TERMS AND CONDITIONS FOR
AUSTRALIAN INTER-FACILITY MOVES
This Agreement, by and between Australian Portable Storage (ACN 118 908 768) (“Company”) and “Customer” whose name and residence are set forth in the rental agreement addendum (the “Addendum”) incorporated herein by reference and made a part hereof, is effective as of the date Customer accepts this Agreement online or the date the Customer accepts delivery of the Unit, whichever is earlier (the “Effective Date”), for the purpose of leasing or renting a portable storage container, and as hereinafter more fully described and with the express understanding and agreement that no relationship of bailment or deposit of goods for safekeeping is intended or created hereunder. Due to the nature of the Company’s business and its purpose being storage, it is further understood that the Company is not representing to the Customer, in any manner whatsoever, that the Company is a “warehouseman” as such term is defined by any applicable law of the Commonwealth or any state or territory. Further, the parties expressly understand and agree that it is the parties’ intention that any laws including, without limitation, legislation regulating warehouseman, or similar or related laws pertaining to the establishment or creation of a bailment relationship or any other relationship pertaining to the deposit of goods for safekeeping shall not apply to this Agreement. The parties acknowledge and agree that the relationship between the Company and the Customer is that of an independent contractor.
NOW THEREFORE, for and in consideration of the foregoing recital (which is incorporated herein by reference), the receipt, and sufficiency of which is hereby acknowledged, and the mutual promises and assumption of obligations described in this Agreement, the parties hereto hereby agree as follows:
1. DESCRIPTION OF CONTAINER. The Company leases to the Customer and the Customer leases from the Company one or more self-contained storage container (“Containers”) as identified as “Pod Unit Specs” in the Addendum. The Customer has the option to store the Container(s) with the Company or have the Containers remain at the Customer’s designated storage location as listed in the Addendum. Should the Customer elect to have the Company store the Containers at the Company’s premises, the Customer agrees that the Company shall have the right and authority to store the Containers at any of the Company’s storage facilities or those of its franchisees, licensees or affiliates (a “Facility”). The Company shall attempt to store the Containers at the Facility closest to the Customer’s address, space permitting. The Customer shall have access to the Containers stored at the Facility only during specified hours, which are normally 8:30 am to 5:00 pm local time, by giving advance notice to the Company. Please call the number above to confirm the access hours, schedule access, or make special arrangements for access during non-business hours. Should the Customer elect not to store the Containers at a Facility, the Containers shall remain located at the storage address designated by the Customer in the Addendum. The Customer has examined the Containers, or will have the opportunity to do so before use of the Containers, and acknowledges and agrees that by packing the Containers with the Customer’s property and belongings, the Containers are satisfactory for all purposes for which the Customer shall use them. The Customer hereby authorises the Company to enter upon the storage location listed by the Customer the Addendum whenever the Company deems it necessary to enforce any of the Company’s rights pursuant to this Agreement or pursuant to any law of the Commonwealth or any state or territory. The Customer warrants that the Customer has (1) an ownership interest in the property located at the storage address listed in the Addendum and/or that the Customer is an authorised agent of the owner(s) of such property; and (2) the right and authority to permit the Company unrestricted access to such property.
2. TERM AND RENT. The term of this Agreement commences on the date first written above and continues thereafter on a month-to-month tenancy until terminated. The Customer must pay the Company, in advance, monthly Rent on each Due Date (as defined below) in the amount set forth in the Addendum under the heading of “Billing Information” (“Rent”). The date the Containers is first delivered to the Customer shall be the initial “Due Date” and subsequent Due Dates shall occur on the monthly anniversary of the initial Due Date or the last day of the month if the corresponding date does not exist in the subsequent month. The Customer must pay, in advance; at least one month’s Rent. The Customer will not be entitled to a refund of any prepaid Rent under any circumstances. The monthly Rent may be adjusted by the Company effective the month following written notice by the Company to the Customer specifying such adjustment, which notice shall be given not less than thirty (30) days or one (1) calendar month prior to the first day of the month for which the adjustment will be effective. Any such adjustment in the monthly Rent will not otherwise affect the terms of this Agreement, which will remain in full force and effect. Time is of the essence with regard to all payment obligations arising under this Agreement.
(a) In the event that the Customer shall fail to pay Rent by the 10th day after the Due Date, the Customer shall pay, in addition to any other amounts due, a late charge of $15.00.
(b) If the Customer fails to pay Rent or other charges due under this Agreement for more than thirty days (30) following the applicable Due Date, the Customer shall pay an administrative charge of $25.00 for the Company’s costs in processing the unpaid account. In the event that the Customer is fails to make payment of Rent or other charges due under this Agreement in a timely manner, including without limitation, financing charges, late charges, handling charges and costs associated with the processing of the Customer’s delayed account, the Customer authorises the Company to charge the Customer’s credit card account, without the signature of the Customer, for such amounts owed by the Customer to the Company, even if the Customer has selected another method of payment as its preferred method. The Company shall have no liability to the Customer for charges applied to the Customer’s credit card account so long as such charges are applied by the Company in good faith.
(c) Additional fees may be incurred in connection with moves between Facilities (known as “Inter-Facility Moves”) which will be properly itemised in the Addendum. Nonrefundable deposits may be required for such moves.
4. USE OF CONTAINER AND COMPLIANCE WITH LAW. The Customer shall store only goods and personal property that the Customer owns in the Containers and will not store property that is claimed by another or in which another has any right, title, or interest. Title in the property stored in the Containers does not pass to the Company. The Customer agrees that if the aggregate value of all personal property stored in the Containers exceeds or is deemed to exceed $5,000, it is the Customer’s responsibility to adequately insure the stored property in the manner set forth in Clause 5. The Customer understands and agrees that the Company need not be concerned with the kind, quantity, or value of personal property or other goods stored by The Customer in the Containers pursuant to this Agreement. The Customer shall not store any food or perishable goods, hazardous materials (as defined below), flammable materials, explosives, or other inherently dangerous material, nor perform any work in the Containers. The Customer shall not store any property in the Containers, which would result in the violation of any applicable laws, customs or government regulations, including, without limitation, all laws, and regulations relating to hazardous materials, waste disposal and other environmental matters. The Customer acknowledges and agrees that the Customer is responsible for paying the expense and charge in complying with provisions of any applicable laws, customs or government regulations or with any corresponding order or requirement. For purposes of this Agreement, “hazardous materials” shall include but not be limited to any hazardous or toxic chemical, gas, liquid, substance, material or waste that is or becomes regulated under any applicable laws of the Commonwealth or any state or territory or any applicable government regulations. The Customer shall not use the Containers in any manner that will constitute waste, nuisance, or unreasonable annoyance to other tenants in the Facility. The Customer acknowledges and agrees that the Containers and the Facility are not suitable for the storage of heirlooms or precious, invaluable or irreplaceable property such as books, records, writings, works of art, photographs, objects for which no immediate resale market exists, objects which are claimed to have special or emotional value to the Customer and records or receipts relating to the stored goods and the Company shall not be liable for any damage resulting to such items. Furthermore, the Customer acknowledges and agrees that the following items should be excluded from storage: money, bank notes, scrip, securities, accounts, deeds and evidences of debt; letters of credit and notes other than bank notes; bullion, gold, gold ware, silver, silverware, platinum, coins, precious metals and pewter; stored value cards and smart cards; manuscripts, personal records, passports, tickets and stamps; jewelry, watches, furs, precious and semiprecious stones, firearms; animals, birds and fish; aircraft, hovercraft, motor vehicles and engines, trailers; property not owned by the Customer or for which the Customer is not legally responsible; computer software or programs, media or computer data contained on hard disks or drives. The Customer specifically acknowledges the following: (a) that the Containers may be used for only for storage and that the use of the Containers for the conduct of a business or for HUMAN OR ANIMAL HABITATION IS SPECIFICALLY PROHIBITED; (b) that the Customer assumes full responsibility and liability for packing The Customer’s property in the Containers and for securing The Customer’s property for road transportation; (c) that the maximum weight of the Customer’s property shall not exceed 3,400 kg contained in a 4.8m Container or 3,680 kg in a 3.6m Containers; and (d) that the Company shall not be liable for any damage occasioned to the Customer’s property for any reason.
5. INSURANCE. ALL PROPERTY IS STORED BY THE CUSTOMER AT THE CUSTOMER’S SOLE RISK. INSURANCE IS THE CUSTOMER’S SOLE RESPONSIBILITY. The Customer may either obtain insurance over the property stored in the Containers from the insurance company of the Customer’s choice or the Customer may choose to be “self insured”. The Customer agrees to obtain insurance cover for the complete value of the property stored by the Customer in the Container. The Customer may choose to purchase Customer Storage Insurance by signing up for the Content Insurance Plan described in the insurance information made available to the Customer by the Company prior to execution of this Agreement (the Customer acknowledges that the actual policy may contain exclusions not described in the information provided by the Company). If the Customer elects to purchase Customer Storage Insurance, the Customer may choose to obtain supplemental insurance from the Customer’s insurance company of choice. To the extent that the Customer does not obtain insurance cover, the Customer is in violation of this Agreement and waives all claims it may have against the Company. The Customer will personally assume all risk of loss, including damage or theft of the Customer’s property due to burglary, mysterious disappearance, fire, water, rodent damage, earthquakes, acts of God, vandalism, mould or mildew or other vermin. The Company and the Company’s agents, affiliates, authorized representatives and employees (“the Company’s Agents”) will not be responsible for, and the Customer hereby releases the Company and the Company’s Agents from any responsibility for any loss, liability, claim, expense, damage to property or injury to persons (“Loss”) that could have been insured including, without limitation, any Loss arising from the active or passive acts, omission or negligence of the Company or the Company’s Agents (“Released Claims”). The Customer waives any rights of recovery against the Company or the Company’s Agents for the Released Claims. Although the Company and the Company’s Agents may give insurance information to the Customer, the Customer acknowledges and agrees that the Company and the Company’s Agents are not an insurance company or insurance agents and the Company is under no obligation to, and has not, explained any insurance coverage to the Customer or assisted the Customer in any way with making any claim under any insurance policy. If the Customer purchases the Customer Storage Insurance from the insurance company named in the information made available to the Customer by the Company, the Customer shall send any insurance claims and premiums directly to the insurance company. The provisions of this paragraph will not limit the rights of the Company and the Company’s Agents under Clause 6.
6. LIMITATION OF LESSOR’S LIABILITY; INDEMNITY. The Company shall not, in the absence of fraud, wilful default or gross negligence on its part or the part of its employees or the Company’s Agents, be liable for any loss or damage which the Customer may sustain or suffer, including without limitation damage to the property stored by the Customer in the Containers (“Loss”). The Customer indemnifies the Company from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (other than those resulting from fraud, wilful default or gross negligence on its part, or on the part of its employees or the Company’s Agents, in performing its obligations under this Agreement) which may be incurred by the Company or the Company’s Agents in any way arising out of the Customer’s use of the Container or Facility or incurred by the Company or the Company’s Agents in performing its obligations under this Agreement. The Customer agrees that the total responsibility of the Company’s and the Company’s Agents for any Loss shall not exceed a total of $5,000. The parties acknowledge and agree that the indemnity contained in this Clause 6 is (a) a continuing, separate and independent obligation of the Customer from its other obligations and survives the termination of this Agreement; and (b) absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other
way the liability of the Customer.
7. ACCESS CODE (PIN NUMBER). At the time of ordering the Containers, the Customer will be asked by the Company for its drivers license number, the last four characters of which will be used as the Customer’s Pin number. If the Customer desires to use an alternative Pin number, the Customer must provide the Company with the new Pin number at time of order, or by calling the telephone number listed above. The Company will require the Pin number before providing access to the Containers and/or before scheduling a move or delivery of the Containers. The Customer acknowledges and agrees that the Company has the right to provide access to the Customer’s account (which may allow the amendment of information, including the Pin number) and the Containers to anyone providing the Company with the Customer’s Pin number, and that the Company has the right to refuse access to the Containers by anyone, including the Customer, who does not have the Customer’s applicable Pin number. The Customer should only disclose the Pin number to those persons whom the Customer wants to have unrestricted access to the account and the Containers.
8. PLACEMENT OF CONTAINER. The Company will deliver the Container for packing by the Customer to the delivery location listed in the Addendum and will pick up and transport the packed Container for storage to the storage location listed in the Addendum. The Customer acknowledges that the Company will normally place the Containers on a driveway or other paved surface immediately accessible from a street fronting the Customer’s premises. Such placement area shall have adequate width, depth, and height clearance to sustain the weight and size of a Container. The Customer authorises the Company to 1) drive on the Customer’s lawn or other non-paved area in order to place the Containers in the area designated by the Customer or to place the Containers in an area lacking adequate clearance, or 2) drive on a paved surface. The Customer assumes full risk for all damage resulting from the placement of the Containers and relieves the Company from any responsibility for such damage. The Customer acknowledges that the Company recommends against driving on the Customer’s lawn or non-paved, and certain paved, areas. Any deliveries or retrievals of the Container(s) requiring the Company to access the Containers by way of non-paved areas shall permit the Company, in its sole discretion, to charge the Customer a service fee, being an amount determined by the Company in its sole discretion, which fee the Customer agrees to pay. The Customer agrees that the Customer will not itself relocate the Containers from the locations the Container(s) are delivered or stored by the Company. In the event that it is determined by the Company that the Containers has been relocated, the Customer agrees to pay an additional fee of not less than $75.00 and up to current retail value of the Containers plus any cost or shipping associated with the retrieval of the Containers by the Company. The Company may, in its absolute discretion, refuse to transport the property or any class of property packed by the Customer in the Containers from the delivery location listed in the Addendum to the storage location listed in the Addendum.
9. ALTERATIONS. The Customer shall not make or allow any alterations of any kind or description whatsoever to the Containers without, in each instance, obtaining the prior written consent of the Company.
10. LOCK. The Customer shall provide, at the Customer’s own expense, a lock for the Containers, which the Customer, in the Customer’s sole discretion, deems sufficient to secure the Container(s). The Customer shall not provide the Company or the Company’s agents with a key and/or combination to the Customer’s lock. All Containers must be locked prior to the Company moving them from the delivery location specified in the Addendum to the Facility or the alternative storage location specified in the Addendum.
11. RIGHT TO ENTER, INSPECT, AND REPAIR CONTAINER. The Customer shall grant the Company, the Company’s Agents or the representatives of any governmental authority,including police and fire officials, access to the Containers and the premises where such Containers may be located (including the storage location listed in the Addendum) if necessary, as required by applicable laws and regulations or in connection with the Company exercising its rights as set forth in clause 15 of the Agreement. In the event the Customer does not grant access to the Containers as required, or in the event of an emergency or upon default of any of the Customer’s obligations under this Agreement, the Company, the Company’s Agents or the representatives of any governmental authority shall have the right, but not the obligation, to remove the Customer’s locks and enter the Containers for the purpose of examining the Containers or the contents thereof or for the purpose of making repairs or alterations to the Containers and taking such other action as may be necessary or appropriate to preserve the Containers, or to comply with applicable law including any applicable state, territory or Commonwealth law or regulation governing hazardous materials or to enforce any of the Company’s rights. in the event of any damage or injury to the Containers or the Facility arising from the negligent or deliberate act or omissions of the Customer, or for which the Customer is otherwise responsible, all expenses reasonably incurred by the Company to repair or restore the Containers or the Facility including any expense incurred in connection with any investigation of site conditions, or any clean-up, removal or restoration work required by any applicable local, state or federal law or regulation or agency regulating any hazardous materials, shall be paid by the Customer as additional rent and shall be due upon demand by the Company.
12. NO REPRESENTATIONS OR WARRANTIES. The Company hereby disclaims to the fullest extent possible any implied or express warranties, guarantees, representations relating to the nature, condition, safety or security of the Containers) and the Facility, including any warranties regarding merchantability or fitness for a particular use or purpose, and the Customer hereby acknowledges, as provided in Clause 1 above, that the Customer has inspected the Containers and has had the opportunity to inspect the Facility and hereby acknowledges and agrees that the Company does not represent or guarantee the safety or security of the Containers or the Facility or of any property stored therein and this Agreement does not create any contractual duty for the Company to create or maintain such safety or security. Lessee further acknowledges and understands that the Company makes no assurances or guarantees regarding the time of pick-up or delivery of any Containers.
13. TERMINATION. Either party may terminate this Agreement at the expiration of any monthly term (as provided by Clause 2 of this Agreement) by giving notice to the other party not less than seven (7) days before the expiration of such term and such termination shall be effective as of the last day of the rental month. Notwithstanding the foregoing, no payment of monthly Rent shall be pro rated if the termination occurs prior to the end of a full rental month.
14. DEFAULT. The following events shall be deemed to be events of default (“Events”) by the Customer under this Agreement: (a) The Customer shall fail to pay any instalment of the Rent due under this Agreement; (b) The Customer shall fail to comply with any term, provision, or covenant of this Agreement, other than the payment of Rent, and shall not cure such failure within ten (10) days after written notice being provided to the Customer from the Company; or (c) The Customer shall abandon the Containers.
15. REMEDIES UPON EVENT OF DEFAULT. If an Event occurs, the Company shall have the right at its election, then or at any time thereafter while such Event continues, to pursue the following remedy or any other remedies provided under applicable laws or under this Agreement. The Company may immediately terminate this Agreement by giving notice to the Customer, in which event the Customer shall immediately surrender the Containers to the Company and if the Customer fails to do so, the Company may, without prejudice to any other remedy which it may have for possession or arrears in Rent, deny the Customer’s access to the Containers if located a Facility or, if located on the Customer’s premises, enter upon the Customer premises, and take possession of the Containers and the Customer’s property stored in the Containers, and expel or remove the Customer, without being liable for prosecution or any claim of damages therefore and the Customer hereby agrees to pay to the Company on demand the amount of all loss and damage which the Company may suffer by reason of such termination, whether through inability to re-let the Containers on satisfactory terms or otherwise. The Company’s remedies, including those set forth in Clause 16, are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any other remedies legally available to the Company. The Customer is responsible for payment of all expenses incurred by the Company that are connected with the collection of any and all outstanding balances owed by the Customer to the Company (including the Company’s reasonable legal costs and other expenses).
16. LESSOR’S LIEN. In addition to any liens and remedies provided by the applicable law of the Commonwealth or any state or territory to the Company to secure and collect Rent, the Customer hereby grants to the Company a Contractual lien upon all property, now or at any time hereafter stored in the Containers or at the Facility, to secure the payment of all Rent or other charges payable under this Agreement. Should the Customer be in default of this Agreement due to the occurrence of an Event, the Company may begin the enforcement of its lien including denying the Customer access to the Containers and all property of the Customer stored in the Containers or at the Facility in accordance with the laws of the jurisdiction in which the Customer’s property is located when the Company commences the enforcement of its lien. The Customer’s property stored in the Containers or at the Facility may be sold or otherwise disposed of at the facility or nearest suitable location to satisfy the payment of all amounts owed to the Company by the Customer. Proceeds, if any, from the sale of the property in excess of amounts owed to the Company by the Customer, will be paid in accordance with the procedure contained VIC: Warehousemen's Liens Act 1958 (VIC) for payment of surplus funds if unclaimed by the Customer within one year after the sale of the Customer’s property. Preliminary and subsequent notices of lien will be sent to the Customer and to the person nominated by the Customer in the Addendum as being an alternative contact. As the Company has no knowledge of the property stored in the Containers, the Customer hereby waives any obligation upon the Company to provide a description of the personal property stored in the Customer’s container.
17. CONDITION OF CONTAINER UPON TERMINATION. Upon termination of this Agreement for any reason, the Customer shall remove all the Customer’s property from the Containers, unless such property is subject to the Company’s lien rights pursuant to Clause 16, and shall immediately deliver possession of the Containers to the Company in the same condition as delivered to the Customer on the commencement date of this Agreement, reasonable wear and tear excepted. The Customer agrees that any personal property left in the Container(s) shall be deemed abandoned by the Customer, and with respect thereto, the Customer authorises the Company to remove such property from the Container(s) and either dispose of it in any manner in the Company’s sole discretion and without liability to the Customer or retain such property as collateral for payment of the removal charges and/or any other amounts due the Company. Nothing herein shall be construed as imposing a duty upon the Company to store or safeguard the Customer’s property, and the Company hereby expressly disclaims to the fullest extent possible any such duty.
18. RELEASE OF THE CUSTOMER INFORMATION. The Customer hereby authorises the Company to release any information regarding the Customer and the Customer’s tenancy as may be required by law or requested by governmental authorities or law enforcement agencies.
19. NOTICES. Except as otherwise expressly provided in this Agreement, any written notices or demands required or permitted to be given under the terms of this Agreement may be personally served on a party or may be served by registered post and addressed to the party to be served at the address of such party provided for in this Agreement. Service of any such notice or demand shall be deemed complete on the date delivered if personally delivered, or if mailed, shall be deemed complete three (3) days after the date of posting, with postage thereon fully prepaid and sent to the last known address of the intended recipient as provided for in this Agreement.
20. NOTIFICATION OF CHANGE OF ADDRESS. In the event that the Customer changes its address from the address listed in the Addendum, the Customer shall give the Company written notice of any such change within ten (10) days of the change, specifying the Customer’s current residence, alternate address and telephone numbers. Failure to provide forwarding information to the Company in writing releases the Company from liability forany damage that may occur in the event that the Container(s) must be removed from the Facility or the storage address specified in the Addendum, as applicable, or in exercising the Company’s remedies upon an event of default. The Company assumes no responsibility and will make no attempts to locate the Customer if such information is unavailable.
21. ASSIGNMENT. The Customer shall not assign or sublease the Containers or any portion thereof without in each instance the prior written consent of the Company. The Company may assign or transfer its rights and obligations under this Agreement without the consent of the Customer and, after such assignment or transfer, the Company shall be released from all obligations under this Agreement occurring after such assignment or transfer.
22. SUCCESSION. All of the provisions of this Agreement shall apply to, bind, and be obligatory upon the heirs, executors, administrators, representatives, successors and assigns of the parties hereto.
23. GOVERNING LAW/JURISDICTION. This agreement must be governed and construed in accordance with the laws applicable in Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Victoria. If any provision or part of a provision of this Agreement is invalid or unenforceable in any jurisdiction: (a) the provision must be read down for the purposes of the operation of that provision in that jurisdiction, if possible, so as to be valid and enforceable; or (b) if the provision cannot be read down it must be severed if it is capable of being severed, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction and the parties must consult is good faith to determine whether any amendment or substituted provision is required. The Customer agrees that the Company will be notified of all claims no later than the earlier of 60 days from the initial discovery of the claim or default or 60 days following the expiration or termination of this Agreement and failure to do so will result in the forfeiture of said claim.
24. RULES AND REGULATIONS. The rules and regulations of the Company’s Facilities shall be posted in a conspicuous place at the Facility are made a part of this Agreement and the Customer shall comply at all times with such rules and regulations while at the Facility. The Company shall have the right from time to time to promulgate amendments and additional rules and regulations for the safety, care and cleanliness of the Container(s), Facility and all common areas of the Facility, or for the preservation of good order and, upon the posting of any such amendments or additions in a conspicuous place at the Facility, they shall become a part of this Agreement.
25. LOCAL ORDINANCES AND REGULATIONS. The Customer acknowledges that the Customer’s use and placement of the Containers at the delivery and storage locations listed in the Addendum may be subject to applicable Commonwealth, state, territory or council laws, ordinances, rules and/or regulations. The Customer is responsible for obtaining any council permits necessary for the Company to leave the Container at the locations listed in the Addendum. The Customer assumes full responsibility for any fines and/or penalties, monetary or other, resulting from the Customer’s use or placement of the Container(s) in violation of such ordinances, rules, and/or regulations. If an authority requires the Company to remove the Containers from the Customer’s premises, the Company will attempt to notify the Customer of such requirement; however, the Customer gives the Company full authority to comply with such requirements, and absolves the Company of any liability for any resulting damage to the Customer’s premises or property. Additionally, if the Customer is renting or leasing the premises where the Containers is located, other than property owned by the Company, and the landlord of the premises requests that the Containers be removed or relocated, the Customer gives the Company full authority to comply with the landlord’s request, and absolves the Company of any liability for any resulting damage to the Customer’s property or the premises and shall indemnify and hold harmless the Company from any claims by the landlord for damage to the premises. The Customer further understands that should the Containers be removed by any person other than the Company, the Customer assumes all costs including but not limited to legal fees and removal and storage costs that are associated with the Containers’ retrieval by the Company and further agrees to pay the Company for any damages that are associated with such removal and storage of the Containers.
26. FORCE MAJEURE. The Company shall not be held liable for any delay, interruption, or failure to perform any of its obligations under this Agreement, and shall be excused from any further performance, due to circumstances beyond its reasonable control, which circumstances shall include, but not be limited to, any act of god, any act of any governmental authority, insurrection, riots, national emergencies, war, acts of public enemies, terrorism, inability to secure adequate labour or material, strikes, lock-outs or other labour difficulties, failure or delay of transportation, fires, floods, storms, explosions, severe weather conditions, earthquakes, or other catastrophes or serious accidents, epidemics or embargoes.
27. GST. Any amounts payable pursuant to this Agreement are exclusive of GST (“GST” has the meaning it does in section 195-1 of the GST Act; “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 and any related or similar legislation). To the extent that any supply or supplies under this agreement are subject to GST, the following applies: (a) any amount payable by the Customer to the Company on account of GST for, or in connection with, a supply under this agreement does not include any GST; (b) the Customer must pay to the Company an additional amount (plus any general interest charge, fines or penalties assessed by the Australian Taxation Office or a court or tribunal) on account of GST equal to the amount payable by the Customer for the relevant supply or supplies multiplied by the prevailing GST rate; (c) the Customer is required to pay the additional amount to the Company within 5 business days of any request from the Company; and (d) if a payment is to be made under this clause 27, the Company must provide the Customer with a tax invoice which complies with the requirements of the GST Act.
28. NO WAIVER. A party’s failure to insist another party perform any obligation under this agreement is not a waiver of that party’s right (a) to insist the other party perform, or to claim damages for breach of, that obligation; or (b) to insist the other party perform any other obligation, unless the waiving party acknowledges the waiver in writing.
29. NO MERGER. The rights and obligations of the parties will not merge on completion of any transaction under this agreement and they will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
30. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings with respect thereto. There are no representations, warranties, or agreements by or between the parties, which are not fully set forth herein, and no representative of the Company or the Company’s Agents is authorized to make any representations, warranties or agreements other than as expressly set forth herein. This Agreement may only be amended by writing signed by both parties.