as of May 18, 2017
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).
(a) A legally binding Transport Contract between a Cargo Owner and a Carrier is created when a Match is generated on the TNX Platform. Each Transport Contract will comprise the details contained in the Match and these Transport Terms.
(b) Posting a Cargo Offer on the TNX Platform constitutes acceptance by the Cargo Owner that these Transport Terms will apply to any Match that is created on the TNX Platform by matching that Cargo Offer with a Capacity Offer.
(c) Posting a Capacity Offer on the TNX Platform constitutes acceptance by the Carrier that these Transport Terms will apply to any Match that is created on the TNX Platform by matching that Capacity Offer with a Cargo Offer.
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.
2.1 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.
(a) The Cargo Owner warrants that the information concerning the Cargo in each Cargo Offer it submits to the TNX Platform is true and correct.
(b) The Carrier warrants that the information concerning its transport capabilities and capacity in each Capacity Offer is true and correct.
The Match will record the following details:
(a) details of the Cargo, including the weight and dimensions of the Cargo and the number and type of the units in which the Cargo is packed (see clause 3);
(b) the Declared Value (if any) of each such unit of Cargo (see clause 11.4);
(c) the location at which the Cargo will be collected by the Carrier (Pick-up Point);
(d) the period in which the Carrier will collect the Cargo from the Pick-up Point (Collection Timeframe);
(e) the location to which the Cargo will be delivered by the Carrier and received by or on behalf of the Cargo Owner (Delivery Point) (see clause 5.1(c));
(f) whether any of the services listed in the Services Schedule are required, for example:
(i) whether or not the Carrier is responsible for:
(1) loading the Cargo at the Pick-up Point (Loading); and/or
(2) unloading the Cargo at the Delivery Point (Unloading).
(ii) specifications for the vehicles to be used to perform the Services (Delivery Vehicles);
(iii) if the Carrier is responsible for loading or unloading, specifications for the type of loading equipment required to be carried or installed on the Delivery Vehicle (which may include a tail lift, gantry, sidelifter, crane, ramps or other equipment specified in the Match);
(g) the period in which the Carrier will deliver the Cargo to the Delivery Point (Delivery Timeframe);
(h) the amount payable by the Cargo Owner to the Carrier for completion of the Match (Carrier Fee);
(i) the timeframe in which the Carriers Fees must be paid (see clause 8.3);
(j) the minimum levels of insurance required to be held by the Carrier during the performance of the Transport Contract, including any specific endorsements for special items required in the Carrier's insurance policies (see clause 10); and
(k) if the Service includes International Air Carriage, and the Carrier has agreed to arrange Customs Clearance, the charges required to be paid by the Cargo Owner in respect of that Customs Clearance.
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.
3.1 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.
4.1 Performance of Transport Contract: The Carrier will:
(a) collect the Cargo from the Pick-up Point within the Collection Timeframe and deliver the Cargo at the Delivery Point within the Delivery Timeframe;
(b) properly brace and secure the Cargo in or to the Delivery Vehicle(s);
(c) take all reasonable measures to prevent loss or damage to the Cargo while the Cargo is in its possession or control (including while the Cargo is in the possession or control of its drivers, agents and subcontractors);
(d) ensure that the Delivery Vehicles are of the type (if any) specified in the Match, have current certificates required by law, are registered with any relevant governmental agency and all road user or other statutory charges are up to date and all axle weight, loading and other restrictions are complied with;
(e) where the Match specifies that loading or unloading of the Cargo is the responsibility of the Carrier:
(i) ensure the Delivery Vehicles deployed to collect the Cargo are equipped with the necessary loading machinery; and
(ii) load and unload (as applicable) the Cargo with due care and skill and without damaging the Cargo;
(f) obtain and retain proof of delivery documentation, signed by the authorised recipient (Proof of Delivery); and
(g) when all Services required to be performed under a Transport Contract have been completed, file a Confirmation via the TNX Platform.
4.2 General Obligations: In performing the Services, the Carrier must:
(a) act with due care and skill and in accordance with good industry practice;
(b) comply with all applicable law, including specifically but without limitation, the "Chain of Responsibility" requirements in Part 6C of the Land Transport Act 1998;
(c) ensure all drivers, machine operators and other people engaged by the Carrier to perform the Services:
(i) are competent to carry out their duties and perform their functions in an efficient, effective, safe and environmentally conscious manner;
(ii) are properly trained in and appropriately certified for the safe handling and transportation of the Cargo;
(iii) hold licences and endorsements required by law to perform their role;
(iv) have completed all necessary health and safety inductions applicable to the Pick-up Point and Delivery Point and comply with the all applicable health and safety policies and procedures (including wearing any necessary safety clothing);
(v) comply with all relevant drug and alcohol policies; and
(vi) to the extent required by law, maintain written logbooks and journey plans which may include electronic logbooks.
(d) ensure that all vehicles, aircraft and equipment used in providing the Services are fit for their intended purpose and in good working order and repair and appropriately registered, certified and compliant with all relevant laws.
(a) it is unlikely to be able to complete the Services within the required timeframes; or
(b) there has been a material delay in the performance of the Services.
5.1 Cargo Owner’s Obligations: The Cargo Owner will:
(a) ensure that its employees, agents, and subcontractors do not impede the performance of the Services by the Carrier
(b) ensure that its Cargo Offers include sufficient details of the Collection and Delivery Points for the Carrier to locate them, including a valid street address and the name of the relevant building or unit number at that street address.
(c) ensure that the Carrier has sufficient access to the Pick-up Point during the Collection Timeframe and to the Delivery Point during the Delivery Timeframe for the Carrier to complete the Match;
(d) comply with all applicable law;
(e) provide the Carrier with all necessary documentation required in relation to the transportation of the Cargo including a bill of lading where that is required to collect the Cargo from the Pick-up Point and where the Service includes International Air Carriage, a completed and executed Statement of Content and a completed and executed Security Acknowledgement. Where the Carrier is not responsible for loading and/or unloading of the Cargo, ensure that there is sufficient equipment and personnel available at the Collection and Delivery Points to load and/or unload the Cargo in a timely and safe manner; and
(f) when all Services required to be performed under a Transport Contract have been completed, file a Confirmation via the TNX Platform.
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:
(a) warrants that the Cargo is fit to be carried in accordance with the Transport Contract in the condition that it has been packed and in the manner in which the Cargo is to be tendered by the Cargo Owner (or its agents) for collection by the Carrier at the Pick-up Point; and
(b) warrants that the Cargo is not hazardous, illegal, offensive or objectionable, is not temperature sensitive, and does not require refrigeration, unless expressly specified in a Cargo Offer. For the purposes of this clause Cargo is 'hazardous' if it contains volatile liquids or solids, solvents or spirits, explosive goods, firearms or offensive weapons which are or may become dangerous, inflammable or offensive (including radioactive materials) or which are or may become liable to cause damage to property or which may be detrimental to human health and safety or the environment.
(c) if the Service includes International Air carriage, further warrants that:
(i) it is has honestly and accurately completed and executed the Statement of Content and a Security Acknowledgement and any other documentation required as specified in the Match; and
(ii) the Cargo does not contain items that are:
(1) listed as 'Forbidden' in the current IATA list of Dangerous Goods Regulations and applicable addenda;
(2) perishable goods; or
(3) live plants or animals.
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:
(a) The Carrier and the Cargo Owner will in good faith use reasonable endeavours to resolve the dispute under the TNX Dispute Procedure;
(b) neither the Cargo Owner or the Carrier will commence legal proceeds until the conclusion of the TNX Dispute Procedure unless the other User refuses to participate in the TNX Dispute Procedure.
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:
(a) physical loss or damage to Cargo, vehicles, premises or any other tangible assets;
(b) a breach of warranty under a Transport Contract; or
(c) the failure to pay any money.
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.
8.1 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:
(a) as agent for the Carrier; or
(b) as an assignee of the debt comprised in the invoice, and such payment will satisfy the Cargo Owner's obligations to the Carrier in respect of the Total Fee.
(a) The Cargo Owner will pay each invoice within the payment period specified in the Match or if no such period is specified within 30 days of its date of issue.
(b) Each invoice will be paid by electronic funds transfer to the bank account of TNX specified in that invoice.
(c) If an invoice falls due for payment on a day that is not a Business Day, the Cargo Owner will pay the invoice on the next Business Day.
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.
9.1 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:
(a) The Cargo Owner may terminate a Transport Contract immediately on notice to the Carrier if:
(i) the Carrier fails to collect the Cargo within 12 hours after the end of the Collection Timeframe;
(ii) the Carrier breaches one or more obligation or warranty in clause 2.2(b), 4.1, 4.2 or 10 and as a consequence the Cargo Owner acting reasonably considers that the Carrier is unable to reliably, safely and securely transport the Cargo.
(b) Cargo Owner may terminate a Transport Contract immediately on notice to the Carrier if:
(i) the Cargo Owner fails to provide access and make the Cargo available for collection to the Pick-up Point during the Collection Timeframe; or
(ii) the Cargo Owner breaches one or more obligation or warranty in clause 2.2(a), 3.1, 5.1 or 5.2 and as a consequence the Carrier acting reasonably considers that the Cargo is unfit or unsafe to transport using the Delivery Vehicle.
(c) Either party may terminate a Transport Contract immediately on notice to the other party if the other party:
(i) has a receiver, liquidator, administrator, statutory manager or any similar insolvency administrator appointed;
(ii) makes or proposes to make any assignment, arrangement, compromise or composition with, or for the benefit of, any of its creditors;
(iii) is removed from the Register of Companies; or
(iv) suffers any analogous event.
(d) Neither party may terminate a Transport Contract under this clause 9.2 due to a failure by the other party to meet its obligations if that failure was caused by a breach of the agreement by the first party.
(e) Neither party may terminate a Transport Contract under this clause 9.2 after Cargo has been collected by the Carrier. However, this does not affect either party's rights or remedies under other provisions of the Transport Contract or otherwise at law (including rights of cancellation under the Contractual Remedies Act 1979).
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.
10.1 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:
(a) professional indemnity insurance with a claim limit of at least $1,000,000; and
(b) public liability insurance with a claim limit of least $5,000,000 for any one occurrence including cover for sudden and accidental pollution.
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:
(a) bullion, precious metals, precious or semi-precious stones, and jewellery made from precious metals and stones;
(b) bank notes, lottery tickets, coins, bonds, negotiable instruments or tickets;
(c) passports, records, or other valuable documents or papers;
(d) tobacco products and processed tobacco;
(e) bottled spirits;
(f) cellular phones and PDAs;
(g) valuable works of art which includes antiques, paintings, sculptures, tapestries, collectibles or other objects for display; or
(h) bloodstock and live animals including cattle or poultry (none of which may be included in a Transport Contract involving International Air Carriage).
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.
11.1 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.
(a) The Cargo Owner acknowledges that the additional payments calculated under the Claims Schedule are a genuine pre-estimate of the losses that are likely to be suffered by the Carrier as a consequence of the corresponding breach of the Match by the Cargo Owner.
(b) The Carrier acknowledges that the deductions calculated in the Claims Schedule are a genuine pre-estimate of the losses suffered by the Cargo Owner as a consequence of the corresponding breach of the Match by the Carrier.
(c) The amounts recoverable by a party under clauses 11.1 or 11.2 are that party's exclusive remedy against the other party in respect of the corresponding breach to the extent, and only to the extent, that the breach falls within the tolerance limits specified in the Claims Schedule.
(d) Clauses 11.1 or 11.2 do not limit a party's rights or remedies in respect of a breach falling outside of such tolerance limits.
11.4 Loss or Damage to Cargo:
(a) International Air Carriage: If and to the extent that a Service includes International Air Carriage, and loss or damage to Cargo occurs in the course of that International Air Carriage, the following provisions apply:
(i) unless, clause 11.4(a)(ii) applies, the Carrier will be liable for loss or damage to that Cargo not exceeding the limit specified in Article 22 of the Montreal Convention; or
(ii) if the Contract Order specifies a Declared Value for the Cargo, then in accordance with Article 22 of the Montreal Convention, the Carrier will be liable for loss or damage to the Cargo up to but not exceeding that Declared Value.
(b) Australian domestic services: If and to the extent that a Service is carried out in Australia, and loss or damage to Cargo occurs in Australia (and not in the course of International Air Carriage) the following provisions apply:
(i) if the Contract Order specifies a Declared Value for the Cargo, then the Carrier will be liable for loss or damage to the Cargo up to but not exceeding that value; or
(ii) if the Contract Order does not specify a Declared Value for the Cargo then the Carrier's liability for the Cargo will be limited to the lesser of:
(1) $100; or
(2) the market value of the Goods at the time the Goods were received by the Carrier.
(c) New Zealand domestic services: To the extent that a Service is carried out in New Zealand, and loss or damage to Cargo occurs within New Zealand (and not in the course of International Air Carriage) the following provisions apply:
(i) if the Contract Order specifies a Declared Value for a unit of Cargo, then the Transport Contract is at "declared value risk" for the purposes of the COGA and the Carrier will be liable for loss or damage to each unit of Cargo up to but not exceeding that value; or
(ii) if the Contract Order does not specify a Declared Value for a unit of Cargo then the Transport Contract is "at limited carrier's risk" for the purposes of the COGA and the Carrier will be liable for loss or damage to each unit of Cargo up to but not exceeding the value specified in section 15 of the COGA. This clause 11.4 only affects the Carrier's liability for loss of or damage to Cargo, and not for any other breach of the terms of a Match.
11.5 Notification of Claims:
(a) International Air Carriage: If a Service includes International Air Carriage and damage occurs to the Cargo during the period of International Carriage by Air, the Cargo Owner or other person entitled to delivery of the Cargo must give written notice of discovery of the damage to the Cargo to the air carrier forthwith in accordance with the timing requirements specified in Article 31 of the Montreal Convention.
(b) Australian domestic services: If a Service is in part performed in Australia and damage or loss occurs to the Cargo during that period of the Service, the Cargo Owner may not bring any action against the Carrier for damage or loss to the Cargo unless the Cargo Owner has given written notice to the Carrier with reasonable particulars of the damage or loss within 14 days of the Cargo being delivered.
(c) New Zealand domestic services: Section 18 of the COGA applies to the extent that the Services in a Transport Contract include Services governed by the COGA. Accordingly, in respect of those Services, except in the case of fraud by the Carrier, the Cargo Owner may not bring any action against the Carrier for damage or partial loss of Cargo while the Carrier has possession of the Cargo unless written notice with reasonable particulars of the damage of partial loss is given within 30 days of delivery.
11.6 Other Physical Loss or Damage:
(a) The Carrier's liability to the Cargo Owner for physical loss or damage to the Cargo Owner's property, equipment or other assets (other than loss or damage to the Cargo in respect of which clause 11.4 applies) is limited to NZ$1,000,000 for any single event causing such loss or damage or a series of related events.
(b) The Cargo Owners liability to the Carrier for physical loss or damage to the Carrier's property, equipment or other assets is limited to NZ$1,000,000 for any single event causing such loss or damage or a series of related events.
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.
12.1 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):
(a) a strike, lockout, ban or other industrial disturbance (except those limited to the Affected Party's own staff or subcontractors);
(b) war or condition arising out of or attributable to a war, whether declared or undeclared;
(c) a blockade, insurrection, riot or health epidemic;
(d) an act of Customs or any other governmental authority in connection with the entry, exit or transit of cargo across borders;
(e) an extreme weather event or natural disaster such as a landslide, earthquake, storm, flood, washout; or
(f) a fire, explosion not caused by the Affected Party's negligence.
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:
(a) could have been avoided or mitigated by the Affected Party using reasonable endeavours to mitigate the effect of the Force Majeure Event; or
(b) continues beyond the time at which it becomes reasonably practicable to resume full performance;
(c) arises from an Affected Party's lack of funds; or
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.
13.1 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.
14.1 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:
(a) derivations of any defined word or term shall have a corresponding meaning;
(b) a gender includes each other gender;
(c) the headings to clauses are inserted for convenience only and do not affect interpretation;
(d) the word "including" and other similar words do not imply any limitation;
(e) a person includes any individual, company, corporation, firm, club, partnership, joint venture, association of persons (incorporated or not), trust or governmental agency;
(f) all amounts are denominated in New Zealand dollars unless stated otherwise;
(g) the plural includes the singular and vice versa; and
(h) a reference to a statute includes all regulations and other subordinate legislation made under that statute. A reference to a statute, regulation or other subordinate legislation, or to a provision of any statute, regulation or other subordinate legislation, includes that statute, regulation or other subordinate legislation or provision as amended, re-enacted or replaced from time to time.
Please refer to the Glossary for a definition of all capitalized terms in this document.