BETWEEN
PRIME SAFETY VAULTS PTY LTD (ACN 692 007 426) of 41 Tallis Cct, Truganina Victoria, Australia, email: info@primesafetyvaults.com.au(Company).
AND
the customer, as named in Registration Form in Schedule 1, (Licensee).
BACKGROUND
The Licensee identified in the Registration Form in Schedule 1 of these Terms and Conditions acknowledge that they have read, understood and agree to be bound by these Terms and Conditions.
The Licensee must comply with, and ensure compliance with, these Terms and Conditions (as amended from time to time in accordance with their terms) in connection with its access to, use, operation, management of, and dealings relating to the Box which is the subject of the Licence granted under this Agreement.
OPERATIVE PROVISIONS
DEFINITIONS
In these Terms and Conditions, except where the context otherwise requires:
Definitions:
Act means the Corporations Act 2001 (Cth) and includes any amendment or re-enactment of it, or any legislation passed in substitution for it;
Agreement means the Registration Form, the Terms and Conditions (as amended from time to time) or any other document forming part of the Agreement between the Company and the Licensee, including any schedules or annexures;
Authorised Person means the person named in the Agreement or any other person notified to the Company, in writing by the Licensee, to be an Authorised Person;
Authority means any government or governmental, semi-governmental body, regulatory or judicial body, department, commission, authority, instrumentality, tribunal, agency or entity, and includes a revenue authority and any self-regulatory organisation established under statute;
Basic Policy has the meaning as set out in clause 19.
Box means the safety deposit box in the Vault Facility allocated for exclusive use to a Licensee as listed in the Registration Form or in any other part of the Agreement;
Business Day means a day that is not a Sunday or a public holiday or bank holiday in Melbourne, Victoria, Australia;
Company means PRIME SAFETY VAULTS PTY LTD (ACN 692 007 426);
Company Key means a key that corresponds to the relevant Licensee Key and is retained by the Company;
Company Representative means a person or persons employed by the Company holding authority to attend to and physically facilitate Box access;
Commencement Date means the commencement date of the Agreement as set out in clause 3;
Direct Debit Authorisation and Direct Debit means and refers to the portion of the Registration Form named “Automatic Renewal” and shall include any additional or substitute Direct Debit Authorisation provided by the Licensee to the Company during any Period, further Period or extended Period of this Agreement;
Due Date means the date a payment is to be made by the Licensee to the Company, irrespective of whether or not such day falls on a public holiday, Saturday or Sunday;
Extended Policy means a further or additional policy of insurance as described in clause 19.
Fee Schedule means the Fees Published from time to time;
Identification Requirements means the requirements set out in clause 23 of these Terms and Conditions or any other requirement notified, in writing, by the Company to the Licensee;
Insolvency Event means, in relation to a person or entity (as the case may be), the person or entity being made bankrupt, being placed into liquidation, receivership, administration or official management, entering into a scheme of arrangement, compromise or composition with creditors or being or becoming unable to pay one’s debts as they fall due and payable or a similar event occurring to the person;
Key Deposit means the amount specified in the Registration Form or any subsequent, substituted, additional or further amount notified to the Licensee by the Company;
Licence means the personal, non-transferable and exclusive right granted by the Company to the Licensee during the Period to occupy and use the allocated Box in accordance with this Agreement, subject to payment of the Licence Fee and compliance by the Licensee and its Authorised Persons with the terms of this Agreement as set out in clause 2 of these Terms and Conditions;
Licence Fee means any monies payable by the Licensee to the Company in connection with the Agreement, as determined by the Company and notified to the Licensee from time to time;
Law means the requirements of any statute, rule, regulation, proclamation, ordinance or by-law, including any amendment or re-enactment;
Licensee means the person(s), incorporated entity, partnership or Trustee of any Trust or Superannuation Fund listed as the Licensee(s) in the Agreement or any person nominated by the Licensee(s) in accordance with the Agreement or otherwise approved by the Company who has full operating rights;
Licensee Keys means the keys associated to and issued in relation to a specific Box by the Company to the Licensee and retained by that Licensee or its Authorised Person;
Licensee’s Property means the Licensee’s property stored in the Box;
Loss means, in relation to any person:
a damage, loss, cost, expense or liability incurred by the person; and
a claim, action, proceeding or demand made against the person,
however arising and whether present or future, fixed or unascertained, actual or contingent;
Opt-In Fee means the fee payable as set by the Company, and advised to the Licensee, a monthly, half-yearly or annual basis, as directed by the Company in relation to, and based upon, the Licensee’s request for coverage under the Extended Policy.
Party/Parties means each party named in the Agreement;
Period means the term of the Licence as set out in the Registration Form or as otherwise extended, modified or varied in accordance with these Terms and Conditions;
Prohibited Property means the items set out in clause 7(b) and includes any other item(s) from time to time specified by the Company and notified, in writing, to the Licensee;
Published means contained, listed, produced or re-produced on the Company’s website and includes any variation, amendment or modification to any publication made by the Company;
Registration Form means the Company’s registration form of the Company, as varied, amended or modified, completed by the Licensee in Schedule 1;
Schedule means the schedule to these Terms and Conditions or to any other document between the Company and the Licensee forming part of the Agreement and includes the Registration Form;
Termination Date means the date that this Agreement terminates;
Terms and Conditions means these terms and conditions and includes any amendments, variation or replacement of these Terms and Conditions Published on the Company’s website and/or premises;
Vault Facility means the premises known as [insert address] and includes any future branches wherever located within Australia;
Interpretation
In this Agreement:
reference to one gender includes the others; the singular includes the plural, and the plural
includes the singular; and a person includes a body corporate;
“including” and similar expressions are not words of limitation;
headings and any table of contents or index are for convenience only and do not form part of the Agreement or affect its interpretation;
a reference to this Agreement includes an annexure, exhibit or schedule to this Agreement;
a provision of this Agreement will not be interpreted against a party just because that party prepared the provision;
a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it;
a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
a reference to a party to this or any other deed or agreement includes that party's successors and permitted assigns;
a reference to an agreement other than this Agreement includes an undertaking, agreement or legally enforceable arrangement or understanding whether or not in writing;
a reference to a clause, a schedule, or an annexure is a reference to a clause, a schedule or an annexure to this Agreement;
a reference to a clause includes a reference to a subclause;
currency, "$" or "dollars" means and refers to the currency of Australia unless otherwise
indicated; and
a reference to a person or words denoting a person includes an assignee, statutory corporation, partnership, joint venture, association, board, government or semi-government agency or authority and that person's successors and legal personal representative.
AGREEMENT
In consideration of the Licensee making payment of the Licence Fee to the Company and the Licensee and its Authorised Persons complying with the Agreement, the Company agrees to allocate and grant a Licence to the Licensee to exclusively use the allocated Box during the Period.
PERIOD
The Period of the Licence commences upon the Licensee remitting payment of the Licence Fee, complying with all requirements and conditions set out in the Registration Form, these Terms and Conditions, or compliance with any additional requirements or conditions notified to the Licensee by the Company, the Company allocating the Box and issuing the Licensee Keys (Commencement Date).
RENEWAL OF PERIOD
Subject to the terms of this Agreement, and unless otherwise indicated, the Period will automatically renew on the last day of the Period for a period equal to the initial Period as selected in the Registration Form, irrespective if such day falls on a public holiday, Saturday and/or Sunday, unless either Party provides at least 30 days’ written notice that the Licence is not being renewed, or in the case of a monthly Period, at least 7 Business Days of written notice.
NO BAILMENT
The Licensee acknowledges and agrees that:
the Company does not take possession, custody or control of the contents of any Box;
the Company does not inspect, verify, inventory or monitor the contents of any Box;
the relationship between the parties is solely that of licensor and licensee; and
nothing in this Agreement creates a bailment, custodial relationship, trust relationship or warehousing arrangement.
PRODUCTION OF DOCUMENTATION, LICENCE FEE AND SECURITY INTEREST
The Licensee must:
provide all identification documentation required or requested by the Company. All identification documentation must be produced either as:
original documents; or
a certificated copy of each original document, with such certification being not more than 12 months prior to completion of the application and provided to the Company at the time of application; and
upon a change of name, provide to the Company written notification of name change, together with the documentation outlined in clauses 6(a)(i) or 6(a)(ii), evidencing the name change within seven (7) days of such name change;
pay the Licence Fee for the full Period in advance and on or before the Commencement Date. The Agreement will not commence until the Licence Fee is paid together with all identification documentation provided or produced and accepted by the Company;
pay the Key Deposit as set out in the Registration Form to the Company;
pay the Licence Fee for subsequent renewals, in accordance with these terms and conditions no later than the due date. If the Agreement is not renewed, it will terminate at the end of the relevant term.
The Licence Fee is the amount set out in the Registration Form Payment Terms or otherwise
notified to the Licensee from time to time by the Company.
All other charges which may be payable by the Licensee at any time and as set out in the Agreement or otherwise amended, modified, increased and/or deceased and notified to the Licensee in writing.
All payments must be made by cash, bank transfer, approved credit or debit card, or by such other means as directed by the Company.
The Licensee must complete a Direct Debit Authority at the time of entering this Agreement. The Direct Debit Authority will apply to all payments due and payable to the Company by the Licensee. On the day before each anniversary of the Commencement Date, the Company will debit the Licence Fee for the Renewal Period, along with any other amounts due and payable by the Licensee. The Licensee agrees that:
the Licensee must ensure that the Direct Debit Authority forming part of this Agreement remains current at all times; and
failure to do so constitutes a fundamental breach of this Agreement; and
if the Direct Debit is not honoured by the Licensee’s bank, the Licensee will be in breach of this Agreement; and
the Licensee must pay all fees and charges incurred by the Company as a result, including each dishonour fee determined by the Company’s bank and any administration fee charged by the Company at its sole discretion.
The Licensee agrees that unless otherwise determined by the Company, the Licence Fee may increases annually by CPI or rate determined by the company.
If:
any Licence Fee or other amount payable by the Licensee under this Agreement remains unpaid for more than 14 days after its due date; or
a Direct Debit initiated by the Company is dishonoured and the outstanding amount is not paid within seven (7) days after written notice from the Company,
the Licensee acknowledges and agrees that the Company may, without limiting any other rights or remedies available to it:
immediately suspend the Licensee's and any Authorised Person's access to the Box;
refuse access to the Box until all outstanding amounts, interest, fees and enforcement costs have been paid in full;
enter, open and take possession of the contents of the Box upon giving the Licensee not less than 14 days' written notice;
exercise a particular and general lien over any or all the Licensee’s Property contained in the Box as security for all amounts owing by the Licensee to the Company under this Agreement;
remove, store, relocate, sell, dispose of or otherwise deal with the Licensee’s Property in such manner as the Company reasonably determines, and apply the proceeds towards satisfaction of any amounts owing by the Licensee, including all costs incurred by the Company in exercising its rights under this clause;
recover from the Licensee all costs and expenses incurred by the Company in enforcing its rights under this Agreement, including legal costs on a full indemnity basis, storage costs, transport costs, auction costs and debt recovery costs; and
charge interest on all overdue amounts at a rate equal to 4% per annum above the cash rate target published by the Reserve Bank of Australia from time to time, calculated daily and compounded monthly.
The Licensee grants to the Company a PPSA Security Interest (has the meaning given to the term security interest in the Personal Property Securities Act 2009 (Cth) (PPSA)) in all the Licensee’s Property placed in the Box or otherwise brought onto the Vault Facility as security for payment of all amounts owing by the Licensee under this Agreement.
The Licensee acknowledges that this Agreement constitutes a security agreement for the purposes of the PPSA.
The Company may register and maintain any financing statement or financing change statement on the Personal Property Securities Register (established under section 147 of the PPSA) in respect of its PPSA Security Interest.
The Licensee must do all things and provide all information reasonably required by the Company to enable the Company to perfect and maintain its PPSR Security Interest.
To the extent permitted by law, the Licensee agrees that the Company is not obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded. The Licensee consents to the waiver of the requirement for notice under this clause and waives any rights it has to receive a notice under sections 95, 118, 121(4), 130 and 157 of the PPSA.
To the extent that chapter 4 of the PPSA would otherwise apply to enforcement by the Company of any PPSA Security Interest in the Licensee’s Property, the Parties agree that:
to the extent permitted by section 115(1) of the PPSA, the Company need not comply with sections 125, 132(3)(d) and 132(4) of the PPSA;
sections 142 and 143 of the PPSA are excluded; and
to the extent permitted by section 115(7) of the PPSA, the Company need not comply with sections 132 and 137 of the PPSA.
BOX CONTENTS
The Licensee may use the Box to store the Licensee’s Property, which the Licensee is legally entitled to store, which is accessible only by the Licensee and the Licensee’s Authorised Persons.
The Licensee must not store:
liquids;
anything which is offensive in nature or illegal;
anything that has been declared dangerous or hazardous under any Law;
any dangerous, flammable, corrosive or perishable items;
weapons, regardless of whether or not they are in working order;
anything which may become a nuisance to any person;
anything which the Licensee does not have full legal entitlement to store whether for its own benefits, in its capacity as trustee or as an authorised representative;
anything the storage of which will make the Company subject to any liability, penalty, and/or legal proceeding; or
anything that requires any special handling or storage to enable its safe or effective storage,
(Prohibited Property).
The Licensee warrants and agrees that the Licensee’s Property stored in the Box complies with this clause 7.
If the Company becomes reasonably aware that any property, including the Licensee’s Property stored in the Box, contravenes this clause 7, the Company may remove that property and deal with it lawfully. This may include destroying the property or handing it to an appropriate authority. The Licensee acknowledges and agrees that the Company will not be liable for any Loss the Licensee incurs as a result of the Company taking action in relation to the Prohibited Property stored in the Box. The Licensee must indemnify the Company for all costs incurred as a result of the storage of the Prohibited Property.
KEYS
The Company will issue two (2) Licensee Keys for each Box to each Licensee upon compliance will all requirements set out in clause 6.
Where a Box is held jointly and has more than one Licensee, the Company may issue no more than 02 x Licensee Keys for the Box in totality.
A Box may only be opened when both a Licensee holding a Licensee Key and a Company Representative holding a Company Key are present.
All Licensee Keys remain the property of the Company.
The Licensee must:
not make or arrange for any person to make any copy of the Licensee Keys;
not mark the Licensee Keys in any way;
ensure that all Licensee Keys provided to the Licensee are not destroyed, damaged, lost or given to any person other than the Authorised Persons; and
on termination of the Agreement the Licensee must return all Licensee Keys to the Company in working order and in good condition.
The Licensee agrees that:
a Key Deposit as set out in the Registration Form, or otherwise notified by the Company, is payable in full to the Company before any Licensee Keys are provided by the Company to the Licensee. The Key Deposit is a fixed standard fee and applies to all Boxes regardless of the size of the Box and the License Period of the Box;
if one (1) Licensee Key is lost, damaged or misplaced, the Licensee will not be entitled to any refund of the Key Deposit and the Company will be entitled to retain the full amount of the Key Deposit;
if both Licensee Keys are lost, damaged or misplaced, the Company will arrange for a locksmith to attend the Vault Facility to drill open and gain access to the Box. The Licensee agrees that:
the Licensee will be present at the Vault Facility and the Box, during the locksmith’s attendance and access to the Box; and
where there is more than one (1) Licensee then:
(A) at least one (1) Licensee will be present at the Vault Facility and the Box during the time that the locksmith is accessing the Box; and
(B) the remaining Licensee, if unable to attend the Vault Facility, must provide to the Company with prior written acknowledgment, to the satisfaction of the Company, that a locksmith has been arranged due to a lost, damaged or misplaced key,
(C) nothing contained in this clause 8(f)(iii) is to be interpreted as the Company requiring the consent of the Licensee(s) to rectify the damage to the key system within the Box, which damage is a direct result of the lost, damaged or misplaced key(s) by the Licensee(s); and
the Licensee must pay all amounts charged by the locksmith for attending the Vault Facility and accessing the Box, which will include a minimum call out fee, as specified in the Fee Schedule or any other amount notified to the Licensee by the Company. The Box drilling costs and expenses, including damage to the Box and subsequent repair or replacement costs, together with all other fees, charges or costs incurred by the Company as a result of the Locksmith’s attendance, are due and payable at the time the Box is accessed.
ACCESS BY LICENSEE AND AUTHORISED PERSON(S)
The Licensee agrees that only the Licensee(s) and the Authorised Persons shall have access to the Box and its contents. The Company requires the Identification Requirements to be met before allowing access to the Box and the Company may, in its absolute discretion, refuse access if the Identification Requirements have not been fully satisfied by the Licensee.
The Licensee may nominate additional Authorised Persons or withdraw the authority of any Authorised Persons by notice in writing to the Company (in the form of a written letter in English delivered to the Company and signed by the Licensee(s)).
The Licensee and any Authorised Persons may access the Vault Facility and their Box on a Business Day between 9:00AM and 5:00PM Australian Eastern Time. However, the Company maintains its right to regulate access to the Vault Facility in its reasonable discretion.
The Authorised Person may only access the Box with the Licensee Key in the presence of a Company Representative with the corresponding Company Key. A Box can only be opened when both the Licensee Key and the Company Key are inserted into the key holes of the Licensee’s Box. The Company reserves the right to deny access to the Box if any provision of the Agreement has been breached by the Licensee including but not limited to a failure to pay any fee or other charges referred to in the Agreement. Where a breach of the Agreement has been remedied by the Licensee, access to the Box will be reinstated by the Company.
Once the Box has been opened, the Authorised Person may view or add to the contents of the Box without the supervision of a Company Representative in an allocated viewing suite and/or within the Vault Facility. Pursuant to these terms and conditions, the Authorised Person shall not be entitled to terminate the Licence in respect to the Box, without the prior written authority and consent provided to the Company by the Licensee.
ACCESS BY AN AUTHORITY
In the event that an Authority, or any duly authorised representative of an Authority, serves upon the Company a legal demand to access a Box, or issue a demand for information held by the Company relating to the Licensee, to the extent permitted by law, the Company will comply with such demand. The Company expressly disclaims any liability for any Loss suffered by the Licensee in compliance with the Authority’s demand.
If a party, other than a party referred to in clause 10(a), attempts to access a Licensee’s Box or information held by the Company relating to the Licensee, the Company will resist unless the Licensee has instructed the Company, in writing, to release the information sought.
Where permitted by law the Company will notify the Licensee of receipt of any legal demand to provide access to the Box or to release the Licensee’s information. The Licensee must indemnify the Company, and keep the Company indemnified against any Loss suffered or incurred by the Company arising from or in connection with the Company's failure to notify the Licensee of the receipt of any legal demand relating to the Box.
The Licensee acknowledges and agrees that:
all Loss (including all legal fees on a solicitor-client basis) incurred by the Company in resisting access to the Box will be borne by and be the sole responsibility of the Licensee;
the Licensee must indemnify the Company, and keep the Company indemnified against all such costs and will immediately upon demand made by the Company, make payment to the Company of all such costs;
The Licensee further acknowledges and agrees that in respect to the Box, the Licensee’s information and the contents of the Box:
all legal costs and expenses (on a solicitor – client basis) incurred by the Company as a result of the Company becoming a party to any action, legal proceeding, review, claim, investigation or any other matter connected to the Licensee, the Authorised Person(s), the next of kin or the contents of the Box, must be borne by and be the sole responsibility of the Licensee; and
all costs and expenses incurred from any professional advisor engaged by the Company, acting reasonably, are costs incurred on behalf of the Licensee, the Authorised Person or the next of kin and become immediately due and payable by the Licensee to the Company upon written request.
LIABILITY
Subject to clause 19 of these Terms and Conditions, the Licensee acknowledges and agrees that, to the maximum extent permitted by Law:
any liability of the Company to the Licensee, the Authorised Person(s) and any other third party (including for any Loss the Licensee may suffer or incur in connection with the Licensee’s Property) is limited to:
liabilities which are claimable by the Company under the Basic Policy (or the Extended Policy if applicable in accordance with clause 19); and
the amount recovered by the Company in respect of that liability under the relevant policy.
the Company’s total liability to the Licensee (or Licensees where there is more than one) will not exceed the amount recovered by the Company in respect of that liability under the Basic Policy (or the Extended Policy if applicable in accordance with clause 19).
any or all warranties that would otherwise be implied in respect to the Company into this Agreement are specifically excluded.
The Licensee must indemnify the Company, and keep the Company indemnified against any Loss the Company may incur (including liability to any third party) arising from the licensing of the Box (and access to the Vault Facility) by the Licensee, its Authorised Persons and any other person attending the Vault Facility with the Licensee and/or its Authorised Person(s).
Nothing in these Terms and Conditions excludes, restricts or modifies any guarantee, right or remedy conferred on the Licensee by the Australian Consumer Law (ACL) or any other law that cannot be lawfully excluded, restricted or modified.
TERMINATION
The Agreement terminates on the earlier of:
the Company or the Licensee giving the other not less than thirty (30) days written notice of the intended termination; or
the Company in its discretion elects to immediately terminate the Agreement where any of the events specified in clauses 6(b), 7(c), 12 and 14(b) of these Terms and Conditions occurs; or
the end of the Period where the Licensee has not renewed the Agreement in accordance with clause 4 of these Terms and Conditions.
Termination of the Agreement is without prejudice to any accrued rights of the Parties.
Upon termination, the Licensee must, within 24 hours:
remove all contents of the Box; and
return the Licensee Keys by:
physical delivery to the Company at 41 Tallis Cct, Truganina Victoria;
forward by registered post; or
forward by courier; and
the Licensee remains responsible for any loss of Licensee Keys until the Licensee Keys are received by the Company.
Where the Licensee is unable to physically attend the Facility for the purposes of removing the contents of the Box, the Licensee may, by pre-arrangement with the Company, provide the Company with written authority and consent, wet ink (in pen) signed by the Licensee and provided to the Company, no less than seven (7) days prior to the date upon which access to the Box is required, permitting an Authorised Person to attend the Facility for the purpose of vacating and clearing of the Licensee’s Box.
Where the Licensee Keys are returned to the Company, the Company will rely on this action by the Licensee as authority to open the Box, without any further correspondence or communication from the Licensee and in doing so the Company may consider the Box to be vacated or emptied.
If the Company undertakes the steps contemplated in clause 12(e) and becomes aware that the Box has not been vacated or cleared, the Company may deal with the contents of the Box in accordance with clause 13 of these terms and conditions and must not be held responsible or liable in respect to the Box contents, save and except in accordance with any applicable laws.
Where the Agreement is terminated by either the Company or the Licensee by the giving of written notice under clause 12(a)(i) of the Terms and Conditions before the end of the Period, the Company will provide the Licensee with a refund of the Licence Fee that represents the unexpired period calculated from the first day after the expiration of the thirty (30) days’ notice period, on a pro rata basis applying the monthly default rate as determined by the Company from time to time.
Where the Agreement is terminated for any other reason than the giving of notice under clause 12(a)(i) of these Terms and Conditions before the expiration of the Period, the Licensee will not be entitled to a refund of the Licence Fee.
Where the Agreement is terminated for any reason, the Licensee will not be entitled to a refund of any administrative or other charges paid or due and payable by the Licensee to the Company and the Company is entitled to deduct any unpaid fees or charges (including any legal or professional fees incurred from any amounts refundable to the Licensee.
Where this Agreement is terminated for any reason, the Licensee will immediately cease to be a named party on the Basic Policy and/or the Extended Policy (if applicable).
The Company may refuse to provide services, suspend access to the Box or terminate this Agreement where:
the Licensee;
an Authorised Person;
a Beneficial Owner; or
a Controller,
is subject to any applicable sanctions law or is reasonably suspected by the Company of being involved in sanctions breaches, money laundering, terrorism financing or other unlawful conduct.
DISPOSAL OF PROPERTY
Where the Agreement is terminated for any reason, the Licensee must remove any and all of the Licensee’s Property from the Box prior to the last day of the Period or where the last day of the Period falls on a day that is not a Business Day, then the next available Business Day.
Where the Licensee fails to remove the Licensee’s Property from the Box in accordance with clause 13(a), the Company will be entitled to exercise its rights and powers under applicable laws, including rights of sale of the Licensee’s Property including under the Warehousemen’s Liens Act 1958 (Vic).
Where the Company holds uncollected goods, the Company may:
remove the Licensee’s Property from the Box and store the Licensee’s Property at the Company’s discretion; and
apply to the appropriate court or tribunal for an order for the sale and/or disposal of the Licensee’s Property and apply the proceeds of the sale to any outstanding Licence Fees or charges owing by the Licensee to the Company, including any storage costs, cost of sale, commissions, legal fees or any other costs, expenses or charges incurred by the Company in dealing with the Licensee’s Property and refund the balance of the proceeds of the sale (if any) to the Licensee, and the Company will in respect to its dealings with uncollected goods, observe and be governed by any and all applicable laws and legislative enactments.
INSOLVENCY, INCAPACITY OR DEATH
Where a Licensee:
suffers an Insolvency Event;
dies; or
otherwise becomes unable to exercise its rights under the Agreement for reasons of incapacity, and the Licensee’s is vested in a trustee, executor or administrator, as the case may be,
the Company may terminate the Agreement and permit such trustee, executor or administrator to access the Box to remove its contents, subject to compliance with the provisions of the Agreement and all applicable laws, including the Act.
Where a Licensee dies, the Company will:
comply with all state Laws, including laws of states and territories applicable to the deceased’s estate;
only release the contents of, and deal with the Box in accordance with the Laws of Victoria, including but not limited to the Administration and Probate Act 1958 (Vic);
where necessary, engage the required professionals, including legal representation, to ensure the Company’s compliance with the provisions of Administration and Probate Act 1958 (Vic); and
do all things reasonably necessary and required by Law to maintain the safety of the contents of the Box for the Licensee’s intended heir or successor in title;
where the Company is required to engage professional and/or legal services or obtain professional and/or legal advice to fulfil its obligations set out in clause 14(b)(iii), any costs, expenses, charges, disbursements and/or professional fees incurred by the Company become an amount due and payable by the Licensee’s estate.
Where a Licensee becomes legally incompetent or incapacitated, the Company will:
comply with all state Laws, including laws of states and territories applicable to incapacity;
only release the contents of, and deal with the Box in accordance with the Laws of Victoria, including but not limited to the Guardianship and Administration Act 2019 (Vic), Powers of Attorney Act 2014 (Vic) or any other applicable laws;
where necessary, engage the required professionals, including legal representation, to ensure the Company’s compliance with the provisions of the Guardianship and Administration Act 2019 (Vic), Powers of Attorney Act 2014 (Vic) or any other applicable laws;
do all things reasonably necessary and required, by Law, to maintain the safety of the contents of the Box for the Licensee’s appointed guardian or power of attorney; and
where the Company is required to engage professional and/or legal services or obtain professional and/or legal advice to fulfil its obligations set out in clause 14(c)(iii), any costs, expenses, charges, disbursements and/or professional fees incurred by the Company become an amount due and payable by the Licensee.
Where the Company is placed into liquidation, administration or bankruptcy, the liquidator, administrator or other relevant party responsible for administering the Company, will contact the Licensee and notify the Licensee to remove all Licensee’s Property from the Box. The Company is not entitled to access the Box or remove the Licensee’s Property from the Box except as otherwise permitted under clauses 6, 7 and 8. The Licensee acknowledges and agrees that if the Licensee does not remove the Licensee’s Property from the Box by the date nominated in the notice, then the provisions of clauses 13(b) and 13(c) will apply and the Company (or the administrator, liquidator or other relevant third party) will be entitled to remove the Licensee’s Property from the Box and exercise all of the rights set out in clauses 13(b) and 13 (c).
In the case of dispute between Licensees that are joint holders, the Company will continue to provide access to the Box pursuant to these Terms and Conditions unless and until written notice to terminate these Terms and Conditions by the joint holders or their legal, financial or other professional advisors is provided to the Company. The Company is not responsible for any loss, damage or harm to the contents of the Box arising out of the joint holders failing to terminate these Terms and Conditions pursuant to clause 12 of these Terms and Conditions.
GOODS AND SERVICES TAX
Definitions In this clause:
“GST” means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended (GST Act) or any replacement or other relevant legislation and regulations;
words or expressions used in this clause 15 which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires;
any reference to GST payable by a Party includes any corresponding GST payable by the representative member of any GST group of which that Party is a member;
any reference to an input tax credit entitlement by a Party includes any corresponding input tax credit entitlement by the representative member of any GST group of which that Party is a member; and
if the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.
Supply is a taxable supply:
unless GST is expressly included, the consideration to be paid or provided under any other clause of the Agreement for any supply made under or in connection with the Agreement does not include GST; and
to the extent that any supply made under or in connection with the Agreement is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided. A party’s right to payment under this clause 15 is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
VARIATION
The Licensee agrees that the Company:
may vary these Terms and Conditions, or change or introduce any fee or charge, at anytime;
will give the Licensee notice of any variation to these Terms and Conditions no later than thirty (30) days before the change takes effect; and
will give the Licensee at least thirty (30) days prior notice if the Company changes or introduces a new Licence Fee or charge.
The Company’s notification requirements contained in this clause 16 shall mean any one of the following:
publishing the Company’s amended, varied or modified Terms and Conditions on the Company’s website;
by notifying the Licensee by email;
by notifying the Licensee by mail, addressed to the Licensee’s last known address;
by any other means determined by the Company.
During the Period of this Agreement, it is and remains the Licensee’s responsibility to undertake all steps necessary for the Licensee to be up to date and familiar with the Company’s Terms and Conditions including any amendments, variations or up-date of such Terms and Conditions. Where Terms and Conditions have been amended, varied or modified, the Licensee’s continued use of the Box is acceptance by the Licensee of the Company’s amended, varied or modified Terms and Conditions.
If the Licensee does not accept any variation or change that the Company makes, and the Licensee is not in breach of the Agreement, the Licensee may terminate the Agreement within the Company’s thirty (30) day notice period contained in clause 15(a)(ii).
If the Licensee does not notify the Company that the Licensee wishes to terminate the Agreement in accordance with clauses 15(a) and 15(b), the Licensee will be deemed to have accepted the variation set out in the Company’s notice.
The Licensee must not vary the Agreement.
LATE PAYMENT AND CHARGES
Any and all fees payable pursuant to this Agreement are remitted in accordance with the Direct Debit Authority provided by the Licensee at the Commencement Date and comprised in the Registration Form or otherwise notified to the Company by the Licensee, in writing. Where any Direct Debit is not honoured by a Licensee’s bank or credit supplier, the Licensee must ensure that payment of all outstanding fees or any other charges is remitted to the Company within seven (7) days of the Direct Debit dishonour and where the Licensee fails, omits or neglects to remit all and any outstanding payments, then without limiting the Company’s rights under the Agreement, the Company may:
notify the Licensee of its breach of the payment terms;
immediately suspend the Licensee’s access to the Vault Facility;
where the Licensee has not remedied the breach of the payment terms, the Company, in its absolute discretion may:
charge the Licensee a Box holding fee equivalent to the overholding period, which will include the thirty (30) day notice period required to be provided by the Licensee to the Company when closing a Box;
charge the Licensee an administration fee as determined by the company at that time;
terminate the Agreement;
apply a late payment fee of $100.00 plus interest on all overdue accounts at a rate of 12% per annum, calculated daily, until payment of all outstanding fees, charges, costs and expenses have been received, in full, by the Company; and
in its sole discretion, attempt to further process all outstanding amounts by way of the Direct Debt Authority provided by the Licensee, without providing the Licensee with any further notice.
CHANGES TO LICENSEE’S PARTICULARS
The Licensee must notify the Company in writing within 24 hours of becoming aware of any change to the contact details of the Licensee or any Authorised Person(s) set out in the Agreement.
The Company will not accept any changes to the details set out in the Agreement unless they are given to the Company in writing and wet ink signed (by pen) by the Licensee, which the Licensee may provide to the Company by:
email attachment;
registered post; or
hand delivery.
The Company may request further information, documentation, identification or evidence from the Licensee prior to affecting any change to contact details of the Licensee or any Authorised Person(s).
INSURANCE
During the Period, the Company will engage a licensed third-party insurer to provide a Basic Policy of Insurance for the contents of the Box at the commencement of the Period up to the amount of $10,000.00, or as otherwise notified by the insurer (Basic Policy).
Alternatively, the Licensee may opt for an Extended Policy of Insurance for the contents of the Box to a value determined by the Licensee, subject to the approval of the licensed third-party insurer providing the insurance, up to a maximum of $1,000,000.00 (Extended Policy), either at the time of completing the Registration Form, or at any other time by the Licensee notifying the Company, in writing, that the Licensee desires to “opt-in” to the Extended Policy. Where the Licensee wishes to “opt-in” to the Extended Policy, the Licensee must specify the amount of the insured value for inclusion.
The Licensee agrees and acknowledges that all fees payable in respect to any insurance must be payable by the Licensee and will form part of the charges authorised to be paid by way of the Direct Debit Authority.
Where the Licensee “opts in” to the Extended Policy, the insurable goods include:
gold;
silver;
diamond;
precious metals;
jewellery;
specie;
cash;
bonds;
certificates;
bills of Exchange;
any other Licensee’s Property;
any other articles of intrinsic value;
the Licensee’s Property that is:
entrusted to the Company; or
contained or lodged in Boxes at the Company’s Vault Facility or any of their present or future branches wherever situated within Australia including boxes leased or not leased to the Licensee while such property or articles or boxes are in the Vault Facility, but temporarily outside the Box in the Vault Facility.
Where the Licensee wishes to “opt-in” to the Extended Policy for a further amount, the Licensee must:
provide the Company with a written request to “opt-in” to the Extended Policy for an additional amount, as determined and specified by the Licensee;
the written request may be undertaken by completing the Insurance section of the Registration Form or by notice pursuant to clause 18(a) and 18(b); and
make payment of the Opt-In Fee in addition to the Licence Fee on a monthly, half-yearly or annual basis, as directed by the Company.
For the avoidance of doubt:
the Opt-In Fee is payable on a monthly, half yearly or annual basis as directed by the Company and will be set by the Company in its absolute discretion and notified to the Licensee each year. The Opt-In Fee payable by the Licensee is to be determined by the Company by reference to, amongst other things, the terms and conditions of the Extended in place, the level of coverage sought by the Licensee and the licensed third-party insurer’s fees for providing the insurance;
payment of the Opt-In Fee becomes due and payable upon receipt by the Licensee of the Opt-In Fee notice sent by the Company for each year;
where the Direct Debt Authority has not been honoured by the Licensee’s bank or credit supplier, and the Opt-In Fee has not been paid, or the Opt-In Fee is paid late, then the Licensee is not be covered by the Extended Insurance for such period that the Opt-In Fee remains unpaid, taking into account the insurance period under the Extended Insurance.
The Company is not an insurance provider and does not hold an Australian Financial Services (AFS) Licence. All insurance over Box contents is provided by an independent third-party licensed insurer.
In the event the Licensee elects to “opt in” to the Extended Policy in accordance with this clause 18, the Company agrees to provide the Licensee with a copy of the licensed third-party insurer’s terms and conditions of the Extended Policy on the Licensee’s written request, without charge, within a reasonable time after the request.
The Company agrees that in consideration of the Licensee paying the Licence Fee and the Opt-In Fee (where relevant), the Company will provide information about the status of the Basic Policy or Extended Policy as appropriate, within a reasonable time of commencement or renewal of the insurance cover.
If a Licensee wishes to make a claim under the insurance policy in respect of any Licensee’s Property held in the Licensee’s Box or any other type of claim under this Agreement, the Licensee must first ensure that the intended claim meets the requirements for bringing a claim under the Basic Policy or the Extended Policy (as applicable). If the intended claim meets all requirements applicable to the type of claim, then the Licensee must notify the Company in writing of the claim within the earlier of:
48 hours after the event giving rise to the intended claim;
the time frames of the relevant insurance policy; or
the time frame determined by the insurer from time to time and communicated to the Licensee,
(Final Date).
The Licensee acknowledges and agrees that:
it will not be able to bring any insurance claims in respect of the subject matter of that intended claim if written notice is not given before the Final Date;
subject to the Australian Consumer Law (ACL), it will have no further claim against the Company in respect of the subject matter of that intended claim; and
subject to the ACL, the Company will have no further liability whatsoever, in respect of the subject matter of that intended claim.
AUTHORISED PERSONS
If the Licensee is a company or other entity, the Licensee can nominate one (1) or two (2) individuals who are over the age of 18 years to be the company or entity’s Authorised Persons. The Company reserves the right to refuse acceptance of any person nominated to be the Licensee’s Authorised Person. If a company Licensee wishes to nominate more than two (2) Authorised Person, then such nomination will be at the sole discretion of the Company.
An Authorised Person of Licensee acting alone may:
attend to general business activities in respect to the Box and the contents of the Box;
deposit into the Box and have limited access and control over the Licensee’s Property and contents of the Box and no authority over closure of the Box.
The Authorised Person will not have authority to:
close the Box;
terminate this Agreement;
request or cease additional insurance cover under the Basic Policy or Extended Policy; or
undertake any other action, step or thing of a permanent nature,
with such rights only exercisable by the Licensee, through all of its Authorised Persons acting together or the duly appointed power of attorney of the Licensee.
If the Company is unable to contact the Licensee utilising the nominated contact details, the Company may contact the Authorised Person(s) or next of kin, whichever is applicable, specified in the Registration Form or notified to the Company in writing, to, among other things, give notice to the Licensee of:
a breach of term of this Agreement, including outstanding amounts payable to the Company;
suspension of the Licensee’s access to the Vault Facility and/or the Box; or
the Company requiring or requesting the removal of the Property contained within the Box.
The Licensee may revoke the Authorised Person(s) authority or replace the Authorised Person(s) with substituted Authorised Person(s) by written notice to the Company, signed by the Licensee, together with payment of any applicable fees. The Company may, in its sole discretion, apply a reasonable administrative fee to affect any requested revocation and substitution where such a request is made by the Licensee after the expiration of ninety (90) days from the Commencement Date.
ACCESS TO VAULT FACILITY
Access to the Licensee’s Property stored at the Vault Facility is limited to the Licensee and the Authorised Person(s) between 9:00AM and 5:00PM on Business Days by walk-in request or appointment only. Prioritization for the access will be provided at the discretion of the company employees.
Prior to accessing the Vault Facility, the Licensee must ensure that all identification documentation requested by the Company, has been provided to and accepted by the Company for each Licensee and the Authorised Person(s).
Where the Company has not accepted the identification documentation provided by the Licensee and the Authorised Person(s), the Company reserves the right to refuse access to the Vault Facility.
The Company may refuse any person access to the Vault Facility or to the Licensee’s Property where required to do so by Law, notices, orders or directions.
JOINT OWNERSHIP
If the Licensee comprises two (2) or more parties, they will be jointly and severally liable under this Agreement and treated as jointly and severally entitled to the Licensee’s Property. If the parties are individuals with one (1) of the parties being deceased, the access to the Vault Facility and the Licensee’s Property contained within the Box will be treated as the Licensee’s Property of the survivor.
IDENTIFICATION
The Licensee acknowledges:
in accordance with The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act), the Company must verify the identity of the Licensee and, at the discretion of the Company, the Beneficial Owners of companies, trusts, partnerships, incorporated associations and registered co-operatives of the Licensee;
Beneficial Owner means the natural person who ultimately owns or controls the Licensee and/or the natural person on whose behalf the Licensee has entered into the Agreement;
Beneficial Owner includes those persons who exercise effective control over a legal person or arrangement, and includes a person who directly or indirectly owns 25% or more of an entity or who controls another person; and
if there is a chain of ownership, the relevant beneficial owner is the person who ultimately owns or controls the Licensee.
The Licensee is required to complete the current Registration Form, which includes the Company’s AML/CTF Act Identification Requirements. These requirements are in place to:
ensure the Licensee is properly identified through a documented process; and
verify the identity of customers/businesses using reliable electronic and independent documentation.
In relation to the Company’s activities, the Company undertakes to and warrants that it will at all times comply with the AML/CTF Act.
The Company acknowledges that it also has obligations under the Privacy Act 1988 (Cth), including the requirement to comply with the Australian Privacy Principles. A copy of the Company’s privacy policy will be provided upon request.
Pursuant to the Australian Privacy Principles, the Licensee authorises the Company to collect personal information provided to the Company by the Licensee (including the Licensee’s full name, address, date of birth, email address, contact details and copies of personal Identification documents such as the Licensee’s driver licence, passport, medicare card, bank statements, council rates notices or any other documents that prove the Licensee’s identity and address) (Personal Information).
The Licensee agrees that to complete the Company’s Identification Requirements, the Licensee authorises the Company to use the Personal Information provided by the Licensee to request information from credit agencies, financial institutions, Authorities and third-party electronic verification partners as required to verify the Licensee’s identity.
The Company may at any time require the Licensee, any Authorised Person, Beneficial Owner or Controller to provide updated identification information, source of funds information, beneficial ownership information or any other information reasonably required to comply with the AML/CTF Act, AML/CTF Rules or the Company’s AML/CTF Program.
GENERAL PROVISIONS
Notices
Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a Party to the Agreement:
must be in legible writing and in English addressed in accordance with the recitals or as specified to the sender by any Party by notice;
where the sender is a company, must be signed by an officer or under the common seal of the sender; and
is regarded as being given by the sender and received by the addressee if:
delivery in person, when delivered to the addressee;
sent by post, on delivery to the addressee;
sent by electronic mail, when received by the addressee; and
may be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender.
In this clause, a reference to an addressee includes a reference to an addressee’s officers, agents or employees.
Governing Law and Jurisdiction
The Agreement is governed by and will be construed in accordance with the laws in force in Victoria, Australia.
Each of the Parties irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria, Australia, and courts competent to hear appeals
Assignment
The Licensee may not assign, transfer or in any other manner deal with its rights or obligations under the Agreement without the prior written approval of the Company.
The Company may assign, transfer, sell, dispose of, novate or otherwise deal with its rights and/or obligations under the Agreement without prior notification to the Licensee provided that the Company notifies the Licensee within a reasonable time of the Company assigning, transferring, selling, disposing off, novating or otherwise dealing with its rights and/or obligations under the Agreement.
Prohibition and enforceability
Any provision of, or the application of any provision of, the Agreement or any power which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
Any provision of, or the application of any provision of, the Agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
Waiver
A failure or delay by a party to exercise any right, power, remedy or discretion under this Agreement does not operate as a waiver of that right, power, remedy or discretion. Any waiver must be in writing and signed by the party granting the waiver. A single or partial exercise of a right, power, remedy or discretion does not prevent any further exercise of that or any other right, power, remedy or discretion
Entire Agreement
The Agreement incorporates the entire understanding between the Company and the Licensee and supersedes all previous arrangements, undertakings and understandings, written and oral, express or implied, between the Parties in relation to the subject matter contained in the Registration Form and these Terms and Conditions.
Costs and Outlays
Each Party must pay its own costs and outlays connected with the preparation and execution of the Agreement.
Nothing contained in this clause 23(g) removes the Licensee’s obligation to reimburse the Company for all or any costs, expenses, disbursements, charges, fees, professional fees including legal fees incurred by the Company and contained in these Terms and Conditions.