Application of these Terms and Conditions The Customer agrees that prior to placing an order with the Supplier the Customer has read and agreed to these Terms and Conditions as set out hereunder and the Supplier’s Espresso Equipment Free on Loan Contract Terms and Conditions where applicable. For the purposes of this agreement, the Supplier” is Studio Espresso Pty Ltd ACN 121 416 331 ATF The Wolff Pack Trust ABN 31 986 358 991 trading as Wolff Coffee Roasters, and its successors and assigns or any person acting on behalf of and with the authority of the Supplier; “the Customer” is the applicant named on the credit account with the Supplier or where no account exists then the business ordering and receiving goods and services from the Supplier and identified as the Customer on the Supplier’s accepted quote or contract and includes any person acting on behalf of and with the authority of the Customer; “Contract” means any signed agreement between the Supplier and the Customer including but not limited to the Espresso Equipment Free on Loan Contract; “Goods” mean all goods sold, hired, leased, rented, bailed, consigned or otherwise made available to the Customer including but not limited to Espresso Equipment, Consumables and Merchandise as defined herein; “Espresso Equipment” means multi head commercial espresso machines and coffee grinders; “Consumables” mean coffee, sugar and associated consumable products; and “Merchandise” means the Supplier’s branded products.
2.1 Supplier’s Quote The Supplier will give the Customer a quote, valid for thirty (30) days, specifying the Goods and services required to fulfill the Customer’s requirements and an estimate of the Supplier’s fee excluding Goods and Services Tax (GST).
2.2 Acceptance of the Quote The Customer shall accept the quote by signing and returning a true copy of the quote with a purchase order number, if applicable.
2.3 Supplier May Revise Quote The Supplier may amend an unsigned quote after a period of thirty (30) days to take into account any rise or fall in the cost of providing the Goods and/or services. The Supplier shall notify the Customer of such amendment as soon as practicable thereafter. The Supplier will not be obliged to process the Customer’s order until such time as the Customer agrees to the amendment of the quote.
The Customer shall indemnify the Supplier from any additional cost incurred by the Supplier should the Customer increase the scope of the Goods specified in the Supplier’s quote and/or Contract.
The Customer shall reimburse the Supplier for any costs, expenses or losses incurred by the Supplier should the Customer cancel an accepted quote or order. All cancellations must be in writing quoting purchase order numbers (if applicable).
5. BRAND PROTECTION
To ensure the best possible consistency in the final product (‘in the cup’), certain techniques will be recommended by the Supplier from time to time utilising specific Espresso Equipment and Consumables.
The Customer agrees that the Supplier’s logo, company font and the phrases “ Masters of Our Craft” and “Don’t be Afraid of the Wolff” are trademarks licensed by the Supplier and may not be reproduced in any form whatsoever without the express written consent of the Supplier.
The Customer agrees to keep confidential and not disclose the Supplier’s commercially sensitive information, such as recipes, pricing structure and any systems and procedures to any person or organisation without the Supplier’s written permission.
Delivery shall be made to the Customer’s nominated address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Delivery to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement. The failure of the Supplier to deliver shall not entitle either party to treat this agreement as repudiated and the Supplier shall not be liable for any loss or damage whatsoever due to the failure to deliver the Goods promptly.
The risk in the Goods shall pass to the Customer upon delivery to the Customer or its agent or to a third party nominated by the Customer.
10.1 Payment Terms Unless otherwise advised in writing, payment is strictly seven (7) days from date of invoice without deduction. The Supplier reserves the right to alter the time for payment at its discretion with notice to the Customer. 10.2 Credit Card Payments The Supplier will accept MasterCard and Visa with a two percent (2%) surcharge and Amex with a three percent (3%) surcharge. 10.3 Payment Default Should the Customer’s account exceed the Supplier’s agreed payment terms then the Supplier reserves the right to:
- charge a monthly administration fee of twenty-five dollars ($25); and/or
- charge interest at the rate of fifteen percent (15%) per annum calculated on a daily basis on amounts not paid when due; and/or
- place the Customer’s account on restrictive trading (C.O.D) terms; or
- cancel or suspend any further delivery to the Customer.
10.4 Damages The Customer must pay to the Supplier any costs, expenses or losses incurred by the Supplier as a result of the Customer’s failure to pay to the Supplier all sums outstanding as owed by the Customer to the Supplier including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
11. RETENTION OF TITLE
11.1 Title Title in any particular Goods shall remain with the Supplier regardless of whether the Goods are on-sold by the Customer until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Supplier for the Goods, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Supplier’s title in the Goods nor the Customer’s indebtedness to the Supplier and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
11.2 Bailment The Customer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 11.1 and until that time:
- the Customer is not entitled to sell the Goods unless in the normal course of business;
- the Customer must not encumber or otherwise charge the Goods; and
- the Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery of the Goods.
11.3 Repossession The Customer hereby irrevocably grants to the Supplier the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them, and the Supplier shall not be liable to the Customer or any person claiming through the Customer and the Supplier shall be entitled to retain the proceeds of any Goods sold and apply the same towards the Customer’s indebtedness to the Supplier. If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Supplier may, without prejudice to any other remedies it may have, repossess the Goods delivered to the Customer which has not been paid in accordance with these Terms and Conditions and commence proceedings to recover the balance of any monies owing the Supplier by the Customer.
12. PERSONAL PROPERTY SECURITIES ACT (“PPSA”)
12.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
12.2 The Customer acknowledges and agrees:
- that the Free on Loan Contract Terms and Conditions and the General Terms and Conditions of Supply (“these Terms and Conditions”) constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds):
(i) previously supplied by the Supplier to the Customer; (ii) to be supplied in the future by the Supplier to the Customer;
- that the Security Interest created by these Terms and Conditions is a continuing Security Interest in all Goods (supplied now or in the future by the Supplier to the Customer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Supplier has signed a release;
- to waive its rights under section 157 of the PPSA and the following subsections of section 115 of the PPSA which will not apply to the Security Agreement created by these Terms and Conditions: 95, 117, 118, 121(4), 130, 132(4), 135 and 143.
12.3 The Customer undertakes to:
- keep all Goods free of any charge, lien or Security Interest except as created under these Terms and Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of the Supplier under these Terms and Conditions or the PPSA;
- sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that the Supplier may require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 12.3(b) (i) or 12.3(b) (ii);
- indemnify, and upon demand reimburse, the Supplier for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in:
(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; (ii) enforcing or attempting to enforce the Security Interest created by these Terms and Conditions.; and
- not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of the Supplier.
13. CLAIMS, DEFECTS AND/OR RETURN OF CONSUMABLES
13.1 The Customer shall inspect the Consumables on delivery and shall within forty eight (48) hours of delivery notify the Supplier of any alleged shortage in quantity, damage or failure to comply with the description. The Customer shall afford the Supplier an opportunity to inspect the Consumables within a reasonable time following delivery if the Customer believes any Consumables are defective in any way. Should the Customer fail to comply with these provisions the Consumables shall be conclusively presumed to be in accordance with these Terms and Conditions and free from any damage.
13.2 Claims relating to the Supplier’s invoices must be actioned within five (5) business days.
14. SECURITY AND CHARGE
The Customer hereby charges all property, both equitable and legal, present or future of the Customer in respect of any monies that may be owing by the Customer to the Supplier under these Terms and Conditions or otherwise and hereby authorises the Supplier or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time or to register this charge over assets of the Customer with the Australian Securities and Investments Commission.
15.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 and the Privacy Principles outlined in the Privacy Amendment Act 2012, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reporting body and/or any other individual or organisation which maintains credit references and/or default listings.
15.2 Subject to the Privacy Principles outlined in the Privacy Amendment Act 2012, the Customer further authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer for the marketing of the Goods provided by the Supplier.
16.1 Non-Excludable Rights The parties acknowledge that, under the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (C/wth) certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of goods and services which cannot be excluded, restricted or modified by the agreement. (Non-Excludable Rights).
16.2 Disclaimer of Liability The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-Excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Goods again or paying the cost of having the Goods supplied again.
16.3 Indirect Losses Notwithstanding any other provision of these Terms and Conditions, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:
- any increased costs or expenses;
- any loss of profit, revenue, business, contracts or anticipated savings;
- any loss or expense resulting from a claim by a third party; or
- any special, indirect or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to deliver or delay in delivering the Goods.
16.4 Force Majeure The Supplier will have no liability to the Customer in relation to any loss, damage or expense caused by the Supplier’s failure to deliver the Goods as a result of fire, flood, earthquake, riot, civil disturbance, theft, strike, lockout, breakdown, war, the inability of the Supplier’s normal suppliers to supply necessary product or any other matter beyond the Supplier’s control.
17. CUSTOMER DISCLOSURE
17.1 Changes to the Customer’s Business The Customer agrees to inform the Supplier in writing within four (4) days of any material change in its business details (including, but not limited to, it’s trading name, business address or business practices.
17.2 Sale or Termination of Customer’s Business It is agreed that any impending sale or termination of the Customer’s business will be advised to the Supplier with four (4) weeks’ notice.
18. ARBITRATION & MEDIATION
Any dispute or difference between the Customer and the Supplier may be notified by a party to the other party and the parties shall firstly meet to negotiate, in good faith, resolution of the dispute and secondly, if negotiation fails to achieve a resolution of the dispute within five (5) working days of the notification of the dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, provided that this provision shall not prevent the Supplier from instituting legal action at any time to recover monies owing by the Customer to the Supplier.
19. GENERAL MATTERS
19.1 Non-Waiver Failure by the Supplier to enforce or delay in enforcing any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision unless acknowledged by the Supplier in writing.
19.2 Severability Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
19.3 Amendments to these Terms and Conditions The Supplier reserves the right to vary these Terms and Conditions at any time with notice in writing to the Customer. Any subsequent order for Goods will represent the Customer’s agreement to these Terms and Conditions as amended.
19.4 Governing Law and Jurisdiction These Terms and Conditions are governed by the laws of the State of Queensland and all disputes arising between the Supplier and the Customer will be submitted to the Brisbane Registry of any such court as is competent to hear the matter.'