SEA Containers NZ – Terms of Trade

1. Terms

1.1 These terms of trade (Terms) apply to the acquisition or hire of goods, containers and equipment (Container) from SEA Containers NZ Partnership (SCNZ) by the person or entity acquiring or hiring them, and, where there is more than one, each of them jointly and severally (Customer), as specified in any quotation, invoice, order or hire agreement (Hire Agreement).

2. Acceptance

2.1 The Customer is deemed to have accepted and agrees to be bound by these Terms when the Customer places an order, accepts delivery of the Container, or enters into a Hire Agreement with SCNZ.

2.2 These Terms will prevail over any other terms unless expressly agreed in writing by SCNZ.

3. Price and Payment

3.1 The price payable (Price) for the sale and/or hire of Containers will be the Price stated in SCNZ’s invoice or payment schedule.

3.2 Where SCNZ has provided a quoted price, such price will be valid for the period stated in the quotation, or otherwise for a period of thirty (30) days (whichever is the lesser).

3.3 SCNZ may vary the Price if: (a) the Customer requests changes to the Hire Agreement; (b) if the Hire Agreement is not for a fixed term, upon one month’s written notice from SCNZ to the Customer; or (c) otherwise in accordance with these Terms.

3.4 Time for payment is of the essence. Payment must be made on the date specified by SCNZ, including (as applicable) payment in advance, on delivery, or within any credit period approved by SCNZ, and must be paid in full in one lump sum without deduction or set off and the Customer will not be entitled to withhold payment of any invoice should any part of that invoice be in dispute.

3.5 Should SCNZ not provide notice of due date for payment, payment will be due on the date which is seven (7) days following the date of any invoice issued by SCNZ to the Customer.

3.6 Payment methods may include cash, electronic banking, credit card (subject to surcharge), or other agreed means.

3.7 Prices exclude GST unless stated otherwise. The Customer must pay all applicable GST and other taxes.

3.8 Overdue amounts accrue interest at 2.5% per calendar month, calculated daily and compounded monthly, from the due date until payment is received by SCNZ. Any alternative interest rate must be expressly agreed in writing between SCNZ and the Customer.

4. Container Hire

4.1 Hire charges commence on Delivery and continue until the Container is returned, the minimum hire period specified in the applicable Hire Agreement expires, or on the date this agreement is terminated (Hire Period).

4.2 The Customer must:

1. use Containers lawfully and only for their intended purpose;
2. not store any prohibited or unprotected corrosive substance or goods in or on the Container;
3. notify SCNZ of any dangerous goods which are to be stored in the Container and comply with any regulatory body requirements and/or health and safety laws relating to such storage;
4. grant SCNZ the right to enter the Customer’s property during business hours to inspect the Container;
5. operate any refrigerated Container with an adequate power source;
6. maintain the Container in good repair;
7. not move or modify Containers without SCNZ’s consent;
8. not sub-hire or permit any third-party use without SCNZ’s prior written consent;
9. not exceed the recommended or legal load and capacity limit of the Container;
10. not fix any of the Container in such a manner as to make it legally a fixture forming part of any land;
11. return Container(s) clean and in good order.

4.3 Unless otherwise agreed by SCNZ, no allowance is to be made for any period during the Hire Period where the Container is not in use. Should there be any defect with the Container during the Hire Period, the Customer must notify SCNZ immediately. If the Container becomes unusable, hire charges will not be payable for the period during which the Container is not operational, except to the extent that such unavailability arises from the Customer’s negligence or misuse and provided that this will be the Customer’s sole and exclusive remedy in respect of any Container that becomes unusable.

4.4 Prior to expiry of the Hire Period, and upon no less than 5 working days’ notice, the Customer may request an extension to the Hire Period for a specified period and in any case, for no less than one month. Approval of any extension is at SCNZ’s discretion. Any extension of the Hire Period will be a continuation of the Hire Agreement, and these Terms will continue to apply to such extended Hire Period.

5. Delivery

5.1 Delivery occurs when: (a) the Container is collected by the Customer or its nominated carrier; or (b) delivered to the nominated address (whether receipt of delivery is signed for by the Customer or not) (Delivery).

5.2 The Customer will, within 7 days of delivery, notify SCNZ of any alleged defect, shortage, damage or failure to meet the description set out in any Quote provided by SCNZ, and will afford SCNZ an opportunity to inspect the Container and, at SCNZ's discretion, repair or replace the Container. Should SCNZ not receive notice from the Customer within 7 days of delivery, the Customer is deemed to: (a) have had the opportunity to inspect the Container; and (b) accept the Container in its current condition.

5.3 Orders for multiple Containers may be delivered in instalments.

5.4 Delivery dates are estimates only. SCNZ is not liable to the Customer for any delays.

5.5 The Customer must provide safe and suitable access for delivery that is compliant with all health and safety requirements in force at the relevant time and is responsible for any additional delivery or handling costs arising from site conditions or delays outside of SCNZ’s control.

5.6 The Customer acknowledges that the fee for delivery is an estimate only based on the information the Customer has provided to SCNZ and that, if the conditions are substantially different, or there are any other factors that may contribute to or result in extended waiting times, additional delivery methods (such as crane or side loader hire) or require redelivery, the fee for delivery may vary to reflect the additional costs incurred by SCNZ and are payable by the Customer.

5.7 The Customer is solely responsible for ensuring that the property the Container is to be located at can sustain the weight of laden trucks and indemnifies SCNZ against all costs incurred by SCNZ in recovering such vehicles in the event they become bogged or otherwise immovable or are otherwise damaged in the delivery of any Container.

5.8 If the Customer is unable or unwilling to accept delivery as arranged, SCNZ may charge reasonable redelivery, handling or storage costs.

6. Risk and Insurance

6.1 Risk in the Container passes to the Customer on Delivery.

6.2 To the maximum extent permitted by law, SCNZ has no liability to the Customer in respect of any contents stored in the Container during the Hire Period, and the Customer is solely responsible for all contents and for any loss, damage, theft or destruction of those contents, whether or not such loss, damage, or destruction arises from any malfunction or failure of the Container.

6.3 The Customer indemnifies SCNZ for all loss, theft, or damage to the Container however caused and whether such loss, theft or damage is attributable to any negligence, failure or omission of the Customer.

6.4 If the Container is damaged, destroyed, or stolen the Customer must immediately notify SCNZ of such occurrence. For the avoidance of doubt, any damage, destruction or loss of the Container does not reduce the Customer’s obligation to pay the Price during the Hire Period.

6.5 The Customer indemnifies SCNZ against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Container during any Hire Period, or any period where the Customer holds the container as bailee, whether or not arising from any act, negligence, failure or omission of the Customer or any other person.

6.6 Containers left at unattended sites are at the Customer’s sole risk.

7. Loss or Damage

7.1 The Customer is liable for all loss, theft, or damage to Containers during the Hire Period and for repair or replacement costs as required by SCNZ.

7.2 Immediately on request by SCNZ, the Customer must pay:

1. the cost for replacing the Container where that Container has been destroyed, written off or not returned for whatever reason;
2. all costs incurred in cleaning the Container;
3. all costs incurred in repairing any damage caused in the ordinary use of the Container up to an amount equal to 10% of the Container’s replacement value;
4. the cost of repairing any damage to the Container caused by the negligence of the Customer or the Customer’s employees, invitees or agents;
5. the cost of repairing any damage to the Container caused by vandalism, or in SCNZ’s reasonable opinion, in any way whatsoever other than in the ordinary use of the Container by the Customer.

8. Insurance

8.1 The Customer must insure the Containers against loss or damage for full replacement value and maintain adequate public liability insurance for hired Containers. SCNZ must be noted as an interested party on the insurance certificate(s).

8.2 The Customer is solely responsible for costs associated with the insurance, including premiums and excess.

8.3 A copy of the certificate of currency must be provided to SCNZ upon request by SCNZ.

8.4 The Customer holds any insurance proceeds relating to a Container on trust for SCNZ to the extent of SCNZ’s interest. Should there be any shortfall between the insurance proceeds and the replacement value of the Container, the Customer will be responsible for payment of such shortfall amount.

9. Ownership

9.1 Except in the case of the sale of Container, Containers always remain the property of SCNZ during the Hire Period and must be returned on demand being made by SCNZ.

9.2 The Customer does not have any right, interest or claim in or over the Containers, except as expressly set out in these Terms, and must not sell, charge, encumber, grant any right, interest or lien (of any nature) in or over the Container.

10. Title to Goods

10.1 Where such agreement between SCNZ and the Customer is for the sale and purchase of a Container (Sale Agreement), title to the Container does not pass until all amounts owing to SCNZ are paid in full.

10.2 For the avoidance of doubt, unless expressly stated otherwise, these Terms form part of any Sale Agreement.

10.3 Until title passes, the Customer holds the Container as bailee and must not encumber, dispose of, or part with possession of the Container under any circumstances.

10.4 Only upon SCNZ’s receipt of the Price in full in accordance with the Sale Agreement, the provisions of clauses 4, 6.2-6.6 (inclusive), 7-9 (inclusive) and 11-13 (inclusive) are excluded.

10.5 SCNZ may enter the Customer’s premises to recover the Container where payment has not been made.

11. Personal Property Securities Act 1999 (PPSA)

11.1 The Customer acknowledges that the retention of title arrangements set out in these Terms constitutes a security interest in the relevant Container and that SCNZ may register a security interest in respect of the Customer pursuant to the Personal Property Securities Act 1999 and any replacement legislation (PPSR).

11.2 The Customer will do all things necessary to assist SCNZ in registering its security interest on the PPSR.

11.3 The Customer agrees that nothing in sections 114(1)(a), 132, 133 and 134 of the PPSA will apply to SCNZ’s security interest, and the Customer waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.

11.4 The Customer further waives its right under section 148 of the PPSA to receive a copy of any registered financing statement or financing change statement.

12. Default and Remedies

12.1 If the Customer defaults, SCNZ may suspend supply, terminate the Hire Agreement, recover the Container (or Containers), and recover all costs (including legal costs on a solicitor–Customer basis) from the Customer. SCNZ will not be liable to the Customer for any loss or damage the Customer suffers should SCNZ exercise its rights under this clause.

12.2 All outstanding amounts become immediately due if the Customer becomes insolvent, has a receiver, manager or liquidator appointed, or breaches these Terms.

13. Change in Customer Details

13.1 The Customer must give SCNZ no less than fourteen (14) days’ prior written notice of any change in ownership, control, name, address, or business details, and is liable for any loss suffered by SCNZ due to non-compliance.

14. Warranties and Liability

14.1 To the full extent permitted by law, SCNZ is excluded from, and is not liable for, any condition or warranty, of any kind, which is not expressly stated in these Terms.

14.2 SCNZ makes no express or implied warranty as to the state, quality or condition of the Containers, nor that the Containers are fit for any particular purpose.

14.3 Should the Customer suffer any loss or damage due to any defect in any Container, SCNZ’s liability to the Customer will be limited to the lesser of: (a) the cost of repair or replacement or (b) the total Price paid by the Customer for the Container under any Hire Agreement.

14.4 To the fullest extent permitted by law and without limiting clause 14.3, SCNZ is not liable for any indirect or consequential loss, loss of profit, or business interruption.

15. Consumer Protection Legislation

15.1 Where the Customer acquires the Container in trade and for business purposes, the Customer and SCNZ agree, pursuant to section 43 of the Consumer Guarantees Act 1993, that the provisions of that Act do not apply to the fullest extent permitted by law. Where the Customer and SCNZ are both parties in trade, the Customer and SCNZ agree, pursuant to section 5D of the Fair Trading Act 1986, to contract out of sections 9, 12A, 13 and 14 of that Act, to the fullest extent permitted by law, where it is fair and reasonable to do so.

16. Cancellation

16.1 SCNZ may, in its sole discretion, cancel any order for a Container prior to Delivery and refund any amounts paid.

16.2 If the Customer cancels the Hire Agreement before the expiry of the minimum hire period specified within, the Customer is liable to SCNZ for all losses incurred by SCNZ arising from the cancellation.

16.3 Termination of any Hire Agreement does not relieve the Customer from any obligation under these Terms incurred prior to termination.

17. Amendment

17.1 SCNZ may amend these Terms from time to time by giving not less than 7 days’ written notice to the Customer. Any amendment will automatically apply to any Hire Agreements entered, or extended, after the effective date of the amendment and will not apply retrospectively to any existing Hire Agreement unless agreed in writing by the parties.

18. Privacy

18.1 The Customer authorises SCNZ to collect, use, and disclose personal and credit information for credit assessment, collection, and marketing purposes in accordance with applicable privacy law.

19. General

19.1 These terms and conditions will be governed by the laws of New Zealand, and the New Zealand courts have jurisdiction.

19.2 Failure to enforce any right is not a waiver.

19.3 If any provision is unenforceable, the remaining provisions continue in force.

19.4 SCNZ may subcontract or assign its rights without the Customer’s consent.

19.5 By executing any agreement, or by placing an order, the Customer warrants that it has the power to enter into such arrangements, has obtained all necessary authorisations required, is solvent and that these Terms create a binding and legal obligations on the Customer.

19.6 Neither party is liable for failure to perform due to events beyond reasonable control.