TRADING TERMS & CONDITIONS
CUSTOMER’S INFORMATION
ANY BILL OF LADING OR AIR WAYBILL PREPARED ON BEHALF OF THE CUSTOMER SHALL BE SUBJECT TO CERTAIN CONDITIONS A COPY OF WHICH WILL BE MADE AVAILABLE TO THE CUSTOMER BY XS Baggage OR ITS AGENTS ON REQUEST AND A COPY OF WHICH MAY BE INSPECTED AT OUR PREMISES.
CONDITIONS OF CONTRACT BELOW:
1. In these Conditions:
“XS Baggage” means the trading entity of Global Travel and Transport Services Inc. and Global Travel and Transport Services New Zealand Limited.
“Carriage” means the carriage, storage service, transit store service, packaging or handling of Goods, the provision of any container deconsolidation service, transit store service and any other service by XS Baggage as forwarding, transport, customs or shipping agent of the Customer or Customs Consignee, and any services ancillary to or connected with any of the above.
“Charges” means any amount charged by XS Baggage for the performance of the Services undertaken or provided by it with respect to the Goods including freight and any customs duty, excise duty, impost, tax or tariff and any other liability or disbursement incurred by XS Baggage in the course of undertaking or providing the aforementioned Services.
“Container Deconsolidation Service” means any activity in relation to the unpacking/unloading of the Goods from the container/transport upon their arrival at the Premises and includes all services incidental to the receipt thereof.
“Customer” means any person at whose request or on whose behalf XS Baggage undertakes to provide Services pursuant to these Conditions.
“Dangerous Goods” means Goods which are volatile or explosive or which are or may become dangerous, flammable or offensive (including radioactive materials) or which may become liable to damage any person or property whatsoever and includes all Goods which are likely to fall within the definition of hazardous, dangerous, explosive, flammable or radioactive goods in any legislation, regulations, code or convention (whether or not legally enforceable) relevant to the Carriage of the Goods.
“Goods” shall mean and include the cargo accepted from the Customer together with any container, packaging or pallets supplied by or on behalf of the Customer.
“Premises” means any place or places nominated by XS Baggage where Goods are held, warehoused, stored or removed from time to time.
“Services” shall mean and include the whole of the Services undertaken or provided by XS Baggage with respect to the Goods including, but not limited to, the carriage, storage and clearance of the Goods and to any advice and information provided in connection with those Services.
“Subcontractor” shall include any person who, pursuant to a contract or arrangement with any other person [whether or not XS Baggage ], performs or agrees to perform the Services or any part thereof.
2. XS Baggage is not a common carrier and will accept no liability as such. XS Baggage reserves the right in its absolute discretion to refuse the Carriage of Goods or any class of Goods for any person. XS Baggage carries on business as a customs and forwarding agent and is not the actual carrier unless the Goods are carried on an aircraft, ship or other conveyance owned or operated by XS Baggage , and the obligations of XS Baggage are limited to arranging carriage of the Goods by a reputable carrier. The Goods are carried at the Customer’s risk and the Customer authorises XS Baggage to act as its agent to enter into the terms and conditions in a transport document on behalf of the Customer.
3. No claim in respect of any loss, damage, cost or expense may be made unless notice of the claim is lodged in writing with XS Baggage within twenty four [24] hours from receipt of the Goods or from when the Goods would have been received in the ordinary course of business. In any event, XS Baggage shall be discharged from all liability in respect of any loss, damage, cost or expense unless suit is brought within one [1] year from receipt of the Goods or from when the Goods would have been received in the ordinary course of business.
4. To the maximum extent permitted by law:
(a) XS Baggage shall not be liable whether in negligence or any other tort or in contract or on any other basis whatsoever for:
(i) Any loss or destruction of, or damage to the Goods (including, without limitation, any deterioration, contamination or evaporation of any chilled, frozen, refrigerated or perishable Goods either in transit or in storage); or
(ii) Any non-delivery, mis-delivery, delay in delivery of, or failure to produce the Goods; or
(iii) Any advice, representation, information, quotation, prediction, forecast, statement or any assistance or service of any kind provided in any form by or on behalf of XS Baggage in the course of or in connection with the Carriage of the Goods; or
(iv) Any consequential or indirect loss whatsoever arising from or in connection with, any of the matters or things referred to in 5(a)(i), (ii) or (iii) above (including, without limitation, loss of profit or loss of market), in any circumstances and for any reason whatsoever and whether or not occurring in the course of events which are at any time in the contemplation of or foreseeable by the Customer and/or XS Baggage, or by any other cause (whether known or unknown) whatsoever.
(b) In giving or making any advice, representation, information, quotation, prediction, forecast, statement, assistance or service XS Baggage relies solely on the information provided by the Customer who warrants that the information provided by it to XS Baggage accurately and completely describes all aspects of the Goods and the transaction or transactions relating to the acquisition, sale, importation and/or export of the Goods.
(c) In the cases where liability has not been effectively excluded, whether by these Conditions or by statute, convention or otherwise, the total liability of XS Baggage to the Customer or to any other person shall be limited to the lesser of:
(i) $100;
(ii) the value of the Goods at the time the Goods were received by XS Baggage;
(iii) a resupply of the Goods or payment of the cost of resupplying the Goods.
(iv) XS Baggage’ liability shall be at “limited carrier’s risk” and the amount of such liability shall be calculated accordingly.
5. All the rights, immunities and limitations of liability in these Conditions shall continue to have their full force and effect in all circumstances and notwithstanding any breach of these Conditions by XS Baggage or any other person entitled to the benefit of the provisions of these Conditions.
6. If any provision of these Conditions is unenforceable such unenforceability shall not affect any other part of such provision or any other provision hereof.
7. No servant or agent of XS Baggage, nor any other person has any power to waive or vary any of the provisions hereof unless such waiver or variation is in writing signed by an executive officer of XS Baggage.
8. The Customer warrants that:
(a). The person delivering the Goods to XS Baggage is authorised to sign the documentation evidencing this contract for the Customer.
( b) In agreeing to these Conditions it is, or it has the authority of, the person or persons owning or having any interest in the Goods or any part thereof.
(c) Without prejudice to the generality of the foregoing, the Customer undertakes to indemnify XS Baggage in respect of any liability whatsoever in respect of the Goods to any other person (other than the Customer) who claims to have, who has, or who may hereafter have an interest in the Goods or any part thereof.
9. If the Customer expressly or impliedly instructs XS Baggage to use or it is expressly or impliedly agreed that XS Baggage shall use a particular method of handling or storing the Goods or a particular method of carriage, whether by road, rail, sea or air, or a particular method of clearance, XS Baggage shall give priority to that method but in any event the method or methods of handling, carriage, storage or clearance adopted by XS Baggage shall remain at the sole discretion of XS Baggage and the Customer hereby permits XS Baggage to adopt any method or methods other than the method instructed or agreed.
10. The Goods may at any time from time to time be held at any Premises and may at any time and from time to time be removed from any Premises at which they are being held to any other Premises at the sole discretion of XS Baggage and in every case at the Customer’s risk and expense.
11. XS Baggage and its Subcontractors shall be entitled to subcontract on any terms, the whole or any part of the Services.
12. Every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity of whatsoever nature applicable to XS Baggage or to which XS Baggage is entitled hereunder shall also be available and shall extend to protect:
a. All Subcontractors;
b. Every servant or agent of XS Baggage or of a Subcontractor;
c. Every other person (other than XS Baggage) by whom the Services or any part thereof are provided.
d. All persons who are or may be vicariously liable for the acts or omissions of any person falling within [a] [b] or [c] hereof and for the purpose of this clause XS Baggage is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Contract.
13.
(a) Quotations are subject:
(i) To these Conditions; and
(ii) To the right of withdrawal or revision by XS Baggage without notice to the Customer and the Customer shall pay XS Baggage for the Services in accordance with the Charges set out in the quotation subject to any variation therein between the time the quotation is made and the time at which the Services are performed in which case the applicable Charges are those which are enforced at the time the Services are performed.
( b) Quotations do not constitute a binding offer by XS Baggage and lapse forthwith, without notice to the person to whom they are given if, in the opinion of XS Baggage, there has been a change in the circumstances in which the quotation was given.
(c) Unless otherwise stated, the price quoted does not include the cost of crane hire, road tax, permits, tolls, escort and detention, demurrage and storage Charges and any other additional costs and expenses incurred by the Company in the course of, or in connection with, the Carriage of Goods (including, without limitation, additional Charges in respect of providing any additional advice, assistance, or services not reasonably foreseen or contemplated by XS Baggage as required for the purposes of that Carriage at the time the quotation was made, and including also, any fuel surcharges imposed on XS Baggage by any airline, shipping company or other transport operator) and where the same are applicable they will be added to the Customer’s account.
14. The Customer shall be bound by and warrant the accuracy of all descriptions, values and other particulars furnished to XS Baggage for customs, consular and other purposes and shall be liable for any duty, tax, impost or outlay of whatsoever nature levied by the authorities at any port or place for and in connection with the Goods and for any payment, fine, expense, loss or damage made, incurred or sustained by XS Baggage in connection with, whether or not arising by reason of any inaccuracy or omission of such description, value or other particular and notwithstanding any act, default or neglect on the part of XS Baggage, the Customer hereby indemnifies XS Baggage against any such payment, fine expense, loss or damage arising from the Customer’s failure to comply with this warranty.
15.
(a) The Customer shall not tender for carriage, storage or clearance any volatile spirits or Dangerous Goods or Goods which are or may become dangerous, inflammable or offensive (including radio-active materials) or which are or may become liable to damage any property whatsoever without presenting a full description disclosing the nature of such Goods and in any event shall be liable for loss and damage caused thereby and if in the opinion of XS Baggage the Goods are or are liable to become of a dangerous, inflammable, explosive, volatile, offensive or damage nature the same may at any time be destroyed, disposed, abandoned or rendered harmless by XS Baggage without compensation to the Customer without prejudice to XS Baggage right to any Charges hereunder.
( b) The Customer warrants that is has complied with the laws and regulations relating to the nature, packaging, labelling, carriage, storage or clearance of the Goods and that the Goods are packed in a manner adequate to withstand the ordinary risks of carriage, storage or clearance having regard to the nature of the Goods and hereby indemnifies XS Baggage for any liability whatsoever as a result of, or arising out of, the Customer’s failure to comply with each of these warranties.
16.
(a) Perishable Goods which are not taken up immediately upon arrival or which cannot be delivered either because they are insufficiently or incorrectly addressed or marked or otherwise not identifiable may be sold or otherwise disposed of without any notice to the Customer, owner, consignor or consignee of the Goods and payment or tender of the net proceeds of any sale after the deduction of all costs, expenses and Charges incurred by XS Baggage in effecting such sale or disposal shall be conclusively deemed to be delivery.
( b) Non-perishable goods which cannot be delivered whether because they are insufficiently or incorrectly addressed or marked or otherwise not identifiable or because they are not collected or accepted by the Customer, consignor, owner or consignee may be sold or returned at the option of XS Baggage at any time after the expiration of twenty one [21] days of a notice in writing being sent to the address which the Customer has given as the place of delivery of the Goods. All costs, Charges and expenses incurred by XS Baggage relating to the sale or return of the Goods are for the account of the Customer.
17. Without prejudice to what appears elsewhere in these Conditions, XS Baggage shall not accept any liability whatsoever for any perishable Goods, human remains, bullion, coins, precious stones, jewellery, valuables, antiques, pictures, livestock or plants except where special arrangements have been made previously in writing with XS Baggage.
18. All Goods received by XS Baggage for carriage, storage or clearance are accepted subject to the condition that XS Baggage shall accept no responsibility for collection of cash on delivery or any other payments of behalf of the Customer or any other person and further that when Goods are tendered by any person with instructions for XS Baggage to collect any such payments XS Baggage shall not be bound by such instructions notwithstanding that XS Baggage may accept the Goods as tendered and perform Services in relation to those Goods.
19. If the Customer has acknowledged in writing that the supply of Services is for the Customer’s business purposes (as that term is defined in the Consumer Guarantees Act 1993) or if the Customer has actually acquired the Services for such purposes, then the provisions of the Consumer Guarantees Act shall not apply to the transaction unless expressly stated in writing. Otherwise, subject only to clause 6 of these Conditions, nothing herein shall affect or diminish the rights of any Client under the Consumer Guarantees Act. In the event of conflict between these Conditions and the Consumer Guarantees Act, then the provisions of the Consumer Guarantees Act shall prevail and any such conflict shall be deemed not to be an attempt to contract out of the Consumer Guarantees Act.
20. Without prejudice to what appears elsewhere in these Conditions:
(a) In the case of Carriage by sea of Goods which have a value exceeding the package limitation as applied in the relevant jurisdiction pursuant to international law making the Hague Rules or the Hague-Visby Rules compulsory applicable to the relevant Bill of Lading, the value thereof shall not be declared or inserted in such Bill of Lading for the purpose of extending the liability of the carrier under such Bill.
( b) In the case of Carriage by air of Goods no option or declaration of value thereof shall be made pursuant to Article 22[2] of the Warsaw Convention as enacted in the relevant jurisdiction under the relevant national law.
(c) In all other cases in respect of the extent of liability assumed by carriers, warehousemen and others, no declaration of value shall be made for the purposes of extending such liability and the Goods shall be forwarded or dealt with at the risk of the Customer, consignor, owner or consignee.
21.
(a) The Charges of XS Baggage shall be deemed fully earned as soon as the Goods are loaded and dispatched from the Customer’s premises or accepted for carriage, storage or clearance and shall be payable, non-refundable and not subject to set-offer or counter-offer in any event.
( b) The Customer, Shipper and Consignee shall be jointly and severally liable to XS Baggage for the payment of all Charges, for the discharge of all liens hereunder and for the performance of the obligations of each of them hereunder.
(c) All Goods [and documents relating to such Goods] shall be subject to a particular and general lien in favour of XS Baggage for monies due either in respect of such Goods or for any particular or general balance or other monies due from the Customer to XS Baggage. If any monies due to XS Baggage are not paid within one [1] calendar month after written notice has been given to the person from whom the monies are due being given to the Customer, such goods which are retained may be sold by auction or otherwise at the sole discretion of XS Baggage and the proceeds may be applied to or in satisfaction of any particular and/or general lien. If after deduction of all monies owing to XS Baggage including the expenses of sale there is surplus balance of sale proceeds, such surplus shall be accounted for by XS Baggage to the Customer.
(d) If any payment is not made on the due date, the Customer shall be in default and whether or not any demand has been made by or on behalf of XS Baggage, the Customer shall pay XS Baggage interest on the amount outstanding at the rate of 1.5% per month calculated at the daily rate from the due date of payment until the payment is made in full. XS Baggage’ right to receive interest is in addition to all other rights which it has in respect of the Customer’s default
(e) The Customer shall be liable for all legal costs incurred by XS Baggage in recovering any overdue Charges owed by the Customer.