9. Access, Inspection, and Surveillance (Continued)

• (b) immediately and without notice (but with a subsequent written notice to You informing You of the event as soon as practicable) in the event that entry is required to give effect to this Agreement or any law, or We suspect there has been a breach of this Agreement or any law, including but not limited to circumstances where We, acting reasonably, believe that:
  1. (1) Your Goods or any of Your or Your Associates’ acts or omissions threaten, or may cause harm or damage, to any person, property, or the environment (which may include the Space); or
  2. (2) it is a requirement of Our insurance policy or other similar binding requirement; or
  3. (3) We must report You and/or Your Associates to a relevant government authority, law enforcement agency, and/or emergency services and/or allow access, inspection, or seizure of Goods by relevant government authorities in compliance with applicable laws; or
  4. (4) an Unforeseen Event has taken place or is about to take place.

10. Goods Handling Equipment

The Facility may make walking stackers, trolleys, and other Goods handling equipment available to assist You. You can use such equipment only if You:

• (a) are experienced with the particular equipment, know how to use it safely, and use it safely;
• (b) comply with any applicable health and safety regulations, instructions, and/or Our directions for use for that equipment; and
• (c) accept liability for any damage or injury arising from Your or Your Associate’s use of such equipment at the Facility.

11. Australian Consumer Law

The Australian Consumer Law applies to this Agreement and provides You with rights that are not excluded, restricted, or modified by this Agreement. Any provision of this Agreement is subject to the specific protections and guarantees in that and any corresponding Federal, State, or Territory legislation.

12. Liability and Risk

• (a) Subject to clause 11 (Australian Consumer Law), any applicable law, and the provisions of this clause 12, You:
  1. (1) access and use the Space (including storing Goods in the Space) at Your own risk;
  2. (2) bear the risk of theft of Your Goods from the Space and of any damage, deterioration, and/or destruction to Your Goods caused by, among others:
     • (A) any Unforeseen Event (including flood, fire, leakage, or overflow of water);
     • (B) mildew, mould, or temperature fluctuations;
     • (C) transportation (including delivery and removal) of the Goods;
     • (D) infestations (including pest or vermin); and/or
     • (E) spillage of material from any other storage space caused by other users of the Facility;
  3. (3) must indemnify and hold harmless the Indemnified Party in respect of any loss, damage, or injury (as applicable) to the Space, Facility, Us, and/or any third party, where such loss, damage, or injury is caused by Your or Your Associate’s wilful misconduct, negligent omission, fraud, or criminal conduct and/or the storage of Prohibited Goods; and
  4. (4) release Us from all claims and liability arising from any loss, damage, or injury occurring in the Space or the Facility or in connection with Your use of the Space; and, in any event, if it is determined that We are liable to You, Our liability is capped at:
     • (A) if the loss, damage, or injury relates to Goods or property, $1000; or
     • (B) otherwise, the amount which is the greater of:
       1. i. the Storage Fees You paid Us under this Agreement within 6 months of the date of the event giving rise to the liability; and
       2. ii. $5000.
• (b) Clause 12(a) does not apply to the extent any risk, liability, damage, or injury is caused by any of Our (and/or any of Our Indemnified Party’s) gross negligence, wilful misconduct, fraud, or criminal conduct.
• (c) Each party:
  1. (1) is not entitled to recover damages or obtain payment, reimbursement, restitution, or indemnity more than once for the same liability or breach of this Agreement; and
  2. (2) shall not be liable under this Agreement for any indirect, consequential, special, or incidental loss or damages;
• (d) Each party’s liability for any loss, damage, or injury (as applicable) under this Agreement will be reduced proportionally to the extent that any act or omission by the other party contributed to the relevant loss, damage, or injury.
• (e) You acknowledge that this clause is a fundamental term of this Agreement as the risk and liability allocation has been factored into the Fees and Our operations would not be viable on any other basis.

13. Consequences of Default

• (a) In the event of Your Default (such as any Fees becoming overdue or You failing to comply with Your obligations under clause 4) under this Agreement, We may (but are not obliged to), without any liability to You for any loss or damage and without limiting any other rights under this Agreement (including the right of termination), take any of the following Default Actions:
  1. (1) apply the Security Deposit in respect of any Incurred Fees as provided in sub-clause 3(a)(1);
  2. (2) deny You access to the Space and/or the Facility until the Default is remedied, including by applying a padlock or other device to the Space;
  3. (3) claim a contractual lien over all Your Goods (Contractual Lien) and You agree to grant us the Contractual Lien;
  4. (4) access the Space, by force if necessary, take possession of the Goods stored in the Space (noting that, for the purposes of the PPSA, We are deemed to be in possession of the Goods stored in the Space [from the moment We exercise our rights pursuant to this clause]);
  5. (5) report You to, without limitation, StorerCheck, debt collection agency, credit reporting agency, law enforcement agency, or government authority as applicable (subject to Our Privacy Policy and Privacy Collection Statement);
  6. (6) not earlier than on expiry of 42 days since the date of Your Default and upon giving You no less than 14 days’ notice (to allow You to rectify Your Default if it is rectifiable):
     • (A) sell the Goods in one or more lots by private arrangement or public auction (whether conducted online or in person), subject to any superior rights of third parties under the PPSA; and/or
     • (B) dispose of the Goods in whole or in part, in any manner We deem fit, where the Goods remain unsold after being offered for sale or are unsaleable for any reason (including posing a health and safety risk) or appear of insufficient value to warrant a formal sale process.

     This sub-clause 13(a)(6) will only apply to the extent the relevant Uncollected Goods Legislation allows parties to contract out of it.

• (b) In respect of sub-clause 13(a)(6):
  1. (1) If We believe it is a health and safety risk to conduct an inventory of the Goods, We may take the Default Action under paragraph (B) without undertaking such an inventory. In such circumstances, We will not open any boxes or bags in which Your Goods are contained and will dispose of all Goods unopened.
  2. (2) Any funds We recover from the sale will be applied to pay any Fees You owe Us, including the Default Action Costs. In the event of excess funds, We will endeavour to return any balance to You within 30 days from the date of finalising Your Account. However, where We cannot locate You or Your ACP using the contact details provided and the excess funds are determined to be unclaimed monies under the relevant Uncollected Goods Legislation, we will act in accordance with the requirements of the relevant legislation.
• (c) You consent to any Default Action being taken under this clause 13, regardless of the nature or value of Your Goods and agree not to impede or cause any obstruction to enforcement of Our rights (other than remedying Your Default).
• (d) Your Default under one agreement with Us will constitute a Default under all agreements between You and Us and will entitle Us to take a Default Action in accordance with this clause 13 (Consequences of Default) as if it applies mutatis mutandis ((i.e. with making necessary alterations) to each of Your agreements with Us.

14. Unforeseen Events

On occurrence, or reasonably anticipated occurrence (such as further to an official weather warning from the relevant authorities), of an Unforeseen Event:

• (a) You must comply with all Our reasonable directions;
• (b) each party:
  1. (1) must comply (and must direct any of their associates to comply) with all directions from a government department, law enforcement agency (including police), and/or insurer; and
  2. (2) may, in consultation with the other party and subject to a continuing Unforeseen Event, terminate this Agreement on giving a reasonable notice in writing (which could be with immediate effect if it is reasonable in the circumstances) to the other party.
• (c) We may:
  1. (1) suspend this Agreement and the parties’ obligations under it for up to 30 days to allow Us to assess and remedy any damage (and no Storage Fees will be payable during the suspension);
  2. (2) take all actions reasonably necessary to minimise the damage to the Space and/or Facility caused by or incidental to the Unforeseen Event; and
  3. (3) if it is reasonable to do so, offer You an alternative space elsewhere in the Facility.
• (d) Where Your Goods in the Space are severely damaged or, in Our opinion, pose any risk to Us, the Facility, or any third party, You consent to Us disposing of such Goods without any liability to You upon giving You a written notice. Where practicable and safe to do so, You agree to attend the Space at any reasonable time specified by Us, and (if required by Us) You will inspect the Goods in the Space for damage and/or clear out the Space as soon as possible and within any reasonable period specified by Us.

15. Termination

• (a) Subject to clause 16 (Effect of Termination), this Agreement may be terminated:
  1. (1) Termination Without Cause: after the Fixed Period has ended, by either party giving written notice to the other party for a period not less than the Termination Notice Period;
  2. (2) Termination for Cause: by either party immediately (which may be confirmed by a subsequent notice in writing):
     • (A) in the event of any Default under this Agreement by the other party, which is not capable of being remedied (including, where We determine, acting reasonably, that Your and/or Your Associate’s behaviour and/or use of the Space and/or the Facility is illegal, environmentally harmful, antisocial, threatening, or offensive);
     • (B) upon giving a written notice to the other party to remedy a Default (including any Fees becoming overdue) under this Agreement and the other party fails to remedy the Default within 14 days of receiving notice;
  3. (3) Termination due to Variation: by You in accordance with sub-clause 20(b); or
  4. (4) Termination due to Unforeseen Event: by either party in accordance with sub-clause 14(b)(2).
• (b) If You purport to terminate this Agreement without giving the written notice to Us, termination will be deemed ineffective.

16. Effect of Termination

Termination of this Agreement does not affect any accrued rights or liabilities of the parties. Upon valid termination of this Agreement:

• (a) We will refund or set off (as applicable) the amount of any Storage Fees paid by You in advance for any future whole month that has not yet commenced; and
• (b) You must:
  1. (1) pay any outstanding Fees and any other amounts payable by You;
  2. (2) vacate the Space of all Goods, return to Us any of Our property, and leave the Space in a clean condition in accordance with the Facility Rules within 24 hours from termination unless otherwise agreed with Us in writing.
• (c) In the event You breach sub-clause 16(b), We may:
  1. (1) deduct the amount from the Security Deposit in accordance with sub-clause 3(a)(1) (Fees); and, in respect of any shortfall,
  2. (2) take any Default Action under clause 13 (Consequences of Default).

17. Disposal of Abandoned Goods

If You leave any of Your Goods or any other goods unattended outside of Your Space at the Facility (Abandoned Goods) in breach of the Facility Rules or fail to collect Your Goods within 7 days of termination of this Agreement, You authorise us to dispose (including by sale) of the Abandoned Goods (regardless of their nature or value) upon a 7-day written notice without any liability to You and without having any obligation to inspect and/or value the Goods.

18. Alternative Contact Person (ACP)

You:

• (a) warrant that You have the ACP’s consent to disclose the ACP’s Personal Information to Us and that the ACP is authorised to act as Your agent whose decisions in relation to this Agreement will be legally binding on You; and
• (b) without limiting clause 18(a), authorise Us to, at Our discretion:
  1. (1) discuss any matter relating to this Agreement with the ACP, including confirming Your latest known contact details; and
  2. (2) in the event of You being absent, unwilling, or unable to remove Your Goods when required to do so under this Agreement, allow the ACP to access the Space and remove Your Goods on terms agreed between Us and the ACP, whether before or after termination of this Agreement.

19. Notice

• (a) A notice to a party under this Agreement must be in writing and emailed to that party’s email address or texted to that party’s mobile phone number specified in the Schedule (unless You have indicated that you decline to receive notices electronically, in which case the notice can be handed to You or Your ACP or posted to Your latest known address). In the event two or more sets of contact details are provided in the Schedule, it will suffice to give notice in writing to any one of them.
• (b) A notice given in accordance with this clause must be treated as having been given and received on the day it is handed, emailed, or texted or three business days after the notice has been posted by mail.
• (c) Details of any change to a party’s (or an ACP’s) contact details must be notified to the other party within 2 business days of the change occurring.

20. General Provisions

• (a) Assignment. The rights granted under this Agreement are personal to You and You may not deal (including via change of control) with Your rights and obligations under this Agreement without Our written consent. Any purported dealing is deemed ineffective. You consent to Us dealing (including via change of control) with Our rights and obligations under this Agreement without prior notice to You (as seeking such consent from multiple storers would be impractical, among other things).
• (b) Variation. We may vary this Agreement by giving You at least 28 days’ written notice of the variation pursuant to changes in applicable laws, market conditions, and/or legitimate business interests (including for the proper operation, management, refurbishment, or redevelopment of the Facility that may require Us to relocate You to another space (of similar dimensions) within the Facility or make any Fee adjustments). If You object to the variation, You may, before the expiration of the specified notice period, terminate this Agreement by giving no less than 24 hours’ written notice to Us.
• (c) Counterparts. This Agreement may be executed using electronic signatures and exchanged or delivered electronically and such execution, exchange, and delivery will be legally binding in any number of counterparts.
• (d) No implied waiver. A failure and/or delay by a party to exercise a right under this Agreement resulting from a breach by the other party does not amount to a waiver of that breach or of any future breach of the same kind.
• (e) Severance. If a provision, or part of a provision, in this Agreement is held to be illegal, invalid, void, voidable, or unenforceable, then that provision, or part of a provision, must be read down to the extent necessary to ensure that it is valid and enforceable. Where it is not possible to so read down a provision, or part of a provision, then that provision, or part of a provision, is severable without affecting the validity or enforceability of the rest of this Agreement.
• (f) Entire Agreement. This Agreement records the entire agreement between the parties about its subject matter and supersedes all previous communications, representations, understandings, or agreements between them (whether written or verbal).
• (g) Jurisdiction. The law of the state in which the Facility is located applies to this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction and of the Commonwealth of Australia.
• (h) Disputes. If a dispute arises between the parties under this Agreement, the parties must attempt to settle the dispute with one another before instituting any legal proceedings.
• (i) Survival. Provisions of this Agreement which by their nature are meant to continue to run beyond the termination or expiry of this Agreement will survive its termination or expiry.