegation will be made against any servant or agent of ours which attempts to impose upon any of them any liability whatsoever in connection with the Goods and, if any such claim or allegation should nevertheless be made, to indemnify us and any such servant or agent against all consequences thereof.
7.1 The insurance of any Goods carried by SeaLink Logistics is your responsibility.
8.1 You must ensure that all Goods:
(a) comply with all laws relating to the nature, packaging, labelling storage and carriage of those Goods, and our expenses and charges in complying with the provisions of any such law or with any order or requirement there under or with the requirement of any harbour, dock, railways, shipping, customs, warehouse or other authority or company or the expenses, charges, levies or fines arising out of the breach of any applicable law, shall be paid by you; and
(b) are packaged or contained in a manner adequate to withstand the ordinary risks of storage and carriage having regard to the nature of the Goods.
9.1 Sections 284-292 of the Act shall apply to these terms only to the extent that they extend or enlarge our rights and powers pursuant to these terms.
9.2 Sections 274 - 280 of the Act are modified by clause 5 of these terms and shall, in relation to any matter arising out of the provisions of those sections, otherwise have effect subject to the express terms contained in these terms.
9.3 Nothing in sections 281 and 283 of the Act shall apply to these terms.
9.4 Where the provisions of the Consumer Guarantees Act 1993 apply, the provisions of these terms will be read subject to the application of the Consumer Guarantees Act 1993 and, in the case of any conflict, the provisions of the Consumer Guarantees Act 1993 will apply.
9.5 Where you are acquiring our services for the purpose of a business, you agree that the Consumer Guarantees Act 1993 does not apply.
10. Dangerous Goods
10.1 You shall not tender any dangerous Goods for carriage without presenting to us a full description of such dangerous Goods, including details of the quantity and class of such dangerous Goods.
10.2 To the extent that we agree in writing to transport any dangerous Goods, all dangerous Goods must be separately and safely packaged by you prior to commencement of the Services in a container which complies with the Hazardous Substances and New Organisms Act 1996 and is also constructed as to withstand severe impact. All dangerous Goods must be clearly and distinctly labelled as such by you. Such label must carry descriptions appropriate to the Goods therein and be in accordance with the Hazardous Substances and New Organisms Act 1996. Any fees, penalties or fines imposed upon us for the carriage or storage of dangerous Goods for any breach or infringement of the law relating to the storage, labelling or carriage of dangerous goods shall be refunded to us by you unless the breach was caused solely by our default or neglect.
10.3 You agree and accept that where we have agreed to the carriage of your dangerous goods the delivery timeframes are not guaranteed because any carriage of such dangerous goods is subject to compliance with legal compatibility requirements, which may result in your dangerous goods being separated and carried at different times.
11. Ownership of Goods
11.1 You expressly warrant to us that you are the owner or authorised agent of the owner of the goods or property the subject matter of these terms and that you are authorised to accept and do accept these terms not only for yourself, but for and on behalf of you or other persons who are or may hereafter become interested in the goods.
11.2 From the date on which our responsibility ceases as provided by section 258 of the Act, we may hold any goods left behind by you as bailee and shall be entitled to storage fees at normal rates charged by us as bailee and shall not be under any liability for any loss of or damage to the goods howsoever caused, or in our discretion we may return the goods to you at your risk and expense. The provisions set out in clause 4 for recovery of interest and costs on outstanding freight shall apply also to storage fees which remain unpaid seven days after demand for payment has been made.
12. Health and safety
12.1 When on our transportation and at our depots or terminals (which shall only be at the invitation and sole discretion of us) you and each of your personnel, representatives, agents and subcontractors (whether direct or indirect) must be inducted on to our site and must comply with:
(a) all health and safety laws and regulations;
(b) our safety, security, operational, drug and alcohol and other requirements/policies, as advised by us from time to time; and
(c) reasonable directions from our staff with regard to health and safety matters.
12.2 Smoking is not permitted inside our vehicles or in our depots.
12.3 We will comply with our obligations under the Health and Safety at Work Act 2015 and any regulations, codes of practice and guidelines relevant to the industry. Notwithstanding any other provision of this agreement, we shall not be restricted in any way from (nor liable to you in any way as a result of) complying with such health and safety requirements.
12.4 We shall be entitled to formally request from you and/or disclose to any persons the following information:
(a) information or reports in relation to any health and safety related incidents that could affect the safety of SeaLink Logistics’ employees, contractors, customers, clients or any persons affected directly or indirectly by the company’s undertakings; and
(b) a copy of your Health and Safety policies and procedures.
13. Exclusion of Certain Items
13.1 Pursuant to section 293(1) and (2) of the Act, unless we otherwise agree in writing, we will not accept or deal with any:
(a)bullion, cash, negotiable instruments, precious stones, jewellery, antiques, paintings, or other valuables; or
(b)perishable or noxious goods, firearms or any goods likely to cause damage or which it is unlawful to carry.
13.2 You expressly warrant and agree that you will not give any such goods to us. If the Goods include goods of the type referred to in clause 15.1(b), or you cause such goods to be handled or dealt with by us, or any Subcontractor or agent of ours, you shall be liable for all loss, damage or deterioration whatsoever caused by, to or in connection with any other goods carried by us, and shall indemnify us and any Subcontractors and agents of ours against all penalties, claims, damages, costs and expenses arising in connection therewith, and the goods may be destroyed or otherwise dealt with at our sole discretion and any Subcontractor and agent of ours or any other person in whose custody they may be, at your expense, without us and the Subcontractor, agent or such other person being responsible or accountable for the value thereof.
14. Temperature controlled freight
14.1 If you require Goods to be kept at a constant temperature or within a range of temperatures throughout its carriage, you must notify us in writing prior to the time we accept the freight for carriage. Such Goods must be clearly marked as chilled or frozen when they arrive to us. We will only be liable for damages to, or loss of, the freight as a result of the freight not being kept at the notified constant temperature, or range of temperatures, where we have failed to use reasonable endeavours to keep the freight at such temperature (or range of temperatures).
14.2 We reserve the right to check the temperature of Goods by probe-testing or other such means as we determine appropriate.
15.1 All Goods (and documents relating to such Goods) shall, immediately when they come into our possession or any subcontractor or agent of ours, be subject to a particular and general lien and right of detention for all moneys due to us by you or the consignee, consignor or owner, whether in respect of such Goods or otherwise. If any money due to us is not paid within 14 days or, in the case of perishable Goods, within three days, after notice has been given to the person from whom the moneys are due that such Goods are being detained, then they may be sold by auction, tender, private treaty or otherwise at our sole discretion and at the expense of such person, and the net proceeds applied towards satisfaction of any such indebtedness. Any such sale shall be without prejudice to any other rights or remedies we may have. If we in our sole discretion deem the Goods to be unsaleable, we may dispose of the Goods as we may think fit without any liability to you. The provisions of sections 285(3) to 288 inclusive, section 289 and 291 of the Act shall apply in respect of such lien as if it were a statutory lien arising pursuant to section 285(1) of the Act.
15.2 If the Goods are not owned by you, you hereby indemnify us against all claims of whatever nature by the owner or owners of the Goods.
15.3 You agree not to use any Goods in our possession as security for finance until such time as all sums owing by you to us have been paid in full. If at any time payment from you to us is in arrears, any subsisting obligation of ours to you shall be suspended and we shall not be under any liability to you during such period.
16.1 We shall be entitled to set-off any amounts due from you against any amounts due to us. The right to any set-off shall apply irrespective of any receivership or liquidation you may be in. You will not set-off any amounts due from us whether liquidated or contingent (including insurance claims for Goods claimed to be damaged by us or our Subcontractors or agents) against any amounts due by you to us.
17.1 New Zealand law shall apply to these terms.
18. Privacy Act 1993 and Disclosure
18.1 You irrevocably authorise us to collect, retain and use personal information about you, including but, not limited to, the information contained in these terms and information from third parties (“the Information"), for the purposes specified in clause 18.2.
18.2 The Information obtained pursuant to these terms has been obtained for the following purposes:
(a) determining your ongoing credit worthiness;
(b) administration and enforcement of these terms and any and all other contracts which you have with us;
(c) marketing services provided by us; and
(d) conducting market research by and on our behalf.
18.3 You irrevocably authorise us to provide the Information:
(a) to Subcontractors, employees and agents of ours and any other person, in the ordinary course of business, for any of the foregoing purposes;
(b) to credit agencies and other carriers and services on credit terms to you; and
(c) to our financiers and any person to whom we may sell or assign any part of our business.
19.1 All or part of any work accepted by us may be fulfilled by our engaging or entrusting the Goods to our authorised subcontractors (the “Subcontractors") on such terms agreed between us and our Subcontractors. You agree that all work may be performed on our behalf by any Subcontractor. In carrying out the work on our behalf, you acknowledge that the Subcontractor has the right to rely on the benefit of these terms.
19.2 We may transfer, assign, novate or otherwise dispose of all or any of our rights and/or obligations under these terms, wholly or partly, and whether for a finite or indefinite period to any other entity and you consent to such transfer, assignment, novation or disposition.
19.3 We shall not be bound by any agreement varying these terms unless such agreement is in writing and signed with due authority on our behalf. You acknowledge that we have the right to vary these terms from time to time at our discretion and without notice. We will not be in breach of these terms due to wars, strikes, lockouts, transport delays, fire, mechanical breakdown, weather, computer error or acts of God or any other cause (whether similar or dissimilar) beyond our reasonable control.
19.4 The Services are provided in accordance with these terms which you acknowledge that you have read and understood.