General Terms and Conditions | Giuseppe Brothers

The Customer acknowledges and agrees that the following applies to and forms part of any contract for the supply of Goods by the Company and that this Agreement takes precedence over any terms and conditions which may be contained in any document provided by the Customer. Any request from the Customer to the Company for the supply of Goods shall constitute acceptance of this Agreement.

The Customer hereby charges in favour of the Company all its estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer and consents to the lodging by the Company of a caveat or caveats which note its interest in or over any such land or other caveatable property.

The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.

Terms

These terms and conditions, including any credit limits set by the Company, are effective from the date of acceptance by the Customer and may be amended or superseded from time to time by notice given by the Company by any means. The Customer is bound by these terms and conditions regardless of whether the Company provides the Customer with commercial credit facilities.

Definitions
1. “Company” means Giuseppe Brothers Pty Limited ABN 50 609 352 034
2. “Company Equipment” means coffee machines, grinders and any other equipment (including without limitation, coffee cups and saucers, outdoor umbrellas or shades, dividers) or other promotional material loaned by the Company to the Customer from time to time.
3. “Customer” means the customer described on the front section of this document and includes its successors, personal representatives and permitted assignees. Where the customer is two or more persons, each of them shall be jointly and severally liable.
4. “Goods” includes services and all goods (including the Company Equipment), both collectively and individually, supplied by the Company to the Customer or ordered by the Customer but not yet supplied and includes goods and services described on any quotation, invoice, purchase order or any other document including any recommendations and advice.
5. “Government Agency” means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
6. “PMSI” means a purchase money security interest as defined in the PPSA.
7. “PPSA” means the Personal Property Securities Act 2009.
8. ”PPSR” means the Personal Property Securities Register.
9. “Price” means the price set by the Company from time to time and advised to the Customer.
10. “security interest”, “security agreement”, “financing statement”, “financing change statement”, “verification statement”, “attached”, “attachment”, “perfected” and all related terms have the meanings given them by the PPSA.
Trading Account Application
1. The Customer applies for and requests the Company to open a Trading Account in the name of the Customer with respect to the supply of Goods to the Customer by the Company.
2. The Customer acknowledges that should the Company, in its absolute discretion, open a Trading Account for the Customer, this Agreement will apply to the Customer, except to the extent that any other terms are agreed in writing between Company and the Customer.
3. The Customer hereby warrants that:
  1. the Customer has been correctly described in the Trading Account Application;
  2. the information contained in this Trading Account Application is true and correct and supplied for the purpose of obtaining credit;
  3. it will promptly inform the Company of any changes in the information contained in this Trading Account Application;
  4. the person whose signature appears in this Trading Account Application is duly authorised by the Customer to apply for a trading account on its behalf and to sign this Trading Account Application.
4. The Customer hereby agrees that, unless the Company agrees otherwise in writing for specific transactions:
  1. where the Company has standard terms that apply to all sales of Goods by the Company to the Customer, the Customer agrees to be bound by those standard terms. The terms of this Agreement will prevail to the extent of any inconsistency with these standard terms.
  2. The terms of this Agreement, and the standard terms for the Company business, supersede:
    1. all previous credit arrangements between the Customer and the Company;
    2. any Customer order form terms and conditions; or
    3. other terms provided by the Customer.
  3. The Company may cancel or suspend all credit facilities granted to the Customer without notice and without giving a reason.
  4. If credit is cancelled or suspended, any standard terms issued by the Company continue to apply.
PPSA
1. If the Company determines that this Agreement (or a transaction in connection with it) is, or contains, a security interest or transitional security interest for the purposes of the PPSA, then the conditions in this clause will apply to this Agreement.
2. The Customer acknowledges that this Agreement constitutes a security agreement which creates a security interest in favour of the Company in the Goods (including all Goods previously supplied by the Company to the Customer (if any) and all after acquired Goods supplied by the Company to the Customer, or for the Customer’s account).
3. The Customer agrees to grant a PMSI in the Goods and all future Goods supplied to the Customer by the Company.
4. The Customer agrees that the PMSI has attached to all Goods now or in the future supplied to the Customer by the Company.
5. The Customer agrees, until title in the Goods pass to it, to keep all Goods free of any charge, lien or security interest except as created under this Agreement and not otherwise deal with the Goods in a way that will or may prejudice the rights of the Company under this Agreement or the PPSA.
6. The Customer undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and current) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the PPSR or to ensure that the security interest is otherwise enforceable, perfected and effective.
7. The Customer undertakes to indemnify, and upon demand, reimburse the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSR.
8. The Customer undertakes to give to the Company not less than 14 days prior written notice of any proposed change in the Customers details, including, but not limited to, changes of address, entity or business name and/or contact details.
9. Unless otherwise agreed to by the Company in writing, the Company and the Customer shall not disclose to any third party any information of the kind referred to in Section 275(1) of the PPSA.
10. The Company is not obliged to give the Customer any notice or provide copies of any documents under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded and the Customer consents to the waiver of the requirement for notice or copies of any documents under this clause.
11. The Company and the Customer agree that the following provisions of the PPSA do not apply to, or in relation to the security interest to the extent that the PPSA permits the parties to contract out of or waive such provisions:
  1. section 95 (notice of removal of accession) to the extent that it requires the Company as secured party to give a notice to the Customer as grantor;
  2. section 96 (when person may retain an accession);
  3. section 117 (obligations secured by land and personal property);
  4. section 118 (enforcing securities in accordance with land law);
  5. section 120 (enforcement of liquid assets);
  6. section 121(4) (enforcement of liquid assets – notice to grantor);
  7. section 125 (obligation to dispose of or retain collateral);
  8. section 126 (apparent possession);
  9. section 128 (secured party may dispose of collateral);
  10. section 129 (disposal by purchase);
  11. section 130 (notice of disposal), to the extent that it requires the Company as secured party to give a notice to the Customer as grantor;
  12. section 132(3)(d) (secured party to give statement of account);
  13. section 132(4) (statement of account if no disposal);
  14. section 134(1) (retention of collateral);
  15. section 135 (notice of retention of collateral);
  16. section 142 (redemption of collateral); and
  17. section 143 (reinstatement of security agreement).
Retention of Title
1. Title in all the Goods supplied shall remain vested in the Company and shall not pass to the Customer until all monies owing to the Company by the Customer together with all collection, repossession and / or legal costs incurred, have been paid in full and until such time the Customer will hold the Goods as a bailee of the Company and a fiduciary relationship will exist between the Company and the Customer. The Goods must be stored by the Customer separately and in a manner enabling them to be identified and crossreferred to particular invoices as the property of the Company, until title has passed to the Customer.
2. In the event that the Customer breaches this agreement, the Company and its employees or agents, at its discretion, shall have the right to enter without notice the Customer’s premises or any other premises where the Goods are known to be stored to repossess the Goods and for this purpose the Customer shall grant reasonable access rights and the Company, its employees or agents shall be entitled to do all things required to secure repossession.
Company Equipment
1. The Company may in its discretion loan the Company Equipment to the Customer subject at all times to the Company being the Customer’s exclusive supplier of coffee beans and the Customer otherwise complying with this Agreement.
2. The Customer must use the Company Equipment in the proper manner for the purposes for which it is provided and in accordance with the manufacturer’s and Company’s directions.
3. The Customer must take all necessary action to secure the Company Equipment and prevent the Company Equipment from being interfered with or damaged.
4. The Company (either directly or through an authorised representative) will provide maintenance services on the Company Equipment at least once per calendar year at no charge to the Customer unless the Company (or its authorised representative) determines that the Customer has not complied with clauses 5.2 or 5.3.
5. Notwithstanding clause 4.1, title in the Company Equipment shall remain vested in the Company at all times.
Price, Payment Terms and Security
1. Prices appearing in the Company’s price lists and other documents are ex-Company’s warehouse in Sydney and are exclusive of GST. Unless otherwise agreed by the Company in writing, the Company reserves the right to change prices without notice.
2. Payment for Goods supplied by the Company must be made within 7 days of date of invoice without deduction or deferment on account of any claim, counterclaim or set-off. Any purchases that would exceed the Customer’s credit limit must be paid for in full with the Customer’s order.
3. From time to time, the Company may extend the Customer’s credit limit, and the Customer agrees that any extended credit limit is bound by this Agreement.
4. If payment is by cheque, payment shall be deemed to have been made when, and only when, the cheque is cleared by the bank on which it is drawn.
5. Unless otherwise indicated, the Price is exclusive of all applicable taxes and charges. The Customer shall be liable for all excise, sales, GST or other tax, charge or government impost (domestic or foreign) upon the Goods or any part of the Goods. Where the Goods are subject to GST, the Customer must pay GST at the same time as payment for the Goods is made.
6. Amounts received by the Company may be applied first against interest, charges and expenses.
7. Interest on overdue amounts may be charged at a rate of 3% per calendar month or part thereof and the Customer shall be liable for, and expressly undertakes to pay, all such interest.
8. The Customer shall be liable for, and expressly undertakes to pay, all fees (including an administration fees in an amount to be set from time to time by the Company) for all costs incurred as a result of any cheque or any electronic banking transaction being dishonoured for whatever reason.
Delivery
1. The Customer will be liable for any delivery charges. The Customer may agree to arrange carriage of the Goods for the Customer, but will only do so as the Customer’s agent. In that case, delivery will occur and risk will pass when the Goods are placed at the carrier’s disposal. The Customer must pay Company’s charges for carriage incurred on the Customer’s behalf. The Customer hereby indemnifies the Company against any claims that may arise from such agreement against Company. The Customer shall reimburse the Company for any costs incurred in arranging delivery, including but not restricted to, the costs of necessary disbursements and insurance. Any documentation purporting to evidence the said delivery costs will be deemed to be prima facie proof thereof. Subject to minimum orders, the Company may include delivery in the Customers Price and the Customer agrees that any delivery costs included in the Customers Price are bound by this Agreement.
2. The Customer acknowledges that any agreed or stated delivery period is an indication only of the anticipated period for delivery of the Goods and that such an agreement does not make time of the essence of these terms.
3. The Company shall not be liable for any loss or damage, including but not limited to indirect or consequential loss or damage, loss of profits, loss of revenue, loss of goodwill, special or exemplary damages, arising from delay in delivery or failure to deliver Goods, either whole or in part, due to circumstances beyond its control, even if advised of the possibility of such damages or if such loss ought reasonably to have been in the contemplation of both parties at the date of this Agreement.
4. If the Customer is unable or unwilling to accept physical delivery of the Goods when the Goods are ready for delivery, or delivered, the Company shall be entitled to charge a fee for any delay suffered, or to arrange for storage of the Goods at the risk and cost of the Customer including all transportation, storage and other consequential costs.
Customer Disclaimer
1. The Customer hereby disclaims and waives any right to seek compensation for loss or damages arising from any misrepresentation made by the Company or any related entity of the Company and their respective officers, employees, agents or contractors.
2. The Customer acknowledges that the purchase of Goods is made relying solely upon the Customer’s own skill and judgment.
Cancellation
1. The Company may cancel the delivery of Goods at any time before delivery by giving notice to the Customer by any means.
2. The Company shall not be liable for any loss or damage, including but not limited to indirect or consequential loss or damage, loss of profits, loss of revenue, loss of goodwill, special or exemplary damages, arising from such cancellation, even if advised of the possibility of such damages or if such loss ought reasonably to have been in the contemplation of both parties at the date of this Agreement.
Defects
1. The Customer shall inspect the Goods upon delivery and will, within 48 hours, notify the Company of any defects, short deliveries or any failure to fulfil any order.
2. The Customer will, within a reasonable time following delivery, grant the Company access to the Goods in order to inspect for any alleged defects.
3. Should the Customer fail to notify the Company within the specified period then the Goods shall be deemed to be in compliance with the order and free from any defect whatsoever.
Risk and Audit
1. Notwithstanding Retention of Title provisions as per clause 4, the risk in Goods purchased shall pass to the Customer upon delivery to the Customer or its agent or a carrier nominated by the Customer.
2. For the purpose of determining compliance with this Agreement and any standard terms (including any warranty) the Customer irrevocably authorises the Company (or its agent) upon giving reasonable notice time to enter onto any premises upon which the Customer’s records pertaining to the Goods are held to inspect and copy such records.
3. The Customer must insure the Goods for all insurable risks from the time risk passes to the Customer under this Agreement and must note the Company as an insured in relation to them on the insurance policy if possible.
Liability
1. To the extent it is legally able to do so, the Company will make available to the Customer any standard manufacturer warranties for the Goods.
2. Except as expressly provided in this Agreement and except for any condition or warranty the exclusion of which could be void or otherwise contravene the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in the Australia (“Non Excludable Condition”), the Company disclaims all conditions, warranties and representations, either express or implied with respect to the Goods.
3. Subject to any warranty provided by the Company in respect of the Goods and notwithstanding where legislation implies into this Agreement a Non Excludable Condition, to the fullest extent permitted by the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in Australia:
  1. the liability of the Company to the Customer for any reason related to the performance of Goods under this Agreement shall be limited (at the election of the Company) to the replacement or repair of the Goods or the amount paid or payable by the Customer in respect of the particular Goods; and
  2. other than in respect of clause 12.3(a) in no event will the Company be liable to the Customer for any:
    1. claim or damage arising out of or in connect with the Goods or this Agreement; or
    2. indirect loss or consequential loss, loss of profits, loss of revenue, loss of goodwill, exemplary damages, punitive damages in connection with or arising out of this Agreement and the supply of the Goods even if advised of the possibility of such damages or if such loss ought reasonably to have been in the contemplation of both parties at the date of this Agreement.
4. Nothing in this Agreement purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Competition and Consumer Act 2010 (Cth) and other laws which cannot be modified or excluded.
Indemnity
1. The Customer indemnifies the Company and will keep the Company indemnified on demand from and against all actions, claims, demands, losses, damages and expenses of whatever form or nature, including legal fees or other costs and disbursements that the Company sustains or incurs as a result of:
  1. any breach of this Agreement by the Customer;
  2. any loss or damage to the Company Equipment, excluding fair wear and tear;
  3. any misleading or deceptive conduct of the Customer in respect of the Goods (which has not been authorised by the Company);
  4. any contravention of the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in Australia by the Customer; or
  5. any claim by a consumer or other third party that the Company is liable under the Competition and Consumer Act 2010 (Cth) or any other equivalent competition or consumer law in Australia by the Customer, as a result of an act or omission of the Customer.
Trademarks
1. The Customer hereby acknowledges and agrees that it has no right in the registered trademark of the Company or any other trademarks or trade names used or associated with the Goods or the Company or any subject matter registered or registrable under any applicable trademark laws. Upon termination of this Agreement, the Customer shall discontinue at once all use of the Company’s trademarks and all other trademarks and trade names used or associated with the Goods or the Company, whether owned by, or license to, the Company. All use during the term of this Agreement by the Customer of any trademark or trade name used in connection with the Goods or the Company shall be for, and inure to, the benefit of the Company.
2. The Customer hereby agrees not to assert any claim entitling it to any interest or right in any designs or copyright materials used with respect to Goods or the Company or any related advertising or promotional materials.
General
1. The Company accepts no responsibility or liability for changes in any law which may affect the supply of Goods.
2. Neither the Company nor the Customer shall be liable for any breach of any provision of any contract between them arising from an act of God, natural disaster (including but not limited to flood or inundation of water), terrorism, war or any other, specified or un-specified, occurrence beyond the control of either party.
3. The invalidity or unenforceability of any provision or part of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions.
4. Clerical errors are subject to correction and do not bind the Company.
5. Headings are for ease of reference only and do not form part, or affect the interpretation, of this Agreement.
6. A party waives a right under this Agreement only if it does so in writing. A party does not waive a right simply because it fails to exercise that right, delays exercising the right or only exercises part of the right. A waiver of one breach of a term of this Agreement does not operate as a waiver of another breach of the same term or any other term.
7. The Company may in its absolute discretion vary the terms and conditions contained in this Agreement, or any standard terms issued by the Company at any time by notice in writing to the Customer.
8. The Company is an independent contractor of the Customer. Nothing in this Agreement constitutes any other type of relationship between the parties.
9. Without limiting the Customer’s obligations under this Agreement, the Customer must observe and comply with all statutes, regulations, by-laws and requirements of any Government Agency in relation to the sale of the Goods and performing its obligations under this Agreement.
10. The Customer must not enter into any agreement or incur any liability on behalf of the Company. The Customer must not represent to any person that it has authority to do so.
11. If this Agreement, or any other standard terms are not observed by the Customer, the Company may in its absolute discretion, refuse to supply to the Customer and the Company shall not be liable to the Customer for any actions, claims, demands, losses, damages and expenses the Company may sustain as a result of such refusal.
12. This Agreement and any other standard terms contain everything the parties have agreed on in relation to all transactions. No party can rely on an earlier document, or on anything said or done by another party (or by a director, officer, agent or employee of that party).
13. Any legal action taken for enforcement of recovery of monies may be taken out under the jurisdiction of a court in any state or territory in Australia at the absolute discretion of the Company and the Customer hereby consents to any proceedings being heard in any such court where action is commenced by the Company.
14. The Customer shall pay or reimburse to the Company all recovery costs paid or payable by the Company of whatever nature including (but not limited to) legal costs on a solicitor/own client basis, mercantile costs (including any fees, expenses, disbursements and/or commissions at a rate not exceeding a maximum of 15% of the total debt amount), accountancy fees, bank charges, statutory or government fees, stamp duty, search costs or other disbursements together with interest upon the above accruing at the rate of current bank overdraft rates on a monthly basis.
15. The Company may assign any of its rights arising under this Agreement after providing the Customer with prior written notice. The Customer shall not assign, subcontract or otherwise transfer any of its right or obligations under this Agreement without the prior written consent of the Company.