New Zealand Transport Terms

as of May 18, 2017

Click here for the European version of these transport

1. GENERAL TERMS

1.1 Service Overview: TNX operates a web based system (TNX Platform) which facilitates Cargo Owners entering into contracts (Transport Contracts) with Carriers for the transportation of Cargo (Services). The TNX Platform matches Cargo Offers specified by a Cargo Owner with Capacity Offers specified by Carriers to generate an order for Services in a form generated by the TNX Platform (Match).

1.2 Acceptance:

1.3 Inconsistency between Contract Documents: Each Match will contain the details described in clause 2.3. A Match should be read in conjunction with these Transport Terms. If there is any inconsistency between a Match and these Transport Terms, the Match will take precedence.

1.4 TNX’s Obligations: TNX’s obligations to the Cargo Owner and the Carrier are limited to those set out in the TNX User Terms. TNX will perform certain administrative and financial functions for the Carrier in relation to a Transport Contract (as described in section 8), however TNX has no obligations to either the Cargo Owner or the Carrier under a Transport Contract and nothing in these Transport Terms or a Match should be interpreted as implying that TNX has any such obligations.

1.5 Amendments: These Transport Terms may be amended from time to time by TNX. TNX will notify each User of any such change no less than 30 days prior to the change taking effect, by displaying the amended Transport Terms on the TNX Platform. The TNX Platform will specify the date from which the change is proposed to take effect. By continuing to use the TNX Platform from the date an amendment takes effect, a User will be deemed to have accepted that amendment. Amendments to these Transport Terms will not apply to a Match placed prior to the date that amendment takes effect.

1.6 Complete Agreement: The Carrier and Cargo Owner each acknowledge that they have not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of the other party which is not stated expressly in a Match or these Transport Terms.

2. MATCH

2.1 Order Generation and Content: A Match will be generated by the TNX Platform automatically matching a Cargo Owner’s Cargo Offer with a Carrier’s Capacity Offer. The matched terms will be recorded in a Match generated on the TNX Platform.

2.2 Information Warranties:

2.3 Details:

The Match will record the following details:

2.4: In respect of a Service that includes International Air Carriage, a Pick-up Point may be the airport of origin and/or a Delivery Point may be the airport of destination.

3. CARGO PARAMETERS

3.1 Parameters: The Cargo Owner will ensure that its Cargo Offers accurately describe the Cargo and the units in which that Cargo will be packaged in accordance with the Cargo Parameters Schedule published on the TNX Platform.

3.2 Weights and Dimensions: The rules of interpretation set out in the Services Schedule will apply to any weights, volumes and/or specific dimensions of Cargo that are specified in a Cargo Owner’s Cargo Offers (and a corresponding Match).

3.3 Non-Conforming Cargo: A Carrier will be deemed to have confirmed that Cargo it collects at the Pick-up Point conformed with the parameters defined in the Match unless it lodges a notice via the TNX Platform that the Cargo is does not conform (Dispute Notice) on or before 5:00 pm on the second Business Day after the Carrier has collected the Cargo.

4. THE CARRIERS’S OBLIGATIONS

4.1 Performance of Transport Contract: The Carrier will:

4.2 General Obligations: In performing the Services, the Carrier must:

4.3 Delays: The Carrier must advise Cargo Owner immediately (using the contact information specified in the Match) if it becomes aware that:

5. THE CARGO OWNER’S OBLIGATIONS

5.1 Cargo Owner’s Obligations: The Cargo Owner will:

5.2 Packaging Warranties: The Cargo Owner acknowledges that the warranties in section 17(1)(a) of the COGA apply to the Cargo. Without limitation, the Cargo Owner:

6. COMPLETION

6.1 Completion: Promptly following completion of all Services required to be performed under a Transport Contract, both the Carrier and the Cargo Owner must give a Confirmation via the TNX Platform in accordance with clauses 4.1(g) and 5.1(f).

6.2 Deemed Acceptance: A Cargo Owner will be deemed to have confirmed that the Services required under a Transport Contract have been performed unless it lodges a notice via the TNX Platform that it does not agree (Dispute Notice) on or before 5:00 pm on the second Business Day after the Carrier has posted a Confirmation.

6.3 Dispute: If the Cargo Owner or Carrier lodges a Dispute Notice:

6.4 Completion and Cargo Disputes Only: Clauses 3.3, 6.2 and 6.3 do not affect a Cargo Owner or Carrier’s rights or remedies under the Transport Contract in respect of:

7. RISK AND TITLE

7.1 Title: The Carrier acknowledges that it holds Cargo in its possession as bailee and will not claim ownership or title to any of the Cargo.

7.2 Waiver of COGA Lien: The Carrier waives and will not assert any right to take a lien over the Cargo pursuant to section 23 of the COGA or otherwise.

7.3 Risk passes to Carrier on Loading: Risk of loss or damage to the Cargo passes to the Carrier at the time the Cargo is loaded onto the Delivery Vehicle unless the Match specifies that the Carrier will assume responsibility for loading the Cargo and the risk of damage to the Cargo during the process of loading it.

7.4 Risk reverts to Cargo Owner on Unloading: Risk of loss to the Cargo reverts back to the Cargo Owner, at the time the Cargo is lifted off the deck of the Carrier’s Delivery Vehicle unless the Match specifies that the Carrier will assume responsibility for unloading the Cargo and the risk of damage to the Cargo during the process of unloading it.

8. RATES AND INVOICING

8.1 Fee: The Cargo Owner will pay the Carrier Fee plus any additional amount payable under clause 8.4 and any charges determined under clause 11.1, and minus any deductions determined under clause 11.2 (the Total Fee) to the Carrier on completion of the Match at the time and in the manner set out in this clause 8.

8.2 Production of Invoices: Promptly after the parties have given a Confirmation or are deemed to have agreed that the Transport Contract is completed in accordance with clause 6.2, a tax invoice will be issued to the Cargo Owner for the Total Fee. The invoice will include the relevant Match reference number and itemise the Carrier Fee and any additional charges payable under clause 11.1 and deductions made under clause 11.2. The invoice will be issued to the Cargo Owner by TNX (on behalf of the Cargo Owner). The Cargo Owner acknowledges that the invoice will be payable to TNX either:

8.3 Payment:

8.4 Prices exclude GST: Unless an amount (including the Carrier Fee) is expressed in a Cargo Offer, Capacity Offer or these Terms and Conditions to include GST (or words to like effect) then that amount is expressed exclusive of GST. Where any amount is payable by the Cargo Owner for a taxable supply made by the Carrier, the Cargo Owner shall be liable to pay an additional amount equal to the GST chargeable on that taxable supply, at the same time and in the same manner as any other amount is payable for that taxable supply. .

8.5 Definitions: For the purposes of this clause 8, words and phrases have the meaning given to them by the GST Act.

9. TERM AND TERMINATION

9.1 Term: Each Transport Contract has effect from the time it is created (see clause 1.2(a)) until the time the Services have been performed. A separate Transport Contract will apply to each Match generated on the TNX Platform.

9.2 Termination for Specific Breaches:

9.3 Consequences of Termination: Termination or expiry of a Transport Contract will not affect the rights and remedies of either party in respect of any breach of that Transport Contract prior to termination or expiry.

9.4 Platform Access: Termination or suspension of a User’s rights to access the TNX Platform will not affect that User’s rights or obligations under a Transport Contract entered into prior to such termination or suspension.

10. INSURANCE

10.1 Insurance: The Carrier warrants that it will have insurance policies in place with reputable insurers with a minimum credit rating of A- during the term of each Transport Contract. Such policies will be within the parameters (including risk coverage and claim limits) specified in the Match and include cover in respect of any Special Items noted in the Match (see clause 10.2). The Carrier will provide the Cargo Owner with copies of all relevant certificates of insurance at the Cargo Owner’s request, including:

10.2 Risk for Special Items: If the Cargo contains any of the following special items (Special Items) the Cargo Owner will specify those Special Items in the Match and will bear the risk of loss or damage to the following items if they are comprised in Cargo and the Match does not specify that the Carrier must procure endorsements on its insurance policies for the item:

10.3 Insurance required from subcontractors: If the Carrier subcontracts any part of the Services in accordance with these Transport Terms, the Carrier will ensure that each of its subcontractors effects and maintains during the term of the Transport Contract insurances of the type set out in clause 10.1.

11. LIABILITY AND CLAIMS

11.1 Additional Charges: In addition to the Carrier Fee specified in a Match, where any of the events specified in the Claims Schedule occur, and that event adversely affects the Carrier in their performance of a Transport Contract, the Cargo Owner must pay the additional charges corresponding to that occurrence in the Claims Schedule (as published on the TNX Platform). These events may include, for example delays caused for the Carrier at the Pick-up Point or Delivery Point due to a failure by the Cargo Owner to arrange access or an inaccuracy in the address of either location provided by the Cargo Owner; or an inaccurate statement of a Cargo Order of the weight or dimensions of an item of Cargo.

11.2 Deductions: Where any of the events specified in the Claims Schedule occur in the course of the Carrier completing a Match that adversely affect the Cargo Owner, the Cargo Owner will be entitled to deduct an amount from the Carrier Fee corresponding to that occurrence in the Claims Schedule. These events may include, for example, the Carrier collecting the Cargo outside of the Collection Timeframe, or the Carrier delivering the Cargo outside of the Delivery Timeframe.

11.3 Acknowledgement:

11.4 Loss or Damage to Cargo:

11.5 Notification of Claims:

11.6 Other Physical Loss or Damage:

11.7 Other Loss: Each party’s liability to the other party for loss, costs or damages suffered by the other party, other than loss or damage to Cargo, or physical losses, costs or damage to property, equipment and other physical assets will be limited to an amount equal to five times the Carrier’s Fee. Without limitation, the losses costs or damage to which this clause 11.7 applies may include: lost opportunities or loss of business reputation due to late delivery.

11.8 Indemnity for Third Party Claims: Each party (an Indemnifier) will indemnify the other party (Indemnified Party) for, and pay to the Indemnified Party on demand, the amount of any loss, costs or damages (including legal costs) suffered or incurred by the Indemnified Party as a consequence of a claim by a third party against the Indemnified Party due to physical loss or damage to property, equipment or assets or personal injury or death, suffered or incurred by that third party as a result of an act or omission of the Indemnifier in the course of the Indemnifier performing the Transport Contract. The limitations of liability in clauses 11.1 to 11.7 do not apply to the indemnity in this clause 11.8.

12. FORCE MAJEURE

12.1 Relief from Liability: A party (the Affected Party) will not be liable to the other party for any failure or delay in performance of any obligations under a Transport Contract (Affected Party’s Failure) to the extent such failure or delay is due to any of the following events (Force Majeure Event):

12.2 Limitations: An Affected Party will not be entitled to relief under clause 12.1 to the extent that the Affected Party’s Failure:

12.3 Corresponding Obligations: The other party shall be relieved of its corresponding obligations to the same extent the Affected Party is relieved of its obligations due to this clause 12.1.

12.4 Alternative Carrier: For the avoidance of doubt, the parties acknowledge and agree that during such time as the Carrier is prevented from performing the Services because of a Force Majeure Event, Cargo Owner may terminate the Transport Contract and engage another carrier to perform the Services. The Cargo Owner must provide the Carrier prior written notice of its intention to engage an alternative carrier under this clause 12.4.

13. NOTICES

13.1 Platform or Email: Each notice required to be given under a Transport Contract must be delivered via the TNX Platform unless a party’s access to the TNX Platform is terminated or suspended, then notices must be given to and by that party via email.

13.2 Receipt: A notice is deemed to be received immediately if it is posted to the TNX Platform during the hours of 8:00am and 6:00pm during a Business Day or, if it is posted outside of those times, at 8:00am on the next Business Day.

14. MISCELLANEOUS

14.1 Subcontracting: The Carrier may subcontract all or any part of the Services to a suitably qualified and equipped carrier. Subcontracting does not relieve the Carrier from liability for the performance of any obligations under this Transport Contract. The Carrier is liable to Cargo Owner for the acts and omissions of each of its subcontractors as if they were acts or omissions of the Carrier.

14.2 Relationship of Parties: The Carrier is an independent contractor and nothing in a Transport Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent or employee of the other party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

14.3 Remedies Cumulative: The rights and remedies provided in a Transport Contract are cumulative and not exclusive of any rights or remedies provided at law.

14.4 Severance: If any provision of a Transport Contract is or becomes illegal, invalid or unenforceable in any respect, that provision shall be read down to the extent necessary to make it legal, valid and enforceable or, if it cannot be read down, be deemed severed from the Transport Contract.

14.5 Governing Law and Jurisdiction: This Transport Contract is governed by New Zealand Law and the parties irrevocably submit to the exclusive jurisdiction of the New Zealand courts in any proceedings relating to it.

14.6 Interpretation: In these Transport Terms, unless the context requires otherwise:

Please refer to the Glossary for a definition of all capitalized terms in this document.