Terms & Conditions
A B Oxford Cold Storage Company Pty Ltd ABN 15 005 104 361
(hereinafter referred to as “the Storage Company”)
Terms and Conditions of Cold Storage of Goods for Storers
(hereinafter referred to as “Terms”, “the Cold Store”, “Goods” and “the Storer”)
Unless otherwise agreed in writing these Terms apply to all dealings between the Storage Company and the Storer.
1. Identity and Obligations
To avoid doubt “the Storer” means the party in whose name the Goods are stored and shall include any party or mortgagee that holds a legal or equitable interest in all or any of the Goods. The Storage Company may at its discretion act on instructions received from the party in whose name the Goods are stored or from a beneficial owner or mortgagee. If the Goods are jointly owned or owned by a partnership each co-owner shall be deemed to have authority to bind all co-owners and all liabilities of the Storer, co-owners, beneficial owners and mortgagees have to the Cold Store shall be joint and several.
2. Order Quotation Offer and Acceptance
2.1 All orders must be in writing and duly signed and authorised by the Storer. Whilst the Storage Company may accept verbal or phone orders at their discretion these must be confirmed in writing within 7 days, or before proceeding with the storage or other order, whichever is the earlier.
2.2 Any terms or conditions of the Storer’s order deviating from or inconsistent with these Terms are expressly excluded and rejected by the Storage Company. This exclusion and rejection includes any statement by the Storer that the Storer’s terms and conditions shall prevail.
2.3 A contract shall only be concluded between the Storage Company and the Storer when the order has been accepted by the Storage Company on the Terms contained herein.
2.4 Any quotation, estimate or other pricing document provided by the Storage Company is not an offer to store Goods or provide other services.
2.5 The Storer acknowledges and accepts that no persons or agents of the Storage Company are authorised to vary these Terms in any way or make representations concerning these Terms. Any variations or representations shall only be valid if they are in writing and signed by a Storage Company director.
2.6 The Storage Company reserves the right to charge a minimum storage amount and/or to fix a minimum storage period and may alter either or both at its sole discretion at any time.
2.7 “The Storer” for the purposes of placing orders and fulfilling all obligations to the Storage Company is the person or party that places the order and/or instructs the Storage Company to provide storage and/or other services.
2.8 The Storer agrees that in the event of any dispute concerning an order (including any question of identity or authority or validity of any telephone, facsimile or email order) the internal records of the Storage Company will be prima facie evidence of what was ordered and who placed the order.
2.9 When any order is placed, the Storer shall inform the Storage Company of any facts, without limitation, which could affect the commercial decision by the Storage Company to accept the order and/or grant credit. Failure to do so by or on behalf of the Storer shall create and be deemed to create an inequality of bargaining position and be deemed to constitute the taking of an unfair advantage of the Storage Company and to be unconscionable, misleading and deceptive thereby rendering the person placing or authorising the order to be liable to pay all moneys owed by the Storer to the Storage Company.
3. Prices and Payment
3.1 Estimates are not quotations and are subject to change. Unless stated otherwise GST and all other applicable taxes shall be added to the price.
3.2 Quotations are based on costs at the time of quotation and are subject to change if the Storer does not accept the quotation within the period specified on the quotation or within seven days if no period is shown.
3.3 If the Storage Company’s issues a price list the prices are subject to change with or notice and the Storer acknowledges that they are aware of the Storage Company’s price list at the time of delivery of Goods into the Cold Store.
3.4 The Storage Company may require a non-refundable deposit before storing Goods.
3.5 If no specific payment terms have been agreed payment must be made immediately upon request by the Storage Company, time being of the essence as to this obligation.
3.6 Payment shall only occur when cleared funds from the Storer have been received by the Storage Company for all amounts outstanding.
3.7 The Storer is responsible for all storage and all delivery costs into and out of the Cold Store and all other associated costs including, but not limited to, the removal and disposal of the Goods if they have been abandoned or if the Storer has breached any conditions of these Terms.
3.8 If the Storage Company agrees to accept payment by credit card the Storage Company reserves the right to recover the credit card commission.
3.9 If the Storer’s account is overdue or the Storage Company is concerned over the Storer’s ability to pay (or dies if the Storer is a natural person) the Storage Company may, at its absolute discretion and without prejudice to its other rights and remedies, demand immediate payment of all amounts outstanding even if they are not currently due and suspend or terminate the Storer’s order without being liable for any alleged loss or damage suffered by the Storer or any other parties as a result of the Storage Company exercising its rights.
3.10 The Storer shall not be entitled to set off against any moneys owed (or allegedly owed) to the Storer by the Storage Company or withhold payment or deduct money from an invoice because a portion of the invoice is disputed by the Storer.
3.11 The Storage Company can issue proceedings to recover the price of the Goods even if the Storer’s Goods are still in the Storage Company’s possession.
4. Delivery Into the Cold Store
4.1 The Storer is responsible for the delivery of the Goods into (and out of) the Cold Store and for all associated costs and risks.
4.2 Delivery takes place when the Storer’s Goods are taken into the Cold Store and are received into storage strictly on a “quality, quantity, contents and condition unknown” basis.
4.3 If the Goods are delivered to the Cold Store by a transporter or any other party other than the Storer the deliverer warrants that they are duly authorised to bind the Storer to these Terms.
4.4 The Storer is responsible for ensuring that all Goods received into the Cold Store are in a condition acceptable to the Storage Company at the time of delivery and are clearly labelled in durable freezer-resistant indelible ink and in packaging suitable for chiller and/or freezer bulk storage.
4.5 The Storage Company shall tally the Goods into the Cold Store upon delivery and the Storage Company’s tally shall be sufficient proof of the quantity and condition of the Goods in the event that the Storer or their representative or agent is not present to sign a Storage Company receipt of Goods document.
4.6 The Storage Company and/or associates or storage overflow contractors shall not be liable for any costs, reimbursements or other liabilities for non-delivery or delayed delivery of the Storer’s Goods into the Cold Store.
5. Conditions of Storage
5.1 As it is unreasonable to expect the Storage Company to have knowledge of the condition of the Storer’s Goods at the time of delivery, especially boxed or packaged Goods (but not limited to) the Storage Company cannot accept any liability, responsibility or claims in respect of any alleged deterioration of the Goods whilst in the Cold Store
5.2 Goods are stored at the pleasure of the Storage Company and are subject to removal as and when required by the Storage Company upon notification to the Storer. The Storage Company reserves the right to demand payment in full for all amounts owed by the Storer prior to release of the Goods.
5.3 The Storage Company has a safe working environment policy for its personnel, contractors, overflow storers and others in its care. The Storer warrants that they will not consign any Goods into the Cold Store that are of a hazardous or contaminating nature that would damage other stored goods or endanger the health and welfare of Storage Company personnel, those of its associates and overflow storers, the general public, occupiers of neighbouring premises and their property. The Storer agrees to fully indemnify the Storage Company for all damages and claims that may arise as a result of any breach of this requirement.
5.4 The Storage Company accepts no responsibility for any losses or alleged losses occurring as a consequence of any delay in delivery or completion of the Storer’s order or for any losses or alleged losses arising from the Storage Company’s inability to deliver or otherwise complete the Storer’s order.
5.5 The Storer warrants that all Goods consigned to and stored by the Storage Company and/or their associates or overflow contractors are owned by the Storer and that the Storer has full the authority and rights to store the Goods in the Cold Store even if there is more than one owner of the Goods.
5.6 The Storer warrants that all Goods consigned to and stored by the Storage Company and/or their overflow contractors are in a safe and good conditions and are free of all hazards and will remain so without restriction which shall include, but not limited to, dangerous, deleterious, objectionable or odorous materials which may jeopardize or prejudicially effect any other goods in the Cold Store or adjacent premises.
5.7 If in the sole opinion of the Storage Company any or all of the Goods are, or become, deteriorated, objectionable, contaminated or a source of danger the Storer will be required to remove them from the Cold Store immediately upon notification by the Storage Company, time being of the essence. If the Storer fails to comply with this requirement the Goods shall be removed and disposed of by the Storage Company as it feels fit and without being liable to the Storer or any other parties for any claims or damages.
5.8 The Storage Company accepts no responsibility for any damages and losses that may occur to the Storer’s Goods as a result of industrial action, defects in the Storage Company’s premises, plant, equipment, breakdowns, power and water supply failures, lack of equipment and/or plant and any other events that are beyond the reasonable control of the Storage Company.
5.9 The Storage Company accepts no responsibility for any damages and losses that may occur to the Storer’s Goods as a result of the Storage Company using, or not using, plant, equipment, machinery and labour which may cause, aggravate or precipitate events that result in damages to or loss of the Storer’s Goods.
5.10 The Storage Company shall not be liable for any damages or losses that may be caused by or attributable to any temperature variations or failure or inability to maintain temperature for any reason or from contact with or proximity to any other goods or to deterioration, shrinkage, leakage, breakage, sweating, evaporation, fermentation, vermin infestation wasting, decay, putrefaction, contamination or any other events.
5.11 Nothing in these Terms shall be construed as abrogating, limiting or in any manner affecting any lien or power of sale or other right (or the enforcement or exercise thereof) which the Storage Company may have as a warehouseman under any applicable legislation.
6. Risk & Insurance
6.1 Goods are stored entirely at the Storer’s risk and it is the Storer is responsible to arrange comprehensively insurance on the Goods for all risks (without limitation) including, but not limited to, public and personal liability, injury and compensation claims from any parties including the Storer’s personnel, damages of any description including property damage and damage to any other goods that is attributable to the state, condition and type of the stored Goods and/or deterioration, seepage or escape of the Goods in whole or in part.
6.2 The Storer indemnifies the Storage Company for all claims, losses, expenses including legal costs howsoever arising or incurred because of or incidental to the storage of the Goods together with payment in full for all storage and other charges and for the removal of the Goods from the Cold Store.
7. Outward Delivery from the Cold Store
7.1 The Storage Company shall tally the Goods upon outward delivery/release from the Cold Store and the Storage Company’s tally shall be sufficient proof of the quantity and condition of the Goods if the Storer or their representative or agent is not present to sign a Storage Company release of Goods document.
7.2 All responsibilities and liabilities the Storage Company may have to the Storer for outward deliveries/release cease at the Cold Store door and all costs and charges that arise afterwards are the responsibility of the Storer.
7.3 The Storer will be deemed to have received the Outward Goods at the Store Door in good condition unless a written notice from the Storer to the contrary is received by the Storage Company within 24 hours, time being of the essence.
7.4 In the event that the Goods are returned to the Cold Store such return shall be regarded as a new storage order placed by the Storer and subject to all the conditions contained in these Terms which may include a change in price.
7.5 A Storage Company “Goods Inward” receipt is not a document of title to the Goods or a negotiable or assignable document. The Storage Company is under no obligation whatsoever to recognise any person or party as the owner of the Goods or having an interest in the Goods apart from the person or party recorded as the Storer in the Storage Company’s documentation.
7.6 The Storage Company and/or associates or storage overflow contractors shall not be liable for any costs, reimbursements or other liabilities for delayed outward delivery or non-delivery of the Storer’s Goods.
7.7 The Storage Company may require the Storer’s written instructions and the surrender of warehouse receipts and any other relative warrants as a condition precedent to outward delivery of any Goods and the Storage Company may at its discretion deliver in accordance with the written or oral order or request of the Storer or of any person purporting to be the owner of the Goods or to be the agent of the Storer or of such owner and the Storage Company shall not be liable for any loss to the Storer occasioned thereby. In particular the Storage Company shall be at liberty upon presentation and surrender of the relevant receipts and a delivery request to regard the person making such presentation and request as a duly authorised agent of the Storer with full authority to accept delivery. The Storage Company shall not be bound to deliver identical Goods and reserves the right to deliver in or towards satisfaction of the Goods other goods of a similar description and with similar or different markings.
7.8 If Goods comprised in any receipt or warrant are delivered by request as provided in Clause 7.7 herein and if the warrant/receipt cannot be surrendered the Storer shall hold the Storage Company indemnified from any and all claims from any parties whatsoever in respect of the receipt/warrant and/or relative Goods.
8. Right of Removal and Disposal
8.1 The Storage Company has the right to remove and dispose of the Goods if the Storer is in breach of any conditions and the full costs of such removal and/or disposal shall be the responsibility of the Storer.
8.2 The Storer acknowledges agrees that the Storage Company has a general lien upon all stored Goods and in the event of any default by the Storer the Storage Company may sell the Goods by public auction or private treaty or otherwise dispose of the Goods as the Cold Store sees fit and the Storage Company shall only be liable to account for the balance, if any, after all costs have been deducted. In the event that the Storage Company is unable to recover the full amount owed by the Storer, the Storer shall be liable for full payment of the balance of account.
8.3 If the Storer is in breach of these Terms the Storage Company may at any time with or without notice and at the Storer’s expense remove the Goods and if thought fit destroy them if in the Storage Company’s opinion they are not saleable or marketable.
9. Default, Interest, Costs, Penalties and Breach
9.1 The Storage Company shall be entitled to charge interest at 2.5% a month from the day the account becomes overdue and compounded monthly until all outstanding moneys have been paid in full
9.2 If an account is more than thirty days overdue, administration costs of $50.00 or 10% (whichever is greater) up to a maximum of $250.00 shall be charged to the Storer for each month the account remains unpaid.
9.3 The Storer shall indemnify and reimburse the Storage Company for all costs and disbursements in collecting outstanding debts from the Storer which shall include dishonour fees, full legal costs on a solicitor-own-client basis, collection agency costs, investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other collection costs.
9.4 If the Storer breaches any of its obligations the Storage Company may exercise any or all of its rights as contained in these Terms.
10. Force Majeure
The Storage Company shall not be liable for any default or delay in delivery of Goods or performance of services due to any act of God, war, power or equipment failure, terrorism, strike, lockout, fire, flood, storm, tempest or other events beyond the control of the Storage Company
11. Limited Liability
11.1 The Storage Company shall not be liable for any loss, injury or damage to the stored Goods or other property of the Storer howsoever caused including, but not limited to damage or destruction by power or equipment failure, fire, theft, storm, tempest flood or other water damage or from negligence or alleged negligence of or any other act or omission by the Storage Company and/or associates or storage overflow contractors.
11.2 The maximum liability of the Storage Company for any and all claims made by the Storer or by any other parties shall not exceed the storage costs of the Storer’s Goods received into the Cold Store. Under no circumstances shall the Storage Company be liable for any incidental or consequential damages, or for any other alleged damages, losses or claims made by the Storer or any other parties that are in excess of the storage charges received by the Storage Company for storing the Goods.
12. Security for Payment & Charges
12.1 If the Storage Company allows the Storer extra time to pay moneys or perform obligations for which no guarantees or other securities have been provided, the Storage Company may require security for payment including a guarantee by any director or other persons connected with the Storer.
12.2 Any requirement for security or guarantees is without prejudice to other rights or remedies the Storage Company may have.
13. Storer Not An Agent
The Storer is not an agent of the Storage Company and shall not enter into agreements or represent themselves as agents, officers or representatives of the Storage Company to any parties whatsoever.
14. Personal Property Securities Act 2009 (“PPSA”) and Personal Property Securities Register (“PPSR”)
14.1 If any clauses in these Terms contravene any provisions in the PPSA, or amendments thereto, such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
14.2 The Storer and all other parties such as, but not limited to banks, finance companies, receivers, liquidators and other insolvency officials are hereby notified that the Storage Company may have a general lien or other security interest on the Goods and shall only release the Goods to a Secured party or any other authorised party on the strict condition that all storage and other fees are paid in full and all obligations to the Storage Company relating to the Goods are satisfied prior to the Storage Company releasing the Goods.
14.3 The Storage Company may have a “Purchase Money Security Interest” (“PMSI”) and/or other security interests on the PPSR for rent owing for storing the Goods and for all other obligations of the Storer to the Storage Company concerning the Goods.
14.4 In the event that the Storage Company’s Security Interests have not been perfected the Storer acknowledges and agrees that these Terms create a Security Interest in the Goods and consents to the Storage Company registering a Security Interest on the PPSR and to provide all assistance required by the Storage Company to register, perfect and retain the integrity of the Storage Company’s Security Interests.
14.5 The Storer must not create or permit any other parties to create any form of Security Interest, including but not limited to, a Financing Statement, a Financing Change Statement whilst the Goods are in the Storage Company’s possession. The Storer consents to the Storage Company registering a Security Interest on the PPSR in a manner the Storage Company deems appropriate for Goods stored by the Storage Company.
14.6 The Storer acknowledges and agrees that these Terms 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.
15. The Commonwealth Competition & Consumer Act 2010 (“CCCA”)
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA, which is the new name of the Trade Practices Act 1974 (TPA), except where permitted by law. If the Storer buys Goods as a consumer these Terms shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights. If any clauses in these Terms contravene any provisions in the CCCA and any amendments thereto such clause or clauses or parts thereof shall be deleted without affecting the validity of the remaining clauses of these Terms.
16. Title and Release of Goods
16.1 In addition to the provisions contained in the PPSA Clause herein the Storer warrants that they will not charge nor permit any other party to charge the Goods in any way including, but not limited to, personal guarantees, other guarantees, floating and/or other charges or to grant or otherwise give any interest in the Goods until all obligation to the Storage Company have been fulfilled and the Storer indemnifies the Storage Company for all losses and costs incurred as a result of any breach of these conditions.
16.2 The Storage Company reserves the right to refuse to release the Goods in whole or in part until all amounts owing to the Storage Company have been paid in full and all other obligations of the Storer to the Storage Company, including contingent and other liabilities, have been fully satisfied.
17. Set Off and Application
17.1 The Storage Company is entitled to set off against any moneys owed to the Storer an amount equal to the total of all moneys at such time then owed by the Storer or on the Storer’s behalf to the Storage Company.
17.2 The Storage Company can apply any moneys received from or on behalf of the Storer to any and all amounts owed by the Storer as it sees fit and the Storer waives any rights of notification of such allocation.
18. Storer’s Address, Ownership and Management
18.1 The Storer shall notify the Storage Company in writing of any change of address, phone, fax and email details before such changes take place.
18.2 The Storer shall notify the Storage Company within 7 days of any change in ownership, proprietors, partners, directors, shareholders, senior management, change of trusteeship or the sale of any material part of its business and will be liable to the Storage Company for all its obligations to the Storage Company by any party acquiring any material part of the Storer’s business until such notice is given.
19. No Waiver
If the Storage Company elects not to exercise any rights arising from any breach of these Terms it shall not be a waiver of any rights relating to any subsequent or other breach.
20. Privacy Act & Credit Information
The Storer and/or the guarantor/s agree and consent to the Storage Company obtaining and exchanging credit information from the Storer’s creditors or other parties nominated by the Storer and for the Storage Company to obtain reports and other information from credit reporting agencies and other sources including, but not limited to, industry bodies such as Storer Check Pty Ltd on the Storer’s storage history/record, credit and other information about the Storer in relation to credit provided by the Storage Company and the ability of the Storer to pay its bills as and when they fall due.
The Storage Company can cancel contracts and orders from the Storer without notice if the Storer defaults on its obligations to the Storage Company and/or in the event of unresolved issues between the Storage Company and the Storer of more than 24 hours duration at the Storer’s designated site or premises where installation or other work is being or will be conducted or if the Storer breaches any conditions of these Terms or becomes or is in jeopardy of becoming insolvent (or dies if the Storer is a natural person) and all outstanding moneys owing to the Storage Company shall be payable immediately together with moneys owing to third parties for contracts entered into for the Storer’s benefit.
22.1 Notices to the Storer are served when delivered by hand, sent by mail, document exchange, fax or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.
22.2 Notices to the Storer may also be served to the person, body, company or other party in whose name the Goods are stored and such notices shall be regarded as notices that are served in the manner detailed in the first part of this Clause, including notices to other parties that may be a beneficial owner or mortgagee of the Goods which notices shall be deemed to also be a notice to the Storer.
22.3 If there is more than one Storer notice to one shall be deemed to be a notice to both or all.
If a dispute arises between the Storage Company and the Storer and a solution thereto is contained in these Terms then such solution shall be a binding full and final settlement of the dispute. If no solution to the dispute exists in these Terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute then either party can refer the matter to a mediator. If neither party can agree on the mediator the dispute shall be referred to a mediator in accordance with the Governing Law clause in these Terms. The Storer shall be liable for the full costs of the mediation and if this contravenes the Governing Law the parties will equally contribute to the cost of the mediation.
If any part of these Terms is found to be unenforceable for any reason then that part will be severed from these Terms and will not affect the enforceability of any other part of these Terms.
25. Governing Law and Changes to Terms of Trade
25.1 The laws of Australia apply to these Terms and to any contracts or other agreements between the Storage Company and the Storer and are subject to the jurisdiction of the Courts and Tribunals of Victoria.
25.2 The Storage Company may at any time alter, add to or delete any clauses in these Terms and such changes will be effective from the date the changes are notified to the Storer. The Storer will be deemed to have accepted these Terms and any changes thereto upon placing further orders with the Storage Company.
25.3 The Storage Company may license or sub-contract all or any of its rights and obligations without the Storer’s consent.