Terms of Trade
1. Definitions and Interpretation
1.1 Definitions: In these Terms, unless the context requires otherwise, the expressions below have the meaning specified:
•Account Application Form: The form that the Customer is required to complete and submit to RL to become an authorised account holder with RL.
•Act: Part 5, Subpart 1 of the Contract and Commercial Law Act 2017 as amended from time to time.
•Business Day: Any day other than a Saturday, Sunday or a statutory public holiday in New Zealand.
•Contract: Each contract entered into between RL and a Customer comprising the Account Application Form, these Terms, the Service Order, and any variation or amendment made to those documents by RL.
•Customer: The person, firm or company specified as the Customer on the Account Application Form or where no Account Application Form has been completed, the person referred to in the Service Order.
•Default Rate: RL’s commercial banker’s overdraft facility rate plus 3% per annum.
•Equipment: The container(s) or other equipment that the Customer requests RL to service or provide.
•FAF: A percentage being a fuel adjustment factor set by RL from time to time to take into account increased fuel costs.
•Force Majeure: A circumstance beyond the reasonable control of RL which results in it being unable to observe or perform on time an obligation under any Contract including, without limitation, delays due to breakdown or adverse weather, embargoes, strikes or other industrial action, pandemic, acts of war, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster.
•GST: Goods and services tax pursuant to the Goods and Services Tax Act 1985.
•RL: Recur Limited and any person authorised by it to act on its behalf and any of its related companies as defined in section 2(3) of the Companies Act 1993.
•Services: The container-related services provided by RL, including but not limited to transportation, rental, and logistics.
•Service Charges: RL’s standard charges, applicable prices, fees, levies, FAFs and taxes for the Services, as notified on RL’s website from time to time.
•Service Order: A Customer’s order for the Services.
2. Charges
2.1 Quotation: RL may, at the Customer’s request, give a written quotation to the Customer for the Services. Where RL elects to give a quotation this will be a quotation only and it does not give rise to a binding contract until the Customer completes a Service Order which is subsequently accepted by RL within any deadline set out in the quotation.
2.2 Payment: The Customer shall pay the Service Charges to RL in consideration for RL providing the Services.
2.3 Invoicing: RL shall invoice the Customer for the Services and the Customer shall pay the invoice on or by the 20th of the month following the date of the relevant invoice. The Customer shall not be entitled to withhold payment or make any set-off or deduction from any payment due by the Customer to RL under any Contract in any circumstance.
2.4 Overdue amount: If any payment is not made to RL by the Customer by the date due for payment, RL may, at its sole discretion (and without affecting any other rights that RL may have against the Customer), require the Customer to pay, on demand, default interest at the Default Rate on any amount outstanding, accruing on a daily basis on the unpaid portion of the price from the date due for payment until the date when payment is actually made. The Customer will be liable to pay all expenses and costs (including legal costs as between solicitor and client) in connection with RL recovering or attempting to recover any overdue amount under any Contract.
2.5 Review: RL shall be entitled to review and alter the Service Charges including the FAF by one month’s notice to the Customer on its website.
2.6 Invoice disputes: The parties shall use their reasonable endeavours to resolve any disputes as to invoices as soon as possible. Following resolution of any such dispute, the Customer shall pay any amounts which the parties agree should be paid within five Business Days together with interest on that sum in accordance with clause 2.4 unless waived by RL.
2.7 Set-off: The Customer authorises RL to set-off, withhold or deduct without prior notice or demand any amount due or payable to RL by the Customer under any Contract from any payment made by RL to the Customer in full or partial satisfaction of any amount owing to the Customer by RL under any Contract.
3. Customer Obligations
3.1 Consumer Guarantees Act 1993 (CGA): The Customer acknowledges that it is acquiring the Services for the purposes of “business” (as that term is defined in the CGA) and that all guarantees and remedies in the CGA are excluded to the maximum extent permitted by law. The Customer will not do or omit to do anything which gives rise to any liability on the Customer’s part or on the part of RL under the CGA. The Customer will not make any representation or give any guarantee, warranty or other undertaking in relation to the Services unless that representation, guarantee, warranty or undertaking is supplied by RL in writing.
3.2 Fair Trading Act 1986 (FTA): The Customer and RL each confirm that if they are in trade and acting in trade in relation to the transactions contemplated by these Terms, then accordingly section 9, 12A, 13 and 14(1) of the FTA shall not apply in relation to these Terms or as between the parties. The Customer and RL each acknowledge and agree that the terms of this clause are fair and reasonable.
4. RL’s Obligations
4.1 Compliance with law and policies: RL ensure that at all times that it holds all authorisations, permits and licences required to perform the Services in accordance with the Terms.
4.2 Subcontractor: RL may subcontract the performance of the Services to its agents and subcontractors.
5. Lien
5.1 Lien: As from the time when any amount payable to RL under any Contract (Outstanding Amount) becomes due, RL shall be entitled to an active and particular lien over the Equipment. If payment in full for the Outstanding Amount has not been paid to RL within the time period specified in clause 2.3, RL shall be entitled to remove the Equipment to any suitable premises for storage.
5.2 Sale: If payment in full for the Outstanding Amount has not been tendered to RL within one month of the time period specified in clause 2.3, RL shall be entitled to sell the Equipment by public auction or private treaty without further notice to the Customer or any other person having an interest in such Equipment. From the proceeds of such sale, RL shall be entitled to deduct the balance of the Outstanding Amount and all expenses reasonably incurred by it in removing and storing the Equipment pursuant to clause 5.1, and in arranging and conducting the sale of the Equipment.
5.3 Sale Surplus: Where the amount of the proceeds is less than the Outstanding Amount and all recoverable expenses, the deficiency constitutes a debt due to RL by the Customer. Where the amount of the proceeds is more than the Outstanding Amount and all recoverable expenses, the surplus shall be paid by RL to the Customer.
6. RL’s Liability
6.1 Type of Liability: For the purposes of the Act, RL shall provide the Services at “Limited Carrier’s Risk”.
6.2 Limitation of Liability: Subject to the provisions of the Act imposing liability in respect of the loss of or damage to the Equipment, RL shall not be under any direct or indirect liability whatsoever for any direct or indirect losses, penalties, damages, costs or expenses of any kind whatsoever (including indirect or consequential loss or damage) brought, or incurred by the Customer or any third party, in connection with the Services or any Contract howsoever caused or arising and whether caused intentionally or arising as the result of negligence of RL or otherwise, nor shall RL be liable for any loss, damage or injury caused to the Customer’s servants, agents, contractors, or other persons whomsoever arising.
6.3 Maximum Liability: The maximum liability of RL in respect of any one unit of Equipment under “Limited Carrier’s Risk” is limited to the lesser of $2,000.00 or the amount of the actual loss or damage suffered by the Customer.
6.4 Customer Liability: The Customer shall be liable for any loss or damage to any equipment or property belonging to RL (whether in the possession of the Customer or otherwise) where such loss or damage is caused directly or indirectly by any act or omission of the Customer.
6.5 Customer Indemnity: The Customer shall indemnify RL against any claim by any person in respect of any loss, damage or injury arising out of clause 6.2; and all claims, proceedings, losses, costs, expenses, penalties, fines, damages or other liability whatsoever suffered or incurred by RL arising out of, or in connection with, any failure by the Customer to perform its obligations under any Contract.
6.6 Risk and Title: Risk in all Equipment shall pass to RL on accepting the Equipment for service. The Equipment title shall at all times remain with the Customer, subject to these Terms.
6.7 Contracting Out: Where these Terms differ from any provision in the Act then so far as the parties are able, these Terms prevail over any statutory provision and the parties are deemed to have contracted out of those provisions of the Act.
6.8 Insurance: Insurance of the Equipment is the sole responsibility of the Customer not of RL.
7. Actions against RL
7.1 Time Limit: No action whatsoever shall be brought against RL for damage to or partial loss of the Equipment occurring while RL is responsible for it under any Contract unless written notice of any claim, giving full particulars of any alleged damage or destruction, as well as the value claimed, is received by RL within a reasonable time after the delivery of the Equipment; or a court action shall have been commenced by the Customer in a Court of competent jurisdiction within 6 months from the date of delivery of the Equipment.
8. Default, Termination and Suspension
8.1 Grounds for default: RL may suspend or terminate any Contract, and the payment of all amounts owing by the Customer to RL under that Contract and any other Contract between RL and the Customer shall immediately become due and payable, if the Customer:
•is in breach of any term of any Contract;
•is unable to pay its debts as they fall due or ceases or threatens to cease conducting its business in the normal manner;
•enters into, or attempts to enter into, any composition, assignment or other arrangement with, or for the benefit of, its creditors;
•becomes, threatens or resolves to become, or is in jeopardy of becoming insolvent;
•being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or
•being a natural person, dies.
9. Confidentiality
9.1 Confidentiality: If, in the performance of its obligations under any Contract, a party becomes aware of secret and confidential information belonging to another party such party shall keep secret and confidential and not disclose the same to any third party (except those of its officers and employees who are instructed that they are dealing with secret and confidential information that is not to be disclosed).
9.2 Information and Privacy: The Customer agrees that RL may use any information it holds from time to time about the Customer relating to the Customer’s credit worthiness and give that information to any other person for credit assessment and debt collection purposes. The Customer agrees that any other information collected by RL about the Customer is accessed or collected for the use of RL in the course of its business, including direct marketing activities.
10. Amendment of these Terms
10.1 RL may amend these Terms at any time, which will take effect once notice has been provided to the Customer. Any amended Terms will apply to all future Services provided by RL to the Customer.
10.2 The Customer acknowledges that notification includes the update of these Terms on RL’s website and agrees to regularly review these Terms to ensure it is aware of any changes.
11. General
11.1 Force Majeure: RL shall not be liable for any delay or failure to perform any obligation in whole or in part under any Contract or for any loss or damage (including indirect or consequential loss or damage) if such delay or failure is due to Force Majeure.
11.2 Further assurances: Each party shall make all applications, execute all documents and do all acts and things reasonably required to implement and to carry out its obligations under any Contract.
11.3 Assignment: No party shall assign any of its rights or obligations under any Contract without the prior written consent of the other party, such consent not to be unreasonably withheld.
11.4 Other Terms: If there is any inconsistency between the components of any Contract, then the Customer agrees that the following order of preference shall prevail: the Terms; the Account Application Form; and then the Service Order.
11.5 Entire Terms: The provisions of the Contract constitute the entire arrangement between the parties with respect to its subject matter and supersede all previous agreements and arrangements, whether verbal or written, between the parties with respect to that subject matter. Despite this, should any standard order terms imposed by the Customer be found to form part of an agreement between the Customer and RL, then the terms of the Contract shall prevail.