Terms and Conditions
¬¬¬-1. This Warehouse Dock Receipt and the contract for the storage of goods described herein is governed by, and subject to, the laws of New Zealand. This document, including without limitation, the terms and conditions set out herein, when delivered by electronic means or mailed to the Customer at the last known address, shall constitute a contract between the Customer and First Cold Limited (First Cold). These terms and conditions apply to all goods stored by the Customer at First Cold’s storage facility.
2. The Customer warrants that all goods stored by First Cold are owned by the Customer and the Customer has the full authority and rights to store the goods at the First Cold Facility even if there is more than one owner of the goods.
3. The goods are stored entirely at the Customer’s risk and it is the Customer’s responsibility to effect and maintain insurance against damage or destruction for the goods whilst in storage caused by events including but not limited to fire, theft, storm damage, earthquake, lightning, volcanic eruption, explosion, malicious damage, flood, collision and such other risks as may occur in the storage of goods for their full insurable value on a replacement or reinstatement basis including any costs of replacement and reinstatement.
4. First Cold will not be responsible for any loss or damage suffered by the Customer or any other person, howsoever caused or arising, whether an authorised or unauthorised act under this contract and whether caused by the negligence and/or recklessness and/or wilful misconduct of First Cold or its employees, agents, subcontractors or otherwise in any way arising out of or in connection with the storage, care and treatment of goods received into storage by First Cold. The warehousing and cold storage of all goods is solely at the risk and expense of the Customer.
5. First Cold will use its best endeavours to maintain the goods at the temperature ranges specified by the Customer or, if no temperature range is specified, at the temperature ranges specified in the International Association of Refrigerated Warehouses Commodity Manual. If First Cold is for any reason unable to maintain the required temperature range it will notify the Customer and take all reasonable steps it feels necessary to ensure the integrity of the product however First Cold shall not be responsible if for any reason it is unable to maintain the required temperature range.
6. First Cold agrees to carry Bailee’s Insurance. Bailee’s Insurance only provides cover for damage to goods in the care of First Cold where it can be shown that First Cold has caused the damage or has been negligent in its procedures resulting in the damage. It will not cover items such as, but not limited to, acts of terror, war, invasion, radiation contamination or asbestos contamination. A copy of First Cold’s standard Bailee’s Insurance Liability Policy is available on request.
7. The Customer agrees to provide First Cold with the appropriate values of items stored at the First Cold Facility so it can determine any additional insurance required.
8. All charges made with respect to the goods described in this receipt shall conform to First Cold’s quotation and /or tariffs in effect as at the date of this receipt. First Cold reserves the right to increase the charges
9. No increase in charges will be made in respect of goods that are in storage without First Cold first supplying a 20 day written notice to the Customer.
10. First Cold shall be entitled to charge interest at a rate of 2% a month from the day that an account for charges becomes overdue and compounded monthly until all outstanding moneys have been paid in full.
11. Personal Property Securities Act 1999 (PPSA) and Personal Property Securities Register (PPSR)
a. If any clauses in these terms and conditions contravene any provisions in the PPSA such clauses or clauses shall be deleted without affecting the validity of the remaining clauses of these terms and conditions.
b. The Customer and all other parties such as, but not limited to, banks, finance companies, receivers, liquidators and other insolvency officials are hereby notified that First Cold may have a general lien or other security interest in the goods held by First Cold and shall only release the goods to a secured party or other authorised party on the strict condition that all storage and other fees are paid in full and all obligations to First Cold relating to the goods are satisfied prior to First Cold releasing the goods.
c. First Cold may have a Purchase Money Security Interest (PMSI) and / or other security interest on the PPSR for charges owing for storing the goods and for all other obligations of the Customer to First Cold concerning the goods.
d. In the event that First Cold’s security interests have not been perfected, the Customer acknowledges and agrees that these terms and conditions create a security interest in the goods and consents to First Cold registering a security interest on the PPSR and to provide all assistance required by First Cold to register, perfect and retain the integrity of First Cold’s security interests.
e. The Customer must not create or permit any other parties to create any form of security interest including but not limited to a financing statement whilst the goods are in First Cold’s possession. The Customer consents to First Cold registering a security interest on the PPSR in a manner First Cold deems appropriate for goods stored by First Cold.
f. The Customer acknowledges and agrees that these terms and conditions create a security interest in the secured property, and to avoid doubt, the proceeds of sale of the secured property for the purposes of the PPSA.
12. The storage of the said goods shall be deemed to be “work” under the provisions of Section 3 of the Wages Protection and Contractors’ Liens Repeal Act 1987 and First Cold shall have the right of enforcement of lien on sale of goods as contained in Section 3 of the said Act subject to the following amendments namely:
a. The period of 2 months in subsection 1 shall be amended to 2 weeks;
b. The sale of the said goods may either be by auction or by private contract;
c. It shall not be necessary to advertise in a newspaper as provided for in subsection 2; and
d. Any surplus from the proceeds of sale, as described in subsection 3, may be paid to the owner of the goods or to the Registrar of the District Court. 13. All incoming shipments must have freight prepaid and must be consigned to the Customer c/o First Cold. First Cold reserves the right to refuse acceptance of any goods not properly consigned or not shipped freight prepaid.
14. It is the Customer’s responsibility to provide First Cold, in advance, with detailed, written information and instructions about any goods that may be considered dangerous or hazardous. First Cold has the absolute right to reject any goods that it reasonably considers to be dangerous or hazardous.
15. The Customer fully indemnifies First Cold against any and all loss, damage cost and expense (including legal costs) that may be suffered or incurred by or awarded against First Cold as a result of:
a. Loss of or damage to any physical property or physical injury to or death of any person caused by negligent act or omission of the Customer, its employees, agents, officers or subcontractors;
b. Breach by the Customer of any provision of this contract; or
c. Any false, misleading or deceptive conduct of the Customer or other breach of law or central or local government rules, regulations and bylaws.
16. It is the responsibility of the Customer to fully and adequately describe and label all goods as to their nature, weight, measurement and quantity. If the nature, weight, measurement and quantity of the goods are not provided by the Customer, or the actual nature, weight, measurement and quantity of the goods received pursuant to this receipt is not consistent with the nature, weight, measurement or quantity stated on this receipt, the nature, weight measurement and/or quantity calculated by First Cold shall be conclusively deemed to be correct.
17. The Customer may, subject to First Cold’s security and insurance requirements and other reasonable limitations , have access to the goods which are the subject of this receipt at any reasonable time, provided the Customer, or its authorised representative, is accompanied by an employee of First Cold whose time shall be an additional charge payable by the Customer.
18. When errors in shipment occur, any liability of First Cold shall be strictly limited to the cost of transportation and costs involved to rectify such error and shall not, under any circumstances, include liability for damages due to the acceptance or use of the goods nor shall First Cold be liable for any special or consequential, direct or indirect economic loss or punitive or exemplary damages of any kind whatsoever.
19. First Cold shall not be responsible for delays in loading nor unloading trailers or railway cars, nor for demurrage or freight charges or other time penalties arising from any delay which cannot reasonably be avoided by First Cold in its normal course of business.
20. The Customer shall not assign or transfer this receipt and contract to any third party without first obtaining the written approval of First Cold (such approval may be withheld by First Cold in its sole discretion). In the event that First Cold accepts such transfer or assignment, First Cold may rely upon such notice to receive and act upon instructions from the transferee or assignee and the Customer shall have no further claim against First Cold.
21. The Customer shall use First Cold as its sole and exclusive provider of cold storage provided that First Cold has the capacity at the First Cold Facility to store all of the Customer’s goods that require cold storage. The parties consider that this provision is fair and reasonable however if any court of competent jurisdiction declares or adjudges it to be unreasonable, invalid, void or unenforceable, such provision shall be severable, shall be deemed deleted from this receipt and contract and shall not affect the validity, existence, legality or enforceability of the remaining provisions.
22. The parties agree that the terms and conditions contained herein cover and comprise the whole agreement as between First Cold and the Customer and declare that no further terms are to be implied or arise between First Cold and the Customer by way of collateral or other agreement made by or on behalf of First Cold or the Customer or or prior to being provided with these terms and conditions and any implication of collateral or other agreement (if any) is negated.
2. The Customer warrants that all goods stored by First Cold are owned by the Customer and the Customer has the full authority and rights to store the goods at the First Cold Facility even if there is more than one owner of the goods.
3. The goods are stored entirely at the Customer’s risk and it is the Customer’s responsibility to effect and maintain insurance against damage or destruction for the goods whilst in storage caused by events including but not limited to fire, theft, storm damage, earthquake, lightning, volcanic eruption, explosion, malicious damage, flood, collision and such other risks as may occur in the storage of goods for their full insurable value on a replacement or reinstatement basis including any costs of replacement and reinstatement.
4. First Cold will not be responsible for any loss or damage suffered by the Customer or any other person, howsoever caused or arising, whether an authorised or unauthorised act under this contract and whether caused by the negligence and/or recklessness and/or wilful misconduct of First Cold or its employees, agents, subcontractors or otherwise in any way arising out of or in connection with the storage, care and treatment of goods received into storage by First Cold. The warehousing and cold storage of all goods is solely at the risk and expense of the Customer.
5. First Cold will use its best endeavours to maintain the goods at the temperature ranges specified by the Customer or, if no temperature range is specified, at the temperature ranges specified in the International Association of Refrigerated Warehouses Commodity Manual. If First Cold is for any reason unable to maintain the required temperature range it will notify the Customer and take all reasonable steps it feels necessary to ensure the integrity of the product however First Cold shall not be responsible if for any reason it is unable to maintain the required temperature range.
6. First Cold agrees to carry Bailee’s Insurance. Bailee’s Insurance only provides cover for damage to goods in the care of First Cold where it can be shown that First Cold has caused the damage or has been negligent in its procedures resulting in the damage. It will not cover items such as, but not limited to, acts of terror, war, invasion, radiation contamination or asbestos contamination. A copy of First Cold’s standard Bailee’s Insurance Liability Policy is available on request.
7. The Customer agrees to provide First Cold with the appropriate values of items stored at the First Cold Facility so it can determine any additional insurance required.
8. All charges made with respect to the goods described in this receipt shall conform to First Cold’s quotation and /or tariffs in effect as at the date of this receipt. First Cold reserves the right to increase the charges
9. No increase in charges will be made in respect of goods that are in storage without First Cold first supplying a 20 day written notice to the Customer.
10. First Cold shall be entitled to charge interest at a rate of 2% a month from the day that an account for charges becomes overdue and compounded monthly until all outstanding moneys have been paid in full.
11. Personal Property Securities Act 1999 (PPSA) and Personal Property Securities Register (PPSR)
a. If any clauses in these terms and conditions contravene any provisions in the PPSA such clauses or clauses shall be deleted without affecting the validity of the remaining clauses of these terms and conditions.
b. The Customer and all other parties such as, but not limited to, banks, finance companies, receivers, liquidators and other insolvency officials are hereby notified that First Cold may have a general lien or other security interest in the goods held by First Cold and shall only release the goods to a secured party or other authorised party on the strict condition that all storage and other fees are paid in full and all obligations to First Cold relating to the goods are satisfied prior to First Cold releasing the goods.
c. First Cold may have a Purchase Money Security Interest (PMSI) and / or other security interest on the PPSR for charges owing for storing the goods and for all other obligations of the Customer to First Cold concerning the goods.
d. In the event that First Cold’s security interests have not been perfected, the Customer acknowledges and agrees that these terms and conditions create a security interest in the goods and consents to First Cold registering a security interest on the PPSR and to provide all assistance required by First Cold to register, perfect and retain the integrity of First Cold’s security interests.
e. The Customer must not create or permit any other parties to create any form of security interest including but not limited to a financing statement whilst the goods are in First Cold’s possession. The Customer consents to First Cold registering a security interest on the PPSR in a manner First Cold deems appropriate for goods stored by First Cold.
f. The Customer acknowledges and agrees that these terms and conditions create a security interest in the secured property, and to avoid doubt, the proceeds of sale of the secured property for the purposes of the PPSA.
12. The storage of the said goods shall be deemed to be “work” under the provisions of Section 3 of the Wages Protection and Contractors’ Liens Repeal Act 1987 and First Cold shall have the right of enforcement of lien on sale of goods as contained in Section 3 of the said Act subject to the following amendments namely:
a. The period of 2 months in subsection 1 shall be amended to 2 weeks;
b. The sale of the said goods may either be by auction or by private contract;
c. It shall not be necessary to advertise in a newspaper as provided for in subsection 2; and
d. Any surplus from the proceeds of sale, as described in subsection 3, may be paid to the owner of the goods or to the Registrar of the District Court. 13. All incoming shipments must have freight prepaid and must be consigned to the Customer c/o First Cold. First Cold reserves the right to refuse acceptance of any goods not properly consigned or not shipped freight prepaid.
14. It is the Customer’s responsibility to provide First Cold, in advance, with detailed, written information and instructions about any goods that may be considered dangerous or hazardous. First Cold has the absolute right to reject any goods that it reasonably considers to be dangerous or hazardous.
15. The Customer fully indemnifies First Cold against any and all loss, damage cost and expense (including legal costs) that may be suffered or incurred by or awarded against First Cold as a result of:
a. Loss of or damage to any physical property or physical injury to or death of any person caused by negligent act or omission of the Customer, its employees, agents, officers or subcontractors;
b. Breach by the Customer of any provision of this contract; or
c. Any false, misleading or deceptive conduct of the Customer or other breach of law or central or local government rules, regulations and bylaws.
16. It is the responsibility of the Customer to fully and adequately describe and label all goods as to their nature, weight, measurement and quantity. If the nature, weight, measurement and quantity of the goods are not provided by the Customer, or the actual nature, weight, measurement and quantity of the goods received pursuant to this receipt is not consistent with the nature, weight, measurement or quantity stated on this receipt, the nature, weight measurement and/or quantity calculated by First Cold shall be conclusively deemed to be correct.
17. The Customer may, subject to First Cold’s security and insurance requirements and other reasonable limitations , have access to the goods which are the subject of this receipt at any reasonable time, provided the Customer, or its authorised representative, is accompanied by an employee of First Cold whose time shall be an additional charge payable by the Customer.
18. When errors in shipment occur, any liability of First Cold shall be strictly limited to the cost of transportation and costs involved to rectify such error and shall not, under any circumstances, include liability for damages due to the acceptance or use of the goods nor shall First Cold be liable for any special or consequential, direct or indirect economic loss or punitive or exemplary damages of any kind whatsoever.
19. First Cold shall not be responsible for delays in loading nor unloading trailers or railway cars, nor for demurrage or freight charges or other time penalties arising from any delay which cannot reasonably be avoided by First Cold in its normal course of business.
20. The Customer shall not assign or transfer this receipt and contract to any third party without first obtaining the written approval of First Cold (such approval may be withheld by First Cold in its sole discretion). In the event that First Cold accepts such transfer or assignment, First Cold may rely upon such notice to receive and act upon instructions from the transferee or assignee and the Customer shall have no further claim against First Cold.
21. The Customer shall use First Cold as its sole and exclusive provider of cold storage provided that First Cold has the capacity at the First Cold Facility to store all of the Customer’s goods that require cold storage. The parties consider that this provision is fair and reasonable however if any court of competent jurisdiction declares or adjudges it to be unreasonable, invalid, void or unenforceable, such provision shall be severable, shall be deemed deleted from this receipt and contract and shall not affect the validity, existence, legality or enforceability of the remaining provisions.
22. The parties agree that the terms and conditions contained herein cover and comprise the whole agreement as between First Cold and the Customer and declare that no further terms are to be implied or arise between First Cold and the Customer by way of collateral or other agreement made by or on behalf of First Cold or the Customer or or prior to being provided with these terms and conditions and any implication of collateral or other agreement (if any) is negated.