Contract for Removal and Storage
Terms & Conditions of Removal
1. Definitions
In these conditions "We" means Fragile Removals Vic Pty Ltd., ACN 123 182 034, ABN 11 984 218 098 and "US" and "OUR" have corresponding meanings;
"You" means the party entering into the agreement for Services with Us, and includes the party to whom Our quotation is addressed and the party by whom the acceptance is signed, and "Your" has corresponding meaning;
"Goods" means all furniture and other affects which are to be the subject of the Services;
"Services" means the whole of the work to be undertaken by Us in connection with the Goods including removal and (if applicable) storage;
"Subcontractor" means any person other than one of Our employees who, under any agreement or arrangement with Us (whether directly or indirectly) performs or agrees to perform the whole or any part of the Services;
1.1 Words in the singular include the plural, and words in one or more genders includes all genders.
2. We are not Common Carriers.
WE ARE NOT COMMON CARRIERS AND ACCEPT NO LIABILITY AS SUCH. We reserve the right to refuse to quote for the carriage of goods for any particular person and for carriage of any goods or classes of goods at Our discretion.
3. Your Obligations and Warranties
3.1 Information supplied by You. We have relied upon information supplied by You. You warrant that the information that You have provided Us is correct.
3.2 Customer responsible to pay: (a) the Removal and/or storage Fee being the amount indicated in this Agreement or the amount notified to the Customer in writing by the Owner. The Removal Fees are due upon completion of the removal unless agreed otherwise in writing by the Owner. And it is the Customer's responsibility to see that payment is made directly to the Owner, on time, in full. The Owner does not normally bill for fees. (b) a late payment fee of $5 a day, which becomes payable each time a payment is late by more than 5 business days. (c) any costs incurred by the Owner in collecting late or unpaid Removal and/or Storage Fees and any other fees, or in enforcing this Agreement in any way, including but not limited to legal, postal, telephone, debt collection including the Fees and charges of the debt collection agency or company used by the owner and/or the default action costs.
3.3 Presence at Loading/Unloading. It is agreed that no inventory of the goods being moved and/or stored will be taken. The pre-existing condition of any goods will be verbally agreed upon. In order to agree on these arrangements, You will ensure that You or Your appointed adult representative is present at all times during loading and unloading, in all situations. Where You or Your representative leave, for any amount of time, we will not repair, or compensate You for any damage.
3.4 Fragile Goods. You will provide written notice of goods prior to the commencement of the removal or storage which are of a fragile or brittle nature and which are not readily apparent as such and any special precautions that should be taken when carrying those goods that we cannot reasonably be expected to be aware of.
3.5 Valuable Items. You will provide written notice of items which comprise jewellery, precious objects, works of art, money, collections of items or precision equipment, and all items valued in excess of $3000, prior to the commencement of the removal or storage.
3.6 Goods Left Behind or Moved in Error. It is Your responsibility to ensure, that all Goods to be removed (other than Goods being removed from store) or stored are uplifted by Us and that none is taken in error.
3.7 Acceptance of Goods. At the completion of the move, You or Your authorised representative will be asked to record on the face of this document (in the space provided) any damage to Goods or property. If You or Your authorised representative refuse to sign the record, this refusal will be taken to be a waiver of any right to claim for loss or damage.4. Method of Carriage and Subcontractors
4.1 Mode of Carriage. We shall be entitled to carry the Goods by any reasonable route, (having regard to all the circumstances including the nature and destination of any Goods being carried on the vehicle) and by any reasonable means.
4.2 Subcontractors. We may use a Subcontractor or Subcontractors to undertake the whole or any part of the Services, but if We do so, We will continue to be responsible to You for the performance of the Services. 4.3 Liability of Subcontractors and Employees. Any provisions in these conditions which limit Our liability also apply to Our Subcontractors and to Our employees and to the employees of Our Subcontractors. For the purposes of this subclause, We are or are deemed to be acting as agent or trustee on behalf of each of the persons referred to, and each of them shall to that extent be deemed to be parties to this agreement.
5. Delivery
5.1 We shall not be bound to deliver the Goods except to You or a person authorised by You to receive the Goods. If we cannot deliver the Goods either because there is no authorised person there to receive them on Our arrival or because We cannot gain access to the premises, or for any other reason beyond our control, We will be entitled to unload the Goods into a warehouse, and will be entitled to charge an additional amount for storage and for the subsequent re-delivery of the Goods. If this happens, We will endeavour to contact You to ascertain whether You have alternate instructions.
6. Charges and Payments
6.1 Variation of Work Required and Delay. If the work You ultimately require Us to do varies from the work for which a quotation or estimate has been given, or if We are prevented from or delayed in undertaking the Services of any part therefore (except where that prevention or delay results from a factor within Our control), We will also be entitled to make a reasonable additional charge. We will also be entitled to reimbursement from You of any amount which We have been required to pay a third party (other than a Subcontractor) to obtain or effect delivery of the Goods.
6.2 Delay. Delays due to traffic conditions, road repairs, selection of route and the like and vehicle break-down are inherent in the furniture removal industry. We will not be liable for any loss or damage or consequential loss as a result of our being delayed for any reason other than factors within Our control.
6.3 Alteration of Dates. If a date for performance by Us of any Services is agreed upon, and You require that date to be altered, or the Goods are not available on that date, We will be entitled to make a reasonable additional charge for any loss or additional expense occasioned by such alteration or unavailability.
7.4
Lien On Goods Until Payment Is Received. All goods being moved or stored shall be subject to a general lien for any outstanding monies owed by You. Should circumstances arise that make it reasonable to conclude that You are unwilling or unable to pay any due charges in the required form or at the required place or time, We reserve the right to retain or refuse delivery of any Goods or to re-enter Your premises and seize some or all of the goods delivered. Where payment is not received within 14 days, We reserve the right to dispose of the Goods in lieu of payment.
8. Exclusions. We will not be liable for any loss or damage, nor any delay which results from any cause beyond Our control.
8.1 Damage to Goods - Packaging. If the Goods sustain damage by reason of defective or inadequate packing or unpacking, and the packing or unpacking (as the case may be) was not undertaken by Us or a Subcontractor, We will not be liable.
8.2 Damage to Goods - Inherent Risk. Certain goods (including but not limited to, electrical and mechanical appliances, computer equipment, scientific instruments, certain musical instruments and furniture made of pressed wood) are inherently susceptible to suffer damage or disorder being moved no matter how carefully they are handled. We will not be liable in respect of these items.
9. Loss or Damage
9.1 Must Report Any Damage Before Completion. As the existing condition of the Goods are subject to verbal agreement, You must inspect all the Goods as they are unloaded and/or relocated AND any damage considered to have been caused by Us must be listed on the front of this document. No claims will be accepted for any damage discovered after We have left the move, except where We have pre-packed Your small items into boxes. Where this is the case, any damage to any items contained in the boxes packed by Us, must be reported to Us within 48 hours of the completion of Our Services. Further, where such damage is discovered the broken goods are to be left as found and no further unpacking of the relevant container is to occur and We are to be immediately contacted on 1300 857 696 24 hours.
9.2 Our Damage Only. Where You or a person with Your agreement participate/s in the move, We are not liable for any damage not caused by Us. We will only be liable for loss or damage resulting from Our negligence, and in any event that liability will be limited to $1000 per item.
9.3 Option to Compensate. In lieu of repairing Goods We have the option to compensate You to the value of the damaged Goods prior to the damage occurring. If that value cannot be agreed on between Us it shall be assessed by a licensed auctioneer independent valuer chosen between Us and, if We cannot agree, chosen by the President for the time being of the Law Institute of Victoria (or any replacement body). The costs of the valuer shall be borne equally.
9.4 You will bear the first $150 of any claim made.
9.5 Repair Damage. We will repair damaged Goods to as near the condition prior to the damage occurring and these repairs will be arranged by Us. No responsibility is accepted for any other losses whatsoever including any consequential loss or loss of value as a result of the repairs.
9.6 Vehicle Damaged. In the event that damage to goods arises from the transport vehicle being damaged by fire, flood, collision or overturning and We are compensated by Our insurer for the damage to Your Goods, You will be compensated, but only to the extent We are paid compensation by Our insurer for Your Goods.
10.
Sets. Where an item is part of a pair, set, suite or collection of items, repair or compensation will only be extended to the proportionate part of the pair, set, suite or collection of items, regardless of any special value the damaged or lost part may have as part of such a pair, set, suite or collection of items.
11.
Meal or Rest Break. Where the duration of a move exceeds 5 hours, We will be entitled to a 30 minute meal or rest break, for which no deduction will be made in calculating the duration of the move.
12.
Trade Practices Act. The promise to repair (or compensate) provided by Us, is in addition to any rights that You may also have arising from the Trade Practices Act or similar legislation. Those additional rights remain to the extent that they cannot be excluded. To the extent that they can be excluded they are. Where they cannot be excluded then such rights and any remedies arising therefrom are modified to the extent permitted by law.
13.
The law which governs this agreement will be the law of the State of Victoria.
Terms & Conditions of Storage
IN THIS AGREEMENT THE FOLLOWING DEFINITIONS APPLY: Owner: Fragile Removals & Storage Pty Ltd of 32 Buckland St Clayton Vic 3162 – ABN 11984218098 Storer, You: The person named as the customer in this Agreement.
Space:The area which the Owner allocates for the Storer for the storage of its goods, and/or the Boxes specified on the Agreement, and any further Boxes allocated to the Owner from time to time.
The Owner may change the Space allocated to the Storer from time to time, and may even relocate the Space to another address. Box, Boxes: A box allocated to the Storer for the storage of its goods. Initial Fixed Period: The minimum period of time that the Storer will store his goods.
Access Fee:The amount that the Owner charges for access to the Storer’s goods during the term of the agreement. Late Payment Fee: A fee the owner charges the storer for any moneys being paid after the due date.
Cleaning Fee: The amount that the Storer charges (if any) for cleaning of any Boxes or Space. Deposit:The amount that the Storer must provide to the Owner which is to be applied against the Storage Fees. Security Bond:The amount the Storer requires as a security against unpaid fees and charges.
1. The Storer:
(a) Will be allocated Space to store goods by the Owner;
(b) Is deemed to have knowledge of the Goods in the Space;
(c) warrants that they are the owner of the Goods in the Space, and/or are entitled by law to deal with them in accordance with all aspects of this Agreement.
2. The Owner:
(a) does not have and will not be deemed to have, knowledge of the Goods;
(b) is not a bailee nor a warehouseman of the Goods and the Storer acknowledges that the Owner does not take possession of the Goods. COST:
3. The Storer must upon signing the Agreement pay to the Owner:
(a) the Deposit (which will be deducted from Storage Fee owing, and any surplus will be refunded by cheque within 30 days of termination of this Agreement), and/or
(b) the Administration Fee.
4. The Storer is responsible to pay:
(a) the Storage Fee being the amount indicated in this Agreement or the amount notified to the Storer in writing by the Owner from time to time. The Storage Fee is payable in advance and it is the Storer's responsibility to see that payment is made directly to the Owner, on time, in full, throughout the period of storage. The Owner does not normally bill for fees.
b) a late payment fee, as indicated on the front of this Agreement, which becomes payable each time a payment is late by more than 5 business days.
(c) any costs incurred by the Owner in collecting late or unpaid Storage Fees and any other fees, or in enforcing this Agreement in any way, including but not limited to legal, postal, telephone, debt collection, and/or the default action costs.
5.
The Storer will be responsible for payment of any government taxes or charges (including any goods and service tax) being levied on this Agreement, or any supplies pursuant to this Agreement. DEFAULT:
6.
Notwithstanding clause 23, the Storer acknowledges that, in the event of the Storage Fee, or any other moneys owing under this Agreement, not being paid in full within 42 days of the due date, the Owner may, without further notice, enter the Space, by force or otherwise, retain the Deposit and/or sell or dispose of any Goods in the Space on such terms that the Owner may determine, and apply the net proceeds against any amount owing to the Owner. The Owner may also require payment of default action costs, including any costs associated with accessing the Storer’s Space and disposal or sale of the Storer’s Goods. Any excess moneys recovered by the Owner on disposal will be returned to the Storer. ACCESS AND CONDITIONS:
7.
In general the Owner does not permit any individuals that are not employed by him to enter the warehouse premises. In the event the Owner does grant You such permission only You and persons authorised in writing or accompanied by You will be allowed to enter the warehouse. You are responsible for the actions of anyone that You authorise to have access to your goods. You may withdraw any authorisation at any time but the withdrawal will not be effective until we receive it in writing. We may ask for proof of identity from You or any other person at any time (although we are not obliged to do so) and we may refuse access to any person (including You) who is unable to provide satisfactory proof of identity. We may refuse You access at any time if we consider in our reasonable discretion that the safety of any person on the facility is compromised.
8.
(a) Only Personnel authorised by the Owner are permitted to deposit or extract goods from warehouse, no other carriers will be permitted to enter the facility without the Owners authorisation. (b) If the Storer wishes to extract goods from the warehouse or add goods to his allocated Space the Storer will need to notify the Owner in advance and have an Owner’s staff member assist the Storer in entering or extracting goods. An additional charge will be made for such actions.
9. The Storer:
(a) must not store any Goods that are hazardous, illegal, stolen, inflammable, explosive, environmentally harmful, perishable or that are a risk to the property of any person;
(b) must not store items which are irreplaceable, such as currency, jewellery, furs, deeds, paintings, curios, works of art and items of personal sentimental value;
(c) will use the Space solely for the purpose of storage and shall not carry on any business or other activity in the Space;
(d) in the event of uncleanliness of or damage to the Space or Facility the Owner will be entitled to retain the Storer’s Security Deposit, and charge a cleaning fee, and/or full reimbursement from the Storer to the value of the repairs and cleaning required.
(e) cannot assign this Agreement;
(f) must give Notice to the Owner in writing of the change of address of the Storer or the Alternate Contact Person within 48 hours of any change;
(g) grants the Owner entitlement to discuss any default by the Storer with the Alternate Contact Person recorded on the front of this Agreement.
10. The storer:
(a) must declare on the front of this Agreement the total value of all the Goods;
(b) declares that the total value of the Goods stored in the Space will not exceed that value unless You have agreed to this in writing with Owner.
11.
The Owner may refuse access to the Space by the Storer where monies are owing by the Storer to the Owner, whether or not a formal demand for payment of such moneys has been made.
12.
The Owner reserves the right to relocate the Storer to another Space, and at another address.
13.
In certain cases the Owner may not be able to release the contents of the Space, or carry out some other obligations because of something that is outside the Owner’s reasonable control. This could include any natural disaster, riot, strike or lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, electrical power failure, act of terrorism or environmental or health emergency or hazard, or arrest or seizure or confiscation of Goods by competent authorities. Iif this happens the owner will not be responsible for failing to allow access to your goods as long as the event continues for failing to allow access to Your Goods. The Owner will try to minimise any effects arising from such circumstances, but if the Owner has not managed to resolve the situation within 3 weeks You will be entitled to terminate the Agreement without additional charges and to remove Your Goods at the earliest available opportunity.
14.
No oral statements made by the Owner or its employees shall form part of this Agreement, and no failure or delay by the Owner to exercise its rights under this Agreement will operate to waiver those rights. RISK AND RESPONSIBILITY:
15.
Please note the Owner does not insure the Goods whilst they are on Site.
16.
The Goods are stored at the sole risk and responsibility of the Storer who shall be responsible for any and all theft, damage to, and deterioration of the Goods, and shall bear the risk of any and all damage caused by flood or fire or leakage or overflow of water, mildew, heat, spillage of material from any other Space, removal or delivery of the Goods, pest or vermin or any other reason whatsoever including acts or omissions, negligent deliberate or otherwise, of the Owner or persons under its control.
17.
The Storer agrees to indemnify and keep indemnified the Owner from all claims for any loss of or damage to the property of, or personal injury to, third parties resulting from or incidental to the use of the Space by the Storer, including the storage of Goods in the Space.
18.
The Storer acknowledges and agrees to comply with all relevant laws, including Acts and Ordinances, Regulations, By-laws, and Orders, as are or may be applicable to the use of the Space. This includes laws relating to the material which is stored, and the manner in which it is stored. The liability for any and all breach of such laws rests absolutely with the Storer, and includes any and all costs resulting from such a breach.
19.
If the Owner has reason to believe that the Storer is not complying with all relevant laws the Owner may take any action the Owner believes to be necessary, including the action outlined in clauses 21 & 24, contacting, cooperating with and/or submitting Goods to the relevant authorities, and/or immediately disposing of or removing the Goods at the Storer’s expense. The Storer agrees that the Owner may take such action at any time even though the Owner could have acted earlier. INSPECTION AND ENTRY BY THE OWNER:
20.
The Storer consents to inspection and entry of the Space by the Owner provided that the Owner gives 21 days written Notice.
21.
In the event of an emergency, that is where property, the environment or human life is, in the opinion of the Owner, threatened, the Owner may enter the Space using all necessary force without the written consent of the Storer, but the Owner shall notify the Storer as soon as practicable. The Storer consents to such entry. GUARANTEE BY STORER’S REPRESENTATIVE:
22.
Where the Storer is a corporation, the representative who signs on behalf of the corporation agrees to guarantee all the obligations of the Storer, including the payment of and outstanding fees and charges. NOTICE:
23.
Notice will usually be given in writing and left at, or posted to, or faxed to the address of the Storer or the Owner. In relation to the giving of notices to the Owner, notices must actually be received to be valid. In the event of not being able to contact the Storer, notice is deemed to have been given to the Storer by the Owner if the Owner serves that notice on the Alternate Contact Person as identified on the front of this Agreement, or has sent notices to the last notified address of the Storer or Alternate Contact Person. In the event that there is more than one Storer, notice to or by any single Storer is agreed to be sufficient for the purposes of any notice requirement under this agreement. TERMINATION:
24.
Once the initial fixed period of storage has ended, either party may terminate this Agreement by giving the other party notice as indicated in this Agreement. In the event of illegal or environmentally harmful activities on the part of the Storer the Owner may terminate the Agreement without notice. The Owner is entitled to retain a portion of the Security Bond and Deposit if less than the requisite Notice is given by the Storer. Upon termination the Storer must remove all Goods in the Space and leave the Space in a clean condition and in a good state of repair to the satisfaction of the Owner on the date specified. The Storer must pay any outstanding monies and any expenses on default or other monies owed to the Owner up to the date of termination, or clause 6 may apply. Any calculation of the outstanding fees will be by the Owner and such calculation will be final.
25.
The Parties’ liability for outstanding monies, property damage, personal injury, environmental damage and legal responsibility under this Agreement continues to run beyond the termination of this Agreement. TRADE PRACTICES ACT:
26.
The Storer: (a) agrees that the terms of this document constitute the whole contract with the Owner and that, in entering this contract, the Storer relies upon no representations other than those contained in this Agreement. (b) acknowledges that it has raised all queries relevant to its decision to enter this Agreement with the Owner and that the Owner has, prior to the Storer entering into this Agreement, answered all such queries to the satisfaction of the Storer. The Storer acknowledges that any matters resulting from such queries have, to the extent required by the Storer and agreed to by the Owner, been reduced to writing and incorporated into the terms of this Agreement.
27.
(a) Any damages, whether for physical or economic loss, which the Owner is liable to pay to the Storer pursuant to this Agreement or performance of this Agreement (including damages for negligence or damages for consequential loss) are limited in all cases other than cases of damages relating to the provision of services of a kind ordinarily acquired for personal, domestic or household use or consumption to: i. the further supply of storage equivalent to that undertaken by the Owner as set out in the terms and conditions of this Agreement; or ii. the payment of the cost for further storage equivalent to that undertaken by the Owner under the terms and conditions of this Agreement; or iii. the payment of the cost of further supply of storage equivalent to that undertaken by the Owner under the terms and conditions of this Agreement. (b) The Storer specifically acknowledges that it is aware of the limitation of liability set out in clause 27 (a) above and that, in all the circumstances, and taking into account the negotiations between the parties and their relationship, such limitation on the Owner’s liability is a reasonable one. MEDIATION OF DISPUTES:
28.
The parties must endeavour to settle any dispute in connection with this Agreement by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party's notice of dispute, by a person appointed by the president of the Law Institute of Victoria. It is a condition precedent to the right of either party to commence arbitration or litigation other than for interlocutory relief that it has first offered to submit the dispute to mediation.