STORAGE TERMS AND CONDITIONS
This Agreement is entered into between Gradualise Pty Ltd. trading as Gradualise (ABN 69657934391) (we, us or our) and you, the person, organisation or entity that accepts this Agreement (you or your), together the Parties and each a Party.
This Agreement is only for the Storage Services, and will apply in addition to any other terms and conditions applicable to the sale of the Products to you, including those on our Site.
Our Disclosures
Please read this Agreement carefully prior to accepting this Agreement. By accepting this Agreement, you agree that:
where this Agreement is terminated or expires, you must collect the Products within 10 Business Days of this date and where you fail to collect the Products;
if you do not collect the Products within 10 Business Days of the Collection Time or provide details for delivery (where delivery by us is agreed), risk in the Products will pass to you at the end of that period;.
you may be required to pay our costs if you fail to comply with certain terms in the Agreement (e.g. if we incur costs as a result of termination of this Agreement and this includes paying an early removal fee of $15);
your failure to pay the Storage Fees in accordance with the Payment Terms may result in us exercising our contractual lien over the Products (see clause 11), charging you interest, or suspending the supply of the Storage Services until we receive payment (see clause 9);
subject to your Consumer Law Rights, we exclude our Liability for your (or your Personnel’s) acts or omissions, events beyond our reasonable control (including Force Majeure Events), and Consequential Loss;
subject to your Consumer Law Rights, our aggregate Liability for the supply of the Storage Services will be limited to, at our discretion the resupply of the Storage Services or the repayment of the Storage Fees paid by you to us in the preceding 12 months in respect of the supply of the relevant Storage Services to which the liability relates ; and
if your personal information is collected by us under this Agreement, your personal information may be disclosed to third parties in accordance with our privacy policy and solely for the purpose of us providing the Storage Services.
This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.
Acceptance and Term
2.1 You accept this Agreement by clicking ‘I agree’ (or similar button or checkbox) indicating your acceptance of this Agreement. The date you accept this Agreement will be the Commencement Date.
2.2 We will commence the supply of the Storage Services within a reasonable time after the later of the Commencement Date, the receipt of the Storage Fees in full; and the satisfaction of any other conditions precedent contemplated by this Agreement, including the Products being available for storage.
2.3 If you are agreeing to this Agreement on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means that Entity and you are binding that Entity to this Agreement. If you are agreeing to this Agreement as an individual, then “you” means you as an individual. If you are accepting this Agreement on behalf of an Entity, then you as an individual represent and warrant that you are authorised by the Entity to do so.
2.4 Term: Subject to each Party’s right to terminate this Agreement in accordance with its terms, this Agreement commences on the Commencement Date and will continue for the time period for the Storage Services selected by you on our Site (Initial Term). On the expiry of the Initial Term, this Agreement will be automatically renewed for equal subsequent periods (each a Renewal Period), unless either Party provides 7 days’ written notice before the end of the Initial Term or the end of the then-current Renewal Period (as applicable) that it does not wish to renew this Agreement.
Storage Services
3.1 In consideration of your payment of the Storage Fees, we will provide the Storage Services in accordance with this Agreement, whether ourselves or through our Personnel.
3.2 We will not be responsible for any Storage Services unless expressly set out in the inclusions in the Storage Services you have selected.
3.3 You are required to obtain insurance for the Products that are the subject of the Storage Services.
3.4 You agree that we may amend the Storage Services or the Storage Fees at any time, by providing written notice to you. Where we do this, the amendment will only be effective on and from the end of the Initial Term (or subsequent Renewal Period, as the case may be), where the Agreement is not terminated earlier in accordance with its terms.
Service limitations
4.1 The Storage Services are only available in relation to Products purchased from us. You will not be able to store other valuables with us, unless otherwise agree between the Parties.
4.2 Products stored with us will not be accessible by you during the Term of the Agreement, except on termination of the Agreement. If you wish to access the Products, you will need to exercise your termination rights under clause 15.1.
Delivery or collection at the end of the Term
5.1 If the Parties agree that:
we are responsible for delivering the Products to you at the end of the Term, we will deliver the Products to the Delivery Location;
you are responsible for collecting the Products from us, we will use reasonable endeavours to make available the Products at the Collection Location by the Collection Time, and you agree to:
use reasonable endeavours to collect the Products from the Collection Location and by the Collection Time; and
comply with any policies and procedures which apply at the Collection Location from which you collect the Products.
5.2 As between the Parties, you agree to pay for the reasonable costs of delivering and/or collecting the Products, whereby these delivery or collection costs are outlined in our online store terms and conditions.
5.3 This clause 5 will survive termination or expiry of this Agreement.
Insolvency, incapacity or death
Where you: (a) suffer an Insolvency Event; (b) die; or (c) otherwise become unable to exercises your rights under this Agreement for reasons of incapacity, and the Products vest in a trustee or executor (as the case may be), we may terminate this Agreement and permit the trustee or executor to access the Products.
Identification
7.1 The Anti-Money Laundering and Counter-Terrorism Financing Act (2006) (AML/CTF Act) was introduced to reduce the risk of money laundering or terrorism financing. As a result of the AML/CTF Act, we must verify your identity and in certain circumstances, the beneficial owners of companies, trusts, partnerships, incorporated associations and registered co-operatives.
7.2 A beneficial owner is defined as the natural person who ultimately owns or controls you and/or the natural person on whose behalf you have entered into the Agreement. It includes those persons who exercise effective control over a legal person or arrangement. It includes a person who directly or indirectly owns 25% or more of an entity or who controls another person. If there is a chain of ownership, the relevant beneficial owner is the person who ultimately owns or controls you.
7.3 If your Product is worth over $5,000 at the time of purchase, you are required to complete an application form we provide to you, which includes our AML/CTF Act identification requirements. These requirements are in place to: 1. ensure you are properly identified through a documented process; and 2. verify the identity of customers/businesses using reliable electronic and independent documentation.
Payment
8.1 In consideration for us providing the Storage Services, you agree to pay us the Storage Fees, and any amount payable to us under this Agreement.
8.2 Payment Terms: The Storage Fees will be invoiced and payable annually in advance, starting from the date the Storage Services are requested (Payment Date).
8.3 You agree that you are responsible for reviewing the pricing schedule, features and limits associated with the Storage Services, which are specified on the Site.
8.4 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
after a period of 10 Business Days, cease providing the Storage Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and/or
charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
8.5 You will not be entitled to any part of the Storage Services until the Storage Fees has been paid in full.
8.6 We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.
8.7 You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise).
8.8 This clause 9 will survive termination or expiry of this Agreement.
Risk
9.1 If the Parties agree that you are to collect the Products from us, risk in the Products will pass to you when you have collected the Products from the Collection Location. If you do not collect the Products within 10 Business Days of the Collection Time or provide details for delivery (where delivery by us is agreed), risk in the Products will pass to you at the end of that period.
9.2 If the Parties agree that we are to deliver the Products to you, risk in the Products will pass to you when we have delivered the Products to the Delivery Location.
9.3 This clause 10 will survive termination or expiry of this Agreement.
Contractual lien, security interest and rights of sale
10.1 You agree that we hold a general active lien over any Products are in our possession, for the satisfactory performance of your obligations under this Agreement (including payment of any amounts owed under this Agreement, including Storage Fees).
10.2 To the extent permitted by law, where you fail to pay the Storage Fees (and any other fees owing under this Agreement) within 14 days of due date, the general lien in clause 10.1 allows us to sell the Products for fair value after this date. Any fees owing to us will be deducted from the sale price of the Products, and we will make reasonable endeavours to provide to you the remainder of the sale price.
10.3 You agree that this Agreement and your obligations under this Agreement create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with this Agreement) being registered on any relevant securities register (and you must do all things to enable us to do so).
Warranties and Representations
11.1 Each Party represents, warrants and agrees that:
it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;
that this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;
if applicable, it holds a valid ABN which has been advised to the other Party; and
if applicable, it is registered for GST purposes.
11.2 You represent, warrant and agree:
to comply with this Agreement and all applicable Laws;
that all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
to comply with our reasonable requests or requirements;
that you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Storage Services;
that you have not relied on any representations or warranties made by us in relation to the Storage Services (including as to whether the Storage Services are or will be fit or suitable for any particular purposes), unless expressly stipulated in this Agreement;
that no Insolvency Event has occurred in respect of you and that you will immediately notify us if you are (or you are likely to be) the subject of an Insolvency Event;
that the Storage Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Storage Services to third parties without our prior written consent;
that any information, advice, material, work and services (including Storage Services) provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice; and
that you will be responsible for the use of any part of the Storage Services, and you must ensure that no person uses any part of the Storage Services to break any Law or infringe any person’s rights.
Australian Consumer Law
12.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Storage Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).
12.2 If the ACL applies to you as a consumer, nothing in this Agreement excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Storage Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.
12.3 Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Goods and Storage Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
12.4 This clause 13 will survive the termination or expiry of this Agreement.
Limitations on liability
13.1 Despite anything to the contrary, to the maximum extent permitted by law:
neither Party will be liable for Consequential Loss;
a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying Storage Services to you or, in our sole discretion, to us repaying you the amount of the Storage Fees paid by you to us in the preceding 12 months in respect of the supply of the relevant Storage Services to which the Liability relates.
13.2 This clause 14 will survive the termination or expiry of this Agreement.
Termination
14.1 Either Party may terminate this Agreement at any time by giving 7 days’ notice in writing to the other Party. You can give written notice to us by contacting us at info@gradualise.com.au.
14.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
the Defaulting Party is unable to pay its debts as they fall due.
14.3 Upon expiry or termination of this Agreement:
you are to pay for all Storage Services provided prior to termination, including Storage Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; and
by you pursuant to clause 1 or by us pursuant to clause 15.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including an early removal fee of $15, which you acknowledge and agree is a genuine pre-estimate of our loss).
14.4 We agree to provide a pro rata refund of the Storage Fees for the Storage Services that would have been delivered after the termination or expiry but will now not be delivered as a result of termination or expiry, except where such termination is exercised by us under clause 15.2 (in which case you agree that any payments are not refundable to you).
14.5 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
14.6 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
14.7 This clause 15 will survive the termination or expiry of this Agreement.
GST
15.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
15.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
15.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
15.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
General
16.1 Assignment: Subject to clause 17.2, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
16.2 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
16.3 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause 17.3 will survive the termination or expiry of this Agreement.
16.4 Entire agreement: Subject to your Consumer Law Rights, the Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
16.5 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
16.6 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
16.7 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
16.8 Joint ownership: If you are one or more Parties, you will be jointly and severally liable under the terms of this Agreement and treated as jointly and severally entitled to the Products. If you are individuals, access to the Products will be treated as that of the survivor is one of you dies.
16.9 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
16.10 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
Collection Location means the location where the Products are to be collected, as agreed between the Parties.
Collection Time means the time for the collection of the Goods, as agreed between the Parties.
Confidential Information includes information which:
is disclosed to the Receiving Party in connection with this Agreement at any time;
is prepared or produced under or in connection with this Agreement at any time;
relates to the Disclosing Party’s business, assets or affairs; or
relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Storage Fees and any other amounts due and payable by you to us under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
Consumer Law Rights has the meaning given in clause 13.1.
Delivery Location means the location where the Products are to be delivered, as agreed between the Parties.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Dispute has the meaning given in clause 17.3.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Insolvency Event means any of the following events or any analogous event:
a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
a Party ceases, or threatens to cease, carrying on business;
a Party is unable to pay the Party’s debts as the debts fall due;
any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the supply of the Storage Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Products means the gold bullion or other precious metal products purchased from our Site.
Storage Fees means the price for the Storage Services you have selected, as set out on the Site.
Storage Services means the secure storage of the Products purchased from our Site, as particularised in the details of the Storage Services you select when requesting the Storage Services.
Site means our website accessible at www.gradualise.com.au
Term has the meaning given in clause 2.4.
For any questions and notices, please contact us at:
Gradualise Pty Ltd. trading as Gradualise (ABN 69657934391)
Email: info@gradualise.com.au
Last update: 22 April 2022
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