1. GENERAL CONDITIONS

1.1

Any agreement by SCS to store and/or transport Goods and/or to provide Services for the Customer will always be subject to these terms and conditions.

1.2 Discretion
SCS may refuse to accept Storage, Transport and/or Services of some or all of the Goods or to carry out particular services in its sole discretion.
 
1.3 Transport Basis
SCS 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.
 
1.4 Risk
Subject to Clauses 9.2 and 9.9, 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 Contract, SCS accepts no liability and will not be responsible for any claim, loss, damage, liability cost or expense concerning the Goods whatsoever.
 
1.5 Details
SCS relies on the details of description, items, pallet space, quantity, weight, quality, value and measurement concerning the Goods as supplied by the Customer but otherwise does not admit their accuracy.
 
1.6 Storage Media
Storage Media must be accounted for with control systems as per the Contract, or if not specified, as per SCS’ Storage Media policies as amended from time to time. SCS reserves the right to recover costs caused by the Customer’s deviation from the Contract, including changes to any Storage Media providers’ hire rate. No Storage Media cost will be recognised or accepted by SCS where the date of original documentation exceeds a period of 90 days from the date of presentation to SCS. SCS will not be responsible for the maintenance, repair or replacement of any Storage Media caused by normal wear and tear.
 
1.7 Included Stocktaking Service
If provided for in the Contract and subject to the prior payment of the Charges and any other moneys due to SCS under these terms and conditions SCS will conduct only one annual stock count either by way of cycle count or a single stocktake of any Customer Goods held by SCS without additional cost to the Customer.
 
1.8 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 SCS for this purpose.
 
1.9 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.
 
1.10 Regulations
The Customer must comply with all relevant transport legislation, The Australian Cold Chain Guidelines 1999 and SCS’ occupational health and safety guidelines for the Location and all other such regulations made by SCS from time to time for the management of the Location. The Customer must also comply with all reasonable instructions given by SCS’ authorised representatives.
 
1.11 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 and must comply with all requirements of the Australian Quarantine Inspection Service and any other body of competent jurisdiction. The Customer acknowledges that SCS 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
 
1.12 Shelf Life
Each time the Customer brings new Goods into Storage the Customer must supply SCS with full details of the provenance and expected shelf life of those Goods under the agreed storage conditions. The Customer will at all times remain responsible to ensure that the Goods do not exceed their expected shelf life.
 
1.13 Quarantine
SCS will be entitled but not obliged to quarantine any Goods that it considers have exceeded their shelf life and hold them separately from any remaining Goods of the Customer. SCS 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) and at the Customer’s sole cost and expense.
 
1.14 Dangerous Goods
If in the opinion of SCS any Goods are or are liable to become dangerous, inflammable, explosive, volatile, offensive or damaging in nature, SCS 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 SCS’ right to any Charges.
 
1.15 Method
If the Customer instructs SCS to use a particular method of Storage, Transport and/or provision of Services, SCS will 963247 SCS Standard Terms and Conditions – as at 12 04 2011 give priority to that method but if SCS cannot conveniently adopt it, SCS 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.
 
1.16 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, SCS does not have to make the Goods available to any Person. SCS will endeavour to deliver to the address nominated by the Customer. Delivery is deemed to be effected when SCS receives a signed receipt or delivery docket. If the address of delivery is unattended and SCS elects to redeliver the Goods to the Customer, SCS will charge the Customer the costs of re-delivery including any storage costs SCS may incur.
 
1.17 Opening Goods
If any identifying document or mark is lost, damaged, destroyed or defaced SCS 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.
 
1.18 Consolidation
SCS 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.
 
 
2. CUSTOMER’S OBLIGATIONS
 
2.1 General Duties
The Customer must:
 
(a) specify to SCS the temperature requirements for the Goods during Storage and/or Transport and inform SCS if any Goods tendered for Storage, Transport and/or the provision of Services are at a significantly different temperature than the temperature at which SCS is required to store and/or transport them and/or to provide Services, and pay any additional charge levied by SCS 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 SCS a full written description disclosing the nature of those Goods;
 
(c) forthwith notify SCS 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 SCS 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 SCS 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.
 
2.2 Insurance Premiums
The Customer must pay when due all premiums for insurances to be effected by the Customer as provided in Clause 3 and will produce to SCS on demand receipts for any payments.
 
2.3 Costs of Services Consumed
The Customer must pay to its suppliers, and indemnify SCS 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.
 
2.4 Delivery of Files
Following termination or expiration of this Contract, the Customer must forthwith deliver to SCS any and all of its records relating to any of the Customer’s Goods which have not been removed from Storage.
 
2.5 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 SCS’ continuing use of the Location as a cold store.
 
 
3. INSURANCE
 
3.1 Insurance by 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 SCS in respect of any claims or losses and with an acknowledgment of Clause 10.1) with a reputable insurance office:
 
(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 SCS and its officers, employees, agents, other storage and 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 Contract) in respect of any single accident or event provided that SCS may from time to time by written notice to the Customer require the amount of insurance to be increased to the amount SCS 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 SCS (not to be unreasonably withheld) to act as a self-insurer for such risks.
 
3.2 Delivery of Policies
The Customer will:
 
(a) upon request by SCS deliver copies of the certificates of currency of insurances to SCS prior to delivery of the Goods and or Services 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 SCS on or before the respective renewal dates and without demand the receipts for those premiums.
 
3.3 Warranty as to Convictions
The Customer warrants that before making this Contract it has disclosed to SCS and in the future will immediately disclose to SCS 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.
 
3.4 Requirements of Insurers
The Customer must comply with all reasonable requirements and recommendations of SCS and/or its insurers regarding the management of risks.
 
3.5 Notice of Events Affecting the Policy 
The Customer must give immediate notice to SCS of any event that might affect any insurance policy of SCS and any event against which SCS may have insured.
 
3.6 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.
 
 
4. CUSTOMER’S WARRANTIES AND INDEMNITIES
 
4.1 Warranties
The Customer and the Person tendering the Goods for Storage, Transport and/or Services each warrant that:
 
(a) they have fully and adequately described and labelled all of the Goods as to their nature, weight and measurements and have complied with all applicable laws and regulations concerning the Goods including 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;
 
(c) they are either the owner or the authorised agent of the owner of the Goods;
 
(d) the Goods are free from any encumbrance, charge, lien or any other Security Interest;
 
(e) 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 SCS and SCS has accepted the Goods in that condition;
 
(f) the Goods will be delivered to SCS at the specified or agreed temperature and in accordance with The Cold Chain Guidelines 1999;
 
(g) it has not asked SCS to handle or transport the Goods in any way that could be unlawful; and
 
(h) it will not tender for collection any volatile Goods 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 SCS a full written description disclosing the nature of those goods.
 
4.2 Indemnity
The Customer fully indemnifies SCS against all loss, damage, cost or expense (including full legal costs) that may be suffered or incurred by or awarded against SCS 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.
 
 
5. CHARGES
 
5.1 Payment
The Customer must:
 
(a) unless otherwise agreed, pay SCS the Charges within 14 days of the date of SCS’ invoice free from set-off or other deductions;
 
(b) pay SCS any Charges or expenses not recouped out of the proceeds of sale of the Goods under Clause 6.2;
 
(c) pay SCS’ 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 SCS incurs in relation to the Goods (including without limitation salvage costs and additional freight and storage costs for circumstances outside the control of SCS);
 
(f) pay for additional charges due to the Customer’s delay;
 
(g) pay for any additional expenses SCS 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 SCS of destruction or disposal under Clause 1.14, or of opening or inspecting under Clause 1.17;
 
(i) pay any present or future imposed taxes, levies or other Government charges or imposts payable on or in respect of the Services provided under this Contract. If necessary SCS will pass on any taxes, levies or governmental charges to the Customer with a tax invoice;
 
(j) compensate SCS for any cost, expense or loss to SCS’ property or any Person caused by the Goods; and
 
(k) if the Goods are at any time re-quantified, reweighed or reassured, pay any proportional additional Charges.
 
5.2 Accrual
SCS’ Storage Charges accrue for payment as soon as the Goods are delivered to SCS or collected by SCS and whether the Goods are collected by the Customer or not and whether damaged or not.
 
5.3 Interest on Default
The Customer will pay to SCS 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.
 
5.4 Increase in Charges
The Charges may be increased in accordance with the Rate Review formula set out in the Contract.
 
 
6. LIEN
 
6.1 General Lien
SCS has both a specific and general lien on the Goods held by SCS and any documents relating thereto and on any other goods of the Customer in SCS’ possession from time to time and in priority to any other Security Interest for all Charges or other moneys due under this Contract 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 SCS service.
 
6.2 Disposal
If the Charges are not paid when due or the Goods are not collected when so required or designated, SCS may after the giving of notice in accordance with Clause 7.2, and in the case of perishable Goods immediately:
 
(a) remove all or any of the Goods and store them as SCS thinks fit at the Customer’s risk and expense, or
 
(b) open and sell all or any of the Goods as SCS 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-off from any moneys due from SCS to the Customer under any contract, debts and moneys due from the Customer to SCS under these conditions or under any other contract.
 
 
7. SCS’ RIGHTS
 
7.1 Default
SCS may end this Contract in accordance with Clause 7.2 if:
 
(a) The Customer does not pay the Charges or meet its other obligations under this Contract; or
 
(b) The Customer or the Guarantor is a Corporation and becomes insolvent, an order is made or a resolution is passed to wind it up, it goes into liquidation or has a provisional liquidator appointed, is placed under official management, has a receiver or receiver and manager appointed over any of its assets or an administrator appointed; or
 
(c) The Customer or a Guarantor is a natural person and:
(i) commits an act of bankruptcy as defined in the Bankruptcy Act;
(ii) becomes bankrupt;
(iii) takes or tries to take advantage of Part X of the Bankruptcy Act 1966; or
(iv) enters into a composition or arrangement with or makes an assignment for the benefit of their creditors.
 
7.2 Termination after Default
If SCS has given 7 days prior written notice to the Customer that:
 
(a) the Customer has defaulted under this Contract as provided in Clause 7.1; and
 
(b) the Customer fails within such period to remedy the default (if it is capable of remedy) and/or makes reasonable compensation in money, then SCS may terminate this Contract forthwith by written notice to the Customer, the termination taking effect from the date of giving the notice.
 
7.3 Period for Remedy
The period of 7 days is agreed by SCS and the Customer as a reasonable period within which the Customer must remedy a breach capable of remedy under this Contract and make reasonable compensation in money.
 
7.4 Termination on notice
SCS may at any time terminate this Contract by giving 90 days prior written notice.
 
7.5 Goods Left in Store
If the Customer leaves Goods in Storage after this Contract has been terminated then SCS may either dispose of the Goods at the Customer’s expense or at SCS’ sole discretion continue to store the Goods for the same Charges and under the same terms and conditions (with the necessary changes made) as those contained in this Contract until the Goods are collected by the Customer or otherwise disposed of.
 
7.6 Acceptance of Charges
Acceptance of Charges by SCS after default by the Customer under this Contract will be without prejudice to the exercise by SCS of the powers conferred on it by Clauses 7.2 or 7.4 or any other right, power or privilege of SCS under this Contract and will not operate as an election by SCS either to exercise or not to exercise any of those rights, powers or privileges then or on any subsequent breach.
 
 
8. CONSEQUENCES OF TERMINATION
 
8.1 Complete Instructions
SCS shall, subject to all of the terms hereof, fulfill any reasonable instructions by the Customer prior to the termination of this Contract, subject however to SCS obtaining such security or guarantee of payment and performance by the Customer as SCS considers in its reasonable opinion appropriate in the circumstances.
 
8.2 Pay Moneys Owing
Neither the expiration nor termination of this Contract shall release the Customer from the obligation to pay any sums owing to SCS or from the obligation to perform any other duty or to discharge any other liability that may have 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 SCS’ business or goodwill.
 
 
9. LOSS OR DAMAGE
 
9.1 General Exclusion of Liability
SCS will not be liable for any loss or damage suffered by the Customer or any other Person, howsoever caused or arising, whether an authorised or unauthorised act under this Contract and whether caused by the negligence and/or recklessness and/or wilful misconduct of SCS or its employees, agents, subcontractors or otherwise 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 in connection with this Contract.
 
9.2 Limitation
If rights are conferred upon the Customer, or any other Person, or obligations are imposed upon SCS by any applicable legislation which cannot be excluded, restricted or modified, the provisions of Clause 9.1 shall be read subject to those rights or obligations, however SCS hereby expressly limits its liability under any such legislation to the maximum extent permitted by law.
 
9.3 Notice of Loss or Damage
Without limiting the legal effect of clauses 9.1 & 9.2, no claim for loss of or damage to the Goods may in any event be made against SCS unless notice of the claim in writing is received by SCS 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.
 
9.4 Failure to Notify
The failure to notify a claim within the time under Clause 9.3 is evidence of satisfactory performance by SCS of its obligations.
 
9.5 Failure to Bring Action
Despite clause 9.3 SCS will be discharged from all liability for loss of or damage to the Goods unless an action is brought within six 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 the Services.
 
9.6 Ullage Acknowledgment
 
(a) The Customer acknowledges that despite all reasonable care and attention on the part of SCS, damage and or loss of Goods can sometimes occur through storage, handling & transportation (“Ullage”).
 
(b) The Customer agrees that except to the extent required by law SCS will have no liability to the Customer for Ullage as the Parties have taken this into account in negotiating the pricing for Storage, Transport and/or the Services in accordance with this Contract.
 
9.7 No Claims against SCS
To the extent permitted by law and without limiting the generality of the other provisions of this Clause 9, SCS 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 SCS for such adjustments or payments.
 
9.8 Acknowledgement
Without in any way limiting and subject to the preceding provisions of this Clause 9, and to the extent permitted by law:
 
(a) The Customer acknowledges and accepts that due to the nature of the storage processes, chilled and frozen goods may show variations in quality, weight, measurements, shades, tints and colours.
 
(b) SCS 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 SCS;
(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.
 
9.9 Maximum Liability
Subject to Clauses 9.2 and 9.6 and to the extent permitted by law, the Customer agrees that the liability of SCS under this Contract for the breach of any such right or obligation imposed upon SCS (which cannot be limited beyond the following provisions contained in this Clause 9.9) is limited to:
 
(a) in the case of defective Goods, any one or more of the following (at SCS’ option):
(i) replace the 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 SCS’ option):
(i) supply the Services again; or
(ii) pay the costs of having the Services supplied again.
 
Except as provided in Clause 9.2 and this Clause 9.9 and as required by law, no other warranty or condition, express or implied shall apply under this Contract.
 
9.10 Demurrage
The Customer agrees that SCS will not be liable to compensate the Customer for demurrage or any associated loss or damage arising from loading, unloading or storing the Goods.
 
 
10. EXCLUSIONS AND LIMITATIONS
 
10.1 Release and Indemnity
The Customer releases SCS from and or indemnifies and holds SCS harmless 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 or the Services, including any delay or other failure to supply the Storage, the Transport and/or the Services or for any breach of this Contract by the Customer.
 
10.2 Loss of Profits
The release and indemnity in Clause 10.1 extends to loss of profits, business or anticipated savings or any other indirect or consequential damage and to economic loss and even if SCS knows they are possible or otherwise foreseeable.
 
10.3 Force Majeure
SCS 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 of this Contract by SCS caused by Force Majeure.
 
If SCS 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 SCS 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.
 
10.4 SCS Sub-Contractors & Employees
The Customer agrees that every SCS sub contractor, agent and employee are entitled to the full benefit of these terms and conditions, including all exclusions or limitations of liability, to the same extent as SCS.
 
10.5 Breach
Even if SCS breaches this Contract or any of these conditions, all the rights, immunities and limitations of liability in these conditions continue to have their full force and effect in all circumstances.
 
 
11. INTELLECTUAL PROPERTY RIGHTS
 
11.1 Off-Site Access to SCS IT Systems
If SCS agrees to provide the Customer with access by telephone or internet link to SCS IT Systems then the Customer must enter into a separate software licence for the SCS IT Systems in such form as SCS 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 SCS provides the Customer with such access by telephone or internet link to SCS IT Systems then 963247 SCS Standard Terms and Conditions – as at 12 04 2011 the Customer will be responsible for all the costs incurred in setting up such access.
 
The Customer will keep all SCS IT Systems, 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 SCS’ General Manager IT in writing.
 
11.2 Infringement
The Customer must:
 
(a) notify SCS in writing as soon as practicable of any infringement, suspected infringement or alleged infringement of SCS’ intellectual property in SCS IT Systems;
 
(b) allow SCS to conduct any claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
 
(c) provide SCS with reasonable assistance in conducting the defence of such a claim; or/and 
 
(d) permit SCS to modify, alter or substitute any infringing part of SCS IT Systems at its own expense in order to avoid infringement, or authorise SCS to procure for the Customer the authority to continue the use and possession of any infringing programs.
 
11.3 Prohibited Acts
The Customer shall not:
 
(a) use SCS IT Systems in combination by any means and in any form with other programs not specifically approved by SCS;
 
(b) use SCS IT Systems in a manner or for a purpose not reasonably contemplated or not authorised by SCS;
 
(c) modify or alter SCS IT Systems without the prior written consent of SCS; or 
 
(d) enter into any transaction relating to SCS IT Systems without SCS’ prior consent in writing.
 
11.4 Indemnity
The Customer shall indemnify SCS 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 11.2; or
 
(b) the ability of SCS to defend the claim has been prejudiced by the failure of the Customer to comply with any requirements of Clause 11.3.
 
 
12. SUBCONTRACTING
 
12.1 Independent Contractors
SCS 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 subcontracting SCS’ duty to the Customer shall be limited to using reasonable endeavours to appoint a suitable subcontractor.
 
12.2 Security and Pest Control
The Customer acknowledges that as part of its normal business method SCS employs independent security, pest control and other such sub-contractors and that the Charges and the Parties respective insurance obligations have been fixed on the basis that SCS will continue to do so. The Customer agrees that it is reasonable for SCS’ obligations to be limited in this manner.
 
 
13. POWER OF ATTORNEY
 
The Customer for valuable consideration irrevocably appoints SCS and any SCS officer 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.
 
 
14. GENERAL
 
14.1 Law
These conditions are governed and must be construed under the laws of the State of Victoria, Australia and shall be determined exclusively by the courts of Victoria.
 
14.2 Severability
If a term or condition or part is unenforceable the unenforceability does not affect any other part of that condition or any other condition.
 
14.3 Formalities
SCS is not bound by any waiver, discharge or release of a term or condition or any agreement which varies these terms and conditions unless it is in writing and signed for SCS by a director.
 
14.4 Waiver
If SCS waives a breach of a term or condition the waiver does not operate as a waiver of another breach of the same or any other condition or as a continuing waiver.
 
14.5 Rights Cumulative
The rights powers and remedies under these terms and conditions are cumulative with the rights, powers or remedies provided by law independently of these terms and conditions.
 
 
15. GOODS & SERVICES TAX
SCS’ quoted charges and SCS’ Rates represent the GST exclusive value of the supply for GST purposes.
 
 
16. DEFINITIONS AND INTERPRETATION
 
16.1 Definitions
In this Contract:
 
“Business Day” means any day other than a Saturday, Sunday or Public Holiday;
 
“Charges” mean SCS’ charges for Storage, Transport and/or Services calculated at the rates set out in the Contract (increased in accordance with Clause 5.4) or if not specified then at SCS’ Rates, the other moneys referred to in Clause 5 and GST;
 
“Contract” means the SCS Storage and or Transport contract between SCS and the Customer inclusive of these standard terms and conditions;
 
“Customer” means the Customer identified on the Contract 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 classes of goods identified in the Contract and any other goods accepted by SCS from or for the Customer from time to time together with any containers, packaging or Storage Media supplied by or for the Customer;
 
“GST and Taxable Supply” have the meanings given to those terms by the law;
 
“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 SCS 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 Contract;
 
“Relevant Code of Practice” means the standard or regulation applying to this Contract (if any) identified in the Contract;
 
“SCS” means Swire Cold Storage Pty. Ltd. ACN 059 512 159;
 
“SCS’ Rates” means the rates set out in the Contract as SCS may with or without notice determine in writing from time to time or as may be adjusted in accordance with the Rate Review formula contained in the Contract;
 
“SCS IT Systems” means the SCS computerised warehouse inventory and transport management systems including all data, reports, analysis and other aspects thereof whether in hard copy or machine readable form;
 
“Security Interest” has the meaning ascribed to that term by the Personal Property Security Act 2009;
 
“Services” means the services identified in the Contract and any other services that SCS actually provides to the Customer;
 
“Storage” means the whole of the storage, packing and consolidation operations and other services undertaken by SCS for the Goods as set out in the Contract 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; and 
 
“Sub-Contractor” means any Person who is an, agent, employee or sub-contractor of SCS with whom SCS arranges Storage, Transport or Services in respect of the Goods; 
 
“Transport” means the transport services identified and agreed to be undertaken by SCS for the Goods as set out in the Contract.
 
16.2 Interpretation
In these terms and conditions 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 963247 SCS Standard Terms and Conditions – as at 12 04 2011 amended, consolidated, supplemented, novated or replaced from time to time;
 
(c) headings are for convenience only and shall be ignored in construing these terms and conditions; 
 
(d) 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 its respective successors, permitted assigns, executors and administrators;
 
(e) 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;
 
(f) references to any law are references to that law as amended, consolidated, supplemented or replaced from time to time;
 
(g) references to terms defined in the Corporations Act 2001 (Cth) shall have the meanings given by that Act;
 
(h) references to any Person include references to any individual, company, body corporate, association, partnership, firm, joint venture, trust and governmental agency;
 
(i) references to A$ are to the lawful currency of Australia;
 
(j) prices and other payments which are expressed in a particular currency in these terms and conditions are required to be made in that currency;
 
(k) 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;
 
(l) 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 (m) all terms defined or quantified on the Contract shall be construed according to these terms and conditions.
 
16.3 Inconsistency
In the event of any inconsistency between:
 
(a) these terms and conditions and any specific terms contained in the Contract, the specific terms contained in the Contract will prevail to the extent of that inconsistency; and
 
(b) the Contract and any Relevant Code of Practice the Contract will prevail to the extent of that inconsistency.
 
963247 SCS Standard Terms and Conditions – as at 12 04 2011

 


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