Ewine Cellaring agrees to accept for storage and to service at its Ashmore location (the Stored Material subject to these terms and conditions and those contained in the written proposal (if any) (‘the proposal’) and the Rate List supplied by Ewine Cellaring to the Client.
1. STORED MATERIAL
1.1 Ewine Cellaring will store and service the Stored Material identified in the Proposal from time to time (‘the Services’).
1.2 Details as to the Stored Materials can only be varied by agreement.
1.3 Such varied details will, unless otherwise indicated in writing, be deemed to be held under these terms and conditions.
2.1 Delivery of the material for storage and/or other services provided by Ewine Cellaring constitutes acceptance by the Client of these terms and conditions.
3.1 The Client will pay Ewine Cellaring for the Services according to the Ewine Cellaring Rate List.
3.2 Monthly storage rates are due in advance.
3.3 For Stored Material received during a month or stored for a portion of a month, charges will be assessed according to the Rate List.
3.4 Service fees and additional Charges, if any, are to be paid simultaneously with the monthly rates.
3.5 Fees will be deemed overdue fourteen days after the due date and a late charge of ten dollars ($10.00) will be assessed each fourteen days the fees remain overdue. A service charge of twenty dollars ($20.00) will be charged on all returned cheques.
3.6 Any overdue fees will automatically incur interest at the rate of 10% per annum, payable to Ewine Cellaring.
3.7 The Rate List and any quotations given by Ewine Cellaring form part of this agreement.
3.8 Rates may be reviewed and changed upon 30 days notice.
4. ACCESS TO STORED MATERIALS
4.1 The Stored Materials will be delivered only to the Client’s Authorised Representative(s) as detailed in this agreement. The Authorised Representative has full authority to order any service for or removal of the Stored Material, and to deliver and receive the Stored Material without the need for further enquiry to Ewine Cellaring. Such an order may be given in person or in writing.
4.2 The Client must notify Ewine Cellaring in writing of the change of address of the Client or the Client’s Authorised Representative(s).
4.3 When Stored Materials are ordered for delivery or pick-up, a reasonable time is to be given to Ewine Cellaring to carry out the instructions (being any such time as is specified in the Proposal), and if it is unable to do so (or to provide any other agreed service) because of reasons beyond Ewine Cellaring’s control, it will not be liable for failure to carry out such instructions or services.
4.4 Ewine Cellaring reserves the right to deny access to or delivery of the Stored Materials until the Client rectifies any default under these terms and conditions. (In particular – non payment of fees.)
5. RISK AND RESPONSIBILITY
5.1 The goods are stored and transported at the sole risk and responsibility of the Client who is responsible for any and all spoilage, theft, damage to, and deterioration of the Stored Material, and bears the risk of any and all damage caused by flood or fire or leakage or overflow of water, heat, spillage of material from any other space, removal or delivery of the Stored Material, pest or vermin or any other reason whatsoever including acts or omissions of Ewine Cellaring or persons under its control.
5.2 The Client acknowledges that Ewine Cellaring is unable to accurately assess the real value of the Stored Material and is not in a position to make special arrangements in relation to the storage of individual items. Stored Materials are not insured by Ewine Cellaring against loss, breakage or spoilage. The client is to arrange insurance on the Stored Materials.
6.1 Whilst some part of the Services provided by Ewine Cellaring may include the carriage of goods Ewine Cellaring does not hold itself out to be and is not a common carrier and accepts no liability as such.
6.2 Ewine Cellaring is not a bailee, nor a warehouseman, of the goods and the Client acknowledges that Ewine Cellaring does not take possession of the Stored Materials.
7.1 The term of the agreement is ………. months (“the Fixed Term”).
7.2 However the agreement may be terminated during the Fixed Term at the end of each consecutive period of ………. months (“the Break Periods”) by giving Ewine Cellaring at least 30 days written notice before the end of any Break Period. If notice of termination is given less than 30 days before a Break Period, the agreement will cease at the end of the succeeding Break Period. If no notice is given the agreement continues uninterrupted.
8.1 The occurrence of any one or more of the following events shall constitute a default. (“Events of Default”):
Failure to pay any sum within fourteen days of when due, or
Breach of any provisions of these terms and conditions.
8.2 Upon the occurrence of any of the Events of Default, Ewine Cellaring, at its sole option, can exercise any or all of the following remedies:
Demand in writing that the Client pick up the Stored Material; or
Deliver the Stored Material to the Delivery address, or if none specified, to the Client address; or
Terminate these terms and conditions, whereupon Ewine Cellaring will recover all damages suffered by reason of such termination; or
Exercise a lien over the Stored Materials; or
Without further notice, enter the storage space, and/or take possession and sell or dispose of any goods in the Client’s storage space on such terms as the Owner may determine.
8.3 In the event that Ewine Cellaring takes any action pursuant to this Section, it will have no liability to the Client or anyone claiming through the Client.
8.4 Ewine Cellaring will be entitled to recover from the Client all reasonable legal fees and costs incurred in connection with the enforcement of this Agreement.
9.1 The rights of the Client are not assignable by the Client nor will the Client allow others to exercise its storage rights without the written consent of Ewine Cellaring.
10.1 The Client warrants that:
It is the owner or legal custodian of the Stored Material and has full authority to store the Stored Material in accordance with these terms and conditions.
It has made its own enquiries as to the suitability and fitness of the Services for its purposes and has not relied upon any representations by Ewine Cellaring.
11.1 The Client agrees to keep fully indemnified Ewine Cellaring, its officers, employees and agents for any liability, cost or expense, including reasonable legal fees, that Ewine Cellaring may suffer or incur as a result of claims, demands, costs or judgments against it arising out of its relations with the Client or third parties’ handling of the Stored Materials, the provision of the Services, or the inability of Ewine Cellaring to perform the Services pursuant to this Agreement.
12.1 The Client agrees to comply with these terms and conditions and those contained in the Proposal (if any) and the Rate List.
12.2 The Client will not, at any time, store with Ewine Cellaring any narcotics, materials considered to be highly inflammable, explosive, toxic, radioactive, material which may attract vermin or insects, or any other materials which are otherwise illegal, stolen, dangerous and unsafe to store or handle in a closed areas.
12.3 Ewine Cellaring reserves the right to open and inspect any materials tendered from storage and refuse acceptance of any item stored which fail to comply with Ewine Cellaring’s storage restrictions and guidelines.
13.1 Ewine Cellaring will hold confidential all information obtained by it with respect to the Client’s records.
14.1 No waiver of any right or remedy shall be effective unless in writing and nevertheless shall not operate as a waiver of any other right or remedy on a future occasion. Every provision of these terms and conditions is intended to be severable. If any term or provision is illegal, invalid, or unenforceable there will be added automatically as a part of these terms and conditions a provision as similar in terms as necessary to render such provision legal, valid and enforceable.
14.2 The Parties’ liability for outstanding moneys, property damage, personal injury, environmental damage and legal responsibility under this agreement continues to run beyond the termination of this agreement.
14.3 This agreement is governed by the law of the State of Queensland and the parties submit to the exclusive jurisdiction of the Queensland courts and the appellant courts therefrom.
14.4 Nothing in these terms and conditions will be deemed or construed to constitute or create a partnership, association, joint venture, or agency between the parties to this agreement.
15.1 All notices under these terms and conditions must be in writing.
15.2 Unless delivered personally, all notices will be addressed to the appropriate addresses noted in this agreement or as otherwise noted in writing in accordance with this provision.
15.3 Notices are deemed to have been received as of the date of posting if mailed in accordance with these terms and conditions.
16. DISCLAIMER AND LIMITATION OF LIABILITY
16.1 The Trade Practices Act (Commonwealth) 1974 and similar state and territory legislation in Australia confers you with rights and remedies relating to the provision of goods or services to you by Ewine Cellaring which cannot be excluded, restricted or modified (your ‘Statutory Rights’). Ewine Cellaring excludes all conditions and warranties implied by custom, law or statute, save for your statutory rights.
16.2 To the extent permitted by law, including but not limited to any act or omission on the part of Ewine Cellaring, Ewine Cellaring will not be liable for any loss, damage, costs or expense whether direct, indirect, incidental, special and/or consequential, including loss of profits, suffered by you or claims made against you which result from any acts or omissions of Ewine Cellaring.
16.3 To the extent permitted by law, Ewine Cellaring’s liability for breach of any implied warranty or condition which cannot be excluded by the Terms and Conditions is limited, at the option of Ewine Cellaring, to one or more of the following:
In the case of services supplied or offered by Ewine Cellaring:
- the supply of the services again; or
the payment of the cost of having the services supplied again.
- In the case of goods supplied by or offered by Ewine Cellaring:
the replacement of the goods or the supply of equivalent goods; or
the repair of such goods; or
the payment of the costs of replacing the goods or acquiring equivalent goods; or
the payment of the costs of having the goods repaired.
17.1 Full payment of invoice is due on the due date.