Definitions

In these conditions of storage, the following definitions shall apply:

“Proprietor” means Brooklyn Cold Storage Pty Ltd (ACN 214 733 236), including its agents, employees and subcontractors;

“Bailor” means a person or corporation with whom the Proprietor contracts to provide services;

“Goods” means the goods accepted from the Bailor together with any containers, packaging or pallets supplied by or on behalf of the Bailor and used in the storage of those goods;

“Services” means and include the whole of the operations and services undertaken by the Proprietor in connection with the Goods including but not limited to the storage of the Goods;

1. The Proprietor reserves the right to accept or refuse the storage or custody of any Goods or any class of Goods for any person at its sole discretion without giving any reason for doing so. All Goods stored or other Services performed shall be subject only to these conditions.

2a. The Bailor warrants that in agreeing to these terms and conditions it is the owner or has the authority of the person or persons owning any interest in the Goods or part of the Goods to agree to these conditions of storage.

2b. Without limiting the generality of these conditions of storage the Bailor undertakes to indemnify the Proprietor in respect of any liability arising in connection with the Goods and/or Services to any person who claims to have or has or will have an interest in the Goods or any part of the Goods. This indemnity will operate even when the Proprietor’s liability arises from a fundamental breach of contract.

3a. The Bailor or its authorised agents shall not tender for storage any explosive, inflammable or otherwise dangerous or damaging goods (including radioactive materials) and shall be liable for all loss and damage caused thereby.

3b. The Bailor warrants that it has complied with all laws and regulations relating to the nature, packaging and/or labelling of the Goods and that the Goods are packed in a manner to withstand the ordinary risks of storage of Goods of that kind, and indemnifies the Proprietor for any liability arising from failure to comply with these warranties.

4. Every exemption from liability, defence or immunity applicable to the Proprietor or to which the Proprietor is entitled shall extend to protect any other person who provides Services under these conditions of storage on behalf of the Proprietor, or any persons vicariously liable for such persons.

5a. At all times the Goods are at the risk of the Bailor and the Proprietor shall be under no liability in respect of the Goods or any part of the Goods to the Bailor or the owner or to any other person.

5b. Without restricting the generality of sub-clause (a) the Proprietor shall not be liable in tort or contract or otherwise for any consequential loss or damage howsoever arising and of whatever nature suffered or incurred directly or indirectly by the Bailor, including but not limited to personal injury or injury to property, incorrect description, Acts of God, failure or breakdown of power supplies, delay or loss of any nature arising out of or incidental to storage of the Goods or out of any Services ancillary to that storage, or which may occur at any time after the Goods have been delivered to the Proprietor whether or not due to or alleged to be due to misconduct or negligence on the part of the Proprietor and whether or not the Proprietor has been advised of the possibility of such loss. Should the Proprietor determine at any time it is unable to provide Services the contract may be cancelled by the Proprietor. In the event of cancellation the Bailor will have no claim against the Proprietor for any damage, loss, cost or expense whatsoever.

6a. The Proprietor shall not effect insurance of the Goods for the benefit of the Bailor.

6b. Without limiting sub-clause (a) the Proprietor shall not be liable to the Bailor for any failure for any reason of the Bailor or owner of the Goods to obtain indemnity or other benefit under any policy of insurance.

7. By entering into these conditions of storage the Bailor accepts these conditions for all other persons on whose behalf the Bailor is acting.

8. It is agreed that any person delivering any Goods to the Proprietor for storage for or on behalf of the Bailor is authorised to do so subject to these conditions of storage and is authorised to sign this warehouse receipt and invoice for the Bailor.

9. The Proprietor may deliver the Goods to any person producing such evidence of ownership or authority or entitlement to receive the Goods as the Proprietor or its servants or agents considers satisfactory. The Proprietor may retain the Goods until so satisfied but will not be liable for any loss or damage to the Goods which arises as a consequence of delivering the Goods to some person who produces the original or counterpart warehouse receipt and invoice as authority to take possession of the Goods.

10. If any person fails to pay charges and interest due to the Proprietor within 21 days of the account being rendered by the Proprietor in accordance with these conditions of storage the Proprietor shall have a general lien upon the Goods, and may detain and sell all or any of the Goods of such person which are in its possession and out of the money arising from the sale, retain the charges and interest so payable and all the charges and expenses of the detention and the sale and shall render the surplus, if any, of the monies arising from the sale and such of the Goods as remain unsold to the Bailor. The Bailor shall account to any person who is the owner of the Goods (if not the Bailor) for such surplus from the sale and shall indemnify the Proprietor against all claims which may be made arising from such sale. The Proprietor shall have a lien on any documents relating to such Goods.

11. Notwithstanding any other provision in these conditions of storage the Proprietor shall in any event be discharged from any liability in connection with the Goods or part of the Goods unless a suit is brought within six months after the Goods have been collected or would have in the ordinary course of business been collected and Goods remaining in the possession of the Proprietor shall be subject to storage charges in accordance with these conditions of storage.

12. No employee or agent of the Proprietor has the power to waive or vary any part of these conditions of storage unless such waiver or variation is in writing and signed by a director of the Proprietor.

13. If any provision or part of a provision of these conditions of storage is held by a court of law to be invalid or unenforceable, the remainder of that part or provision of these conditions shall to the fullest extent possible continue to be binding and of full force and effect.

14. These conditions of storage shall be governed and construed by the laws of the State of Victoria and the Commonwealth of Australia wherever the contract was made and any proceeding in respect of any matter or thing against the Proprietor shall be instituted or carried on in the State of Victoria only.

15. Notwithstanding any other provision of these conditions of storage it is subject to the Trade Practices Act 1974 as amended and to the extent that this act implies a warranty into these conditions of storage and prevents the exclusion, restriction or modification of any term or warranty. The implied terms shall be deemed to be included in these conditions of storage but the Proprietor’s liability for breach of these conditions of storage shall be limited at the option of the Proprietor to one or more of the following as permitted by section 68A(1) of the Trade Practices Act 1974 (Cth); if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.