CHILL ENTITIES TERMS AND CONDITIONS OF TRADE
Any Goods that Chill accepts for Storage and/or Transport and/or the provision of Services will be held transported and provided upon the following terms and conditions which may only be varied in accordance with Clause 19. Chill agrees to store and/or transport the Goods and /or provide the Services for the Customer during the Term in accordance with the Relevant Code of Practice (if any) identified on the Contract Particulars (“Particulars”) and otherwise upon the terms set out in the Particulars. The Particulars are at all times subject to the following general terms and conditions. However the provisions of the Particulars will prevail over any inconsistent provision in these general terms and conditions or any Relevant Code of Practice.
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
“Business Day” means any day other than a Saturday, Sunday or Public Holiday;
“Charges” mean Chill’s charges for Storage, Transport and/or Services calculated at the rates set out in the Particulars (increased in accordance with Clause 7.4) or if not specified then at Chill’s Rates, the other moneys referred to in Clause 7 and GST;
“Chill Entities” or “Chill” refers to Chill (SYD) Pty Ltd. ABN 23 126 534 834 , Chill (VIC) Pty Ltd ATF Chill (VIC) Unit Trust ABN 20 108 521 954, Chill (WA) Pty Ltd ABN 61 613 709 505, Chill (QLD) Pty Ltd ATF Chill (QLD) Unit Trust ABN 17 945 933 006 and Built By Chill Pty Ltd ABN 71 612 358 086
“Chill’s Rates” means the rates as Chill may determine in writing from time to time. Chill may vary the Chill Rates at any time without notice to the Customer;
“Contract” means the contract for Storage, Transport and/or Services between Chill and the Customer comprising the Particulars and these general terms and conditions;
“Software Platforms” means the computerised Chill Warehouse Inventory Management System, Job Commissioning, Transport and Location Knowledge System including all data, reports, analysis and other aspects thereof whether in hard copy or machine readable form;
“Customer” means the Customer identified on the Particulars as well as the Person tendering the Goods for storage, transport and/or the provision of Services and any Associated Entity or third party who has a legal or beneficial interest in or right to the Goods;
“Effective Control” means the ability to control the composition of the board of directors or having more than 50% of the shares giving the right to vote at general meetings;
“Force Majeure” means any of the events set out below:
(a) an act of God;
(b) the outbreak of hostilities (whether or not accompanied by any formal declaration of war), riot, civil disturbance or acts of terrorism;
(c) the act of any government or competent authority (including the cancellation or revocation of any approval, authority or permit);
(d) fire, explosion, flood, inclement weather, or natural disaster;
(e) the declaration of a state of emergency or the invocation of martial law having an effect on commerce generally;
(f) industrial action (including strikes and lock-outs);
(g) power failure;
(h) motor vehicle accident;
(i) the default of any suppliers under any material contracts;
(j) the unexpected breakdown of refrigeration plant, machinery or escape of refrigerant despite regular preventative maintenance; or
(k) any other cause, impediment or circumstance beyond the reasonable control of a party; and which makes performance more onerous or uneconomic;
“Goods” mean the goods identified in the Particulars and any other goods accepted by Chill from or for the Customer from time to time together with any containers, packaging or Storage Media supplied by or for the Customer;
“GST Act” means the Act entitled A New Tax System (Goods and Services Tax) Act, 1999 as amended from time to time;
“GST and Taxable Supply” have the meanings given to those terms in the GST Act;
“Insured Risks” means the risks of loss or damage to the Goods whilst in Storage or transit caused by events including but not limited to fire, theft, storm damage, earthquake, lightning, explosion, malicious damage, flood, collision or overturning of the conveying vehicle and such other risks as may occur in the storage or transport of goods whether or not in the nature of the foregoing, as Chill from time to time decides;
“Interest Rate” means the rate determined by the National Australia Bank from time to time as being available generally to commercial borrowers for overdrafts in excess of $100,000.00;
“Location” means the location described in the Particulars;
“Particulars” means the contract particulars for Storage, Transport and/or Services completed and signed by the parties;
“Relevant Code of Practice” means the standard or regulation applying to this Agreement (if any).
(a) any Person with whom Chill arranges Storage, Transport or Services in respect of the Goods; and
(b) any Person who is a servant, agent, employee or sub-contractor of Chill or any person in (a).
“Services” means the services identified on the Particulars and any other services that Chill actually provides to the Customer;
“Storage” means the whole of the storage, packing and consolidation operations and other services undertaken by Chill for the Goods but does not include collection of the Goods or their redelivery when taken out of store;
“Storage Media” means pallets, roll cages, cartons, crates, drums or other re-useable containers or packaging used for the storage or transporting or provision of services in respect of the Goods;
“Transport” means the transport services agreed to be undertaken by Chill for the Goods as set out in the Particulars;
In this Agreement, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) references to any document (including these terms and conditions) are references to that document as amended, consolidated, supplemented, novated or replaced from time to time;
(c) references to these terms and conditions are references to the Particulars and these terms and conditions;
(d) headings are for convenience only and shall be ignored in construing these terms and conditions;
(e) references to Parties or to a Party shall be a reference to the parties or a party to these terms and conditions and includes references to their or it’s respective successors, permitted assigns, executors and administrators;
(f) references to law shall include references to any constitutional provision, treaty, decree, convention, statute, act, regulation, rule, ordinance, subordinate legislation, rule of common law and of equity and judgment and shall include the requirements of any applicable stock exchange;
(g) references to any law are references to that law as amended, consolidated, supplemented or replaced from time to time;
(h) references to terms defined in the Corporations Act 2001 (Cth) shall have the meanings given by that Act;
(i) references to any Person include references to any individual, company, body corporate, association, partnership, firm, joint venture, trust and governmental agency;
(j) references to A$ are to the lawful currency of Australia;
(k) prices and other payments which are expressed in a particular currency in these terms and conditions are required to be made in that currency;
(l) each of the obligations of the Parties contained in these terms and conditions shall be separate and independent and save as expressly provided shall not be limited by reference to any other provision of these terms and conditions;
(m) no provision of these terms and conditions will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of these terms and conditions or that provision; and
(n) all terms defined or quantified on the Particulars shall be construed accordingly in these terms and conditions.
In the event of any inconsistency between these general terms and conditions and the Particulars, the Particulars will prevail to the extent of that inconsistency.
2. GENERAL CONDITIONS
Subject to any provision to the contrary in the Particulars, the Contract shall commence when the first Goods are tendered for Storage and/or Transport and/or the Services are provided and the Contract will continue until terminated in accordance with any relevant provision of the Particulars or Clause 9.
2.2 Further Term
The initial Term may be extended for the period set out in the Particulars (“Extension Period”) by the Customer giving notice to Chill not later than 90 days before the expiry of the initial Term. The Contract will then be extended on these same terms and conditions (except this clause 2.2), and terminate on the expiry of the Extension Period.
Chill may refuse to accept Storage, Transport and/or Services of some or all of the Goods or to carry out particular services at its discretion.
2.4 Transport Basis
Chill is not a common carrier and does not accept any liability as a common carrier and may refuse to transport the Goods or any class of goods for any Person or to offer Chill goods cover for any Person or goods.
Subject to Clauses 12.2 and 12.7, the Storage and/or Transport and/or provision of Services in respect of the Goods is entirely at the risk of the Customer, and save as expressly provided in these terms and conditions and or the Particulars Chill accepts no liability for the Goods whatsoever.
Chill relies on the details of description, items, pallet space, quantity, weight, quality, value and measurement concerning the Goods as supplied by the Customer but Chill does not admit their accuracy.
Pallets and other Storage Media must be accounted for with control systems as per the Particulars, or if not specified as per Chill’s written direction. Chill reserves the right to recover costs caused by the Customer’s deviation from the Particulars, including changes to any Storage Media providers’ hire rate. No Storage Media cost will be recognised or accepted by Chill where the date of original documentation exceeds a period of 90 days from the date of presentation to Chill. Chill will not be responsible for the maintenance or repair of any Storage Media caused by normal wear and tear.
2.8 Included Stocktaking Service
If provided for in the Particulars and subject to the prior payment of the Charges and any other moneys due to Chill under these terms and conditions Chill will conduct a single annual stocktaking of any Customer Goods held by Chill without additional cost to the Customer. The report of the stocktaking will be printed in Chill normal format from time to time and a copy will be provided to the Customer.
2.9 Additional Stocktaking
If the Customer requests in writing or Chill agrees to under contract, Chill will conduct additional stock takings and/or provide additional information or details regarding the Goods as reasonably required by the Customer for an additional charge calculated at the hourly rate shown in the Particulars or, if no such charge is shown, then at Chill’s normal hourly rates at the relevant Location from time to time.
2.10 Of -Site Access to Chill’s Software Platforms
If Chill agrees to provide the Customer with access by telephone or internet link to Chill’s Software Platforms then the Customer must enter into a separate royalty free software license for Chill’s Software Platforms software in such form as Chill shall require and will only utilize such telephone or internet access for the purpose of viewing the data and reports identified in that licence. In the event that Chill provides the Customer with such access by telephone or internet link to Chill’s Software Platforms then the Customer will be responsible for all the costs incurred in setting up such access. The Customer will keep all Chill’s Software Platforms telephone numbers and access codes strictly confidential and ensure that all its staff members who are given access to this information are bound by enforceable confidentiality covenants in respect of the same. If the Customer becomes aware of any breach of confidentiality then the Customer must immediately notify Chill IT Manager in writing.
2.11 Loading Bays to be Used
The Customer must not load or unload any Goods or other such materials from any vehicle at the Location unless the vehicle is parked in designated loading docks or other areas designated by Chill for this purpose and must not cause congestion of that or any adjoining loading areas or inconvenience to any other user of it or them.
2.12 Standing Vehicles
The Customer must not permit any vehicles belonging to it or any persons collecting or delivering Goods for it to or from the Location expressly or by implication with its authority to stand on service roads or any pavements of the Location or, except when and for so long as they are actually loading or unloading goods and materials, on the loading bays of the Location, and must ensure that such persons do not permit any vehicle so to stand.
2.13 Use of Goods Entrances Required
The Customer must not convey any Goods or materials to or from the Location except through the entrances and service areas provided for the purpose.
The Customer must comply with all relevant transport legislation and Chill’s occupational health and safety guidelines for the Location and all other such regulations made by Chill from time to time for the management of the Location. The Customer must also comply with all reasonable instructions given by Chill’s authorised representatives.
2.15 Australian Quarantine Inspection Service
The Customer must not do anything at the Location which would in any way prejudice the continuing use of the Location for the storage of food stuff for human consumption and must comply with all requirements of the Australian Quarantine Inspection Service and any other body of competent jurisdiction. The Customer acknowledges that Chill may receive and be required to act upon directions from AQIS officers in respect to the Goods and/or Services in order to comply with relevant regulatory and legislative requirements
2.16 Shelf Life
The Customer will at all times remain responsible to ensure that the Goods do not exceed their expected shelf life. Each time the Customer brings new Goods into Storage the Customer must supply Chill with full details of the provenance and expected shelf life of those Goods under stated storage conditions as to temperature, humidity and any other factors.
Chill will endeavour to report to the Customer and as directed any relevant regulatory body when it becomes aware that the Goods may have exceeded their expected shelf life and/or whenever the required storage conditions for such Goods have not been achieved.
Chill will quarantine any Goods (such as are referred to in Clause 2.16) and hold them separately from any remaining Goods of the Customer that have not exceeded their storage parameters so far as Chill is aware. Chill will dispose of the relevant Goods in accordance with instructions in writing from the Customer (but subject always to the requirements of any regulatory body of competent jurisdiction) and at the Customer’s sole cost and expense.
2.19 Dangerous Goods
If in Chill’s opinion the Goods are or are liable to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, Chill may at any time without notice and at the Customer’s cost destroy, dispose of, abandon or render them harmless without compensation to the Customer, and without prejudice to Chill’s right to any Charges.
If the Customer instructs Chill to use a particular method of Storage, Transport and/or provision of Services, Chill will give priority to that method but if Chill cannot conveniently adopt it, Chill may use any method as it considers most appropriate in order to carry out the Storage, Transport and/ or provision of Services and to achieve compliance with its obligations under this Contract
2.21 Collection and Delivery of Goods
Unless and until (i) all Charges have been paid, (ii) a receipt is signed by or on behalf of the Customer, and (iii) the Person applying to collect the Goods, if not the Customer, tenders a proper authority signed by the Customer, Chill does not have to make the Goods available to any Person. Chill will endeavour to deliver to the address nominated by the Customer. Delivery is deemed to be effected when Chill receives a signed receipt or delivery docket. If the address of delivery is unattended and Chill elects to redeliver the Goods to the Customer, Chill will charge the Customer the costs of redelivery including any storage costs Chill may incur.
2.22 Opening Goods
If any identifying document or mark is lost, damaged, destroyed or defaced Chill may open any carton, wrapping, package or other container in which the Goods are placed or carried to inspect them either to determine their nature or condition or to determine their ownership.
Chill may consolidate the Goods with others and as principal or agent may arrange for Storage, Transport and/or the provision of Services in respect of the Goods by any sub-contractor but on the same or similar terms as contained in these terms and conditions.
3. CUSTOMER’S OBLIGATIONS
3.1 General Duties
The Customer must:
(a) specify to Chill the temperature requirements of the Goods during Storage and/or Transport and inform Chill if any Goods tendered for Storage, Transport and/or the provision of Services are at a significantly different temperature than the temperature at which Chill is required to store and/ or transport them and/or to provide Services, and pay any additional charge levied by Chill for blast freezing or otherwise bringing them to their correct temperature;
(b) not tender for Storage, Transport and/or for the provision of Services any volatile or explosive Goods or Goods which are or may become dangerous, inflammable or offensive (including radioactive materials) or which are or may become liable to damage any person or property without first presenting to Chill a full written description disclosing the nature of those Goods;
(c) forthwith notify Chill of any change in its address or status including any change in the Effective Control of the Customer;
(d) in respect of Storage, unless otherwise agreed, give written notice to Chill of its intention to collect any or all of the Goods prior to 2.00 pm on the previous Business Day; and
(e) in respect of Storage, if Chill gives notice to the Customer requiring the Customer to remove any or all of the Goods from Storage, to pay any Charges outstanding and then remove the Goods or such of them within 7 days of the date of notice.
3.2 Insurance Premiums
The Customer must pay when due all premiums for insurances to be effected by the Customer as provided in Clause 4 and will produce to Chill on demand receipts for any payments.
3.3 Costs of Services Consumed
The Customer must pay to its suppliers, and indemnify Chill against, all charges for Storage Media and other items or services consumed or used at or in relation to the Goods, Transport and or Services and must comply with the lawful requirements and regulations of its various suppliers.
3.4 Delivery of Files
Following termination or expiration of this Contract, the Customer must forthwith deliver to Chill any and all of its records relating to any of the Customer’s Goods which have not been removed from Storage.
3.5 No Nuisance
The Customer will not do or allow to be done anything which causes or may cause annoyance, nuisance, grievance, disturbance or damage to the Location or which interferes with or threatens to interfere with Chill’s continuing use of the Location as a cold store.
4. INSURANCE BY THE CUSTOMER
The Customer will effect and maintain the insurances specified below (on
terms that insurers shall not by subrogation or otherwise have any rights to claim indemnity from Chill in respect of any claims or losses and with an acknowledgement of Clause 13.1) with a reputable insurance office and only with such “excess” amount as may previously be approved by Chill in writing:
(a) Public Risk
In respect of liability for loss injury or damage of any kind to any person or property (including without limitation to the person or property of Chill and its officers, employees, agents, other storage or transport customers, invitees and licensees) caused by or arising out of any act of or omission by the Customer or its officers, employees, agents, other storage or transport customers, invitees and licensees in relation to the Goods in the sum of $20,000,000.00 (or such other amount as is stated in the Particulars) in respect of any single accident or event provided that Chill may from time to time by written notice to the Customer require the amount of insurance to be increased to the amount Chill considers reasonable in order to effect a sufficient and proper cover.
(b) The Goods All of the Goods against damage or destruction by the Insured Risks (including any other insurable risks required by the Customer) for their full insurable value on a replacement or reinstatement basis including any costs of reinstatement or replacement.
(c) Accident Compensation
In respect of worker’s compensation in respect of all employees of the Customer who may attend at the Location for any reason for full legal liability or obtain approval by Chill (not to be unreasonably withheld) to act as a self-insurer for such risks.
4.2 Delivery of Policies
The Customer will:
(a) upon request by Chill deliver copies of the certificates of currency of insurance to Chill prior to delivery of the Goods and from time to time;
(b) punctually pay all premiums payable for the renewal of those insurances as they become due and payable and produce and deliver to Chill on or before the respective renewal dates and without demand the receipts for those premiums; and
(c) produce and deliver to Chill on demand at any time certificates of currency for those insurances.
4.3 Particulars of Insurance Money
If any loss or damage to any of the items referred to in Clause 4.1(b) occurs or arises from any cause covered by that insurance, the Customer will promptly apply for and expend all money received under that insurance policy in restoring replacing repairing and reinstating the relevant items that have been lost damaged or broken and if that money is insufficient will make good the deficiency out of the Customer’s own money.
5. INSURANCE BY Chill
5.1 Warranty as to Convictions
The Customer warrants that before making this Contract it has disclosed to Chill and in the future will disclose to Chill in writing any conviction, judgment or finding of any court or tribunal relating to the Customer, or any director, other officer or major shareholder of the Customer, of such a nature as to be likely to affect the decision of any insurer or underwriter to grant or to continue insurance of the Location or for any Storage, Transport or Services against any of the Insured Risks.
5.2 Notice of Convictions
The Customer must give immediate notice to Chill of any conviction, judgment or finding of any court or tribunal relating to the Customer, or any director, other officer or major shareholder of the Customer, of such a nature as to be likely to affect the decision of any insurer or underwriter to grant or to continue any such insurance.
5.3 Requirements of Insurers
The Customer must comply with all reasonable requirements and recommendations of Chill and/or its insurers regarding the management of risks.
5.4 Notice of Events Affecting the Policy
The Customer must give immediate notice to Chill of any event that might affect any insurance policy of Chill and any event against which Chill may have insured.
5.5 Other Insurance
If at any time the Customer is entitled to the benefit of any insurance of the Goods that is not effected or maintained pursuant to this Contract in pursuance of any obligation contained in these terms and conditions, the Customer must apply all money received by virtue of that insurance in making good the loss or damage in respect of which the money is received.
6. CUSTOMER’S WARRANTIES AND INDEMNITIES
The Customer and the Person tendering the Goods for Storage, Transport and/ or Services each warrant that:
(a) they have fully and adequately described all of the Goods, their nature, weight and measurements and complied with all applicable laws and regulations about the notification, classification, description, labelling, transport, packaging and storage of the Goods and given their nature the Goods are packed in a proper way to withstand the ordinary risks of Storage, Transport and/or the provision of the Services;
(b) the Person delivering or collecting the Goods to or from Storage, Transport and/or the Services is authorised so to do by the Customer and (if applicable) to sign for any delivery or collection document on behalf of the Customer; and
(c) they are either the owner or the authorised agent of the owner of the Goods and enter into this Contract for themselves and for any other Person having an interest in the Goods whether by way of security or otherwise.
(d) all information it has provided to Chill is complete and accurate;
(e) the Goods are free from any encumbrance, charge, lien or any other interest;
(f) the Goods are clearly marked and easy to identify;
(g) the Goods are and will remain free of any objectionable matter or odours that may affect other goods in transit, unless the condition of the Goods has previously been notified in writing to Chill and Chill has accepted the Goods in that condition;
(h) the Goods are delivered to Chill at the specified or agreed temperature and in accordance with relevant Cold Chain Guidelines;
(i) it has complied with all laws in connection with the Goods to ensure they can be lawfully handled, transported and stored;
(j) it has not asked Chill to handle or transport the Goods in any way that could be unlawful;
(k) it will not tender for collection any volatile Goods or products which are or may become dangerous, inflammable or offensive or which are or may become liable to damage any person or property without first presenting to Chill a full written description disclosing the nature of those goods;
(l) it will make the Goods conform to all relevant laws and will pay any expense incurred by Chill if the Customer fails so to do.
The Customer does and will fully indemnify Chill against all loss, damages, costs or expenses (including full legal costs) that may be suffered or incurred by or awarded against Chill as a result of any:
(a) loss of or damage to any physical property or physical injury to or death of any person caused by negligent act or omission of the Customer, its employees, agents, officers or subcontractors; or
(b) breach by the Customer of any provision of this Contract; or
(c) any false, misleading or deceptive conduct of the Customer. This clause will survive termination of the Contract.
The Customer must:
(a) unless otherwise agreed, pay Chill the Charges within 14 days of the date of Chill’s invoice free from set-of or other deductions;
(b) pay Chill any Charges or expenses not recouped out of the proceeds of sale of the Goods under Clause 8.2;
(c) pay Chill’s expenses and charges to comply with any law or regulation or any order or requirement made under them or with the requirement of any quarantine service, trade association, market, harbour, dock, railway, shipping, customs, excise or warehouse authority or other Person by reason of the Storage, Transport and/or the provision of Services in respect of the Goods pursuant to this Contract;
(d) if any of the Goods are under customs control, pay all customs duty, excise duty and costs (including any fine or penalty);
(e) pay any storage charges or other charges or expenses Chill incurs in relation to the Goods (including without limitation salvage costs and additional freight and storage costs for circumstances outside the control of Chill);
(f) pay for additional charges due to the Customer’s delay;
(g) pay for any additional expenses Chill incurs as a result of any incorrect declaration by the Customer of the weight, volume, description or packaging of the Goods;
(h) pay the cost, expense or loss to Chill of destruction or disposal under Clause 2.18, or of opening or inspecting under Clause 2.21;
(i) pay any taxes or other Government charges payable on or in respect of this Contract. If necessary Chill will pass on any taxes or governmental charges to the Customer with a tax invoice;
(j) compensate Chill for any cost, expense or loss to Chill’s property or any Person caused by the Goods;
(k) if the Goods are at any time re-quantified, re-weighed or reassured, pay any proportional additional Charges.
Chill’s Charges accrue for payment as soon as the Goods are delivered to Chill or collected by Chill and whether the Goods are collected by the Customer or not and whether damaged or not.
7.3 Interest on Default
The Customer will pay to Chill on demand interest at the Interest Rate on any Charges or other money payable by the Customer which remain unpaid for 7 days after the due date for payment, interest to be calculated from the relevant due date and to accrue on a daily basis until paid.
7.4 Increase in Charges
The Charges may be increased in accordance with the Rate Review Mechanism set out in the Particulars.
8.1 General Lien
Chill has a general lien on the Goods and on any other goods of the Customer in Chill’s possession from time to time for all Charges or other moneys due or which become due on any account whether for Storage, Transport or the provision of Services in respect of the Goods or any other goods or any other Chill service.
If the Charges are not paid when due or the Goods are not collected when so required or designated, Chill may after the giving of notice in accordance with Clause 9.2, and, in the case of perishable Goods immediately:
(a) remove all or any of the Goods and store them as Chill thinks fit at the Customer’s risk and expense, or
(b) open and sell all or any of the Goods as Chill thinks fit and apply the proceeds to discharge the lien and costs of sale without being liable to any Person for any loss or damage caused.
(c) deduct or set-of from any moneys due from Chill to the Customer under any contract, debts and moneys due from the Customer to Chill under these conditions or under any other contract.
9. CHILL’S RIGHTS
Chill may end this Agreement in accordance with Clause 9.2 if:
(a) The Customer does not pay the Charges; or
(b) The Customer does not meet its other obligations under this Contract or becomes insolvent; or
(c) The Customer is a Corporation and:
(i) an order is made or a resolution is passed to wind it up except for reconstruction or amalgamation; or
(ii) goes into liquidation or has a provisional liquidator appointed; or
(iii) is placed under official management; or
(iv) has a receiver, including a provisional receiver, or receiver and manager of any of its assets or an administrator appointed; or
(v) has an inspector appointed under the Australian Securities and Investments Commission Act 2001 (Cth); or
(vi) without Chill’s prior written consent, there is a different person in Effective Control of the Customer as a result of changes in:
(A) membership of the company or its holding company;
(B) beneficial ownership of the shares in the company or its holding company;
(C) beneficial ownership of the business or assets of the company, but this paragraph does not apply if the Customer is a public company listed on the Australian Stock Exchange, or a subsidiary of one.
(d) a warrant issued by a court to satisfy a judgment against the Customer or a Guarantor is not satisfied within 30 days of being issued; or
(e) a Customer or a Guarantor is a natural person and:
(i) becomes bankrupt; or
(ii) takes or tries to take advantage of Part X of the Bankruptcy Act 1966; or
(iii) makes an assignment for the benefit of their creditors; or
(iv) enters into a composition or arrangement with their creditors; or
(v) is unable to pay their debts when they fall due; or
(vi) commits an act of bankruptcy as defined in the Bankruptcy Act; or
(f) a Guarantor is a Corporation and one of the events specified in (i) to (v) of Clause 9.1 (c) occurs in relation to it.
9.2 Termination after Default
If Chill has given 7 days prior written notice to the Customer that:
(a) the Customer has defaulted under this Agreement as provided in Clause 9.1; and
(b) the Customer fails within such period to remedy the default (if it is capable of remedy) and/or make reasonable compensation in money, then Chill may terminate this Agreement forthwith by written notice to the Customer, the termination taking effect from the date of giving the notice.
9.3 Period for Remedy
The period of 7 days is agreed by Chill and the Customer as a reasonable period within which the Customer must remedy a breach capable of remedy under this Agreement and make reasonable compensation in money.
9.4 Termination on notice
Chill may terminate this Agreement by giving 90 days prior written notice.
9.5 Goods Left in Store
If the Customer leaves Goods in Storage after this Contract has been terminated then Chill may either dispose of the Goods at the Customer’s expense or at Chill’s sole discretion continue to store the Goods for the same Charges and on and under the same terms and conditions (with the necessary changes made) as those contained in this Contract until the same are collected by the Customer or otherwise disposed of.
9.6 Acceptance of Charges
Acceptance of Charges by Chill after default by the Customer under this Contract will be without prejudice to the exercise by Chill of the powers conferred on it by Clauses 9.2 or 9.4 or any other right, power or privilege of Chill under this Contract and will not operate as an election by Chill either to exercise or not to exercise any of those rights, powers or privileges then or on any subsequent breach.
10. CONSEQUENCES OF TERMINATION
10.1 Complete Instructions
Chill shall, subject to all of the terms hereof, fulfil any reasonable instructions by the Customer prior to the termination of this Contract, subject however to Chill obtaining such security or guarantee of payment and performance by the Customer as Chill considers in its reasonable opinion appropriate in the circumstances.
10.2 Pay Moneys Owing
Neither the expiration nor termination of this Contract shall release the Customer from the obligation to pay any sums owing to Chill or from the obligation to perform any other duty or to discharge any other liability that had been incurred prior thereto. Subject to the foregoing, however, neither of the Parties shall by reason of the expiration or lawful termination of this Contract be liable to the other for compensation or damages on account of the loss of present or prospective profits or expenditures, investments or commitments made in connection therewith or in connection with the establishment, development or maintenance of the Customer’s or Chill’s business or goodwill.
11.1 Notice of Loss or Damage
No claim for loss of or damage to the Goods may be made against Chill unless notice of the claim in writing is received by Chill within 7 days of the date of removal of the Goods or the relevant part of them from Storage or the date of Transport or the provision of Services and to the extent permitted by law all claims not so made within the time shall be deemed to have been waived.
11.2 Failure to Notify
The failure to notify a claim within the time under Clause 11.1 is evidence of satisfactory performance by Chill of its obligations.
11.3 Failure to Bring Action
Chill will be discharged from all liability for loss of or damage to the Goods unless an action is brought within three months of the date of removal of the Goods (or the relevant part of them) from Storage or the date of Transport or provision of Services.
12. LOSS OF OR DAMAGE TO GOODS
12.1 General Exclusion of Liability
To the maximum extent permitted by law and subject to Clauses 12.2 and 12.7, the Customer agrees that Chill has no liability, and will not be liable, to the Customer or any other person for any costs, expenses, loss or damage of any kind (including, without limitation, direct, indirect, special or consequential loss or damage of any kind) in any way arising out of or in connection with the Storage, Transport and/or the provision of Services in respect of the Goods or otherwise in any way arising out of or in connection with this Contract except by reason of the gross negligence of Chill or where Chill has purposefully acted in bad faith.
If rights are conferred upon the Customer, a Customer or any other person, or obligations are imposed upon Chill by any applicable legislation which cannot be excluded, restricted or modified, the provisions of Clause 12.1 shall be read subject to those rights or obligations, however Chill hereby expressly limits its liability under any such legislation to the maximum extent permitted by law.
(a) The Customer agrees that the Customer shall be responsible at its own cost and expense in all things for:
(i) all defective and damaged Goods; and also
(ii) the return of all defective or damaged Goods from third parties and others to whom the Goods may be sold and the credit or replacement of such Goods to such third parties and others to whom the Goods may be sold,
(b) For the sake of clarification, the Customer agrees that except to the extent required by law Chill shall have no liability to the Customer pursuant to Clause 12.3 (a), and the Parties have taken the same into account in negotiating the pricing for Storage, Transport and/or the Services in accordance with this Contract.
Subject always to Clauses 12.2 and 12.7, if any Goods that have previously been stored by Chill are found to be defective, the Customer will promptly advise Chill in writing of any such defects, and after inspection of such defective Goods by Chill or its representative, if so required by Chill, the Customer will at its own cost dispose of such Goods in accordance with the directions of Chill.
12.5 No Claims against Chill
To the extent permitted by law and without limiting the generality of the other provisions of this Clause 12, Chill shall not be liable in respect of all or any part of any adjustments allowed or payments made by the Customer to any third party or other person unless the Customer shall have first received approval in writing from Chill for such adjustments or payments.
12.6 No Warranties by the Customer
The Customer covenants that neither it nor the Customer’s agents or employees shall make any representations, statements, guarantees or warranties to third parties which are different from, more onerous than Chill’s obligation under the terms of this Contract or as otherwise authorised in writing by Chill or required by law.
The Customer agrees to indemnify and keep Chill indemnified against and hold Chill free from all and any claims, liabilities, obligations, expenses or damages arising in any way out of the sale of the Goods or the provision of any other service under this Contract and/or any breach by the Customer of this Clause 12.6.
12.7 Maximum Liability
Subject to Clauses 12.2 and 12.3 and to the extent permitted by law, the Customer agrees that the liability of Chill under this Contract for the breach of any such right or obligation imposed upon Chill (which cannot be limited beyond the following provisions contained in this Clause 12.7) is limited to:
(a) in the case of defective Goods, any one or more of the following (at Chill’s option):
(i) replace Goods or supply equivalent goods; or
(ii) pay the costs of replacing the Goods or of acquiring equivalent goods; and
(b) in the case of defective Services, any one or more of the following (at Chill’s option):
(i) supply the Services again; or
(ii) pay the costs of having the Services supplied again.
Except as provided in Clause 12.2 and this Clause 12.7 and as required by law, no other warranty or condition, express or implied shall apply under this Contract.
Without in any way limiting and subject to the preceding provisions of this Clause 12, and to the extent permitted by law:
(a) The Customer acknowledges that due to the nature of the storage processes, chilled and frozen goods may show variations in quality, weight, measurements, shades, tints, colours and the Customer agrees to accept same.
(b) Chill shall not be bound to make good any defect in Goods if:
(i) the defect is caused as a result of the information provided by the Customer to Chill;
(ii) the defect is caused as a result of the Goods having been subjected to misuse, neglect or damage by the Customer;
(iii) the defect is caused as a result of the Customer not following an appropriate regime to maintain the condition of the Goods;
(iv) the Goods are treated by the Customer in a manner which has caused them to deteriorate.
13. EXCLUSIONS AND LIMITATIONS
13.1 Release and Indemnity
Subject to this Clause 13, the Customer releases Chill from and indemnifies and holds harmless Chill against all loss, damage, cost and expense and from any claim by any Person for loss of or damage to any property, injury to, or death of any Person or for any or all of the Goods, the Storage, the Transport, the Services, the Location, any delay or other failure to supply the Storage, the Transport and/or the Services except arising directly out of any acts or omissions or negligence on the part of Chill.
13.2 Loss of Profits
The releases and indemnities in Clause 13.1 extend to loss of profits, business or anticipated savings or any other indirect or consequential damage and to economic loss and even if Chill knows they are possible or otherwise foreseeable.
13.3 Force Majeure
Chill shall not be liable for any direct or indirect loss or damage to the Goods or otherwise suffered by the Customer arising from non-performance or late performance by Chill caused by Force Majeure. If Chill is wholly or partially prevented from performing its obligations under this Contract by a Force Majeure event, then the obligation to perform in accordance with this Contract will be suspended for the duration of the Force Majeure event. If the Force Majeure event (and consequential inability to perform this Contract) continues for a period longer than 7 days from its initial occurrence, then either the Customer or Chill may terminate this Contract by written notice to the other. Such notice will not prejudice any rights or obligations either Party may have accrued prior to such termination.
Chill, in addition to acting for itself, also acts as agent of and trustee for each of its servants, agents and sub-contractors so they are entitled to the full benefit of these conditions, including any exclusions or limitations of liability, to the same extent as Chill.
Even if Chill breaches this Contract or any of its or these conditions, all the rights, immunities and limitations of liability in these conditions continue to have their full force and effect in all circumstances.
14. INTELLECTUAL PROPERTY RIGHTS
The Customer must:
(a) notify Chill in writing as soon as practicable of any infringement, suspect infringement or alleged infringement of Chill’s intellectual property in Chill’s Software Platforms;
(b) allow Chill to conduct any claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
(c) provide Chill with reasonable assistance in conducting the defence of such a claim; or/and
(d) permit Chill to modify, alter or substitute any infringing part of Chill’s Software Platforms at its own expense in order to avoid infringement, or authorise Chill to procure for the Customer the authority to continue the use and possession of any infringing programs.
14.2 Prohibited Acts
The Customer shall not:
(a) use Chill’s Software Platforms in combination by any means and in any form with other programs not specifically approved by Chill;
(b) use Chill’s Software Platforms in a manner or for a purpose not reasonably contemplated or not authorised by Chill;
(c) modify or alter Chill’s Software Platforms without the prior written consent of Chill; or
(d) enter into any transaction relating to Chill’s Software Platforms without Chill’s prior consent in writing.
The Customer shall indemnify Chill against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
(a) the claim arises from an event specified in Clause 14.2; or
(b) the ability of Chill to defend the claim has been prejudiced by the failure of the Customer to comply with any requirements of Clauses 14.1.
15.1 Independent Contractors
Chill shall be entitled to sub-contract responsibility for all or part of the Services, Storage and Transport to independent sub-contractors from time to time. In case of such sub-contracting Chill’s duty to the Customer shall be limited to using reasonable endeavours to appoint a suitable sub-contractor.
15.2 Security and Pest Control
The Customer acknowledges that as part of its normal business method Chill employs independent security and pest control and other such sub-contractors and that the Charges and the Parties respective insurance obligations have been fixed on the basis that Chill will continue to do so. The Customer agrees that it is reasonable for Chill’s obligations to be limited in this manner.
16. POWER OF ATTORNEY
The Customer for valuable consideration irrevocably appoints Chill and Chill’s officers jointly and severally its attorney (with power to appoint a substitute or substitutes and to remove any of them) to act at any time after termination of this Contract in the name of the Customer to deal with any Goods left in Storage and to execute a variation or termination of this Contract and generally to execute any document and do or perform any act or thing in respect of the Goods as fully and effectually as the Customer could do and the Customer will ratify and confirm anything the attorney or any substitute may lawfully do or cause to be done.
These conditions are governed and must be construed under the laws of the State of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of that State.
If a condition or part is unenforceable the unenforceability does not affect any other part of the condition or any other condition.
19. VARIATIONS AND WAIVER
Chill is not bound by any waiver, discharge or release of a condition or any agreement which varies these conditions unless it is in writing and signed for Chill by a director.
If Chill waives a breach of a condition the waiver does not operate as a waiver of another breach of the same or any other condition or as a continuing waiver.
20. GOODS & SERVICES TAX
20.1 Payments Net of GST
All payments to be made to Chill (including but not limited to Charges) are calculated without regard to GST. If any such payment is for a Taxable Supply by Chill, the Customer will pay to Chill concurrently with that payment an additional amount equal to the GST imposed on the Taxable Supply in question.
20.2 Penalties and Interest
Where Chill has become subject to any penalties or interest as a result of late payment of GST because of the failure of the Customer to comply with the terms of this Clause 20 then the Customer shall pay to Chill an additional amount on demand equal to the amount of such penalties and interest.
20.3 Tax Invoices
Chill must as soon as practicable give to the Customer tax invoices which set out the GST payable on any Taxable Supply.
20.4 Quoted Prices
Chill’s quoted charges and Chill’s Rates represent the GST exclusive value of the supply for GST purposes.