1. Definitions
1.1 "Buller Storage" means Buller Storage Limited, its successors and assigns or any person acting on behalf of and with the authority of Buller Storage Limited.
1.2 "Customer" means the person/s requesting Buller Storage to provide the Unit on hire, as specified in any Storage Contract, Purchase Contract, quotation, estimate, order, invoice or other, and if more than one person, is a reference to each person jointly and severally.
1.3 "Unit" means the storage space and/or container used by the Customer to store goods, as supplied by Buller Storage.
1.4 "Container" means any container or supplied on a hire basis by Buller Storage to the Customer, at the Customer's request, from time to time (where the context so permits the term 'Container(s)' or 'Services' and shall be interchangeable for the other.
1.5 "Charges" means the periodic charges payable (plus any GST where applicable) for the Customer's use of the Unit, as agreed between Buller Storage and the Customer in accordance with clause 4 of this Contract.
2. Acceptance
2.1 These terms and conditions may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and Buller Storage.
2.2 The Customer:
(a) is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts, the Unit supplied on hire by Buller Storage; and
(b) warrants that they are the rightful owner of the goods to be stored in the Unit, and
(c) acknowledges and agrees that this contract does not create an interest in land and the Customer has merely the right to store goods in the Unit allocated to the Customer by Buller Storage for the term of this contract; and
(d) are deemed to have knowledge of the goods stored in the Unit; and
(e) shall not be entitled to assign this contract to any other person (or persons); and
(f) acknowledges that Buller Storage shall be entitled to enter the Unit at any time and by any method where required to by law or by any legal authority.
2.3 Buller Storage:
(a) does not, and will not be deemed to, have knowledge of the goods stored in the Unit;
(b) is not a bailee or warehouseman of the goods, and the Customer acknowledges that Buller Storage does not take possession of the goods (subject to clauses 7.4 and 7.1(b));
(c) reserves the right to relocate the Customer to another unit under certain circumstances.
2.4 If the Customer requires the use of the Unit longer than any term specified above, a new Storage Contract is to be completed with new terms of contract.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.6 These terms and conditions may be meant to be read in conjunction with Buller Storage's Hire/Storage Contract or Purchase Contract, and:
(a) where the context so permits, the terms 'Services shall include any supply of Containers, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3. Change in Control
3.1 The Customer shall give Buller Storage not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details (including but not limited to, changes in the Customer's name, address, contact phone or fax number/s, business practice or persons authorised to access the Unit, etc.). The Customer shall be liable for any loss incurred by Buller Storage as a result of the Customer's failure to comply with this clause.
4. Charges and Payment
4.1 The Charges (subject to clauses 4.2 and 4.3) shall be as detailed above and shall be payable weekly, fortnightly and/or monthly in advance, on the same calendar day as this contract is dated.
4.2 Buller Storage reserves the right to:
(a) change the Charges at any time by giving the Customer not less than one (1) months' written notice; and
(b) charge the Customer:
(i) a Cleaning Fee, where the Customer has failed (in the opinion of Buller Storage) to adhere to clause 5.1(d); and
(ii) a Late Payment Fee, which shall become payable each time the Charges are not received by Buller Storage when they are due and payable; and
(iii) a dishonor fee where the Customer's payment has been cancelled or reversed.
4.3 The Customer must pay to Buller Storage immediately upon acceptance of this contract:
(a) the initial weekly, fortnightly and/or monthly Charges; and
(b) a deposit, in the form of a Bond, which shall be refunded to the Customer by cheque within thirty (30) days of termination of this contract, provided that the Customer has complied with their obligations hereunder; and
(c) an Admin Fee, at the sole discretion of Buller Storage.
4.4 Payment may be made by bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Buller Storage.
4.5 Unless otherwise stated the Charges include GST. However, in addition the Customer must pay any other taxes and duties that may be applicable in addition to the Charges, except where they are expressly included in the Charges.
4.6 The Customer acknowledges and agrees that the Customer's obligations to Buller Storage for the supply of the Unit on hire shall not cease until:
(a) the Customer has paid Buller Storage all amounts owing for the use of the Unit; and
(b) the Customer has met all other obligations due by the Customer to Buller Storage in respect of all contracts between Buller Storage and the Customer.
4.7 Receipt by Buller Storage of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Buller Storage's ownership or rights in respect of the Unit, and this contract, shall continue.
5. Access and Use of the Unit
5.1 The Customer:
(a) shall be entitled to access and use the Unit twenty-four (24) hours a day, seven (7) days a week; and
(b) a Pin Access Code or Swipe Cards/tags will be provided at the commencement of the Hire period for the electronically controlled front door which must be returned at the completion of the rental period;
(c) will be solely responsible for the securing of the Unit (including but not limited to, suitable padlocks), and shall secure the Unit at all times when the Customer is not accessing/using the Unit, in a manner which is acceptable to Buller Storage; and
(d) must maintain the Unit by ensuring it is clean and in a state of good repair or a Cleaning Fee may be charged to the Customer;
(e) must have consideration for other customers and neighbouring properties when accessing the Storage Premises, and in particular the Customer must avoid excessive noise;
(f) shall not:
(i) store or use in the Unit any goods that are inflammable, hazardous, illegal, stolen, explosive, environmentally harmful, wet, perishable, dangerous or that are a risk to the property of any person;
(ii) obstruct or interfere with the use of the storage facility by other customers;
(i) use the Unit for any illegal or immoral purpose, or carry out any business activity at the storage facility;
(ii) carry out any alterations to the Unit, (including but not limited to, attaching nails, screws, etc. to any part of the Unit), or damage the Unit, without Buller Storage's prior written consent. In the event of damage to the Unit, Buller Storage shall be entitled to retain the Bond to the value of the repairs required.
1.2 The Customer acknowledges and agrees to comply with all relevant laws, including Acts, Ordinances, Regulations, By-laws and Orders, as are or may be applicable to the use of the Unit; this includes laws relating to the goods which are stored, and the manner in which they are stored. The liability for any (and all), breach of such laws rests absolutely with the Customer, and includes any (and all) costs resulting from such breach. If Buller Storage has reason to believe that the Customer is not complying with all relevant laws, Buller Storage may take any action they believe to be necessary to so comply, including the action outlined in clauses 5.4 and 7, and/or immediately dispose of, or remove, the goods at the Customer's expense, and/or submit the goods to the relevant authorities. The Customer agrees that Buller Storage may take such action at any time, even though Buller Storage could have acted earlier.
1.3 Deliveries and removals from the Unit will not be permitted by any person other than the Customer (and the Customer's authorised persons as specified herein), unless the Customer gives personal or telephone instruction to Buller Storage. The Customer must identify themselves by use of the Password (if any) and name the person/s authorised by the Customer to enter the Unit.
1.4 The Customer consents to inspection and entry of the Unit by Buller Storage, provided that Buller Storage gives the Customer seven (7) days written notice. In the event of an emergency (that is where property, the environment or human life is, in Buller Storage's opinion, threatened), Buller Storage may enter the Unit using all necessary force without the written consent of the Customer; but Buller Storage shall notify the Customer as soon as practicable.
6. Insurance and Indemnity
6.1 The goods are at all times stored at the Customer's sole risk. Buller Storage shall not insure any goods kept on its premises and shall not be responsible for any damage to the goods stored in the Unit. It is the Customer's responsibility to ensure that the goods stored in the Unit are insured against all possible damage (including, but not limited to, the perils of accident, fire, flood, theft, burglary, leakage or overflow of water, heat, spillage of material from any other unit, removal or delivery of the goods, pest or vermin or any other reason whatsoever, including acts or omissions of Buller Storage or persons under its control, and all other usual risks) and deterioration.
6.2 The Customer agrees to use the Unit at their own risk and releases (to the full extent permitted by law) Buller Storage, its employees and agents from all claims and demands of any kind and from all liability which may arise in respect of any accident, damage or injury occurring to any person or property arising out of the use of the Unit.
6.3 Unless specifically covered by the Customer's own insurance, the Customer will not store goods which are irreplaceable, such as currency, jewellery, furs, deeds, paintings, curios, and works of art or items of personal sentimental value.
7. Expiry/Termination
7.1 Without prejudice to any other remedies Buller Storage may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions:
(a) Buller Storage may refuse access to the Unit by the Customer and/or enact their right to terminate this contract under clause 7.1; and
(b) in the event the Charges (or any other monies owing) are not paid in full within twenty-eight (28) days of the due date for payment, Buller Storage may (without further notice) enter the Unit, retain the Bond and/or take possession and sell or dispose of any goods in the Unit on such terms that Buller Storage may determine. Buller Storage may also require the payment of any costs associated with the seizure of the Unit. Any excess monies recovered by Buller Storage on the disposal of the goods will be returned to the Customer; and
(c) Buller Storage will not be liable to the Customer for any loss or damage the Customer suffers because Buller Storage has exercised its rights under this clause.
7.2 The hire of the Unit shall continue until the Expiry Date (as specified herein) or where such date is not specified, will continue on a monthly basis, unless terminated by way of the either party providing the other with thirty (30) days written notice. Buller Storage shall be entitled to:
(a) retain a portion of the Bond if less than the requisite notice is given by the Customer; and
(b) terminate this contract without giving prior notice (but will send notice to the Customer in writing within seven (7) days) if Buller Storage enters the Unit under clause 5.4 and there are no goods stored therein.
7.3 Upon expiry/termination, the Customer must:
(a) remove all goods from the Unit and leave the Unit in a clean condition, and in a good state of repair, to Buller Storage' satisfaction, on the specified date; and
(b) pay any outstanding monies and any expenses on default, or other monies owed to Buller Storage up to the date of termination, or clause 8 may apply.
7.4 In the event of illegal or environmentally harmful activities on the part of the Customer, Buller Storage may terminate this contract without notice, and Buller Storage may advise the Customer that unless the Customer's goods are removed (within seven (7) days of the date of such advice) the property of the Customer shall be forfeited to Buller Storage without payment or compensation. If the Customer fails to comply with such notice, ownership of the Customer's goods in the Unit shall immediately pass to Buller Storage.
8. Default and Consequences of Default
8.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Buller Storage's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
8.2 If the Customer owes Buller Storage any money the Customer shall indemnify Buller Storage from and against all costs and disbursements incurred by Buller Storage in recovering the debt (including but not limited to internal administration Charges, legal costs on a solicitor and own client basis, Buller Storage's collection agency costs, and bank dishonour Charges).
8.3 Further to any other rights or remedies Buller Storage may have under this contract, if a Customer has made payment to Buller Storage, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Buller Storage under this clause 8 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer's obligations under this contract.
8.4 Without prejudice to Buller Storage's other remedies at law Buller Storage shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Buller Storage shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Buller Storage becomes overdue, or in Buller Storage's opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Buller Storage;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
9. Personal Property Securities Act 1999 ("PPSA")
9.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) all the Customer's present and after acquired property being a charge (including but not limited all items held in storage by Buller Storage), including anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Customer to Buller Storage for Services – that have previously been provided and that will be provided in the future by Buller Storage to the Customer.
9.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Buller Storage may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Buller Storage for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Containers charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Container and/or collateral (account) in favour of a third party without the prior written consent of Buller Storage; and
(d) immediately advise Buller Storage of any material change in its business practices of selling the Containers which would result in a change in the nature of proceeds derived from such sales.
9.3 Buller Storage and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by Buller Storage, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by Buller Storage under clauses 9.1 to 9.5.
9.7 Only to the extent that the hire of the Container exceeds a twelve (12) month hire period shall clause Error! Reference source not found. apply as a security agreement in the form of a lease as defined by Section 36 of the PPSA and give rise to a Purchase Money Security Interest ("PMSI") for the purposes of the PPSA in favour of Buller Storage, in all other matters this clause Error! Reference source not found. will apply generally for the purposes of the PPSA.
10. Security and Charge
10.1 In consideration of Buller Storage agreeing to supply the Unit, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Customer indemnifies Buller Storage from and against all Buller Storage's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Buller Storage's rights under this clause.
10.3 The Customer irrevocably appoints Buller Storage and each director of Buller Storage as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer's behalf.
11. Privacy Act 1993
11.1 The Customer authorises Buller Storage or Buller Storage's agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer's creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Buller Storage from the Customer directly or obtained by Buller Storage from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
11.2 Where the Customer is an individual the authorities under clause 11.1 are authorities or consents for the purposes of the Privacy Act 1993.
11.3 The Customer shall have the right to request Buller Storage for a copy of the information about the Customer retained by Buller Storage and the right to request Buller Storage to correct any incorrect information about the Customer held by Buller Storage.
12. General
12.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party's right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
12.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Westport Courts of New Zealand.
12.3 Buller Storage shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Buller Storage of these terms and conditions (alternatively Buller Storage's liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services/Containers).
12.4 Buller Storage may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer's consent.
12.5 The Customer cannot licence or assign without the written approval of Buller Storage.
12.6 Buller Storage may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing.
12.7 The Customer agrees that Buller Storage may amend any term or condition of this contract at any time. If Buller Storage makes such amendment, it will notify the Customer in writing of such, and require the Customer to accept the amendment in writing before such amendment will take effect. The Customer:
(a) will be taken to have accepted such amendment if the Customer makes subsequent payment of any Charges payable by the Customer under this contract; or
(b) may terminate this contract, without suffering any liability for doing so hereunder, in the event the Customer notifies Buller Storage in writing that it does not accept such amendment.
12.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
12.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
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