Terms and Conditions of the agreement between Suolo Coffee Co and the Wholesale Customer
  1. Definitions
    1. Suolo Coffee Co means Suolo Coffee Co registered as a trading name of Jeshrey Enterprises Pty Ltd ACN 617589125 of 117/ 14 Loyalty Road, North Rocks. NSW 2151
    2. Customer means the entity named in the Information Sheet.
    3. Guarantor means a person, who agrees to be liable for the debts of the Customer on a principal debtor basis as identified in the Information Sheet.
    4. Goods means the goods supplied by Suolo Coffee Co to the Customer.
    5. Equipment means the coffee machines and other equipment referred to in clause 2 & 3 of the Term Sheet.
    6. Services means all services of all description supplied by Suolo Coffee Co to the Customer from time to time.
    7. Price means the price payable for the Goods as agreed between Suolo Coffee Co and the Customer in accordance with clause 3.
  2. Acceptance
    1. Any instructions received by Suolo Coffee Co from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Suolo Coffee Co shall constitute acceptance of these terms and conditions.
    2. Upon acceptance of these terms and conditions by the Customer they are binding and can only be amended with the written consent of Suolo Coffee Co.
    3. The Customer shall give Suolo Coffee Co not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Suolo Coffee Co as a result of the Customer’s failure to comply with this clause.
  3. Price and Payment
    1. At the discretion of Suolo Coffee Co, the Price shall be either:
      1. as indicated on invoices provided by Suolo Coffee Co to the Customer; or
      2. the current price at the date of delivery of the Goods according to Suolo Coffee Co’s current Price list; or
      3. Agreed Price as per clause 1 of the Term Sheet (subject to clause 3.2) which shall be binding upon Suolo Coffee Co provided that the Customer accepts the quote in writing within thirty (30) days.
    2. Suolo Coffee Co reserves the right to change the Price in the event of a variation to its agreed price.
    3. Time for payment for the Goods shall be of the essence and will be stated on the invoice. If no time is stated then payment shall be due immediately upon invoice.
    4. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (Diners cards excluded), or by EFT, or by any other method agreed.
    5. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
  4. Delivery of Goods
    1. At the discretion of Suolo Coffee Co delivery of the Goods shall take place when:
      1. the Customer takes possession of the Goods at Suolo Coffee Co’s address; or
      2. the Customer takes possession of the Goods at the Customer’s nominated address (if the Goods are delivered by Suolo Coffee Co or its nominated carrier).
    2. At the direction of Suolo Coffee Co and in its discretion the costs of delivery shall be:
      1. included in the Price; or
      2. in addition to the Price; or
      3. for the Customer’s account.
    3. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. If the Customer is unable to take delivery of the Goods as arranged, then Suolo Coffee Co shall be entitled to charge a reasonable fee for redelivery.
    4. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this contract.
    5. The failure of Suolo Coffee Co to deliver shall not entitle either party to treat these terms and conditions as repudiated.
    6. Suolo Coffee Co shall not be liable for any loss or damage whatever due to failure by Suolo Coffee Co to deliver the Goods (or any of them) promptly or at all.
  5. Risk
    1. Prior to delivery, risk in all Goods is retained by Suolo Coffee Co but after delivery, risk for the Goods passes to the Customer.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Suolo Coffee Co is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Suolo Coffee Co is enough evidence of its rights to receive the insurance proceeds without the need for any person dealing with Suolo Coffee Co to make further enquiries.
  6. Title
    1. The supply of the Goods and Equipment (where supplied in accordance with clause 15 or otherwise) by Suolo Coffee Co under these terms and conditions to the Customer creates a registrable security interest under the Personal Property Securities Act 2009 (Cth) and ownership of the Goods shall not pass until:
      1. the Customer has paid Suolo Coffee Co all amounts owing for the Goods and Equipment; and
      2. the Customer has met all other obligations owed by the Customer to Suolo Coffee Co in respect of all contracts between them.
    2. It is further agreed that:
      1. where practicable the Goods and Equipment shall be kept separate and identifiable until Suolo Coffee Co shall have received payment and all other obligations of the Customer are met; and
      2. until such time as ownership of the Goods shall pass from Suolo Coffee Co to the Customer, it may give notice in writing to the Customer to return the Goods or any of them to Suolo Coffee Co. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods or Equipment shall cease; and
      3. if the Customer fails to return the Goods or Equipment to Suolo Coffee Co then it may enter upon and into land and premises owned, occupied or used by the Customer where the Goods or Equipment are situated and take possession; and
      4. the Customer is only a bailee of the Goods and Equipment and until such time as Suolo Coffee Co has received payment in full; and
      5. the Customer shall not charge the Goods or Equipment in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Suolo Coffee Co; and
      6. Suolo Coffee Co can issue proceedings to recover the Price of the Goods and Equipment notwithstanding that ownership of the Goods or Equipment may not have passed to the Customer.
  7. Customer’s Disclaimer
    1. The Customer hereby disclaims any right to rescind, or cancel any contract with Suolo Coffee Co or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by Suolo Coffee Co and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.
  8. Defects
    1. The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Suolo Coffee Co of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall give Suolo Coffee Co an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Suolo Coffee Co has agreed in writing that the Customer is entitled to reject, its liability is limited to either (at its discretion) replacing the Goods.
  9. Returns
    1. Returns will only be accepted provided that:
      1. the Customer has complied with the provisions of clause 8.1; and
      2. Suolo Coffee Co has agreed in writing to accept the return of the Goods; and
      3. the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
      4. Suolo Coffee Co will not be liable for Goods which have not been stored or used in a proper manner; and
      5. the Goods are returned in the condition in which they were delivered and with all packaging material, in as new condition as is reasonably possible in the circumstances.
  10. The Competition and Consumer Act 2010 (Cth) (“CCA”)
    1. Nothing in these terms and conditions limits, excludes or modifies or purports to limit, exclude or modify the statutory consumer guarantees as provided under the Competition and Consumer Law Act 2010 (Cth) as well as any other implied warranties similar consumer protection laws in the State and Territories of Australia.
  11. Default & Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two - and one-half percent (2.5%) per calendar month.
    2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Suolo Coffee Co from and against all costs incurred by Suolo Coffee Co in pursuing the debt.
    3. Without prejudice to any other remedies, if at any time the Customer is in breach of any obligation (including those relating to payment), Suolo Coffee Co may immediately suspend or terminate the supply of Goods to the Customer and any of its other obligations under this agreement. Suolo Coffee Co will not be liable to the Customer for any loss or damage the Customer suffers because it has exercised its rights under this clause.
    4. Without prejudice to any other remedies, Suolo Coffee Co shall be entitled to immediately terminate this contract and cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Suolo Coffee Co shall, whether or not due for payment, become immediately payable in the event that:
      1. the Customer ceases trading;
      2. the Customer discontinues purchasing the Goods from Suolo Coffee Co;
      3. the Customer assigns or disposes of its business without the required notification in writing to Suolo Coffee Co;
      4. the Customer on-sells products to other suppliers for resale;
      5. any money payable to Suolo Coffee Co becomes overdue, or in its opinion the Customer will be unable to meet its payments as they fall due; or
      6. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      7. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  12. Cancellation
    1. Suolo Coffee Co may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Suolo Coffee Co shall repay to the Customer any sums paid in respect of the Goods. Suolo Coffee Co shall not be liable for any loss or damage whatever arising from such cancellation.
    2. If the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Suolo Coffee Co up to the time of cancellation.
  13. Privacy Act 1988
    1. The Customer and/or the Guarantor/s agree for Suolo Coffee Co to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Suolo Coffee Co.
  14. Loan Coffee Machines & Equipment
    1. If Suolo Coffee Co agrees to lend to the Customer, one or more coffee making machines and/or ancillary coffee making equipment (Equipment), the Equipment shall always remain the property of Suolo Coffee Co and is returnable on demand by Suolo Coffee Co. If the Equipment is not returned to Suolo Coffee Co in the condition in which it was delivered Suolo Coffee Co retains the right to charge the cost of repair or replacement of the Equipment.
    2. The Customer shall;
      1. keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
      2. not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
      3. keep the Equipment complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule advised by Suolo Coffee Co to the Customer.
    3. The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, Suolo Coffee Co’s ownership in the Equipment and agrees to indemnify Suolo Coffee Co against physical loss or damage including and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim. The Customer will promptly provide Suolo Coffee Co with the insurance certificates of currency for the same on request.
  15. Guarantee
    1. If a Guarantor is named in the Credit Application then the terms of this clause shall apply.
    2. In consideration for Suolo Coffee Co agreeing to provide the Goods and Services and other things in this contract, the Guarantor hereby guarantees to Suolo Coffee Co the due and punctual performance of all the obligations, undertakings and provisions contained in or implied in this agreement on the Customer and hereby indemnifies Suolo Coffee Co against all loss damage costs and expenses suffered or incurred by Suolo Coffee Co as a result of any failure by the Customer to pay any money outstanding in a due and punctual manner or any breach of any of the covenants and conditions contained in or implied by this agreement.
    3. The Guarantor shall pay the any money outstanding to Suolo Coffee Co in the manner and at the time specified in these terms and conditions for payment and where not specified upon demand made by Suolo Coffee Co.
    4. This guarantee shall be continuing and irrevocable and the obligations of the Guarantor shall be absolute and unconditional in all circumstances.
    5. This guarantee shall not be considered as wholly or partially discharged by any one or more of:
    6. the payment of the whole or any part of the money outstanding;
    7. any time credit indulgence or concession extended by Suolo Coffee Co to the Customer;
    8. any variation in any way of rights of Suolo Coffee Co against the Customer;
    9. the neglect or omission of Suolo Coffee Co to enforce any such rights;
    10. the winding up, bankruptcy or death of the Customer;
    11. the lack of power of any Guarantor to enter this contract;
    12. any other obligation arising between Suolo Coffee Co and the Customer being or becoming unenforceable in whole or in part for any reason.