TERMS AND CONDITIONS OF SUPPLY (“TERMS”)

 

Interpretation
1.      In these Terms:
1.1       “Buyer” means the Buyer of the Goods detailed in the Invoice;
1.2       “Goods” means the goods to be supplied by the Supplier to the Buyer as detailed in the Invoice;
1.3       “GST” has the meaning given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.4       “Invoice” means the invoice issued by the Supplier to the Buyer, which details the Goods and the Price, to which these Terms are annexed (if applicable);
1.5       “PPSA” means the Personal Property Securities Act 2009 (Cth);
1.6       “Price means the total amount payable for the Goods as detailed in the Invoice, including applicable GST, and delivery costs; and
1.7       “Supplier” means Black & Brew Pty Ltd ACN 613 404 603.
General
2.       These Terms will apply to the supply of Goods by the Supplier despite any conflicting terms proposed by the Buyer, unless waived in writing by the Supplier.
Supply of the Goods
3.       The Supplier agrees to supply the Goods and the Buyer agrees to purchase the Goods on these Terms.
Payment
4.      Unless otherwise agreed by the Supplier in writing, the Buyer must pay the Price without deduction in accordance with the payment terms detailed in the Invoice.
5.      In the event of non-payment of the Price in accordance with these Terms and the Invoice, the Buyer will pay all reasonable collection expenses, legal costs and any other reasonable expenses incurred by the Supplier in connection with the non-payment by the Buyer.
6.      If the Buyer fails to pay the Price to the Supplier in accordance with these Terms, the Supplier will issue a demand for the outstanding amount. If the Buyer fails to pay the outstanding amount within 14 days after such demand is made on the Buyer, the Supplier may, in its absolute discretion, charge the Buyer interest calculated on the portion of the Buyer’s account overdue from time to time at the rate of 2% per month from the date on which such default arose.
7.      If the Price is not paid by the Buyer to the Supplier in accordance with these Terms, the Buyer acknowledges and agrees that the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods.  For that purpose, the Supplier’s employees, agents or workers may enter any place the Supplier believes the Goods to be without committing a trespass.
8.      The Supplier will have no obligation to make good any incidental damage caused by the recovery or removal of Goods pursuant to clause 7 and the Supplier will not be liable for and the Buyer will indemnify the Supplier against any costs, claims, damages or losses suffered by the Buyer as a result of such removal.
Title and risk
9.      In relation to all Goods:
9.1       title in the Goods will not pass to the Buyer until the Price is paid in full to the Supplier;
9.2       risk in the Goods will pass to the Buyer immediately upon delivery of the Goods to the Buyer;
9.3       until the Supplier receives full payment of the Price, the provisions of clauses 13 to 17 apply and the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods free from any claims by the Buyer in accordance with clause 7; and
9.4       the Buyer will indemnify the Supplier against any costs, claims, damages or losses suffered by the Supplier or a third party as a result of the Buyer’s inability to pay the Price for the Goods.
10.    In relation to all Goods, if the Buyer has not paid the Price but sells or otherwise disposes of the Goods or any part of them, the monies received in respect of the disposal of the Goods will be held on trust by the Buyer for the Supplier and will be payable immediately to the Supplier on demand.
Delivery
11.    The Supplier will use reasonably endeavours to deliver the Goods to the Buyer on the delivery date at the delivery location as detailed in the Invoice.
12.    The Supplier will not be liable for any claim incurred or suffered by the Buyer as a result of delay in the delivery of the Goods by the Supplier outside of the Supplier’s reasonable control.
PPSA
13.    Where the Supplier has supplied Goods to the Buyer but where title in the Goods has not yet passed to the Buyer, the Buyer acknowledges and agrees that:
13.1     these Terms constitute a Security Agreement for the purposes of the PPSA;
13.2     the Buyer grants the Supplier a purchase money security interest (“PMSI”) under the PPSA in the Goods and their proceeds to secure all amounts owed to the Supplier by the Buyer;
13.3     the Supplier may register the PMSI on the Personal Property Securities Register (“PPSR”);
13.4     it will undertake to do all things necessary and provide the Supplier on request all information the Supplier requires to register a financing statement or financing change statement on the PPSR;
13.5     it undertakes not to change its name in any form or other details on the PPSR without first notifying the Supplier; and
13.6     it will, if required by the Supplier, pay to the Supplier the cost of registering and maintaining registration of the Buyer’s PMSI on the PPSR, within 14 days of the request.
14.    The Supplier need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
15.    No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Buyer must not authorise the disclosure of such information.
16.    The Buyer agrees that, to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA.
17.    The Buyer acknowledges that, unless otherwise defined in these Terms, the terms and expressions used in clauses 13 to 17 have the meanings given to them, or by virtue of, the PPSA.
No warranty
18.    Any Goods or part of the Goods not manufactured by the Supplier will be subject to the manufacturer’s warranty (if any).
19.    Except for the relevant manufacturing warranty (if any) or as required by mandatory operation of the law, all conditions or warranties in respect of the Goods, express or implied, statutory or otherwise, are excluded.
20.    To the maximum extent permitted by law, the sole liability of the Supplier to the Buyer in respect of any defective Goods is (at the election of the Supplier) limited to:
20.1     the resupply of the defective Goods to the Buyer; or
20.2     refund of the price paid by the Buyer for the defective Goods.
21.    The Buyer will indemnify and continue to indemnify the Supplier against any claim arising from or in relation to the Buyer using the Goods for a purpose for which they were not designed.
Defective Goods
22.    To the maximum extent permitted by law, defective Goods may only be returned with the Supplier’s consent which will not be unreasonably withheld. Such consent must be required within five business days of delivery of the defective Goods to the Buyer.  All returned Goods must be returned to the Supplier at the Buyer’s cost.
23.    The Buyer will comply with the Supplier’s directions and provide all requested information to the Supplier in respect of any product recalls for the Goods.
Liability
24.    To the maximum extent permitted by law the Buyer indemnifies and keeps indemnified the Supplier against any and all claims suffered or incurred by the Supplier arising out of:
24.1     any negligent act or omission of the Buyer;
24.2     any breach by the Buyer of these Terms or any applicable law; or
24.3     any action or trespass resulting from the Supplier entering the location in accordance with clause 7,
except to the extent that the claim results from the negligence, fault or willful misconduct of the Supplier.
25.    To the maximum extent permitted by law, the Supplier indemnifies and keeps indemnified the Buyer against any and all claims suffered or incurred by the Buyer arising out of:
25.1     any negligent act or omission of the Supplier;
25.2     any breach by the Supplier of these Terms or any applicable law,
except to the extent that the claim results from the negligence, fault or willful misconduct of the Buyer.
26.    Notwithstanding anything in clauses 24 and 25 of these Terms, to the maximum extent permitted by law, neither party will be liable for any indirect or consequential loss or damage (including loss of profit or loss of opportunity) whatsoever.
27.    These limitations and indemnities continue after the expiration or termination of these Terms.
Termination
28.    Either party may terminate these Terms upon 30 days’ notice in writing to the other party.
29.    These Terms may be immediately terminated by the Supplier if:
29.1     the Buyer is in breach of these Terms and fails to remedy that breach within seven days of receiving notice to do so;
29.2     the Buyer fails to pay any amount outstanding to the Supplier after receiving seven days’ prior notice that the amount is outstanding; or
29.3     the Buyer becomes bankrupt or insolvent.
30.    Either party may terminate these Terms immediately by written notice to the other if:
30.1     the defaulting party commits a material breach of these Terms and that breach is not rectified within 30 days of being notified; or
30.2     the defaulting party is presumed insolvent within the meaning of any applicable law, is made bankrupt, is placed into liquidation or any other form of administration relating to insolvent debtors or has a third party take possession of any substantial asset(s) of the defaulting party or if any proceedings are issued or an event occurs intended to lead to any of those consequences.
Confidentiality
31.    Except where disclosure is required by law or must be made to a legal adviser, both the Supplier and the Buyer will keep confidential these Terms and any other information that is designated by the Supplier as confidential or any information that the Buyer knows or ought to reasonably know is confidential.
GST
32.    If GST is imposed on any supply made under or in accordance with these Terms, the Buyer must pay the Supplier, an amount equal to the GST payable on or for the taxable supply, subject to the Buyer receiving (if required by law) a valid tax invoice in respect of the supply.  Payment of this amount must be made at the same time as payment for the taxable supply is required to be made in accordance with these Terms.
Governing law
33.    These Terms are to be governed and interpreted in accordance with the laws of the State of South Australia.  The parties agree to submit themselves to the non-exclusive jurisdiction of the courts of South Australia and any competent appellate courts.
Notices
34.    Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorised officers.  The notice may be faxed to the intended recipient’s facsimile number or e‑mailed to the intended recipient’s e-mail address.  The notice will be deemed to have been received by the intended recipient upon receipt by the sender of a successful facsimile transmission answerback or in the case of e-mail, on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
Variation
35.    The Supplier may add or vary these Terms from time to time on seven days’ written notice to the Buyer.
Privacy
36.    The privacy of the Buyer’s personal information is important to the Supplier.  The Supplier is committed to respecting the Buyer’s right to privacy and protecting the personal information provided by the Buyer to the Supplier.  The Supplier is bound by the Australian Privacy Principles in the Privacy Act 1988 (Cth).
37.    The Buyer acknowledges that any personal information or credit related personal information collected by the Supplier is subject to the Supplier’s Privacy Policy, available as an annexure to these Terms or at the registered office of the Supplier which is at www.blackandbrew.com.au.
38.    The Supplier’s Privacy Policy sets out:
38.1     the purposes for which the Buyer’s personal information is collected;
38.2     the consequences if the Buyer’s personal information is not provided to the Supplier;
38.3     the third parties to which the Supplier discloses the Buyer’s personal information;
38.4     how the Buyer may seek access or correction of its personal information;
38.5     whether the Buyer’s personal information is likely to be disclosed to overseas entities and in which countries; and
38.6     how the Buyer can complain about a breach of the Supplier’s obligations in respect of the Buyer’s personal information and how such a complaint will be dealt with.
Force majeure
39.    No party is liable for any failure to perform its obligations under these Terms if the failure or delay is due to anything beyond that party’s reasonable control.  If that failure exceeds 60 days, the other party may terminate these Terms with immediate effect by giving notice to the other party.  This clause does not apply to any obligation to pay the Price due by the Buyer in accordance with these Terms.
Assignment
40.    The parties may only assign their interests under these Terms with the prior written consent of the other party, which must not be unreasonably withheld.
Severability
41.    Every provision of these Terms will be deemed severable as far as possible from the other provisions of these Terms. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from these Terms. These Terms with the offending provision severed and omitted and with any consequential amendment necessary will otherwise remain in full force.