Thank you for choosing Smart Environmental Limited to provide you with all your recycling and refuse services. Our aim is to provide this essential service so responsibly and dependably that you don’t need to give it a second thought. We will do our best to keep you satisfied and we want you to tell us when we don’t.
In this Agreement the following words have these meanings:
- Applicable Laws means all acts of Parliament and all order, by-laws and regulations in any way governing or affecting the performance by SEL of the Services including, without limitation, any such act, by-law, order, rule, regulation or other lawful requirement relating to the provision of the Services.
- Agreement means this Customer Service Agreement including these terms and conditions.
- Business Day means a day which is not a Saturday, Sunday or public holiday in New Zealand.
- Commencement Date means the commencement date noted on the reverse.
- Confidential Information means all information provided by one party to the other party whether oral or written or embodied in any other physical or electronic form, whether in tangible form or not and whether provided before or after the Commencement Date but does not include information which is or becomes available in the public domain (other than because of a breach of this Agreement) or information disclosed in compliance with any applicable law.
- Customer means the customer named on the reverse and includes all persons with authority to act on behalf of the Customer.
- Early Termination Fee means the fee payable by the Customer in accordance with Clause 12. It is the average monthly fee multiplied by six months plus any additional administration and Equipment removal costs that SEL may reasonably charge.
- Equipment means any equipment provided to the Customer by SEL pursuant to this Agreement.
- Fees means the rates and charges specified in the contract (which are GST exclusive).
- GST means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time.
- PPSA means the Personal Property Securities Act 1999.
- SEL means Smart Environmental Limited and includes its employees, contractors, agents and assignees.
- Services means those services for waste and recycling collection specified in this Agreement.
- Service Address means the service address for the Customer recorded on this Agreement or subsequently updated in writing.
- Term means the term of this Agreement as set out in Clause Term or as otherwise agreed between the parties and stipulated on the front page of this agreement.
- Waste Type means the Waste Type(s) available: Recycling, Glass, or Refuse.
This Agreement applies for an initial term of 36 months from the Commencement Date and will automatically continue for a further 36 month period (“renewal term”) unless the Customer provides SEL with written notice that it wishes to terminate the Agreement no less than 60 days before the expiry of that initial 36 month term or the parties mutually agree to vary the renewal term.
If at the end of the renewal term neither party cancels this by notice to the other party in writing, then this Agreement will continue in force on a month-by-month basis and either party may terminate this Agreement by providing no less than 30 days’ written notice to the other party.
The Customer will pay the Fees on or by the 20th of the month following the month in which SEL issues the Customer with an invoice. The Customer and SEL may also agree to a direct debit arrangement.
SEL may also adjust the Fees for any other reason, provided SEL gives the Customer at least 15 Business Days’ written notice of such adjustment. If the Customer requests an explanation of the changes to the Fees SEL will provide an explanation accordingly, this does not provide the Customer with the ability to challenge or dispute the change in Fees. SEL reserves the right to adjust the Fees if the Services change.
The Customer will always remain liable to pay the Fees, including where the Equipment is not collected or is not full. This includes (but is not limited to) where SEL is unable to perform the Services due to the Customer’s actions or inactions.
The Customer acknowledges that a minimum monthly fee may apply if provided within the schedule of rates and charges on the reverse. The minimum monthly fee will apply where the total fees for the month is less than the minimum monthly fee.
The Monthly Flatrate contained on the reverse, is calculated taking into account the relevant public holidays and/or standard closure periods for the Customer.
Where SEL has not received the Fees by the due date, SEL may suspend the Services and/or charge interest of 14% on any overdue amount owed by the Customer. Suspension of the Services will still render the Customer liable to pay the Fees and/or interest on any overdue Fees.
The Customer is liable to SEL for costs, including legal and court costs, incurred by SEL in collecting or attempting to collect any overdue amount from the Customer.
SEL may charge the Customer any reasonable additional fees for breaches of any of the terms of this Agreement, including but not limited to breaches of clauses 3.1, 4.2, 6.2, 6.4, 6.6, and 12.3.
SEL will perform the Services and will exercise all reasonable skill and care in doing so. Where SEL cannot perform the Services, SEL will reschedule as soon as it is reasonably able to.
The Customer must provide safe and suitable access (including for vehicles) for SEL to perform the Services.
SEL does not accept any liability for damage to any surface area over which SEL is required to pass over to perform the Services.
The Customer will give written notice to SEL if it wishes to vary the Services, including providing additional services. SEL will exercise its sole discretion as to whether it will agree to such variation. SEL may increase the Fees for this, and may charge any additional Fees. The Customer must provide SEL with reasons for such variation. This clause is also subject to clause 3.3.
SEL will endeavour to deliver the Equipment on the agreed delivery date subject to operational constraints.
Late delivery does not entitle the Customer to cancel any Service or part of a Service.
SEL will provide the Equipment to the Customer for the purpose of performing the Services. The Equipment is at all times the property of SEL and the Customer has no ownership rights in the Equipment.
The Customer will not:
a) deposit any such thing in the Equipment at any time that is not the Waste Type in this Agreement. The Customer will not deposit any radioactive, volatile, corrosive, highly flammable, explosive, toxic or hazardous substance in our Equipment, including but not limited to asbestos, chemicals, concrete, or batteries;
b) deposit any polystyrene in the Equipment without SEL’s prior consent;
c) deposit any tyres in the Equipment without SEL’s prior consent;
d) overfill the Equipment, by weight or volume or compact waste in it; or
e) move the Equipment to a different address without SEL’s prior consent.
Anything that is deposited in the Equipment becomes SEL’s property at that time, except for items set out under clause 6.2a) or 6.2b) or 6.2c)The Customer will indemnify SEL for any loss, damage, additional charges for contaminated waste, or other that comes about due to the Customer’s failure to comply with clause 6.2.
The Customer will maintain the Equipment in a clean and tidy condition and do any thing as SEL may reasonably request to ensure the Equipment remains in such condition.
The Customer is liable for any damage that occurs to the Equipment while it is in the Customer’s possession, excluding fair wear and tear.
Where there is damage to or loss of the Equipment the Customer must immediately notify SEL in writing and will follow SEL’s instructions as to how SEL recommends rectifying the damage or loss of the Equipment, which may include the Customer paying to SEL the charge for replacing the Equipment or any fee incurred in rectifying such damage or replacing and lost Equipment.
The supply of the Equipment to the Customer under this Agreement may create and/or give rise to a security interest (as defined in the PPSA) in SEL’s favour in the Equipment, which may be registered by SEL under the PPSA.
a) undertakes to do such acts and provide such information as SEL requires (immediately on request and at the Customer’s own cost) to enable SEL to perfect any security interest as a first priority interest;
b) waives the right to receive a verification statement confirming registration of a financing statement or a financing charge statement relating to any security interest;
c) agrees not to lodge on the Personal Property Securities Register a change demand in respect of SEL’s registration of any security interest without the SEL’s prior written consent;
d) agrees that, to the extent that Part 9 of the PPSA applies to any security interest created under this Agreement:
• where SEL has rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply and in particular will not be limited by s. 109 of the PPSA;
• nothing in ss 114(1)(a), 133 and 134 of the PPSA will apply to this Agreement, or the security interest created by this Agreement; and
• the Customer will have none of the rights referred to in ss 116, 119, 120(2), 125, 129 and 131 of the PPSA and the Customer waives its rights to object under s 121 and to redeem under s. 132 of the PPSA
However, nothing in this clause will be construed as an agreement that Part 9 of the PPSA does, or is intended to, apply if, by the application of s 105 of the PPSA, it would not otherwise apply.
The parties acknowledge that SEL currently provides to the Customer those waste and recycling services set out in the schedule of rates and charges on the reverse, in the event the Customer requires further waste and recycling services (“Further Services”), the Customer acting in good faith shall not enter into any such agreement or permit such competitor of SEL’s to perform those services unless it has in good faith given SEL all reasonable opportunity to provide the Further Services.
Limitation of Liability
SEL’s liability for any claim, damages, loss, expense or injury related to the provision of the Services is limited to the cost paid or payable by the Customer for the Services in the last six months, except where the law expressly requires otherwise.
All other conditions or warranties that may be imposed on SEL by law or otherwise are expressly excluded from this Agreement, to the extent permitted by law.
The Customer agrees to indemnify and hold harmless SEL from and against any and all losses, claims, liabilities and damages in respect of any claim or action which is brought or threatened to be brought against SEL (whether or not such claim or action is in fact brought or is successful, compromised or settled) including (without limitation) all costs, charges and expenses (including (without limitation) legal expenses) as they are incurred by SEL in connection with the investigation of, preparation for or defence of any pending or threatened claim or any action or proceeding arising from any breach of this Agreement by the Customer or any wilful, unlawful or negligent act or omission of the Customer or its employees, agents or subcontractors.
In the event of any dispute arising between the parties about the contents or interpretation of this Agreement then the parties will make reasonable endeavours to resolve the dispute by negotiation and if such efforts are unsuccessful after 10 Business Days the parties will submit the dispute to mediation in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. with a mediator appointed by the President of the New Zealand Law Society or the President’s nominee, if the parties are unable to agree on such appointment.
In the event of the mediation referral being unsuccessful after 20 Business Days from submission of the dispute it will be referred to arbitration in accordance with the provisions of the Arbitration Act 1996.
Nothing in this Agreement will prevent a party seeking urgent equitable remedies before an appropriate court.
The Customer may terminate this Agreement by written notice if SEL breaches a term of this Agreement and does not remedy it within 10 Business Days after SEL receives written notice from the Customer, unless that breach is caused by circumstances described within clause 13 or any other circumstance outside of SEL’s control.
SEL may terminate this Agreement immediately by written notice, as a result of the Customer failing to pay any Fee pursuant to this Agreement, or any other breach by the Customer of this Agreement.
Upon termination of this Agreement the Customer:
a) will immediately return the Equipment (which will be empty and clean and tidy) to SEL or make it available for collection by SEL as SEL specifies. The Customer will pay to SEL the cost of replacing any Equipment which it does not return to SEL by the time SEL specifies or which is not returned or which is damaged beyond fair wear and tear; and
b) becomes immediately liable to pay all monies owed to SEL. The Customer is not entitled to any refund.
If SEL terminates this Agreement due to the Customer’s breach, the Customer will pay to SEL the Early Termination Fee plus any additional Fees that SEL may reasonably charge under this Agreement.
Each party will promptly notify the other party in writing of any situation or event arising from circumstances beyond the reasonable control of that party which makes it impossible for that party to carry out in whole or in part its obligations under this Agreement (Force Majeure). Neither party will be liable for any delay or for any failure to fulfil its obligations under this Agreement arising directly as a result of a Force Majeure provided that it has used all reasonable endeavours to perform its obligations notwithstanding such situation or event.
If a Force Majeure exits for more than 120 days, either party may terminate this Agreement immediately on providing written notice to the other party.
Each party will hold the Confidential Information of the other party in strict confidence and will not disclose any Confidential Information of the other party to any person without the prior written consent of the other party or make use of the Confidential Information for any purpose other than for the furtherance of this Agreement.
The Confidential Information may only be disclosed to such employees and advisors of the receiving party as need to know the Confidential Information and who have entered into an agreement or undertaking equivalent to that set out in this Agreement to keep the Confidential Information confidential.
This clause 14 will survive termination of this Agreement.
The Customer will not assign or transfer or purport to assign or transfer any of SEL’s rights or obligations under this Agreement without SEL’s prior written consent which it may not unreasonably withhold. SEL may assign, subcontract, or transfer any of its rights or obligations under this Agreement at any time.
A change in ownership or shareholding in the Customer is a deemed assignment for which SEL’s written consent is required pursuant to clause 15.1.
Any failure by SEL to enforce any terms of this Agreement will not be construed as a waiver of Smart’s rights under this Agreement.
If any portion of these terms is deemed to be invalid, unenforceable or illegal, the remaining terms shall remain in full effect.
SEL shall have the right to regard the person signing this Agreement for the Customer as having the requisite authority to sign and bind the Customer.