General Terms – Circular Services

1. Acceptance

These General Terms apply to any purchase of our Services by you.  They constitute a binding contract between us and you if you sign an Order Summary or otherwise proceed with an Order Summary.  No other terms or conditions apply unless a Contract specifically provides otherwise or we agree to an amendment to a Contract in writing.

2. Mutual Commitments

Both you and us, when dealing with each other, agree to:

(a) act in good faith, honestly, and in a manner which respects the dignity of all people involved;

(b) comply with all applicable laws and regulations; and

(c) inform each other promptly of any issues:

(i) which may materially impact the supply of the Services or payment of the Charges (as the case may be); or

(ii) that are likely to receive media attention and relate to any Contract or the relationship between the parties. In respect of any Contract, each of you and us warrants to the other that:

(d) it has the power and capacity to enter into and perform its obligations under the Contract;

(e) its entry into, delivery, and performance of the Contract was duly authorised and not in breach of any other obligations to which it was bound; and

(f) on its part, the Contract is legal, valid, binding, and enforceable in accordance with its terms. 

3. Your Responsibilities To Us

You agree:

(a) to pay our Charges plus any Sales Tax without deduction by no later than the relevant date agreed in the applicable Order Summary or, if no date is specified, then by no later than the 20th day of the month following the date of our invoice (unless the Charges are in legitimate Dispute);

(b) to promptly notify us in writing if you Dispute any portion of the Charges, specifying the amount and reason for the Dispute. You must pay the undisputed portion of the Charge by the due date. The Dispute will otherwise be resolved in accordance with clause 9;

(c) to provide us, in a timely fashion, with any instructions, decisions, approvals, or information which we may need from you to complete our supply of the Services to you;

(d) that, if we need to enter your Address to supply the Services, you will provide us with adequate and safe access during our usual working hours;

(e) that if, in an Order Summary, you commit to a Fixed Term, then you will use us as the sole and exclusive supplier of Services for the specified period, (provided that, if we cancel, materially vary or delay a particular delivery of Services beyond 15 Business Days of our delivery timeframe, you may temporarily source similar Services from an alternative supplier);

(f) that if, in an Order Summary, you commit to purchase a Minimum Quantity of Services, you will purchase not less than that Minimum Quantity during the Fixed Term; and

(g) to keep all confidential information obtained in connection with the Contract confidential and not disclose it to any third party, except as required by law or with our prior written consent.

4. Our Commitments To You

We are responsible for ensuring that:

(a) on Business Days, during our usual working hours, we supply the Services within a reasonable time following payment or such earlier timeframe as agreed in an Order Summary (if applicable);

(b) our Services are supplied with the required care skill and diligence we claim in the Specifications, or which otherwise would be reasonably expected of a competent supplier in the relevant industry;

(c) our People have the required skills training and resources they need to supply the Services;

(d) we have available any equipment or resources listed in the Specifications that are necessary for us to provide the Services; and

during any Fixed Term:

(e) we use our reasonable endeavours to maintain consistency of the Contract Manager we assign to your Contract during such Fixed Term; and

(f) if the Contract requires us to hold any special permits or consents, we use reasonable endeavours to obtain and maintain those permits or consents for the duration of such Fixed Term.

We will carry out these responsibilities in compliance with all applicable laws, regulations, standards, and industry codes of practice, as they relate to our supply of the Services to you.

5. Title And Risk In Materials

Ownership and risk in Materials free of Contaminant transfers to us when such Materials cross our weighbridge, or when they are otherwise accepted by us at one of our sites.

If any Contaminant is present in any load, then:

(a) we will let you or your people know, and title and risk in the load will remain with you and you must remove such load from our site without delay, and pay our reasonable costs relating to any resulting cleaning disposal and/or obstructions which impacting our normal operations; or 

(b) we may, in our sole discretion, decide to accept the Materials (or part of them) subject to you paying a reasonable adjustment to the Charges we calculate having regard to the nature and extent of the Contaminant (for example, if the Materials are merely wet then we may agree to accept the load and charge you a reasonable fee for drying the Materials and an adjustment to account for their dry weight); and

if we choose to claim for these amounts, we will provide you with a reasonable breakdown of the amounts claimed.

If we collect: If we need to enter any Address of yours to perform the Services, then we agree to:

(c) use reasonable efforts to avoid disruptions to your operations and occupants at your Address; 

(d) comply with your reasonable directions relating to health, safety, and security at your Address (but responsibility for the unlocking and relocking of any access control or your other security measures always remains with you);

(e) take reasonable care to avoid causing any damage to your Address (but have no responsibility for the surface of, or anything under the surface of, any area we travel across, (unless you have explicitly instructed us that we may not travel across the specified area and provided us reasonable alternative access); and

(f) have any deliberate or negligent damage caused by us to your Address promptly repaired at our cost to the same or better condition, by appropriately skilled persons.

If you deliver: If you enter any of our sites, then you agree to:

(g) comply with all our health and safety, site induction or security requirements posted or otherwise made known to you, along with all reasonable directions of our people while at our site; and

(h) release us from and hold us harmless against any damage or injury you suffer or cause (except to the extent caused by our gross negligence or wilful misconduct).

6. Charges And Payment

(a) You must pay the Charges in full when due. If you do not, and are unable to establish to our reasonable satisfaction that you have a legitimate Dispute in respect of any unpaid part, then along with any other rights, we have the right to: 

(i) require payment of any future Charges in advance;

(ii) temporarily suspend our performance under the Contract; and/or

(iii) charge interest on the unpaid balance at a rate equal to 4% above our bank’s rates and fees for unarranged overdrafts for commercial customers, applicable at the relevant time.

(b) The Charges payable for the Services are as specified in the relevant Order Summary, and:

(i) we will not change the Charges for 14 days following the date we quote you any Charges in an Order Summary (or if any alternative period is specified in an Order Summary, then that period will apply); and

(ii) during a Fixed Term, we cannot increase the Charges except in accordance with subclause 6(c) below (or any alternative method specified in the Order Summary); but 

we may otherwise review and adjust our Charges from time to time, with the new Charges applying from the date published or otherwise notified to you. 

If an Order Summary indicates that you may be entitled to any preferential pricing or benefits for committing to a Fixed Term and/or Minimum Quantity, then for your convenience we may account for such benefits or discounts in equal instalments throughout the duration of the Fixed Term, but it is expressly agreed that any such entitlement is only valid once you fully comply with your obligations under the Contract for the Fixed Term (subject to any rights under clause 13(c) you may have).

(c) During a Fixed Term, we can only increase the Charges as follows:

(i) by no more than 6% per annum (or as otherwise specified in your Order Summary, if applicable); or

(ii) if during a Fixed Term we need to increase the Charges by more than 6% per annum (or such other amount specified in your Order Summary, as the case may be), we need your consent to do so, and will give you not less than 28days prior written notice explaining the proposed increase. If you do not consent to the proposed increase, then you may terminate the Contract without penalty by giving written notice to our Contract Manager (if one is specified in an Order Summary) or otherwise to cancel@wm.nz prior to the date when the proposed increase comes into effect. If you make a payment to us after the date when the proposed increase comes into effect, that means you consent to the price increase.

(d) You agree that any payments information you provide to us (such as credit cards, direct debit or automatic payments) constitutes your authorisation for us to use such methods for the Charges payable under a Contract. You may update your preferred payments information at any time by letting us know in writing.

7. Our Intellectual Property

We warrant that we hold all applicable rights to the intellectual property and data in the Services and other services and material which may be relevant to our performance of the Contract (but excluding any data which is your Personal Information covered under clause 10, below). We fully reserve all the legal and moral rights we have in all our intellectual property and data, whether registered or not. You agree that nothing in any Contract transfers any title, interest or rights in any part of our intellectual property or data to you, and accordingly you will not to use or make any claim in respect of any of our intellectual property or data. To avoid doubt, you may not use, publish or display anything depicting our name, livery or branding.

8. Services Replacement Or Refund

If any of our Services do not materially comply with their Specifications when we supply it to you, you can ask us to remedy the defect by giving immediate notice on discovery of any such defect, and in any case within five Business Days of delivery of the relevant Services, with full details of your claim via our website or by email to our Contract Manager (if one is specified in an Order Summary) or otherwise to sales@wm.nz. You agree to co-operate frankly to allow us to verify your claim (including allowing us to visit your Address and inspect your storage, use, handling, and application procedures of the Services or Materials, as the case may be. If it is reasonably substantiated that any part of our Services were defective when we performed them, then we will re-perform the relevant Services or refund you the relevant portion of the price you paid. Otherwise, you will be deemed to have accepted the Services and their compliance with its Specifications 5 Business Days after completion.

9. Complaints And Disputes

(a) We aim to provide a smooth service to all our customers. If you have any concerns about our Services or our performance which are not addressed elsewhere by the Contract, please let us know as promptly as reasonably practical by contacting our Contract Manager (if one is specified in an Order Summary) or at www.wm.nz/contact.

(b) If a dispute, question or difference ("Dispute") arises under a Contract, then either party may notify the other party in writing setting out the Dispute ("Dispute Notice"). On receipt of a Dispute Notice, you and we will first try to resolve it in good faith through discussions between you and our Contract Manager (if one is specified in an Order Summary) or such other person nominated by us at the time. If the Dispute is not resolved within 20 Business Days of the date of receipt of the Dispute Notice, either you or we may refer the Dispute to mediation. Neither you or we may begin legal proceedings (except for urgent injunctive relief) until the Dispute has been attempted to be resolved in good faith under this clause.

10. Statutory Compliance Statement

In any Contract, references to law means the laws of New Zealand exclusively and include any replacements or amendments to such laws.

It is our responsibility to ensure the Contract complies with the law, and if any parts of any Contract does not meet our legal requirements, then we will change such parts as needed in order to do so.

Unless the law provides otherwise (in which case the law will prevail), any changes we make will only apply to you when we let you know about them, and they will only apply moving following the date of notification. If a Fixed Term applies, then our changes will only take effect upon the expiry of that Fixed Term, with any unlawful provisions having no effect to the extent of any such invalidity (to avoid doubt, the remainder of the Contract will remain in force).

Nothing in any Contract diminishes any compulsory legal rights you may have under the law (such as, for example, under the Consumer Guarantees Act 1993 if you are a Consumer). But to the extent the following laws apply to a Contract, the following subclauses provide details on how compliance with the applicable legal obligations will be achieved.

(a) Health and Safety: To the extent that we go to your Address, or you come to any of our premises, or HSWA otherwise applies to work performed under a Contract, both you and we each agree:

(i) to co-operate, consult and co-ordinate with each other, and with any other PCBU who has a legal duty in relation to any work to be performed, to ensure each party can comply with its obligations under HSWA (as applicable); and

(ii) if a Notifiable Event occurs, or an accident or personal injury occurs to your people or ours, or WorkSafe issues any notice or investigates any of our activities for you under a Contract, then each of us agrees to cooperate with the reasonable requirements of the other.

(b) Fair Trading and Consumer Guarantees: If you are a bona-fide Consumer acquiring Services purely for personal, domestic, or household use or consumption, and not for any resupply, trade, or manufacturing purpose, then subclauses (b)(i)-(ii) below do not apply to the Contract. Otherwise, the parties agree that:

(i) the parties are each “in trade” and the Services are being supplied and acquired in trade for the purposes of the Fair Trading Act 1986, and consequently sections 9, 12A and 13 of that Act do not apply, and

(ii) the Consumer Guarantees Act 1993 does not apply,

and the parties further agree for the purposes of the Fair Trading Act 1986 that:

(iii) while preparing the Contract we have endeavoured to express as many of the contractual rights and remedies on mutual terms, however certain asymmetric terms are required or permitted by law, or are otherwise necessary to protect our legitimate rights and interests, our ability to efficiently perform our obligations, and our prudent management of risk so as to be able to offer better pricing of our Services to you, and if such terms are rendered unenforceable it would cause detriment to us resulting in re-pricing the affected obligations or risks (but subject always to clause 6(c) if a Fixed Term applies); and

(iv) it is fair and reasonable that the parties are bound by this clause 10.

(c) Property Security: You acknowledge that if any of our property, including our Equipment, is in your possession at any time we may register our ownership of such property under the Personal Property Securities Act 1999. If we exercise this right you agree to extend reasonable cooperation without cost or delay, and you waive any rights to receive a verification statement in respect of any such financing statement. 

However, for avoidance of doubt, nothing in any Contract gives us a right to register a financing statement over any property which belongs to you.

(d) Privacy and Sharing of Information: We will comply with all relevant privacy laws. Our people undergo thorough screening and training, and our infrastructure may be equipped with recording and telemetry systems to monitor operations. Any Personal Information which you provide us, or which is captured by our systems, will be dealt with in accordance with the Privacy Act 2020. Any payments information you provide to us or our banking, gateway or payment processing partners (such as for the purpose of direct debit or automatic payments) will be secured in accordance with relevant laws and good industry practice (including PCI DSS). You authorise any third party to provide us with credit information about you, and for us to use such information for any lawful purpose connected with our business, and you authorise us to disclose details of any Contracts and dealings with you to third parties.

(e) Modern Slavery and Sub-Contracting: We may use subcontractors in order to perform our obligations under a Contract, and will remain responsible for the acts of those subcontractors. In respect of all our people (including any subcontractors) and our supply chain, we: 

(i) are the party responsible for diligent compliance with employment and modern slavery law, and

(ii) will ensure that our people have the skills, training, experience, and resources (or otherwise arrange appropriate subcontracts at our sole cost and responsibility) which are foreseeably necessary to ensure we can meet our commitments to you.

11. Breach

A breach of a Contract occurs if:

(a) you do not pay the Charges when due and are unable to establish to our reasonable satisfaction that you have a legitimate Dispute in respect of any invoice;

(b) a party is adjudged bankrupt, liquidated or dissolved, or a receiver or administrator is appointed;

(c) a party endangers the health and safety of the people associated with the other party; and/or

(d) a party fails to comply with any provision of a Contract, and such failure is not fixed within 10 Business Days' written notice of such failure being given by one party to the other (subject to the requirements in clause 13).

The exclusive jurisdiction for any claim or Dispute under a Contract, and/or in relation to your use of the Services, will take place in Auckland, New Zealand, in accordance with its courts and laws.

12. Liability And Insurance

For every Contract:

(a) Insurance: Each party must maintain at their cost from a reputable insurer on usual market terms and conditions any insurances specified in an Order Summary, or which may otherwise be prudent to support their obligations. If we have not specified any alternative insurance obligations, then our obligation is to maintain public liability insurance for an amount of no less than $5,000,000.

(b) Your liability: To the extent permitted by law, you: 

(i) are not liable in any circumstances for any indirect or consequential loss, expense, damage or injury, loss of business data or profits suffered by us or any other person; and

(ii) will pay us for any direct losses or liabilities we suffer arising from your actions or omissions in relation to any loss, damage, breach, prosecution, claim, or action under any applicable law or regulation, common law, or a Contract.

We agree to take commercially reasonable steps to mitigate any loss we claim from you. If you commit a breach and we don’t take action right away it does not mean that we accept the breach or that we are giving up any rights we may have, such as taking action in the future (provided always that we cannot notify a claim after any statutory limitations expire).

(c) Our Liability: We will supply the Services on a timely basis using a commercially reasonable level of care, but we are not liable for anything which would be outside the reasonable control of a diligent contractor in the same or similar circumstances, and accordingly, to the extent permitted by law, we:

(i) are not liable in any circumstances for any indirect or consequential loss, expense, damage or injury, loss of business data or profits suffered by you or any other person;

(ii) make no representations or promises about our Services, its availability, or its ability to meet your specific needs and exclude all warranties, except as expressly recorded otherwise in the Contract;

(iii) are liable to you only (and not any other organisation or third party) and our liability is limited to the extent of the loss you suffer which was caused directly by us, to a maximum in any 12-month period of the Charges (excluding Sales Tax) we received from you during such period, or to any insurance monies we recover.

You agree to take all reasonable steps to mitigate any loss you claim from us, and to notify us of any claim as soon as reasonably practical.

13. Contract Term And Cancellation

(a) A Contract:

(i) where no Fixed Term applies, may be ended by one month’s written notice by either party (or any alternate period specified in an Order Summary); and

(ii) where a Fixed Term applies, is binding for the Fixed Term, subject to the below subclauses on cancellation. At any time prior to the end of a Fixed Term, either of you or us may contact the other to seek a further Fixed Term. When a Fixed Term ends, any preferential pricing or benefits applicable to you for committing to a Fixed Term will not apply from the end of that Fixed Term and our Charges will revert to our current market rates, but the Contract will continue until cancelled under subclause 13(c) or 13(d), or if an Order Summary otherwise specifies an end date, then on that date. 

(b) Cancelling – You: You may cancel:

(i) a Contract where no Fixed Term applies by giving notice under clause 13(b)(i); or

(ii) a Contract where a Fixed Term applies, if you have the right to cancel under clause 6(c)(iii), or if the Contract confers an explicit right to cancel which applies, and you duly exercise such right; or

(iii) a Contract if we commit a Breach and, on reasonable grounds, you consider that we have failed to remedy such breach in accordance with clause 11 (and any other clause or law which applies, as the case may be), and you give written notice to our Contract Manager (if one is specified in an Order Summary) or otherwise to cancel@wm.nz specifying the nature of the breach and the issues with our attempts to remedy it (or lack thereof), and if within 20 Business Days from the date we receive such notice we have not taken reasonable steps to cure the breach you may then cancel the Contract with a further 10 Business Days' written notice to cancel@wm.nz.

(c) Cancelling – Us: We may cancel a Contract where no Fixed Term applies by giving notice under clause 13(b)(i).

If you commit a Breach, then in addition to any other rights under the Contract or at law, we may: 

(i) suspend performance of our obligations to you under the Contract, require payment in advance, and/or charge a reasonable fee to cover our costs for late payment administration;

(ii) pass any debt you owe us to a collection agency and charge you (or the collection agency may charge you) what it actually costs to recover such debt (including all third-party costs such as legal fees);

(iii) recover any of our property in your possession (including any Services for which you have not yet fully paid), at your cost; and/or

(iv) cancel the Contract with 10 Business Days’ written notice to you (irrespective of whether a Fixed Term applies or not).

If you commit a Breach resulting in cancellation of the Contract during a Fixed Term, then together with any other amounts you owe us under the Contract, you agree that upon a written claim from us, you will pay us:

(v) a refund of the difference between our current market rates and any preferential pricing or benefits you received under the Contract for committing to the Fixed Term (if any); and/or

(vi) as a reimbursement of our reasonable costs for the administration and redeployment of our people, plant processing, and Services we invested into to ensure we could meet our commitments to you during the Fixed Term, an amount equal to the month’s Charges (plus Sales Tax, if any) under the Contract for 1/3 of the months remaining in your Fixed Term at the time of breach (with a minimum of 1 month and a maximum of 12 months), where “month’s Charges” means the monthly average of the usual Charges (absent any discounts, preferential incentives, specials or rebates) payable prior to the event(s) of default which led to cancellation. 

If we choose to claim for these amounts, we will provide you with a reasonable breakdown of the amounts claimed.

(d) Clauses Surviving Cancellation: The natural end or earlier cancellation of a Contract does not affect any clauses which are intended to survive termination, including clauses 3(f) (Confidentiality), 6 (Charges), 7 (Intellectual Property), 10 (Statutory Compliance) 12 (Liability and Insurance), and 13(c) (Cancelling – Us).