Terms & Conditions
1. In these Terms and Conditions the following definitions apply:
a. Charges include any fees, charges, interest, expense, reimbursement or other money or consideration payable to ContainerCo by the Customer.
b. Containers includes any shipping container, shipping container part, modified container, tank-type container, flatrack, or other item reasonably considered shipping units, and where appropriate, also refers to any trailer, vehicles, plant or equipment forming part of or accompanying a Container.
c. Dangerous or Offensive means, in respect of any Container (or its contents), such state, quality or characteristic that We reasonably believe poses a danger, threat or any offence to any person or the biosecurity of New Zealand.
d. Services means the handling, cleaning, washing, sanitisation, fumigation, disinfecting, storage, treatment, sealing, re-sealing or storage of Containers; the servicing of, and carrying out repairs on Containers; or any other associated activity (excluding transportation to a destination outside of Our premises).
e. Subcontractor means:
- i. in respect of ContainerCo, any person (including a person operating a railway) We engage to perform all or part of the Services;
- ii. in respect of the Customer, any person You engage to perform any services in relation to Your Containers on Our premises; and includes any agent or subcontractor of such a person.
f. Terms means these Terms and Conditions of Container Services.
g. Us or We or Our is a reference to ContainerCo (NZL) Ltd (NZBN 9429035842477), any of our agents or Subcontractors, and any related body corporate of ContainerCo NZL Ltd.
h. Customer means the person, firm, company or organisation by whom or on whose behalf Services are performed.
i. You or Your is a reference to the Customer and the Customer’s employees, agents, contractors, Subcontractors, permitted assignees or other representatives.
2. In these Terms:
- a. the singular includes the plural and vice versa;
- b. a reference to a gender includes other genders;
- c. the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.
3. The Customer and ContainerCo agree that these Terms and Conditions apply to all Services provided by or on behalf of ContainerCo and may not be varied except by written agreement signed by both parties.
- a. We reserve the right to amend these terms.
1. APPLICATION OF TERMS
1.1 These Terms apply to all Services We provide to You from time to time. They also apply to any Services We provide, in addition to the Services We quote for or you request, where we reasonably believe such Services are necessary or incidental to such Services.
1.2 By requesting Services from Us, You accept these Terms and agree to procure that all Your employees, contractors, agents, Subcontractors or other representatives comply with these Terms as if they were party to these Terms.
1.3 These Terms continue to apply despite any breach of these Terms by Us, or Our Subcontractors.
1.4 We may refuse to deal with a Container for any reason. We will inform You if we refuse to deal with a Container, and give You the reason.
1.5 By giving Us (whether directly or via Your Subcontractors) a Container for the provision of Services, You irrevocably confirm that You are acting as agent for each person who has an interest in the Container or its contents.
1.6 By asking Us to provide Services You, or any person who signs any document on Your behalf, confirm authority to accept these Terms.
2. OUR SERVICES
2.1 We are entitled to open any Container (empty or full) in order to inspect it for any reason. This might be to find out its nature or condition, for the provision of Services, or to establish who owns it.
2.2 If We believe in our reasonable opinion that a Container is or may become, or contain items that are or may become, Dangerous or Offensive, We may do anything We believe appropriate to avoid or minimise any loss, damage, deterioration, or offence to You, Us or any third party.
- 2.2.1 This includes removing or rejecting the Container from our premises.
- 2.2.2 This does not affect any other rights We may have, whether under these Terms or otherwise, if the Container is Dangerous or Offensive.
2.3 At Our discretion, We may engage Subcontractors of Our choosing to provide all or part of the Services.
2.4 At our discretion, We may permit all or part of the Services to be carried out by a Subcontractor on Our premises at Your request. In such a case:
- 2.4.1 You will be responsible for all service fees or other costs associated with work carried out by the Subcontractor.
- 2.4.2 We may require the Subcontractor to hold and provide evidence of any licence or other qualification We consider necessary.
- 2.4.3 We may require the Subcontractor to sign any document or adhere to any policy we consider necessary, such as in relation to health and safety on Our premises.
- 2.4.4 We will take reasonable steps to work with Your Subcontractor to complete the Services but accept no liability for the work undertaken by the Subcontractor. To the extent permitted by law, You irrevocably indemnify Us for any loss, cost (including reasonable legal costs), damage or third party claims we sustain in connection with the work undertaken by the Subcontractor or the Subcontractor’s presence on our premises.
2.5 We intend to perform the Services necessary to repair, maintain or upgrade the Containers to the condition You nominate and to follow any written instructions You give Us in relation to the handling, storage, acceptance, and release of Your Containers. However, We are entitled to depart from those instructions if We believe it is reasonable to do so.
- 2.5.1 This might include refusing service to a carrier you’ve nominated, or altering the premises where a Container is stored.
- 2.5.2 We also reserve the right to depart from those instructions in order to comply with a relevant government authority.
- 2.5.3 We will inform You if we materially depart from your instructions, and give You the reason. You will be liable for any reasonable extra cost.
2.6 The Containers (and any contents) are not insured by Us, nor will We make insurance arrangements for the Customer. All Containers are held at Our premises at Your risk.
2.7 If you do not collect or arrange for the collection of Containers at the completion of the relevant Services within 14 days or a reasonable time agreed in advance in writing, we may choose to store the Containers at our standard rate, or return them to You at Your risk and cost.
2.8 We reserve the right to limit the number of Containers We store for You at any given time. Without prior arrangement in writing We reserve the right to:
- 2.8.1 ask that Containers stored for You are uplifted from our premises, or apply additional charges to groups or individual Containers, after they have been stored longer than 30 days.
- 2.8.2 review pricing of Containers stored by Us for more than 90 days.
2.9 When We provide Services, We may use products, methods or treatments that affect the Container or the surface or components of the Container.
- 2.9.1 When We use those products, methods or treatments, We will do so with Your consent. When other service providers have used those products, methods or treatments, and it has adversely affected the Container, We do not accept responsibility or liability for customer rejection.
2.10 When performing the Services, We reserve the right to perform and charge for reasonable related activities necessary for the completion of that Service, at our standard rate for those related activities (for example, charges relating to our plant in performance of a service by Your Subcontractor).
2.11 We have the right to restrict or prohibit access of any person, including You or Your Subcontractors, to our premises at any time and for any reason. This may include for health and safety reasons, or a failure to follow reasonable ContainerCo staff instructions.
2.12 We reserve the right to apply levies for costs applied to Containers that are outside of Our reasonable control; this includes compliance costs related to legislation.
3. YOUR OBLIGATIONS IN RELATION TO SERVICES
3.1 You must comply with all laws relevant to the Services and where applicable take reasonable steps to assist Us to comply with such laws.
- 3.1.1 You must, and You must ensure that all Your Subcontractors, comply with Our reasonable requests, standards, policies and procedures. This includes Your Subcontractors completing a ContainerCo licencing procedure and holding a current licence to operate on Our premises.
3.2 To help us comply with the law, and complete Services safely and efficiently, You must:
- 3.2.1 give Us an accurate description of any Container for which Services are required, and pre-advise Us of its arrival;
- 3.2.2 tell Us if the Container is, or has previously contained items that were, Dangerous or Offensive;
- 3.2.3 provide Us all with necessary documents and information in a timely manner to enable Us to comply with the law;
- 3.2.4 provide Us all with necessary documents and information (including packing declarations, manifests, etc) to ensure We can safely and properly clean or treat a Container, and issue an accurate treatment certificate or cleanliness declaration.
- 3.2.5 if there is an investigation or enquiry from a relevant government authority for any reason, You will help Us comply with that investigation or enquiry.
3.3 We have obligations under quarantine and customs laws, as well as accreditation programs, compliance agreements, and other schemes. You agree that You will not do anything that puts these at risk, or has the potential to put these at risk.
4. LEASING AND SALES CUSTOMERS
4.1 When You sell or lease a Container in Our possession, unless agreed otherwise in writing ContainerCo will take no administrative part in the sale or lease; this includes, for example, the collection of money owed to You, arranging the organisation of transport, or interacting with Your customers on Your behalf.
4.2 When it is specifically agreed in writing that We will complete a specific task – for example collect sale proceeds for You - an administration charge will apply to You (which will be adjusted from time to time).
4.3 All Services performed by us, including lifts and surveys, will incur charges against You regardless of whether the Container is subsequently repaired, repositioned, leased, or sold.
- 4.3.1 It is agreed that “Off-hire” surveys are more complex, and a reasonable surcharge will be added to the standard surveying rate.
4.4 ContainerCo will assist with the stock control programme of Your choosing (for example FIFO, allocated numbers, etc) but reserves the right to charge for additional lifts when Your desired container requires more then 3 lifts to access.
5.1 You must pay Us for Our Services in accordance with Our prevailing prices from time to time. We will give you no less than 30 days’ notice of any amendment to Our prices, which will apply to any Services requested from the date such amendment comes into effect.
5.2 You must pay Us when we complete the Services and issue you with an invoice for those Services.
5.3 Unless otherwise agreed in writing, You will pay all Charges within 30 days of the date of invoice.
- 5.3.1 Default interest at 10% pa (accrued daily and compounding monthly) on any Charges not paid by the due date will apply, plus any costs or expenses incurred by ContainerCo (NZL) Ltd in recovering payment.
- 5.3.2 We reserve the right to refuse the release of any of Your Containers until all amounts owing by You are paid in full.
5.4 You can arrange for someone else to pay any Charges You incur. However, You remain liable to Us if they do not pay.
5.5 Without limiting anything else contained in these Terms, You must pay Us an additional reasonable charge determined by Us in each of the following cases:
- 5.5.1 We (or Our Subcontractors) perform Services (reasonably) in addition to the Services We quote for.
- 5.5.2 You store a Container with Us longer than 90 days, and You have not arranged in writing for an extension of storage.
- 5.5.3 We are required to perform services for Subcontractors arranged by You and operating on Our premises.
5.6 Unless otherwise agreed in writing, You must pay Us the amount We have to pay, or Our Subcontractor has to pay, for any product or part of product purchased in the course of providing the Services that isn’t specifically covered by the Service Charge.
5.7 You agree that we have a lien over the Containers (and any related documents), and over any other goods or property of Yours in Our possession. This acts as security for payment of any money You owe Us.
5.8 If You do not pay Your Charges, We may sell these without giving You notice after 90 days of your non-payment. We will offset the amount We receive against the money You owe Us.
5.9 If the money raised in this fashion does not cover the full amount of the debt, We reserve the right to take further action to recover the remainder.
5.10 This does not affect any other rights We may have.
6. CONTAINER SURVEYS
6.1 Our estimation of the condition of Containers (“the survey”) is valid for 45 days only from the date the survey was undertaken.
- 6.1.1 After 45 days, the survey will be considered “expired.”
- 6.1.2 Re-survey will be conducted as requested on both expired and non-expired Containers, at Your expense.
- 6.1.3 If Containers are released without a current survey, ContainerCo accepts no liability in relation to the condition of these expired Containers, and no claim or action will be accepted in relation to those Containers.
6.2 In relation to accepting Containers into our premises; no signature granted by Us to You during the acceptance process of the Containers can be taken as an indication of the Containers having been received in good order, or as proof of the Containers condition at that time.
- 6.2.1 The condition of the Containers at the time of the first survey will be deemed the condition of the Containers as received onto Our premises.
7.1 For any Container:
- 7.1.1 Before it is accepted, and once it has been released from Our premises, we do not accept any liability.
- 7.1.2 All Services undertaken on Our premises by parties other than ContainerCo, including Subcontractors operating on Your behalf, are undertaken entirely at Your risk.
- 7.1.3 Unless We have arranged transport and in writing have stated otherwise, We are not liable under any circumstances for third-party delays, mis-delivery, or total failure to deliver Containers either inward or outward from Our premises.
- 7.1.4 If a Container is mis-delivered to Our premises you can either:
- 126.96.36.199 arrange with Us to store that Container with Us and contract Us for Services as per Our standard rate, or a rate which You have agreed with Us in writing; or
- 188.8.131.52 arrange at Your own expense to uplift and remove the Container, paying any charges incurred by the use of Our plant in that process.
7.2 Although We intend to complete the Services to a high standard, ContainerCo does not guarantee repairs and/or maintenance based Services carried out on Containers for longer than 45 days after the repair/maintenance is completed.
7.3 Where We accept that a failure in any Services provided by Us, We may, at our option (after consultation with you and having regard to the nature and effect of the failure):
- 7.3.1 supply the relevant Services again;
- 7.3.2 replace the Containers with containers of the same or similar characteristics/value; or
- 7.3.3 refund the amount paid by You in respect of the failed Services.
7.4 ContainerCo shall not be liable for any consequential, special, punitive, indirect or economic loss or damage (including loss of profit) arising in relation to the Services for any reason whatsoever or howsoever caused [(including but not limited to any negligent or wilful act of default by ContainerCo)].
7.5 Notwithstanding clause 7.3 and to the maximum extent permitted by law:
- 7.5.1 Our maximum aggregate liability for all claims howsoever arising in relation to the supply of Services is limited to the price You have paid to Us for the Services to which the claim relates, or the direct damages that You actually incur or suffer, whichever is less; and
- 7.5.2 Your sole remedies for any breach of these Terms or loss or damage arising from the Services are as set out in these Terms.
7.6 Any claim or action against Us must be commenced within 6 months of the release date of the relevant Containers from Our premises.
7.7 We are not liable for damage to, or the deterioration of, Containers (including to the surface or components of containers) that may occur due to the use of products, methods or treatments used in accordance with agreed work.
7.8 We are not liable for the deterioration of Containers, including but not limited to the surface, components, or structure of containers, that occurred due to length of time they were stored on Our premises.
7.9 ContainerCo and the Customer agree to contract out of the Consumer Guarantees Act 1993 (CGA) and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 (FTA). In doing so, and for the purposes of section 43(2) of the CGA and section 5D(3) of the FTA, they:
7.9.1 acknowledge that they are both in trade;
7.9.2 acknowledge that the Services are provided by ContainerCo, and acquired by the Customer, in trade; and
7.9.3 agree that it is fair and reasonable to each of them to be bound by this clause.
8.1 You may believe you have a claim against Us.
8.1.1 Any claim must be in writing.
8.1.2 It must reach us within 6 months of the date the Containers were released or should have been released.
8.2 Under no circumstances will any payment be refunded or credited without written permission from us; no claim or counter claim shall constitute any ground for deferring, off-setting, or withholding payments owed by You.
9. YOUR INDEMNITY TO US
9.1 You irrevocably indemnify Us against any loss, costs (including reasonable legal costs), damage or third party claims we sustain in connection with:
- 9.1.1 a breach of these Terms by You;
- 9.1.2 any breach or failure by You to comply with New Zealand law; or
- 9.1.3 any Container being, or containing items that are, Dangerous or Offensive, whether or not you informed us that those Containers could be, or contain items that could be, Dangerous or Offensive.
10. FORCE MAJEURE
10.1 No party shall be liable for any complete or partial failure to perform or delay in performing any of its obligations under these Terms, arising out of or contributed to by any failure or delay of any act or action whatsoever caused beyond the control of that party which could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects. We reserve the right to terminate if the event continues for a long period.
11. RATES SCHEDULE
11.1 These are the standard charges and rates for Our Services in force at the time of providing those Services and published on our website. These prices will apply unless otherwise agreed to in writing.
12.1 The agreement recorded by these Terms is governed by the law of New Zealand. ContainerCo and the Customer irrevocably and unconditionally agree that a proceeding in respect of any matter or thing dealt with by these Terms must only be instituted in the New Zealand Courts.
12.2 Any dispute in connection with these Terms or the supply of Services to the Customer will first be referred to senior executives of ContainerCo and the Customer for resolution by negotiation for not less than 14 days before legal proceedings may be initiated.
13. ASSIGNMENT AND VALIDITY
13.1 The Customer must not assign, transfer or novate any or all of its rights or obligations under these Terms or any request for Services without ContainerCo’s prior written consent, which may be given or withheld in ContainerCo’s complete discretion.
13.2 ContainerCo has the right to assign, transfer or novate any or all of its rights or obligations under these Terms or any provision of Services without the consent of the Customer providing it first gives written notice to the Customer.
13.3 In the event that part or all of any provision of these Terms is illegal or unenforceable, such provision (or part of it) will be interpreted as may be necessary to ensure it is not illegal or unenforceable. Where this is not possible, that provision (or part of it) will be severed from these Terms and the remaining provisions will continue in full force and effect.