Terms and Conditions of Storage : Bascik Transport Ltd

BASCIK TRANSPORT LIMITED- TERMS AND CONDITIONS OF STORAGE & DISTRIBUTION

ENGAGEMENT

1. The key Terms and these General Terms and Conditions read together are called “the agreement”.
2. The Customer agrees to engage Bascik Transport to perform the Services for the Term (which includes any renewal period) and pay for the Services on the terms and conditions set out in this Agreement, and Bascik Transport accepts the engagement.
3. The parties undertake to perform their respective obligations in the manner set out in this Agreement.
4. If the customer has been advised of the Key Terms that relate to its Services, and continues thereafter to use the Services, then the Customer shall be deemed to have accepted the Key Terms and the General Terms and Conditions and thereby bound by the agreement.

STORAGE AND DISTRIBUTION REQUIREMENTS
1. The Customer will provide Bascik Transport with a monthly container arrival schedule for each month during the Term in respect of the Goods it wishes to store with Bascik Transport. The customer shall make orders for Services to be provided by Bascik Transport based on those forecast requirements, and by using a form of order and in the manner specified by Bascik Transport from time to time. Orders shall specify the type of Goods, the volume of Goods, the time and date of delivery to the Warehouse, and any other information or instructions required by Bascik Transport. No order shall be binding upon Bascik Transport unless Bascik Transport acceptance of such order has been notified to the Customer. Bascik Transport shall not be required to accept orders that exceed the Maximum Stock Holding limit specified on the front page of this agreement.
2. Bascik Transport shall store the Goods by way of pallets with each pallet being industry standard size of 1200mm by 1000mm (as varied from time to time). The customer will provide pallets for storage of its Goods unless otherwise agreed in writing. Where the Customer hires those pallets from a third party, it must provide all necessary information and assistance to Bascik Transport to enable Bascik Transport to de-hire those pallets to the Customer’s transporter or clients.
3. Each pallet shall be loaded by Bascik Transport to normal and reasonable capacity, and any part pallet shall be charged as for one fully loaded pallet. Pallet configuration will be at absolute discretion of Bascik Transport.
4. Bascik Transport shall store the Goods away from any articles or things which might be deleterious to the Goods, provided that the nature of the Goods is apparent or is declared by the Customer on or before delivery. If the Goods or any part requires special attention as to how they are to be stored safely, then this requirement must be accurately and fully disclosed by the Customer prior to delivery of the Goods. The company may in its absolute discretion refuse to store the Goods in accordance with such special requirements.
5. The Customer shall provide full, accurate and reasonable instructions from time to time to Bascik Transport relating to distribution, delivery or other dealings with the Goods. Bascik Transport will deal with the Goods in accordance with those instructions, and will not be liable to the Customer for any reason where it has followed those instructions.
6. The Customer must ensure that labelling of all Goods is sufficiently detailed and in strict compliance with the standards of the New Zealand Chemical Industrial Council (NZCIC) and the Hazardous Substances & New Organisms Act 1996 (HASNO)(Regulatory Standards). The Customer is liable for any non-compliance with the Regulatory Standards or any other labelling requirements specified from time to time by Bascik Transport.
7. If agreed by the parties, and without limiting the Customer’s obligations under clause 2.6, the Customer may provide Bascik Transport with templates for the labelling requirements for any Goods, and blank labels (and all other necessary information and assistance) to enable Bascik Transport to manufacture labels on site.
8. In performing its obligations under this Agreement, Bascik Transport will rely upon any instructions, authorisations, approvals or other information provided to it by the Customer.
9. Bascik Transport may refuse to load, dispatch or otherwise deal with any other Goods unless the Customer has complied with its obligations under this clause 2.

BASCIK TRANSPORT’S GENERAL OBLIGATIONS

3.1 Bascik Transport will use all reasonable endeavours to meet the following responsibilities:

providing additional capacity to support the Customer’s development of business;
providing a customer collection point, and short notice collection service, at the warehouse;
providing and maintaining resources necessary to ensure compliance with the Agreement;
complying with its standard operating procedure as notified by the Customer from time to time;
carrying out physical receipt of Goods in accordance with this agreement;
liaising with those distribution carriers nominated by the Customer and assisting same so as to enable the objectives of this agreement to be met;
providing support to the clients of the Customer in accordance with the provisions of this agreement;
maintaining accurate records of transactions;
keeping all of the Customer’s Goods while same are in the care of Bascik Transport;
invoicing for services promptly and clearly;
informing the Customer of key issues as these issues become known to Bascik Transport;
informing the Customer promptly when Bascik Transport shall fail to meet its responsibilities and promptly providing the Customer with a rectification plan;
ensuring that all times the Warehouse meets all statutory requirements for the provision of the Services of the various classes of Goods stored and distributed by Bascik Transport on behalf of the customer;
holding regular management reviews with the Customer at times agreed by the parties;
contributing to quality team activities and discussions within the Customer as reasonably required.

CUSTOMER OBLIGATIONS

4.1 The Customer will ensure that:

none of its staff request releases of any Goods from Bascik Transport stock without authorised paperwork in a form satisfactory to Bascik Transport;
instructions for stock transactions and adjustments are clear and unambiguous;
variances between the Customer and Bascik Transport stock lists are identified by the Customer and transaction reports/likely recounts are requested within 24 hours of the generation of the relevant stock report by Bascik Transport;
transaction reports are reconciled and re-counts requested within 24 hours of relevant transaction report being provided;
variance report adjustments approved within 24 hours;
returned/damaged/quarantined product is checked within 2 working days and a decision made as to the appropriate course of action;
orders for the same day delivery to be transmitted to Bascik Transport by 10am, and following morning delivery by 3pm on the preceding day;
it arranges and pays for Chemcall emergency response services (or substantially similar emergency services from a reputable service provider approved by Bascik Transport), to be provided in respect of its Goods, and provides Bascik Transport with up-to-date, emergency 24 hour contact details for the provider of those services;
for urgent same day orders the Customer will give Bascik Transport at least one hours notice and will request no more than one pallet per day under same day delivery.

4.2 The customer shall indemnify and keep indemnified Bascik Transport, its employees, agents and contractors (each a indemnified party) against all claims, expenses, losses (whether direct, indirect, consequential, special or otherwise), damages and costs of any kind whatsoever (hereafter Liabilities)(including all liabilities arising as a result of damage to a third party’s property, injury to or death of any Liabilities) arising from any breach of this Agreement by the Customer, any other act or omission of the Customer, or any act or omission of Bascik Transport that arises from any instructions or directions (or lack thereof) provided to Bascik Transport by the Customer in connection with this Agreement.

CHARGES, INVOICING AND PAYMENT
1. the Customer will pay the Charges for the Services in accordance with the invoicing and payment terms set out in the Key Terms.
2. the Charges do not include any costs or charges for transportation or for redelivery of Goods, or any detention, demurrage or other costs and expenses incurred by Bascik Transport due to any failure by the Customer to provide any information (including the provision incomplete or inadequate information), or any other default by the Customer: and all such cost or charges shall be for the sole account of the Customer, and shall be payable on demand by Bascik Transport.
3. charges shall be calculated on a per week basis (Storage Week). Each storage week shall commence a Friday morning and finish at the close of business on the following Thursday evening. Storage for a period less than one Storage Week shall be charged as for a full Storage Week.
4. Bascik Transport may increase the Charges to the extent that there is any increase in input or compliance costs which increases the cost to Bascik Transport of providing the Services (including any increase in CPI, labour costs, or a change in law or the applicable regulations which imposes addition costs on Bascik Transport)(Required Increase). Prior to implementing any Required Increase, Bascik Transport will consult with the Customer and provide at least 30 days notice of the new Charges.
5. Subject to clause 5.4, the parties will conduct a review of the Charges no later than 30 days prior to the end of each annual period during the term, and discuss whether any changes in the Charges is appropriate in the circumstances. Bascik Transport may propose an increase in Charges, and if approved by the Customer (such approval not to be unreasonably withheld), the new Charges shall apply from the beginning of the next annual period.
6. Timeliness of payment by the Customer of the Charges of any other sum is of the essence of this Agreement. If the customer defaults in payment on the due date, all money owing to Bascik Transport shall be entitled to charge interest on such amounts at the base lending rate charged by its bank plus a margin of 5 percent per annum (or, if less the maximum amount permitted by law), calculated daily and compounded monthly from the date payment is due until the date payment is received in full.
7. All charges are GST exclusive and any other taxes (excluding income tax), or duties levied or accessed in connection with the supply of the Services, unless otherwise expressly stated. All such additional taxes and duties shall be payable by the Customer.
8. Where the customer disputes an invoiced amount, it must notify Bascik Transport within 5 business days of receipt of the relevant invoice, and will not be obliged to pay the disputed portion of that invoice until the dispute has been resolved in accordance with clause 8 (Disputes). Where the Customer fails to give such notice within 5 business days, the Customer will be deemed to have accepted the invoiced amount and must pay the invoiced amount in full without any further claim or dispute.
9. The Customer may not set off any monies claimed to be owed by Bascik Transport to the Customer, or any of its related or associated companies, against any sum due to Bascik Transport.

LIABILITY
1. Subject to clauses 6.2 and 6.4, Bascik Transport undertakes to the Customer, if and only if there is any damage to Goods while in storage with Bascik Transport that results from the reckless or intentionally wrongful conduct of Bascik Transport, its employees or agents, or any damaged caused to the goods by building failure (e.g. roof leak or water damage), to refund an amount required to replace or repair those goods up to maximum of the storage Charges paid by the Customer in respect of those damaged Goods. The Customer agrees that the remedy provided under this clause is the Customer’s sole and exclusive remedy against Bascik Transport in connection with the Services, and that to the extent permitted by law, the Customer has no other claim, demand action or remedy against Bascik Transport under this Agreement, at law or otherwise and the Customer warrants that it shall not take any steps to pursue any such claim, action or demand against Bascik Transport.
2. In no event shall Bascik Transport be required under this Agreement to pay for any loss or damage incurred by the Customer resulting from the provision of the Services by Bascik Transport to the extent that such loss or damage exceeds the replacement cost (or at the election of Bascik Transport, the repair cost) for any “lost Goods” and for any defective or damaged Goods. For the purposes of ascertaining what are “lost Goods” the parties agree Bascik Transport shall be responsible for all Goods received from the Customer up to the point in time where the specified item of Goods is correctly despatched to the customer nominated by the Customer and the despatch is signed for by the Customer’s nominated courier. In no event shall Bascik Transport be under any liability for any indirect or consequential losses or the loss of profits or costs, charges and expenses on the part of the Customer or any other person other than to reimburse for, replace or repair as described above.
3. Except for the warranties set out herein, Bascik Transport makes no other warranty to the Customer in connection with the Services or this Agreement, and all other warranties, whether expressed or implied by law, are hereby excluded by Bascik Transport, to the maximum extent permitted by law.
4. In no event shall Bascik Transport’s total aggregate liability to the Customer under or in connection with this Agreement exceed the total Charges actually paid by the Customer in any 12 month period.

WARRANTIES
1. Bascik Transport warrants that all of the Services performed under this Agreement will be performed in a proper, professional and workmanlike manner.
2. The Customer warrants and undertakes as follows:
  1. That the Customer has full legal rights of ownership and/or possession over the Goods;
  2. That all information (written and oral) provided by the Customer to Bascik Transport (including the classification of the Goods under the Dangerous Goods Act 1974 or other such enactment replacing it), is true, complete and accurate in all respects, and is not otherwise misleading;
  3. That the Goods fall within only Classes 2, 3, 4, 5, 6, 8 or 9 under the Schedule of Goods Act, or are of a non-hazardous nature;
  4. That the Goods and any container or packaging concerning the Goods fully comply with all the requirements of the Dangerous Goods Act 1974, the Toxic Substances Act 1974, the HASNO Act 1996, MAF requirements and such other legislation, regulation or by-laws as may apply;
  5. That the Customer will obtain, and provide Bascik Transport’s Warehouse, in accordance with the HASNO Act 1996;
  6. That the risk in the Goods remains at all times with the Customer and the Goods are insured by the Customer against destruction, damage by fire or any other event whatsoever to their full replacement value for the period of storage by Bascik Transport and that such policy is not voided, limited or otherwise adversely affected by the storage and provision of the Services by Bascik Transport or the terms and conditions herein. For the avoidance of doubt, the Customer bears all risk in relation to the transportation and delivery of its Goods by any carrier or other contractor arranged or nominated by the Customer, or otherwise acting in accordance with the Customer’s instructions. If the Customer defaults in the performance of its obligations under this clause, Bascik Transport shall be entitled insure the Goods and the cost of effecting such insurance shall be payable by the Customer to Bascik Transport upon written demand;
  7. That if the Goods or any part of the Goods require any special case or method of storage, such information has been fully and fairly disclosed in writing to Bascik Transport before the Goods are taken into storage;
  8. That in the event that any damage or leakage or seepage occurs due to inadequate packaging or defects in containment of the goods, the customer shall indemnify Bascik Transport for all loss, damage, cost and expense which may result as a consequence. All costs relating to the cleaning up of the leakage or seepage, including any damage done to the goods of third parties, damage to the Warehouse and other costs incurred by Bascik Transport; (including legal costs) shall be paid by the Customer;
  9. That the Customer shall indemnify and hold Bascik Transport harmless from all losses, damage (whether direct or indirect), costs, expenses, suits, actions ad proceedings whatsoever arising out of Bascik Transport becoming the bailee of the Customer;
  10. That the Customer has full power and right to enter into this Agreement.

Termination
1. Either party (terminating party) may terminate this agreement immediately by notice in writing upon:
  1. The other party committing a material breach of this agreement which is incapable of remedy;
  2. The other party failing to remedy any remediable material breach of this agreement within 30 business days of written notice from the terminating party specifying the breach and requiring its remedy
  3. If the terminating party is Bascik Transport, failure by the Customer to meet an obligation to pay Bascik Transport by the due date, which is not remedied within 30 business days of the due date; or
  4. The commencement of liquidation or insolvency of the other party (except for the purposes of solvent amalgamation or reconstruction) or upon the appointment of a receiver, liquidator, administrator statutory manager or trustee of property or upon an assignment for the benefit of the other party’s creditors, or upon the other party being unable to pay its debts in the ordinary course of business.
2. Upon termination, and subject to clause 8.3, the Customer must as directed by Bascik Transport:
  1. Immediately pay all Charges relating to Services provided up to the date of termination; and
  2. Immediately arrange for the collection of any Goods held by Bascik Transport, and in any event within 2 business days of termination; or
  3. Pay the full cost of transportation and delivery of the Goods to the Customers premises by Bascik Transport or any third party instructed to do so by Bascik Transport.

For the avoidance of doubt, Bascik Transport will have no liability whatsoever in respect of the Goods following termination of this Agreement.

1. In the event that this Agreement is terminated for non-payment or other default by the Customer, without prejudice to any other rights or remedied that Bascik Transport may have, the Customer irrevocably and unconditionally authorises Bascik Transport to:
  1. Sell or dispose of the Goods in the manner Bascik Transport sees fit, and to retain all proceeds of such sale or disposal as compensation for the default of the Customer; and
  2. Take all necessary steps to recover any amounts owed by the Customer, and the Customer will do all things necessary to assist Bascik Transport.

DISPUTES
1. Any dispute or difference which may arise between the parties relating to the interpretation of this Agreement or any matter arising under this Agreement which cannot be settled amicably between the parties within 10 business days of the dispute being notified by either parties may be to mediation conducted in good faith and carried out by a single mediator, and according to the mediation guidelines, agreed upon by both parties.
2. The provisions of clause 9.1 will not limit or affect the right of either party to apply to a court at any time for any urgent interim or preliminary relief in respect of the dispute.

CONFIDENTIALITY
1. All information, reports, papers, opinions and files supplied by the Customer to Bascik Transport in whatever form shall remain property of the Customer. Without derogating from the importance the parties attach to the Customer’s rights as set out in the preceding sentence, the parties further agree that all information, reports, papers, opinions and files supplied by Bascik Transport to the Customer in whatever for shall remain the property of Bascik Transport
2. Neither Bascik Transport nor the Customer shall during, nor after termination of this Agreement, disclose to anyone (other than in the proper discharge of its duties) any confidential information that has come into its knowledge in the course of this Agreement, or use (or attempt to use) such information for its own benefit or the benefit of any other person or organisation.
3. Upon this agreement being lawfully terminated, Bascik Transport shall return to the Customer all confidential information belonging to the Customer; and the Customer shall return to Bascik Transport all confidential information belonging to Bascik Transport.

TITLE OF THE GOODS

Subject to clause 8.3, the goods shall remain the sole and absolute property of the Customer at all times.

PPSA
1. The Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the Personal Properties Security Act 1999 pursuant to which the Customer grants a security interest in any Goods held by Bascik Transport to secure performance of its obligations under this agreement.
2. The Customer will promptly sign any further documents and/or provide any further information (which the Customer warrants to be complete, accurate and up-to-date in all respects) which Bascik Transport may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Registrar; and do any other thing that Bascik Transport has a perfected security interest in the Goods.
3. The Customer waives its rights to receive a verification statement relating to any security interest created by this Agreement. Bascik Transport and the Customer agree that, to the extent permitted by law:
  1. The Customer will not create, permit or allow to subsist any other security interest in the Goods;
  2. The Customer and Bascik Transport each contract out of section 109(1) of the PPSA but only to the extent required to enable Bascik Transport to exercise all the rights available to it under that section whether or not it has priority over all other secured parties; and
  3. The Customer and Bascik Transport contract out of the Customer’s rights to:
    - Receive notice of Bascik Transport’s proposal to retain collateral under section 120(2) of the PPSA
    - Object to Bascik Transport’s proposal to retain collateral under section 121 of the PPSA
    - Redeem any collateral under section 132 of the PPSA; and (iv) where the Customer has rights in addition to Part 9 of the PPSA, those rights shall continue to apply

INFORMATION RELATING TO THE GOODS

Upon delivery of the Goods the Customer shall forthwith supply all medical, safety and other information relating to the composition or toxicity of the Goods. Such information is required by Bascik Transport to enable Bascik Transport (or any emergency services) to safely store, dispose or handle the Goods.

Assignment
1. In the event of the proposed sale including by way of assets or shares), merger, amalgamation or other reorganisation of all or part of the Bascik Transport business, Bascik Transport may assign or novate any or all of its rights and obligations under this Agreement upon notice to the Customer.
2. In any other case, neither party may assign any or all of its rights or obligations under this Agreement without the prior written consent of the other party (not to be unreasonably withheld).
3. Any change in the effective management or control of the Customer or any parent company of the Customer, through whatever means, will be deemed to be an assignment of this Agreement requiring the prior written consent of Bascik Transport.

NON-WAIVER

Failure or omission by Bascik Transport at any time to enforce or require strict or timely compliance with any provision of the Agreement will not affect or impair that provision in any way for the rights of Bascik Transport to avail itself of its remedies either under this Agreement or generally at law.

ENTIRE AGREEMENT AND VARIATION
1. This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, promises and undertakings or understandings of any kind. This Agreement may not be altered, amended or modified except in writing signed by duly authorised representatives of the parties. No other terms and conditions will apply (whether in addition to, or in substitution for, all or part of these Bascik Transport general terms and conditions) including any terms or conditions on any order from or other document provided by the Customer, unless Bascik Transport has expressly agreed to them in writing.
2. If any part of this Agreement or any clause or part of clause is held or construed as illegal or invalid the legality or validity of any other provisions hereof shall not be affected. The illegal or invalid provision shall be deemed deleted herefrom or modified to the extent necessary to give full effect to the remaining provisions of this Agreement and all such remaining provisions shall remain in full force and effect.

FORCE MAJEURE

Neither party shall be liable for any failure or delay in the fulfilment of all or part of their respective obligations contained in this Agreement which are directly or indirectly attributable to acts of God, to government orders or restrictions or riot, strike, lockout, fire, flood or any other causes or circumstances reasonably beyond the control of the parties. Upon the occurrence of any of the above events Bascik Transport may at its option terminate this Agreement and require the Customer to uplift the Goods forthwith after the payment of all sums owing by the Customer to Bascik Transport.

SPECIAL TERMS

In the event that any of the Key Terms are inconsistent with any General Term and Condition, then the Key Terms shall prevail to the extent of the inconsistency.

SUBCONTRACTING

Bascik Transport may sub-contract the provision of all or part of the Services to a sub-contractor that, in the reasonable opinion of Bascik Transport, is reputable.

RELATIONSHIP
1. This Agreement shall not constitute either part as the agent servant or employee of the other party, neither party shall have authority to bind the other party in any respect, nor shall either party hold itself out as having other than the contractual relationship set out in this Agreement.

NOTICES

Any notices or communications or demands requiring to be made or served under this Agreement shall be in writing and sent to the recipient at the address or facsimile number on the front page of this Agreement (or any replacement address or facsimile number notified by the recipient).

GOVERNING LAW

This Agreement is governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

CREDIT CHECK
1. The Customer irrevocably and unconditionally agrees to Bascik Transport requestion details of the creditworthiness of the Customer from businesses that provide such information. Bascik Transport will keep confidential the results of such credit check information.
2. The Customer confirms that its details set out in the Key Terms are true and correct in all respects. The Customer authorises Bascik Transport to contact the Trade References and obtain details of the Customer’s trading and credit history.

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BASCIK TRANSPORT LIMITED- TERMS AND CONDITIONS OF STORAGE & DISTRIBUTION

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