Terms and Conditions of Sale
1.1 In these terms and conditions, unless the context otherwise requires:
- "Buyer" means any person or persons, company or business entity to whom the Seller sells or supplies, or proposes to sell or supply, Goods or Services.
- "Goods" means the goods or products supplied or sold by the Seller to the Buyer from time to time.
- "GST" means goods and services tax or other tax that is substituted or replaces such tax as defined in the GST Law.
- "GST Law" means the New Tax System (Goods and Services Tax) Act 1999 (Cth).
- "Order" means a purchase order issued by the Buyer to the Supplier in writing via email or a system generated document or any other suitable media.
- "PPSA" means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
- “Price” means the price of the Goods.
- "Quote" means any quote that remains valid for 30 days and includes only the Goods.
- "Seller" means Ice and Beverage Pty Ltd ACN 169 041 963.
- “Services" means any services provided by the Supplier and its agents.
- "Supplier" means the Seller.
- “Terms and Conditions” means these Terms and Conditions.
2.1 These Terms and Conditions form the entire agreement between the Customer and The Supplier in connection with the supply of the Goods.
2.2 To the extent permitted by law, any statement, representation or promise made in any document, negotiation or discussion has no effect except where expressly set out in writing.
2.3 These Terms and Conditions will be deemed to have been accepted by the Buyer upon the earlier of:
- the execution of this document; or
- the Buyer issuing an Order to the Seller; or
- the Seller doing any act that indicates fulfilment of an Order; or
- from the date of any delivery of the Goods and will constitute the entire agreement between Buyer and Seller.
2.4 These Terms and Conditions and the quotation (together, the ‘Contract’) apply to the purchase and sale of any Goods between Buyer and Seller, to the exclusion of any other terms that the Buyer may try to impose or incorporate, or which are implied by trade, custom, practice or course of dealings.
2.5 These Terms and Conditions shall without further notice apply to all future transactions between the Seller and the Buyer in relation to the sale and purchase of Goods, whether or not this document is delivered or executed in the course of the transaction.
2.6 Any Quote given by the Seller is not and shall not be interpreted as an offer capable of acceptance or as creating an obligation to sell.
2.7 All representations & details furnished by the Seller or contained in catalogues, price lists or website are by way of general description of the Goods only and shall not form part of this Contract.
2.8 If a Buyer cancels or modifies any Order or part of an Order for Goods at any time, then without prejudice to any other rights the Seller has against the Buyer the Seller reserves the right to charge the Buyer additional costs associated with the labour and modification of the Order.
3.1 The Price is set out in the Seller’s Quote current at the date of the Order or as otherwise agreed between the parties in writing.
3.2 If the Price increases due to any factor beyond the Seller’s control including, but not limited to, material costs, labour costs, delivery costs, alteration of exchange rates or duties the Seller can increase the Price prior to delivery.
3.3 Any increase in the Price under the clause above will only take place after the Seller has informed the Buyer.
3.4 Unless otherwise agreed in writing any delivery or collection costs or expenses shall be borne by the Buyer.
3.5 In the event of the suspension of manufacture or supply on the Buyer’s instruction, or lack thereof, or due to the inability of Buyer to accept the Goods for any reason on or after the date on which they are ready for delivery, the Buyer shall be liable for all extra costs and losses thereby incurred by Seller.
3.6 The Price is inclusive of GST and the Buyer is required to pay the applicable GST to the Seller in accordance with these Terms and Conditions.
4.1 The Seller will invoice the Buyer for the Price either:
- On or at any time after delivery of the Goods; or
- Where the Goods are to be collected by Buyer, or where Buyer wrongfully does not take delivery of the Goods, at any time after Seller has notified Buyer that the Goods are ready for collection or Seller has tried to deliver them.
4.2 The Buyer must pay the Price of the Seller’s invoice or otherwise according to any credit terms agreed between the parties.
4.3 If the Buyer does not pay the Seller as set out above, the Seller will suspend any further deliveries to Buyer.
4.4 Time for payment is of the essence under the Contract.
4.5 All payments must be made in Australian dollars (AUD) unless otherwise agreed in writing between the parties.
4.6 The Buyer must pay all amounts due under these Terms and Conditions in full without any deduction or withholding except as required by law and the Buyer is not entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part.
4.7 Should the Buyer hold an account for credit with the Seller, the Buyer agrees to strictly comply with the terms and conditions of same, failing which the Buyer irrevocably authorises the Seller to retake possession of any Goods sold which have not be paid for, in accordance with clause 7 of this Contract
5.1 Unless otherwise agreed between the Buyer and Seller, the Seller will arrange for the delivery of the Goods to the address specified on the Quote, or on the Order.
5.2 If the Buyer does not specify a delivery address, or if both the Buyer and the Seller agree, the Buyer must collect the Goods from the Seller’s premises.
5.3 The Seller may, at its discretion, agree to act as agent for the Buyer for delivery beyond store or works and all costs of carriage and insurance associated to same shall be paid by the Buyer. The Seller is not liable for any damages caused to the Goods whilst they are in transit.
5.4 Any delivery by the Seller to the Buyer shall be at the risk of the Buyer.
5.5 The Buyer shall at the Buyer’s expense provide labour, necessary equipment or machinery and reasonable access to the point of delivery for offloading of the Goods without delay.
5.6 Subject to the specific terms of any special delivery service, delivery can take on any day and must be accepted at any time between 8 am to 8 pm, or as otherwise agreed between the parties.
5.7 If the Buyer does not take delivery of the Goods, the Seller may, at the Seller’s discretion, and without prejudice to any other rights:
- store or arrange for the storage of the Goods and will charge Buyer for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and/or
- make arrangements for the redelivery of the Goods and will charge the Buyer for the costs of such redelivery; and/or
- after ten (10) business days of the Buyer failing to take delivery of the Goods, resell or otherwise dispose of part or all of the Goods and charge Buyer for any shortfall below the Price.
5.8 If redelivery is not possible as set out above, the Buyer must collect the Goods from Seller’s premises and will be notified of this. The Seller can charge the Buyer for all associated costs including, but not limited to, storage and insurance.
5.9 Any dates quoted for delivery are approximates only and the parties agree that time of delivery is not of the essence. The Seller will not be liable for any delay in delivery of the Goods that is caused by a circumstance beyond the Seller’s control or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.10 The Seller can deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment is a separate Contract. Any delay in delivery or defect in an instalment will not entitle the Buyer to cancel any other instalment.
6. INSPECTION, ACCEPTANCE OF GOODS & WARRANTY
6.1 It is the Buyer’s responsibility when accepting this Contract or Order to ensure the Goods ordered conform to the Buyer’s requirements and are suitable and sufficient for the Buyer’s purpose.
6.2 The Buyer must inspect the Goods on delivery or collection.
6.3 If the Buyer identifies any damages or shortages in quantity, the Buyer must inform the Seller in writing within five (5) days of delivery, providing details of the damages and/or shortages.
6.4 Other than by agreement, the Seller will only accept returned Goods if the Seller is satisfied, in its discretion acting reasonably, that those Goods are defective and if required, has carried out an inspection.
6.5 The Seller does not provide refunds for the return of Goods in circumstances where the Buyer:
- has had a change in mind; or
- has ordered too high of a quantity of Goods for the Buyer’s purposes;
- does not think the Goods are suitable or appropriate for the intended use of the Buyer.
6.6 Where the Goods have been manufactured by the Seller and are found to be defective, the Seller shall repair, or in its sole discretion, replace the defective Goods free of charge within twelve (12) months from the date of delivery subject to Buyer’s compliance with these Terms and Conditions.
6.7 The Seller will be under no liability or further obligation in relation to the Goods if:
- the Buyer fails to provide notice as set above; and/or
- the Buyer makes any further use of such Goods after giving notice under this clause relating to damages and/or shortages; and/or
- the defect arises because the Buyer did not follow the Seller’s oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods; and/or
- the defect arises from normal wear and tear of the Goods; and/or
- the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by the Buyer, the Buyer’s employees or agents or any third parties.
6.8 The Buyer bears the risk and cost of returning the Goods.
6.9 Acceptance of the Goods will be deemed to have taken place upon satisfactory inspection of the Goods by the Buyer and in any event within one (1) day after delivery.
7. RISK & TITLE
7.1 The risk associated to any loss, damage or deterioration of the Goods from any cause whatsoever passes from the Seller to the Buyer on each of the following events occurring (as may be applicable):
- when the Buyer collects the Goods from the Seller;
- when the Goods are fully loaded onto the Buyer’s alternative mode of transport for delivery; or
- when the Goods are fully loaded onto the Seller’s nominated transport for delivery;
- when the Goods are in the Buyers possession.
7.2 After the risk of the Goods passes from the Seller to the Buyer in accordance with the above clause, the Buyer acknowledges that is assumes all responsibility and risk associated with the Goods.
7.3 The Seller retains all legal and equitable title in any Goods supplies to the Buyer until payment in full for or in connection with the supply of the relevant Goods has been received by the Seller.
7.4 Until payment in full has been received by the Seller, the Buyer must:
- hold the Goods on a fiduciary basis as the Seller’s bailee; and/or
- store the Goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and/or
- keep the Goods in satisfactory condition and keep them insured against all risks for their full Price from the date of delivery.
7.5 The Seller is irrevocably entitled at any time and from time to time to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of the Seller’s rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way.
7.6 In order to exercise such entitlement, the Seller and its agents are irrevocably authorised by the Buyer to enter any of the Buyer’s premises or vehicles or those of any third party. The Buyer agrees to obtain the consent of any such third party to such entry by the Seller and to indemnify the Seller and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. The Seller and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
7.7 Should the Seller retake possession of the Goods due to a default on the Buyers behalf, the costs associated with doing so shall be borne by the Buyer.
7.8 This reservation of title and ownership is effective whether or not the Goods have been altered from their supplies form or commingles with other goods.
7.9 The Buyer agrees that:
- the Buyer must now allow any person to have or acquire any security interest in the Goods; and
- the Buyer must not remove, deface or destroy any identifying plate, mark or number on the Goods.
7.10 Without limiting the generality of any charge which may be enforced by the Seller over the Goods, the Buyer agrees, on request by the Seller, to execute any documents and do all things reasonably required by the Seller to perfect the charge given including registering a mortgage security over any of the Buyer’s property.
7.11 The Buyer appoints the Seller to be the Buyer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard.
7.12 The Buyer indemnifies the Seller on an indemnity basis against all costs and expenses incurred by the Seller in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
7.13 The Buyer consents unconditionally to the Seller lodging a caveat or caveats noting the Seller’s interest in any of the Buyer’s property.
7.14 If the Buyer supplies any of the Goods to any person before all money owed to the Seller has been paid by the Buyer, the Buyer agrees that:
- the Buyer holds the proceeds of any re-supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received (whichever is earlier);
- the Buyer must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into a separate account with a bank or a financial institution or deposit taking institution as trustee for the Seller.
7.15 If the Buyer fails to pay for the Goods within the given period of time contemplated by these Terms and Conditions, or any extended period of time as agreed between the parties, the Seller may recover possession of the Goods and the Buyer agrees that the Seller has an irrevocable right to do so without incurring liability to the Buyer or any person claiming through the Buyer, even if the Goods have become a fixture of a site.
7.16 For any Goods supplied that are not goods that are used predominantly for personal, domestic or household purposes, the parties agree to contract out of the application of sections 95, 118, 121(4), 130, 132(4), 135, 142 or 143 of the PPSA in relation to the Goods.
7.17 The Buyer hereby waives any right the Buyer may otherwise have to:
- receive any notices the Buyer would otherwise be entitles to receive under ss 95, 118, 121, 130, 132 or 135;
- apply to a court for an order concerning the removal of an accession under section 97;
- object to a proposal of the buyer to purchase or retain any collateral under ss 130 and 135;
- receive a copy of a verification statement confirming registration of a financing statement, confirming registration of a financing statement, or a financing change statement, relating to any security interest the Seller may have in the Goods supplied to the Buyer from time to time.
7.18 For the purposes of this clause the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. Reference to sections are sections of the PPSA.
8.1 The Buyer hereby acknowledges that the Seller has a lien over all Goods in the Buyer’s possession and belonging to the Buyer for the purpose of securing a payment of any or all amounts outstanding from time to time.
9.1 Orders for Goods placed with the Seller cannot be cancelled without prior approval by the Seller.
9.2 In the event the Seller accepts a cancellation of any Order with the Buyer then the Seller shall be entitled to charge a reasonable fee for any work done on behalf of the Buyer to the date of cancellation of such Order, including but not limited to a fee for processing and acceptance of the Order and request for cancellation.
9.3 The Seller can terminate the Order immediately by notice to the Buyer:
- if the Buyer defaults on under this Contract;
- if the Seller reasonably believes the Buyer would be unable to pay any debts when they fall due; or
- in the Seller’s sole discretion, for whatever reason deems it suitable to warrant termination.
9.4 The above termination rights are without prejudice to any other rights (including damages) that the Seller may have as a result of any default, breach or termination.
9.5 If the Seller terminates the Order the Buyer undertakes to indemnify the Seller against any claim or action in connection with any termination.
9.6 If the Order is terminated for whatever reason, the Seller may in its discretion refund to the Buyer that much of the Price that the Seller has been paid except that much of the Price, if any, relating to Goods that have already been delivered to the Buyer.
10. LIMITATION OF LIABILITY
10.1 The Buyer irrevocably agrees to indemnify and keep indemnified, the Seller against all liabilities contained in this clause.
10.2 The Seller’s liability under the Contract, by way of breach of statutory duty, and in tort, misrepresentation or otherwise will be limited to this clause.
10.3 Subject to the provisions of these Terms and Conditions concerned with Inspection, Acceptance, Risk and Title, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.4 The Seller’s total liability will not, in any circumstance, exceed the total amount of the Price payable by the Buyer.
10.5 Subject to the below clause, if the Seller does not deliver the Goods, the Seller’s liability is limited to the reasonable costs and expenses incurred by Buyer in obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Goods.
10.6 The Seller will not be liable (whether caused by its employees, agents or otherwise in connection with the Goods) for:
- any indirect, special or consequential loss, damage, costs, or expenses; and/or
- any loss of profits, loss of anticipated profits, loss of business, loss of data, loss of reputation or goodwill, business interruption, or, other third party claims; and/or
- any failure to perform any of Seller’s obligations if such delay or failure is due to any cause beyond the Seller’s reasonable control; and/or
- any losses caused directly or indirectly by any failure or breach by Buyer in relation to Buyer’s obligations; and/or
- any loss relating to the choice of the Goods and how such Goods will meet the Buyer’s purpose or the intended use by the Buyer of the Goods supplied.
10.7 The exclusions of liability contained within this clause will not exclude or limit the Seller’s liability for death or personal injury caused by Seller’s negligence, or for any matter for which it would be illegal for Seller to exclude or limit Seller’s liability and for fraud or fraudulent misrepresentation.
11.1 All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving such notice (or a duly authorised officer of that party).
11.2 Notices will be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
- when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
- on the fifth business day following mailing, if mailed by AUSPOST.
11.3 All notices under these Terms and Conditions must be addressed to the most recent address, email or fax number notified to the other party from time to time.
12. OWNERSHIP OF INTELLECTUAL PROPERTY
12.1 All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefore, and other information or intellectual property disclosed or otherwise provided to the Buyer by the Seller and all rights therein (collectively, “Intellectual Property”) will remain the property of the Seller and will be kept confidential by the Buyer and may not be reproduced without the prior written approval of the Seller, in accordance with these Terms and Conditions.
12.2 The Seller grants the Buyer a license to use the Intellectual Property but such licence is restricted only to the use of Intellectual Property for the use, repair and replacement of the Goods in connection with the Order and such licence is non-transferable and is revocable by the Seller is the Contract is terminated.
12.3 Buyer shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller.
13. FORCE MAJEURE
13.1 Neither party shall be liable for any failure or delay in performing their respective obligations where such failure or delay results from any Force Majeure Events.
13.2 In the case where the Seller is affected by a Force Majeure Event, the Seller will give the Buyer notice and the Seller’s obligations under these Terms and Conditions may be suspended to the extent to which they are affected by the relevant Force Majeure Event, for as long as the Force Majeure Event continues.
13.3 The Seller will use the Seller’s best endeavours to remove, overcome or minimise the effects of that Force Majeure Event, however, where such act is an industrial dispute specific to its own workforce it will deal with the event at its complete discretion. If a Force Majeure Event continues for more than three (3) months, either party may terminate the Order by giving three (3) business days written notice to the other party.
14.1 The Buyer may only assign the Goods or Order with the Seller’s prior written consent.
15. NO WAIVER
15.1 No waiver by the Seller of any breach of these Terms and Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
16.1 If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that/those provisions shall be deemed severed from the remainder of these Terms and Conditions, which will remain valid and enforceable.
17. LAW & JURISDICTION
17.1 These Terms and Conditions are governed by and interpreted according to Queensland law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the Queensland courts.
18. LITIGATION COSTS
18.1 If any litigation or arbitration is commenced between Seller and Buyer concerning any provision of these Terms and Conditions, the party prevailing in the litigation or arbitration is entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorney’s fees in such litigation or arbitration, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine to be equitable in view of the relative merits and amounts of the parties’ claims.