GENERAL TERMS AND CONDITIONS OF TRADE (07/11)
To the fullest extent legally permissible all dealings between the customer (including all related and/or associated companies and/or other entities, all successors and/or assigns and in its own capacity and as trustee of each and every trust of which it is trustee)[jointly” the Customer”] and Icecold Systems Pty Ltd ACN 122 970 334 (and/or any related associated companies, trusts and/or other entities and/or any successors and/or assigns) whether trading as “Refresh Beverage Systems and/or otherwise [“Refresh Beverages”] relating to any goods and/or services [the “goods” and/or the “services”] are subject to the following terms and conditions [“these terms”] unless otherwise expressly agreed in writing:
1. Payment: a) Payment shall be made by cash,EFT, cheque, bank cheque, without deduction and within thirty (30) days from the date of invoice of purchase, or unless otherwise agreed in writing. b) The Customer agrees to pay an administration fee of 2.5% (or as otherwise nominated by Refresh Beverages) as the liquidated processing cost on credit card payments and/or on payments made outside the credit period stipulated in each invoice or statement. c) Refresh Beverages may off-set any amounts it owes the Customer against any amounts the Customer owes it. d)PAYMENT STRICTLY 30 DAYS FROM DATE OF INVOICE FOR ACCOUNTS.(unless otherwise agreed in writing). e) In the event your trading account becomes overdue for an extended period of time, we will make every effort to notify you in writing. Future trading with Refresh Beverages will be required to be completed on a ‘payment on delivery’ basis until you are back within our normal ‘trading terms’.
-CASH ON DELIVERY FOR NON ACCOUNT CUSTOMERS
-A minimum $22.00 monthly account keeping cost may apply for overdue invoices
-In the event your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including legal demand costs.
2. Interest : Interest shall be charged on overdue accounts at 2 % per month.
3. Property: a) The Customer agrees that these Terms constitute a “security agreement” for the purposes of the Personal Property Securities Act 2009 (Cth) [“PPSA”], that Refresh Beverages has and/or will have a “security interest” in respect of all goods and/or services whether present or after acquired for the purposes of the PPSA and that PPSA Sections 125, 130, 132(3)(d), 132(4), 135 & 157 shall not apply to any such security interest b) Property in goods shall not pass until payment in full of all monies owed by the Customer. c) Refresh Beverages reserves the right to take possession and dispose of goods as it sees fit at any time until full payment. The Customer grants permission to Refresh Beverages to enter any property where any goods are stored with force if necessary. d) Immediately on delivery the Customer accepts liability for the safe custody of goods and indemnifies Refresh Beverages for any related losses. e) On sale or disposition of any goods prior to full payment the Customer agrees to deposit all proceeds in a separate bank account and to not mix proceeds with any other monies and shall forthwith account to Refresh Beverages notwithstanding that Refresh Beverages may have granted any credit facility and/or time to pay. f) Until payment in full the Customer agrees: (i) to keep all goods unpaid for as fiduciary for Refresh Beverages and store all goods in a manner which shows Refresh Beverages as owner; (ii) to only sell goods in the usual course of its business on the basis that all proceeds are held in trust for Refresh Beverages; and (iii) that sale on terms, for less than cost and/or to a related entity of the Customer shall not be “in the usual course”. g) Without derogating from any rights of Refresh Beverages as a creditor or under these Terms if goods are used in any construction, fabrication, manufacturing and/or other process [“the Process”] which results in an entitlement of the Customer to receive money from any other person the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any goods used in the Process as invoiced to the Customer by Refresh Beverages UPON TRUST for Refresh Beverages until payment in full for those goods and all monies owed to Refresh Beverages. h) Nothing in this clause is intended to create a charge and this clause shall be read down to the extent necessary to avoid creating any charge. i) The Customer agrees a certificate signed by an officer of Refresh Beverages and stating certain facts for the purposes of this clause shall be conclusive evidence of each fact stated.
j) Refresh Beverages is not obliged to accept the return of goods.
4. Consumer Guarantees & ACL: The Australian Consumer Law in Schedule 2 of the Competition and
Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www.consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and which shall otherwise apply to the fullest extent legally permissible.
5. Warranty: a) All goods are sold subject to any applicable manufacturer’s warranty, for a period of 12months;
b) Refresh Beverages may satisfy any valid warranty claim by replacing or repairing the goods at its election; and c) any warranty shall run from the date of purchase and not be extended by any replacement or repair.
6. Limitation of Liability: To the extent permitted by the ACL: a) the Customer agrees to limit any claim to the replacement/repair of the goods (or cost thereof) and/or re-supply of services (or cost thereof); b) Refresh Beverages shall not be liable for: (i) any claim, loss or expense which is made after 30 days from the date of delivery of goods and/or services – after which there shall be deemed to have been unqualified acceptance; (ii) any consequential loss and/or any special and/or punitive damages through any fault of Refresh Beverages or otherwise; and/or (iii) any claim in any way caused and/or contributed to by the Customer and/or any third party.
7. Cancellations and Returns: The Customer agrees: a) not to cancel any order without Refresh Beverages’s prior approval; b) not to return goods without Refresh Beverages’s prior approval, if goods are not in brand new and unused condition with undamaged packaging and/or if 3 weeks or more have passed since delivery; c) that Refresh Beverages may take back goods in saleable condition on such terms as Refresh Beverages considers to be reasonable; d) to pay Refresh Beverages on request a restocking fee of 15% of the gross invoice value of all returns; e) not to return goods without first providing Refresh Beverages an original invoice as proof of purchase; and f) not to return any goods which have been custom made, custom processed or custom acquired.
8. Quotations: The Customer agrees that: a) quotations must be in writing; b) Refresh Beverages shall not be bound by any quotation if an order is not placed within 30 days from the date of quotation; c) Refresh Beverages may prior to receipt of any order amend any quotation and notify the Customer accordingly without ramification; d) Refresh Beverages shall not be bound by any quotation if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and if Refresh Beverages also forms the view that those circumstances have substantially and/or materially changed; e) the Customer shall pay any additional charges Refresh Beverages levies for holding any goods referred to in any quotation pending placement of an order.
9. Placement of Orders: The Customer agrees that: a) if any dispute arises concerning any order (including any question of identity, authority or any phone, fax or computer generated order) the internal records of Refresh Beverages shall be conclusive evidence of what was ordered; b) each order placed shall be and be deemed to be a representation by the Customer made at the time that it is solvent and able to pay all of its debts as and when they fall due; c) when placing any order the Customer shall inform Refresh Beverages of any facts which might reasonably affect acceptance of the order by Refresh Beverages and/or any grant of credit and any failure to do so by or on behalf of the Customer shall be deemed to create an inequality of bargaining position, be deemed to constitute the taking of an unfair advantage of Refresh Beverages and to be unconscionable, misleading and deceptive.
10. Supply and Delivery: a) Refresh Beverages may supply by installments and/or withhold or cancel supply without ramification where: (i) Refresh Beverages has insufficient goods to fulfill orders; (ii) goods are not available to supply; (iii) the Customer is in breach of these Terms; (iv) Refresh Beverages has any safety concerns; and/or (v) Refresh Beverages considers it appropriate whether because of any minimum invoice policy or otherwise. b) The Customer agrees that: (i) Refresh Beverages may elect to arrange delivery at its discretion and without any liability and at the cost and responsibility of the Customer in all things; (ii) the Customer shall be deemed to have accepted delivery and liability for goods on being notified by Refresh Beverages that goods are ready for collection and/or on goods being delivered to a carrier or to the Customer’s business premises or nominated site whether attended or not; (iii) a certificate purporting to be signed by an officer of Refresh Beverages confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket; and (iv) Refresh Beverages shall not be liable for delay, failure or inability to deliver any goods.
c) The Customer agrees: (i) to pay for so much of any forward order as Refresh Beverages invoices from time to time; (ii) that no delay or failure to fulfill any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment; (iii) to pay Refresh Beverages for any demurrage or other costs and expenses in handling and/or holding any goods once ready for delivery and/or collection; and (iv) Refresh Beverages may supply an excess or deficiency of goods up to 5% of the volume or weight of the amount ordered and the Customer shall pay for the amount so supplied and shall not make any claim against Refresh Beverages for the amount over or under supplied.
11. Purchase Price: a) In the absence of a binding quotation all sales are made at the price nominated by Refresh Beverages at the time of delivery. b) All government imposts, levies and duties (including any GST or equivalent) shall be to the Customer’s account. c) Prices exclude government imposts, levies and duties (including any GST or equivalent).
12. Variations: To be binding any variation or cancellation of these Terms or any order must be approved by Refresh Beverages in writing.
13. Exclusions: To the extent permitted by the ACL: a) no dealing between Refresh Beverages and the Customer shall be or be deemed to be a sale by sample; b) The Customer shall rely on its own knowledge and expertise in selecting any goods and/or services for any purpose and any advice and/or assistance given by or for Refresh Beverages shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer; c) all goods are sold subject to all applicable trading terms, warranties and representations of the manufacturer; d) Refresh Beverages shall not be responsible nor liable for paying and/or obtaining any necessary judicial, statutory, government and/or utility fees, expenses, orders, approvals, permits and/or licenses; e) Refresh Beverages shall not be liable for any goods and/or services: (i) made or performed to designs, drawings, specifications and/or procedures etc. and/or with materials which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; (ii) utilized, stored, handled and/or maintained incorrectly or inappropriately; and/or (iii) manufactured and/or supplied by any other party; f) the Customer agrees to: (i) check all goods for compliance with all applicable laws, standards and/or guidelines before use, on-sale and/or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by Refresh Beverages and/or by any manufacturer; and (iii) act in accordance with good practice at all times.
14. Default: a) On default or breach of any part of these Terms by the Customer the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable (save to the extent that Refresh Beverages expressly directs otherwise in writing) and Refresh Beverages may inter alia terminate any contract, retain all monies paid, cease further deliveries and/or provision of services, recover all lost profits and/or at its discretion take immediate possession of any goods not paid for without prejudice to any other rights and without being liable in any way to any party. b) The Customer agrees not to commence or continue or permit to be commenced or continued through it any suit or Refresh Beverages against Refresh Beverages while the Customer is in default under any part of these Terms or in any of its dealings with Refresh Beverages. c) The Customer agrees to indemnify Refresh Beverages for all fees and expenses payable to solicitors, mercantile agents and other parties acting on behalf of Refresh Beverages in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods or otherwise (including all legal costs on an indemnity basis). d) Refresh Beverages may apply any payment in reduction of fees, interest and/or any principal debt in such order of priority as Refresh Beverages in its discretion deems appropriate. e)
The Customer irrevocably authorizes the payment directly to Refresh Beverages of any debt due to the Customer by any debtor of the Customer in reduction of any amount due to Refresh Beverages under these Terms or otherwise.
15. Indemnity: The Customer fully indemnifies Refresh Beverages against any claim or loss arising from or related in any way to any dealing between Refresh Beverages and the Customer and/or arising under these Terms.
16. Intellectual Property: The Customer agrees that all intellectual property in the creation of any goods and/or services shall be and remain the property of Refresh Beverages notwithstanding any contribution by the Customer.
17. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Refresh Beverages shall apply.
18. Reconditioned Goods: Refresh Beverages shall not be liable for any reconditioning and/or repair of products made and/or supplied by the Customer and/or by any third party.
19. Customer Restructure: The Customer shall notify Refresh Beverages in writing of any change in its structure or management including any change in director, shareholder and/or management and/or any change in partnership and/or trusteeship within 7 days of each change. Until such notice is received the Customer guarantees the performance of all obligations passing to any third party and fully indemnifies Refresh Beverages against all loss (including legal costs on an indemnity basis).
20. Jurisdiction: The Customer agrees that these Terms and any claim or dispute between Refresh Beverages and the Customer shall be governed by the law applicable in the State nominated by Refresh Beverages and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by Refresh Beverages in the capital city of that State. If no State is nominated then Victoria shall be deemed to be the nominated State.
21. Credit Limit: Any credit facility or credit limit is an indication only of the intention of Refresh Beverages at the time. Refresh Beverages may vary or withdraw credit at any time at its discretion and without any liability to the Customer or any other party. Upon breach of any of these Terms, the whole of the monies owing by the Customer shall become immediately due and payable.
22. Waiver: An election by Refresh Beverages not to exercise any of its rights on any breach of these Terms shall not constitute a waiver of any rights relating to any other breach.
23. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately any change is adopted by Refresh Beverages and whether or not the Customer has actual notice.
24. Security For Payment: The Customer hereby grants to Refresh Beverages a general lien over all property of the Customer until payment in full of all monies owing to Refresh Beverages.
25. Force Majeure: Refresh Beverages shall not be in default or in breach of any contract with the Customer as a result of Force Majeure including any strike or lock-out.
26. Insolvency: The Customer shall be in default of these Terms if it commits an act of insolvency, appoints an
insolvency practitioner and/or calls a formal meeting of creditors.
27. Severability: Any part of these Terms shall be capable of severance without affecting any other part of these Terms.