1. DEFINITIONS AND INTERPRETATION in these conditions:
“Agreement” means this storage agreement, including any cover page containing your details and payment details, any schedules, and any other document or materials it specifies form part of it;
“AutoPay” means the automatic, recurring payment of Your Storage Fees which the Operator will charge Your nominated debit or credit card on Your Monthly Payment Date;
“Deposit Documents” means the receipts issued to You by the Operator for all of Your Goods deposited at the Premises;
“Direct Debit” means an automatic, recurring payment of Your Storage Fees which the Operator will charge Your nominated bank account on Your Monthly Payment Date.
“Initial Storage Date” means the date on which You first place Your Goods in storage at the Premises;
“Minimum Storage Period” means the period from your Initial Storage Date until the end of the calendar month during which your Initial Storage Date occurs.
“Monthly Payment Date” means the first day of each calendar month;
“Operator” means Wine Ark Pty Ltd (ACN 090 902 686 and ABN 52 090 902 686);
“Other Fee” means any other reasonable fees that the Operator determines it needs to impose to recover operational costs (both internal and external) including but not limited to cataloguing, re-packaging, receipt and dispatch, trading, delivery, pick-up charges;
“Premises” means the premises owned or controlled by the Operator, including the land, buildings, hardstand and any other structure on the land, at which Your Goods are located;
“Processing Fee” means a reasonable fee to cover administrative and other costs incurred by the Operator in processing a return direct debit or credit/debit card payment or a notice pursuant to a right under this Agreement;
“Rate Schedule” the rates published by the Operator from time to time available at https://www.wineark.com.au/rates/ which are subject to change.
“Storage Fees” means the Storage Fees payable in accordance with the relevant Rate Schedule at the time and as detailed in the invoice;
“Wine Ark Portal” means the online system which manages the storage of Your Goods
“You” and “Your” refers to the person (including a corporation or other entity such as a trust or trustee) named as the storer in the Agreement and their successors and assignees; and if there is more than one, it refers to each severally and any two or more jointly;
“Your Goods” means any wine item which You bring onto the Premises for storage which is accepted for storage.
This Agreement should be read in conjunction with the Wine Ark Marketplace Terms and Conditions available at https://www.wineark.com.au/wine-ark-marketplace-terms-and-conditions/.
2.1 (Storage) Subject to clause 2.2, the Operator permits you to store Your Goods at the Premises, in accordance with this Agreement, during the Minimum Storage Period and after then, on a month to month basis until terminated by either party in accordance with this Agreement or any further period agreed to in writing by the parties (“Storage Period”).
2.2 (Emergencies) It may be necessary for the Operator to take certain actions to respond to an emergency which may include opening and/or moving Your Goods. If it does so in the event of an emergency, the Operator may determine it needs to be done without notice to you. You will be advised of any emergency action taken.
2.3 (Re-develop the Premises) The Operator or owner of the Premises may determine that it wishes to re-develop the Premises. This may result in the need to move out or relocate Your Goods whilst this occurs. If this decision is made the Operator may require You to relocate Your Goods (and must if possible relocate You to a similar Space at the Premises or an alternate Premises operated by the Operator). If the Premises is not to be used for storage any longer or the redevelopment will take longer than 6 months, the Operator may terminate this Agreement on 1 months’ notice. You acknowledge that the actions that the Operator may take pursuant to this clause 2 are reasonable as part of the operation of a storage business and agree to the Operator being able to exercise these rights. You retain the right, however, if the Premises are being re-developed, and the alternative Premises is not suitable, to terminate immediately.
3. RISK AND RESPONSIBILITY FOR YOUR GOODS
(a) The Operator agrees to maintain a record of Your Goods held at the Premises (Your Cellar Record).
(b) Your Cellar Record will be available in your Wine Ark Portal.
(c) You release the Operator from any claim, action, damage, loss, liability, cost or expense for typographical, data entry or cataloguing errors made within Your Cellar Records and/or Deposit Documents.
(a) In order to maintain the Operator’s records, you acknowledge and agree that the Operator will affix a small QR barcode on the bottle of Your Goods (Barcoding).
(b) You expressly acknowledge and agree that the Operator is not liable for any changes or damage to Your Goods as a result of the Barcoding, except in circumstances where such action arises out of the negligence or wilful misconduct of the Operator.
3.3 (Your Warranties)
You warrant, represent and undertake that:
(a) Your Goods are fully, adequately and truly described on all Deposit Documents at the time of receipt;
(b) You are the owner of Your Goods or will otherwise lawfully be entitled to store Your Goods at the Premises;
(c) Your Goods will not be subject to any encumbrance or right of any third party which would or might prevent You storing them at the Premises on these conditions during any period of storage;
(d) all customs, duties and tax (“Taxes”) will be paid in full in relation to your Goods before they are deposited for storage at the Premises and the Operator shall not be liable for any failure to pay taxes in relation to Your Goods;
(e) Your Goods will not be or include illegal, dangerous, inflammable, corrosive, explosive, volatile, offensive or aerosol items (collectively “Dangerous Goods”);
(f) You will keep the Operator advised of Your current credit card details, postal
address, telephone and email address at all times;
(g) You indemnify the Operator against:
i. any claim, action, damage, loss, liability, cost or expense which the Operator incurs or is liable for in connection with any damage, loss, injury or death of any person caused or contributed to by You;
ii. any damage to the property of Operator or third parties caused or contributed to by You;
iii. any default by You under these conditions; and
iv. any breach by You of the warranties set out in this clause 3.3.
4.1 (Commencement of Payments) You agree that the Operator may charge Your nominated debit card, credit card or bank account to pay the Operator the first payment of the Storage Fee, on the Initial Storage Date.
4.2 (Storage Fee Payments) On or before each Monthly Payment Date (or as otherwise agreed in writing) You agree to pay the Operator in advance the Storage Fee (together with any Other Fees owing by you for that period) for storage between that Monthly Payment Date and the next following Monthly Payment Date, together with any Other Fee that may be applicable pursuant to this Agreement. If this Agreement is terminated (and You are not in default) any amount refundable to You will be paid in accordance with clause 8.5.
4.3 (Methods of Payments) Subject to clause 4.4, You must pay amounts payable to the Operator by AutoPay, Direct Debit or BPay. You acknowledge and agree that these payment methods are subject to the AutoPay Agreement and Direct Debit Services Agreement.
4.4 (Payment Indemnity) You acknowledge and agree that You are responsible for providing the Operator with the correct AutoPay or Direct Debit details and You indemnify the Operator from any claim for enforcement of this Agreement, including the sale or disposal of Your Goods, that arises due to Your failure to correctly provide the Operator with Your AutoPay or Direct Debit payment details.
4.5 (Processing Fee) If You fail to pay the Operator any amount when it is due under this Agreement or if any payment is dishonoured or cancelled, You acknowledge that the Operator incurs administrative and other expenses (both internal and external) as a result of your noncompliance with your obligations. These costs need to be recovered by the Operator as part of operating its business. You agree to pay the Operator (when You pay the overdue amount) the Processing Fee and any Other Fee that may apply pursuant to the terms of this Agreement applying to the period between the due date for payment and the date You actually pay, together with any associated telephone, postage and other costs related to collection of these amounts. You acknowledge that the actions that the Operator may take pursuant to this clause 4.5 are reasonable as part of the operation of a storage business and agree to the Operator being able to exercise these rights.
4.6 (Change in Fees) The Operator may increase the Storage Fee, Processing Fee or Other Fee by giving You 14 days’ prior notice, after the first month of storage.
4.7 (Part Payment) If You only pay part of an amount that You owe the Operator, it does not affect Your obligation to pay the balance of the amount to the Operator. Acceptance of a part payment will also not be a waiver of any kind of any other right the Operator may have under this Agreement.
4.8 (Failure to Pay) If You fail to pay your Storage Fees, or any Other Fees owing by you by the relevant due date, the Operator may suspend your access to your Wine Ark user portal and deal with your Goods in accordance with the terms of this Agreement.
5. ACCESS AND SECURITY
5.1 (Access Hours) Subject to clauses 5.2 and 5.3, You may attend the Premises during the access hours of the Premises (which can be found at the Premises or on the Operator’s website) or as otherwise notified by the Operator from time to time (“Access Hours”), however You shall have no right to enter the secure area of the Premises without the Operator’s consent and then only if in accordance with the access and security procedures of the Operator.
5.2 (Refusal of Access) The Operator may (without being obliged to do so) refuse You or any other person access to the Premises (including after this Agreement has been terminated) if: (a) You have not complied with any of Your obligations under this Agreement; or (b) You or any other person do not produce identification and/or evidence satisfactory to the Operator to show You or the other person are entitled to access. Once any issue contemplated by this clause is remedied, You will be granted access again subject to the Operator’s office hours.
5.3 (Obligations During Refusal of Access) If You have been refused access to the Premises due to Your default under this Agreement, Your obligations under this Agreement (including payment of the Storage Fees to the Operator) continue until termination of this Agreement (note this is subject to clause 11.7 relating to continuing obligations), even though You may not have access to the Premises, for all or part of the Storage Period. This is because the Operator cannot otherwise utilise the space whilst Your Goods are still in it or You still have possession of It during any period where the Operator may be providing You with the opportunity to remedy the default.
5.4 (Access by the Operator) The Operator may (without being obliged to do so) access or inspect Your Goods at any time. If Your access is interrupted pursuant to this clause, it will be restored, if it can be, and as soon as possible.
5.5 (Operator May View Your Goods with Camera) You agree that the Operator may at its discretion and without notice to You use a microprobe, CCTV camera or other viewing device to view the Premises and any footage obtained which evidences a breach of the Agreement or the law may be relied upon by the Operator to take any action authorised under this Agreement, including terminating this Agreement and/or cooperating with law enforcement agencies and other authorities without notice to You. The Operator may use photographs or videos of Your Goods in any media or advertisements but will not show any personal information or identifying features of Your Goods.
5.6 (Alarm Fee) If You or someone gaining access as authorised by You trigger an alarm then you will incur a fee to cover the Operator’s costs associated with dealing with an alarm.
5.7 (Reasonableness) You acknowledge that the actions that the Operator may take pursuant to this clause 5 are reasonable as part of the operation of a storage business and in particular to allow the Operator to take the steps necessary in the circumstances contemplated by clause 5 and You agree to the Operator being able to exercise these rights.
5.8 (Delivery of Goods)
(a) The Operator is not a common carrier and in the exercise of its absolute discretion, may at any time refuse the transport or carriage of Your Goods for any person or the transport or carriage of any class of Your Goods.
(b) Despite any specific instructions given by You as to the mode of carriage of goods, in the exercise of its absolute discretion the Operator may carry Goods by any means or have them carried by subcontractors by any means.
(c) Delivery charges shall be considered earned whether or not Your Goods are delivered to the nominated consignee, whether damaged or otherwise.
(d) You acknowledge that Your Goods may only be delivered:
i. to You or another adult person who, at Your delivery address, undertakes to accept the delivery on behalf of You (Adult Alternate); and
ii. where You or Your Adult Alternate provides appropriate photo identification which confirms you are 18 years or older.
i. a consignee named in Your delivery instructions is not in attendance at the address specified; or
ii. the Operator (or its representative) arrives to effect delivery at a consignee’s premises and for any reason outside the Operator’s control the Operator is delayed in effecting prompt delivery,
the Operator will be entitled to charge You an additional charge for additional costs incurred in attempting to effect delivery.
(f) Please refer to clause 7.4 regarding the Operator’s limitation on liability.
5.9 (Collection of Goods) You may only collect Your Goods provided all of the following conditions are satisfied:
(a) You attend the Premises during the Access Hours;
(b) if You attend in person and provide appropriate photo identification which demonstrates you are over 18 years of age (or if you otherwise provide a written authority for someone else to collect Your Goods on your behalf (Nominated Person) and the Nominated Person provides appropriate photo identification confirming their identity and that they are over 18 years of age.
5.10 (Security and Inspection of Goods)
(a) Subject to these conditions and to any reasonable express or implied instructions by You to the contrary, all cases deposited at the Premises may be opened and Your Goods checked by the Operator for their suitability of storage.
(b) Despite anything contained in the preceding condition, where circumstances require, in the exercise of its absolute discretion, the Operator shall be entitled to open any sealed case in which Your Goods are placed and peruse any document accompanying or associated with Your Goods to determine the nature, condition or ownership of the Your Goods.
5.11 (Dangerous and Repacking of Goods)
(a) If in the Operator’s reasonable opinion Your Goods are or become Dangerous goods, the Operator may at any time destroy, dispose of or abandon the Goods without liability or compensation to You and without prejudice to the Operator’s right to any charges under these conditions. This includes, but is not limited to, Goods that have not been safely packaged, faulty corkage and/or closures that are at risk of failing. Where there is no risk to person or property, the Operator will endeavour to give you two (2) days’ notice prior to destroying the goods.
(b) If cartons are damaged or otherwise require replacement from time to time, the Operator may, in its absolute discretion, repackage Your Goods in new Cartons at Your reasonable expense.
(c) If the Operator considers necessary, then the Operator may, at their absolute reasonable discretion, remove your Goods from their original packaging and repackage Your Goods into new packaging. The Operator may elect to repackage your goods for reasons including but not limited to customer and staff safety or to provide you with collection efficiencies. You agree that the original packaging may be discarded without further notice to you and you are not entitled to any compensation for discarded packaging or any reduction in value of your wine as a result of your Goods being removed from their original packaging.
6. YOUR RIGHTS AND OBLIGATIONS
6.1 (Prohibited Goods) To prevent harm or damage, Your Goods must not include any item listed in the prohibited goods list displayed by the Operator from time to time on its website or at the Premises or any animal or any thing which is hazardous, illegal, stolen, inflammable (excluding alcoholic beverages), explosive, environmentally harmful, perishable or which in the reasonable opinion of the Operator may cause harm to any person, property or the environment. You must ensure Your Goods are free of food scraps (or other perishable substances) and are not damp when placed into storage.
6.2 (Repair and Responsibility for Invitees) You must immediately notify the Operator of any damage You or any person authorised by You (including at your request, direction, or as facilitated by You, including by the provision of gate key code or swipe cards) cause to the Premises and You are responsible for such damage and must reimburse the Operator on demand for the cost to the Operator of making good the damage. You acknowledge that You are permitted to store Your Goods at the Premises run/owned by the Operator and that it is reasonable for you to be accountable for persons You bring onto, or authorise to enter, the Premises on Your behalf.
(a) The Operator shall maintain an industrial special risks insurance policy in respect to the Goods stored in the Premises and a summary of that insurance policy can be found at https://www.wineark.com.au/insurance-faq/.
(b) Unless otherwise agreed in writing, all of Your Goods stored within the Premises will be automatically included under this policy.
(c) Your Goods are not insured unless all storage and other fees owing by you pursuant to this Agreement have been paid in full by their due date.
(d) If You elect to arrange Your own insurance, You must provide the Operator with written confirmation of this and a current certificate of currency on request.
(e) All insurance claims are subject to the basis of settlement & sub-limits as agreed between the Operator and Insurer.
6.4 (Wine Ark Marketplace) By entering into this Agreement you are entitled to buy and sell wine on the Wine Ark Marketplace and in doing so, you accept and agree to be bound by the terms and conditions of Wine Ark Marketplace available at https://www.wineark.com.au/wine-ark-marketplace-terms-and-conditions.
6.5 (Nuisance) You must not cause any inconvenience or nuisance to any other person using the Premises.
6.6 (Compliance with Laws) You must, at your cost, comply with all laws applying to Your Goods or the storage of Your Goods at the Premises.
6.7 (Change in Details) You must immediately update Your contact details or those of any Emergency Contact Person in the Your account portal on the Operator’s website or by notifying the Operator in writing. You acknowledge that this is important as it is necessary for the Operator to have current contact details for the purposes of numerous parts of this Agreement.
6.8 (Communication and Dealing with Emergency Contact Person) If you provide the details of an Emergency Contact Person to the Operator, you grant the Operator the right to discuss Your Goods with the Emergency Contact Person in case of an emergency or for the purpose of exercising the Operator’s rights under this Agreement including but not limited to clause 9.
7. LIABILITY, RELEASE AND INDEMNITY
7.1 (You Release and Indemnify the Operator) Except in circumstances where such action arises out of the negligence or wilful misconduct of the Operator, You (for all time and despite any earlier termination of this Agreement): (a) release the Operator (and its employees, contractors and agents) from; and (b) indemnify the Operator (and its employees, contractors and agents) against, any costs, expenses, loss, damages, claims, action or liability, to the extent it is arising(including whether in contract, tort under statute or otherwise) from or in connection with, (i) loss of or damage to Your Goods; (ii) the Operator either refusing You access to the Premises or terminating this Agreement in accordance with this Agreement; or (iii) loss of or damage to any property (including the Operator’s property) or death of or injury to any person caused or contributed to by: (a) Your Goods; (b) You or any person accessing the Premises with Your authority or consent; (c) The Operator or any of its contractors, agents, or employees in exercising any other right or power pursuant to this Agreement.
7.2 (Liability) To the extent that your actions or omissions in relation to Your storage or Your failure to comply with this Agreement cause any damage, expense, loss, liability (“Loss”) to the Operator or any other party, you agree and acknowledge that You are liable for such Loss and that the Operator may recover such Loss incurred by it from You.
7.3 (Assistance to Regulators, Agencies or Court Order) You acknowledge that the Operator may from time to time be required by the operation of law (including the common law, statute or the rules of a securities exchange), or court order to discuss, assist an investigation or action, or provide information relating to You or Your Goods (this may include the provision of copies of or lists of items You have in the Premises, this Agreement or other documents or records relating to Your Goods or use of the Premises and any other matters contemplated by this sub-clause) to a regulator, statutory agency, court, government department or other entity duly authorised by law to make such a request. You further acknowledge and agree that any such assistance that the Operator provides pursuant to this clause is reasonable and that the Operator may provide such assistance and is released and indemnified by You for any liability, expense, claim or loss incurred by You or any other person, that may arise as a result of the provision of such assistance.
7.4 (Limitation of Liability)
(a) The Operator shall not be liable for any loss or damage to Your Goods arising out of the Operator’s packing, storage or handling, whether in transit or otherwise.
(b) To the full extent allowed by law, the Operator shall not be liable in any way to any person for and is expressly released by Your from any liability for:
i. any loss, deterioration, contamination or evaporation of or any damage to Your Goods while in the Operator’s possession or control;
ii. any failure to deliver Your Goods at a time or to a place specified by You; and
iii. any consequential loss suffered by any person arising out of the matters referred to in paragraphs (i) and (ii) even if the alleged liability arises out of the Operator’s negligence or any breach of contract by the Operator.
(c) To the full extent allowed by Australian Consumer Law, any conditions or warranties which are imposed or implied by any Law in relation to the storage or carriage of Your Goods which are adverse to the Operator are hereby excluded. To be clear, nothing in this clause limits Your consumer guarantee rights under Australian Consumer Law.
(d) If it is determined that the Operator is liable to You, the Operator’s liability is capped at the amount which is the greater of (a) the Storage Fees paid by You under this Agreement within 6 months of the date of the event giving rise to the liability; and (b)$10,000. For the avoidance of doubt, nothing in this clause limits the liability of the Operator in circumstances of negligence or wilful misconduct.
8.1 (Termination by Notice) Either You or the Operator may terminate this Agreement at any time after the Minimum Storage Period by giving not less than 7 days’ written notice to the other.
8.2 (Termination on Default) If You fail to comply with any of Your obligations under this Agreement after the Operator gives You not less than 7 days’ notice requiring You to comply, this Agreement will be immediately terminated on the expiry of the 7 days’ notice and the Operator may, without further notice, enter and take possession of and deal with Your Goods as Abandoned Goods under clause 9.2.
8.3 (Summary Termination) In the event that any of Your activities or storage of Your Goods, is considered by the Operator to be illegal or environmentally harmful or otherwise harmful to other persons, the Operator may terminate the Agreement without Notice.
8.4 (Your Obligation on Termination) On termination of this Agreement, You must immediately: (a) (Pay all Fees) pay to the Operator any amounts which You owe to the Operator and if the Operator terminates this Agreement under clause 8.2 or 8.3, also the amount of 2 weeks Storage Fees payable under this Agreement (this amount represents an agreed amount between You and the Operator to recompense the Operator for income it is unable to earn for a period, due to Your default, by utilising Your storage space to another person and You acknowledge that it is fair and reasonable); (b) (Removal of Goods) remove Your Goods from the Premises.
8.5 (Refund of Advance Payments) Upon Your request, following termination the Operator shall refund to You the amount of any Storage Fees paid by You in advance for future whole months not yet expired, less any other bona fide amounts the Operator is entitled to claim from You. If you are entitled to a refund, payment will be made within 10 Business Days of You completing Your refund request (including the provision of all required bank account details).
8.6 (Damage or Destruction) If the Premises are destroyed or damaged from any cause other than by Your act or default so as to render the Premises unfit for storage of Your Goods, the Operator or You may at any time give notice in writing terminating this Agreement and thereupon this Agreement shall be deemed to have terminated at the date of the destruction or damage.
9. ABANDONED GOODS
9.1 (Abandonment of Goods) If at any time You fail to: (a) pay the Operator any amount due and owing to it by You; or (b) remove Your Goods when required under this Agreement, and You do not rectify either (a) or (b) within 7 days after the Operator gives You written notice requiring you to remedy that failure, Your Goods will be taken to be “Abandoned Goods” for the purposes of this clause 9. You expressly acknowledge and agree that it is reasonable for the Operator to take the steps set out in this sub-clause as part of the operation of a storage Premises and You agree to the Operator being able to exercise these rights.
9.2 (Dealing with Abandoned Goods) In the event that Your Goods become, by operation of the provisions of this Agreement, Abandoned Goods for the purposes of this Agreement, You acknowledge that it is not reasonable for Your Goods to remain in at the Premises and that the Operator will by necessity need to deal with them. Accordingly, You agree: (a) The Operator may without being obliged to do so arrange (i) alternative storage of; or (ii) the sale of, any or all of Your Abandoned Goods, on such terms as the Operator decides are reasonable; (b) You acknowledge that the Operator will incur costs (both internal and external) in having to deal with the Abandoned Goods and that it is fair for You to and You agree to pay the reasonable costs of and indemnify the Operator for all costs, expenses, damages, claims, action or liability whatever arising from or in connection with the Operator exercising its rights under paragraph (a); (c) The Operator shall pay You the amount received by it from the sale of Your Abandoned Goods less any amounts You owe the Operator as quickly as possible but no later than within 30 days after the Operator receives the amount.
9.3 (Grant of Lien Over Goods) The Operator claims and You grant a contractual lien over Your Goods in the event any moneys are owing under the Agreement. For the purposes of the Personal Property Securities Act 2009, the Operator is deemed to be in possession of the You Goods from the moment the Operator accesses Your Goods at the Premises. You consent to and authorise the sale or disposal of all goods regardless of their nature or value.
10.1 (Service of Notices) Where you have consented to receiving notice by email, all notices required under this Agreement will be emailed to you. Alternatively, notice will usually be given in writing and emailed to, SMS’d, or posted to, the address you have provided to the Operator. In the event of not being able to contact You, notice is deemed to have been given to You by the Operator if it has sent notices to the last notified address of You.
10.2 (Deemed Notice) Any notice given under this Agreement is deemed to have been given the day it is emailed or SMS’d or the day after the notice has been delivered or posted.
11. GENERAL PROVISIONS
11.1 (Assignment) You must not assign, sub-licence or otherwise deal with Your rights or obligations under this Agreement without the written consent of the Operator.
11.2 (Applicable Law) The law of the State, Territory or Region of Australia or New Zealand within which the Premises at which Your Goods are stored is located, applies to this Agreement.
11.3 (Variations) Any variation of this Agreement is only effective if it is in writing and signed (physically or electronically) by all parties. No oral statement made by either party shall form part of this Agreement.
11.4 (Waivers) A party shall not be taken to have waived a right under or in connection with this Agreement unless the party expressly does so in writing. A waiver of any right or obligation at any time shall not be taken as a waiver of the right when it arises at any other time or a waiver of any other right.
11.5 (Stamp Duty & GST) You must on demand pay and indemnify the Operator for any stamp duty, goods and services tax or similar tax or liability imposed in connection with this Agreement or any supply under it.
11.6 (Severance) If any provision of this Agreement is legally unenforceable or made inapplicable, it shall be severed or read down, but so as to maintain (as far as possible) all other terms of this Agreement.
11.7 (Continuing Liability) Your liability for outstanding money, property damage, personal injury, environmental damage and legal responsibility under this Agreement continues to run beyond the termination of this Agreement.
11.9 (Cost) You are responsible for any reasonable costs incurred by the Operator in enforcing this Agreement in any way.
11.10 (Dispute Resolution) The parties must endeavour to settle any dispute with one another before either party institutes any proceedings of any kind against the other.