STORAGE NELSON LIMITED TERMS OF TRADE
1.Terms of Contract
These are the Terms on which we contract with you for Services. Providing goods for services will be deemed to be acceptance of these Terms, despite anything you may state to the contrary, unless we have agreed in writing to contract with you on a different basis than as set out in these Terms.
2.1 Our charges for the Services shall be our prevailing rates for them from time to time, or as otherwise set out in the Quotation.
2.2 We may withdraw a Quotation before it is accepted and, in any event, a Quotation will lapse, without notice, 30 days after it is given.
2.3 Unless otherwise agreed in writing, our charges are exclusive of GST, which will be charged to you at the prevailing rate.
2.4 We may (but are not obliged to) check-weigh and check-measure your Goods and alter any consignment note (or other applicable documentation) and any charges calculated based on weight or measurement accordingly. We do not accept responsibility for, or guarantee, our weighing or measurement.
2.5 Our charges shall be considered fully earned for the requested Services as soon as the relevant Goods are received by us.
3.1 You shall remain liable for any amount owing to us even where you have directed that the amount owing is to be paid by another person.
3.2 You must pay all amounts set out in each invoice issued by us in full, without deduction or set off, by the due date specified on the invoice. We may require payment in full of all charges prior to commencement of Services. Your payment is made only when funds have fully cleared through the bank’s system into our bank account.
3.3 If full payment is not made by the due date, then without prejudice to any other rights or remedies available to us:
(a) we may charge interest on over due monies on a daily basis at 5% per annum above the current overdraft rate charged by our bankers at that time, and interest shall continue to accrue both before and after judgment;
(b) you will be responsible for all costs (including legal costs on a solicitor/client basis) incurred by us in recovering such monies; and
(c) we may discontinue or suspend any Services.
3.4 We may accept and apply payments from you in respect of any indebtedness as we see fit, and we will not be bound by any conditions or qualifications attaching to the payments.
4. Risk and Insurance
4.1 Risk in your Goods shall remain with you at all times during performance of the Services, and it shall be your sole responsibility and cost to arrange appropriate insurance cover for your Goods.
5. Warranties and Indemnity
5.1 You warrant to us that:
(a) you will, prior to us taking possession of your Goods, supply us with accurate, true and complete details about your Goods and any other Information we may request;
(b) you will comply with the requirements of any instruction or direction we issue and with any applicable law relating to the nature, labelling and packaging of your Goods, and so as to enable us to lawfully provide the Services in relation to the Goods;
(c) you have title to and ownership of, or a valid right to possession of your Goods;
(d) your Goods are properly packaged and labelled and in a fit and proper condition to be safely stored, or otherwise handled as part of the Services;
(e) your Goods are and will remain free from any defect or objectional matter or odour, and are not of an offensive nature or illegal; and
(f) your Goods are not of a deleterious or inflammable nature or a substance likely to cause harm, or a Hazardous Substance for the purposes of the Hazardous Substances and New Organisms Act 1996.
5.2 You agree to indemnify us, on demand, against losses, damages, costs and expenses of any nature whatsoever suffered or incurred by us, directly or indirectly as a result of or in connection with any breach of these Terms, including any of the warranties given in 5.1 above.
5.3 Without limiting clause 5.2, all expenses and charges incurred in complying with the provisions of any law or of any provision in clause 5.1 or with an order or requirement of the law or of any competent authority or otherwise with the performance of the Services shall be paid by you.
6. Acceptance of Goods for Services
6.1 Subject to clause 6.3 Goods are accepted for storage when we take possession of those goods.
6.2 We reserve the right to only accept your Goods in terms of these arrangements or conditions.
6.3 We (and/or our contractors) may at any time, at our discretion and without any liability to you:
(a) refuse to accept any Goods for Storage; and
(b) open and inspect any Goods.
6.4 We may issue you a confirmation of receipt for any Goods which you provided for storage. The confirmation will contain the detail recorded by you or on your behalf about your Goods. We do not accept responsibility for the correctness of the information supplied which we will use for identification purposes only and are not obliged to inspect or otherwise check the goods.
7. Right to Suspend or Discontinue Services
7.1 We may, at our discretion and without any liability to you, by written notice to you, suspend or discontinue the Services at any time if:
(a) you fail to comply with any of the provisions of these Terms (or any other agreement with us);
(b) we consider that your creditworthiness, or ability or willingness to comply with your obligations under these Terms, may be at risk for any reason whatsoever;
(c) you (or any guarantor of your obligations under these Terms) become insolvent or commit any act of bankruptcy; a receiver, liquidator, administrator or statutory manager is appointed over any of your assets or undertaking; you make or attempt to make an arrangement or composition with your creditors; or you are unable (or deemed unable) to pay your debts as they fall due; or
(d) we believe that your Goods are, or are likely to be unfit to store or transport,
7.2 Where we exercise our discretion to suspend or cancel Services under these Terms, all Charges shall be immediately due and payable and you must collect all Goods by the time and from the location we give notice to you (provided that if the Goods are perishable we may dispose of the Goods without liability to you )
8.1 Where the Services are subject to a common law lien, that lien shall take precedence over the provisions of clause 8.2 which shall no effect.
8.2 Subject to clause 8.1 we shall have a first and paramount lien over your Goods for all amounts owing by you pursuant to these Terms however arising, including charges, debts and liabilities in connection with and together with charges, debts and liabilities owing in respect of any other goods or services.
8.3 If you do not pay, in full, any amounts owing to us before their due date, or if you fail to collect your goods stored when you are required to do so under these Terms we may exercise all or any of the following rights and remedies without liability to you or notice to you:
(a)remove such Goods or part thereof and store them in such place and manner as we think proper at your risk and expense;
(b)dispose or sell your Goods, either at one time, time to time, individually or in such lots as we deem fit, by private sale or public auction, and on such conditions and at such price(s) as we deem fit
(c)apply the proceeds of sale of your Goods towards and satisfaction of all charges, debts and liabilities to us (including under clause 8.4).
8.4 You shall be liable to us for and shall indemnify us for all costs and expenses (whether direct or indirectly) for removal, storage, sale or attempted sale of your goods under clause 8.3 above. Storage charges at our storage rate will continue to accrue to your account for so long as goods are held and stored pursuant to our rights under this agreement
9. Security Interest
9.1 You acknowledge that the lien in clause 8.2 above are a security interest for the purposes of the PPSA.
9.2 You undertake to:
(a)do all acts and provide us on request all information required to register a financing statement or to a change statement on the Personal Property Securities Register; and
(a) waive your right to receive a verification statement in respect of any financing statement or change to a security statement relating to the security interests
(b) agree that nothing in sections 114(1)(a) of the PPSA shall apply to these Terms and Conditions and agree to contract out of such sections; and
(c) waive your rights and, with our agreement, of your rights under sections 116, 120(2) and 131 of the PPSA.
9.4 Unless the context otherwise requires, the terms and expressions used in this clause 9 have the meanings given to them in, or by virtue of, the PPSA.
10. Limitation of Liability
10.1 We shall not be liable for any loss or damage arising from the Services, including any loss or damage to your Goods however caused, unless such loss or damage is caused by the negligence or wilful default of any person under our control. All other liability of any kind (whether arising in contract, tort (including negligence), statute or otherwise) to you or any other person is excluded to the maximum extent permitted by applicable law.
10.2 Without limiting clause 10.1 we shall not be liable (whether in contract, tort (including negligence) or otherwise) for:
(a) any loss or damage or any failure to perform any Services which arises directly or indirectly from, or is contributed to by, incorrect or incomplete information provided by you (or your customers), your failure to comply with these Terms or any circumstances beyond our reasonable control; and
(b) any loss (whether direct or indirect) of profits, business, anticipated savings or other economic loss or for any indirect, special or consequential loss, regardless of whether such loss or damage was reasonably foreseeable or we were or should have been aware of the likelihood of such loss.
10.3 We shall not be liable in respect of a claim against us under these Terms unless:
(a) You write to us, giving full details of the claim and the alleged damage or loss, within seven days after the earlier of our delivery or your collection of the Goods (or in the case of non-delivery within fourteen days of the date of despatch) or the date the Storage Services end; and
(b) if a claim is not settled) an action is commenced in a Court of competent jurisdiction within six months of the date on which we accepted the relevant Services.
10.4 If the Consumer Guarantees Act 1993 applies, it shall be read subject to your rights under that Act and if you are in trade and the Services are supplied in trade your agree that none of the rights under that Act will apply.
10.5 You will use your reasonable endeavours to avoid any loss, damage or liability that might give rise under these Terms, including by fully exercising and or limitation or exclusion to which you are entitled or any applicable law against any third party. We will not be liable for any loss or damage that could have been prevented by the exercise of reasonable due diligence
10.6 The exclusions and limitations of liability set out and the indemnities in our favour in these terms and conditions apply to, and are for the benefit of, our employees, contractors, representatives and agents. The aggregate amount recoverable from us and the persons referred to in this clause will not exclude the amount of liability expressed in this clause.
11. Assignment and Subcontractors
11.1 We may perform any of our obligations, and the rights granted to us, under these Terms and for agents or subcontractors appointed by us in our discretion for that purpose.
11.2 None of your rights or obligations under these Terms may be assigned or transferred without our prior written consent and no assignment or transfer of the title in your Goods shall extinguish your obligations under these Terms.
12. Access to our Property
12.1 Where, for the purposes of these Terms, you or your employees, agents or contractors enters upon land owned or used by us in relation to the Services, to inspect or collect Goods, you shall:
(a) comply with all directions given by us (including policies and codes of practice supplied to you) ...;
(b) consult, cooperate and coordinate activities of other persons conducting a business as defined in the Health and Safety at Work Act and are accessing our premises; and
(c) indemnify us, on demand, against liabilities, damages, costs and expenses suffered directly or indirectly, from any breach by you of your obligations under this clause or any act or omission of any employees, agents or contractors while on our premises
13. Privacy Act 1993
13.1 We may use any personal information that you supply for credit, administration, service and marketing and if you do not give this information, we may elect not to provide the Services.
13.2 You authorise any person or company to give us information as we may require for the purposes of clause 13.1
13.3 You understand that we may use a credit company to undertake a credit check on you. In such case:
(a) the agency will give us information about you
(b) we will give your personal information to the agency, and the agency will hold the information on its systems and use it to provide their credit reporting service;
(c) when other customers use the service, the agency may give the information to those customers; and
(d) if you default in your payment obligations to us, information about the default may be given to the agency, and the agency may give the information to other customers.
13.4 You have a right of access to, and may request correction of, your personal information.
13.5 If the customer is a company, the word “you” where used in this clause 13 includes its directors and shareholders.
14.1 Every notice given or required to be given under these Terms (“Notice”) shall be in writing. A Notice shall be served on a party at that party’s last known place of abode or business in New Zealand.
14.2 Every Notice shall be sent by courier, by fast post, by facsimile transmission or by electronic mail.
14.3 A Notice shall be deemed to be served if by courier, at the time of delivery and, if posted, at 10.00am on the third day after the day it was put in the post. If sent by facsimile transmission or electronic mail, it shall be deemed to be served at the expiration of two hours after the time of despatch, if despatched before 3.00pm and in any other case at 10.00am on the first day after the date of despatch.
15. General Terms
15.1 Amendments: We may amend these Terms from time to time by notice to you in writing.
15.2 Entire Agreement: These Terms (together with any Quotation and any agreement between you and us which incorporates these Terms) constitute the entire agreement between us and you for the Services and exclude any other representations, understandings, terms, agreements and arrangements, including those in any proposal, document or terms provided by you.
15.3 Waiver: No delay or failure by us to exercise our rights under these Terms operates as a waiver of those rights. A partial exercise of those rights does not prevent their further exercise in the future.
15.4 Severability: If a Court decides that part of these Terms is unenforceable, the part concerned shall be deleted from the rest of these Terms, which will then continue in force.
15.5 Law: These Terms will be interpreted in accordance with and governed by the Laws of New Zealand, and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters between us.
15.6 No lease or implied licence: These Terms constitute a contract of bailment only in respect of storage services and you acknowledge that you have no entitlement to claim any interest in the premises at which the Goods are stored, whether as a lessee, licensee or otherwise.
16. Defined Terms and Interpretation
16.1 In these Terms, the following words have the following special meanings:
“Act” means the Contract and Commercial Law Act 2017;
“Additional Services” means any processing, assembly or other services supplied by us to you in relation to your Goods but specifically exclude the carriage or storage of your Goods;
“Goods” means goods presented to us by you at any time for the purposes of the Services;
”PPSA” means the Personal Property Securities Act 1999;
“Quotation” means a quotation for the supply of Storage Services on the terms set out in the quotation
“Services” means the Storage Services and the Additional Services.
“Storage Services” means the storage services we provide to you in relation to your Goods.
“Terms” means these terms of trade (as amended from time to time).
“We”, “our”, “us” means Storage Nelson Limited, Nelson Car Storage Limited and Park and Fly Nelson Limited and any of their related companies (as defined in .the Companies Act 1993) from time to time; and “you” means (subject to clause 13.5 above) the person named in the receipt or invoice.
16.2 For convenience, these Terms have been grouped under different headings, but the headings do not affect the meanings of these Terms.
16.3 Where the provisions in these Terms differ from the provisions in the Act then, to the extent permitted, the provisions in these Terms are in substitution to the statutory provisions, and the parties are deemed to have contracted out of the relevant provisions to the extent permissible at law.