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Terms & Conditions of Wholesale Trade

Binding Terms & Conditions of Trade


Applicability and acceptance

  • These Terms & Conditions apply in relation to the application for a commercial credit account with Kommunity Brewing Company Pty Ltd (KBC), brought by the applicant named on page 1 of this document (Applicant).
  • The Applicant accepts these Terms & Conditions by: signing or executing the application; placing an order with KBC; acceptance without rejection of an order, or otherwise by conduct which, in KBC’s opinion, constitutes acceptance of these Terms & Conditions, but no contract shall exist between KBC and the Applicant until such time as KBC accepts the application.
  • These Terms & Conditions apply to any orders for goods or services supplied by KBC (Products), whether before or after the date of the application.
  • The liability of two or more parties under these Terms & Conditions and any one or other of them is a joint liability of all of them and a separate liability of each of them.


Orders

  • Quotations given and orders accepted by KBC shall be based on KBC’s rates and costs as at the date of quotation, and may include transport, labour, and other costs. The price may be increased by the amount of any increase in the costs of KBC to supply any Products or any other factors affecting KBC’s costs of supply, production, labour or delivery of the Products.
  • KBC may impose minimum or maximum order quantities at any time.
  • No order may be cancelled, suspended or amended without KBC’s consent in writing.
  • In the event an order is cancelled, suspended or amended with KBC’s consent in writing, the Applicant shall be liable for all costs incurred by KBC associated with the cancellation, suspension or amendment, including but not limited to work in progress, labour costs, transport costs, stocks, overheads, and other expenses.


Delivery

  • KBC will charge, and the Applicant must pay, all delivery charges associated with any orders placed for Products. The price charged for delivery and the nominated carrier shall be at KBC’s sole discretion. KBC shall be under no obligation to insure goods will in transit.
  • KBC may pack and despatch the Products in whichever manner it sees fit.
  • Despatch and delivery dates/times shall be agreed in writing between the parties. In default of an agreed date/time, any indicate timeframes for despatch and delivery provided by KBC shall be treated only as an estimate.
  • Where despatch or delivery is to occur by instalments, any delays associated with one instalment shall not entitle the Applicant to cancel, suspend or amend the order or any remaining instalments. Should the Applicant default on any instalment, KBC may treat the default as a default in respect of the entirety of the order.
  • The Applicant must ensure adequate personnel are present to accept delivery of Products ordered, consistent with despatch and delivery dates/times advised by KBC. If the Applicant is unable to accept delivery of the Products at the time of delivery, KBC may either store the Products at its own premises or arrange for suitable storage until actual delivery, and such arrangements (including any further handling or transport costs) shall be at the Applicant’s cost.


Kegs

  • This clause applies where the Applicant places an order for Products supplied in kegs (Kegs).
  • Ownership of Kegs at all times remains with KBC, despite any payment for Products made by the Applicant.
  • Where Products are ordered for supply in Kegs, KBC may collect empty Kegs upon delivery of a new order. When Products are not re-ordered for supply in Kegs within a reasonable time after the previous order or at all, KBC may require the Applicant to return the Kegs to KBC’s premises at its own cost.
  • KBC may, in its sole discretion, charge the Applicant a cleaning fee in respect of Kegs returned to KBC or collected by KBC, and KBC shall be entitled to claim such amounts on account from the Applicant.
  • The Applicant shall be responsible for ensuring the care and safety of Kegs while the Kegs remain in the possession of the Applicant. The Applicant shall be responsible for the replacement or repair of any Kegs lost or damaged while in the possession of the Applicant, and KBC shall be entitled to claim such amounts on account from the Applicant.
  • The Applicant acknowledges that opening the Kegs will or may have the effect of:depressurising the Kegs; damaging them for future use; depreciating the value of the Kegs; spoiling, deteriorating or affecting the quality of the Product contained within the Kegs; and/or rendering the Kegs or the Products unclean or unsafe for human consumption, and agrees that under no circumstances will the Applicant open the Kegs.
  • Should KBC suspect or determine that Kegs have been opened by the Applicants, KBC may declare the Kegs damaged and exercise its rights under subclause (d) above. 
  • The Applicant must not sell, hire, dispose of or otherwise part with possession of any Kegs without the prior written consent of KBC.


Risk and Title

  • Risk in relation to any loss, damage or deterioration in the Products and/or the Kegs shall pass to the Applicant upon:
  1. the moment of collection of the Products and/or the Kegs, if the Products and/or the Kegs are collected from KBC’s premises; or
  2. unloading of the Products and/or the Kegs and loading onto the Applicant’s premises or vehicle (or any contractor or agent appointed by the Applicant to take delivery), if the Products and/or the Kegs are delivered to the Applicant’s premises or any other location nominated by the Applicant.
  • KBC shall not be liable for offloading the Products and/or the Kegs from the delivery vehicle and the Applicant shall keep KBC indemnified from and against all claims arising from such offloading.
  • Title to and property in the Kegs shall at all times remain with KBC.
  • Title to and property in the Products shall remain with KBC until such time as:
  1. the Applicant has made payment in full for the Products; and
  2. the Applicant has accepted delivery of the Products and/or the Kegs.
  • To the maximum extent permitted by law, KBC shall not be liable for any Products and/or Kegs lost in transit.
  • Save as provided for in this clause, KBC shall not be liable to the Applicant for any loss or damage arising out of or in connection with Products and/or Kegs lost in transit or undersupplied.
  • Defective, damaged or undersupplied Products and/or Kegs
  1. It is the responsibility of the Applicant to inspect the Products and/or Kegs as soon as possible after delivery.
  • If, before opening or using the Products and/or Kegs, the Applicant considers any of the following applies in respect of Products and/or Kegs delivered to it:
  1. Products and /or Kegs are defective or damaged;
  2. Products and /or Kegs have been undersupplied; or
  3. the wrong Products and /or Kegs have been supplied, 
  4. the Applicant must contact KBC within 48 hours of delivery by telephone KBC’s customer service department or sending an email marked “Urgent”. The Applicant must promptly provide all such other information as is reasonably necessary to identify the issue with the delivery.
  • Where, to the satisfaction of KBC, any Products and/or Kegs ordered and paid for by the Applicant are defective, damaged or undersupplied, or the wrong shipment has been sent, KBC will in its discretion either replace the defective, damaged or missing Products and/or Kegs at its own cost or credit the value of the defective, damaged or missing Products and/or Kegs to the Applicant. KBC will be under no obligation to do so unless the Applicant has:
  1. notified KBC of the issue within the timeframe stipulated in subclause (b) above; and
  2. permitted KBC to make all enquiries it considers necessary to investigate the alleged issue.
  • Save as provided for in this clause, KBC shall not be liable to the Applicant for any loss or damage arising out of or in connection with defective, damaged, undersupplied or incorrectly supplied Products and /or Kegs.


Returns

  • The Applicant may request, but KBC shall be under no obligation to agree, to return Products ordered after delivery or collection. No such request may be made after the Products have been opened or used.
  • KBC may, in its sole discretion, allow the Applicant to return unopened and unused Products and refund or credit the Applicant in respect of such Products.
  • The Applicant must obtain a Return Authorisation Number (RAN) prior to returning any Products. RANs must be clearly marked on the Products to be returned and on accompanying paperwork.
  • Product Information
  • The range of Products supplied by KBC are variant flavours of the drink “kombucha”, being a living non-pasteurised product.
  • KBC will affix “Used By Date” labels to the Products. These dates are to be strictly interpreted as the latest date on which the Products should be consumed. These dates are not to be construed as “Best Before Dates”.
  • The Applicant acknowledges and agrees that:
  1. the Products must be stored below 5 degrees celsius at all times and failure to store the Products below 5 degrees celsius at all times may have the effect of spoiling, deteriorating or affecting the quality of the Products, or rendering the Products unclean or unsafe for human consumption;
  2. the Applicant must not sell Products to any third parties after the Used By Date specified on the Products; and
  3. the Applicant must take all reasonable steps to ensure the Products are not consumed after the Used By Date specified on the Products.
  • The Applicant indemnifies and holds harmless KBC against any and all losses, claims, notices, proceedings, damages, costs (including legal costs and disbursements on a full indemnity basis), expenses, demands and injuries howsoever suffered (whether in contract or tort) brought by any third parties against KBC as a result of a breach by the Applicant of subclause (c) above. The indemnity contained in this clause extends to any reputational damage that may be suffered by KBC. 


Payment

  • Products may be ordered on 14 day credit terms or on blanket order delivered by instalments (Instalment Order).
  • Where Products are ordered on 14 day credit terms, payment for Products ordered inclusive of all expenses must be made within 14 days of the date of the statement of account in respect of that order.
  • Where Products are ordered by Instalment Order:
  1. the order shall comprise the full quantity ordered, notwithstanding that delivery is to occur in instalments;
  2. the Applicant must specify the dates on which it requests delivery of instalments under the order;
  • KBC shall invoice the Applicant for the full order by way of instalment invoices, coinciding with delivery of the instalments; and
  1. any Products ordered but not taken by the full delivery date specified in an application shall be invoiced to the Applicant on or following the full delivery date, with payment to be made by the Applicant on the terms set out in KBC’s invoice.
  2. If any payments are overdue, the whole amount of all invoices then unpaid shall become immediately due and payable together with the costs of collection of any such monies (including debt collectors). Without limiting the foregoing, in the case of Instalment Orders, where an instalment invoice is not paid on time the full amount of the balance of money payable on the Instalment Order (including Products not yet delivered or invoiced) shall become immediately due and payable to KBC by the Applicant.
  • KBC may apply transaction fees on payments made by credit card.
  • KBC may vary the terms of payment and total credit limit in writing to the Applicant at any time, and require full payment in cash prior to any delivery should KBC, in its sole discretion, form the opinion that the credit worthiness of the Applicant at any time becomes unsatisfactory.


Interest and Expenses

  • The Applicant shall pay interest on any amounts overdue under these Terms & Conditions at a rate of 8% per annum, calculated from the day the amount fell due and payable by the to the day the overdue amount is paid in full.
  • The Applicant shall be liable to pay all costs, expenses and other losses (including legal costs and disbursements on an indemnity basis) incurred by KBC as a result of or in any way connected with the enforcement, attempted enforcement or purported enforcement of KBC’s rights under these Terms & Conditions.


Security

  • As security for the obligations of the Applicant under these Terms & Conditions, the Applicant irrevocably and absolutely grants to KBC a security interest within the meaning of section 12 of the Personal Properties Securities Act 2009 (Cth) (PPSA) in respect of all of its present and after-acquired commercial property, including property in which the Applicant has or may in the future have rights or the power to transfer rights (Charge).
  • The Applicant represents and warrants for the purposes of section 115 of the PPSA that the Applicant’s Property is commercial property.
  • KBC shall not be obliged to withdraw any registration under the PPSA held over the Applicant’s Property until the fulfilment of all of the Applicant’s obligations under these Terms & Conditions.
  • The Applicant consents to KBC lodging a caveat over the title to any real property owned by the Applicant at any time, including at any time prior to the execution of these Terms & Conditions.
  • KBC may enforce the rights under this clause at any time after the Applicant fails to comply with its obligations under these Terms & Conditions.


Default

  • Each of the following constitutes an act of default by the Applicant under these Terms & Conditions:
  1. a breach of these Terms & Conditions by the Applicant;
  2. any change in control in the Applicant within the meaning of section 50AA of the Corporations Act 2001 (Cth); or
  3. any event of insolvency occurring in relation to the Applicant including the appointment of administrators, receivers, receivers and managers, liquidators, or similar officers.
  • If the Applicant defaults under these Terms & Conditions:
  1. KBC shall be immediately entitled to suspend supply of all orders and terminate the Applicant’s account. Such steps shall be without prejudice to KBC’s right to recover any debts or damages arising prior to or after the date of default;
  2. the Applicant grants to KBC a general lien on all property or goods belonging to the Applicant in KBC’s possession, and for the unpaid price of any other Products sold and delivered to the Applicant under these Terms & Conditions.


Liability

  • To the maximum extent permitted by law, KBC shall not be liable for any consequential, indirect or special losses or damage or injury of any kind (whether in contract, tort or otherwise in law) suffered by the Applicant as a result of any breach by KBC of any provision of these Terms & Conditions, and any liability by KBC under these Terms & Conditions in respect of an order shall be limited to the aggregate tax invoice value of the Products pertaining to that order.
  • To the maximum extent permitted by law, these Terms & Conditions operate to the exclusion of all implied terms. KBC gives no warranty as to the nature of the Products supplied or that it will be fit for any specified purposes. Any sample of Products provided by KBC to the Applicant shall not be taken by the Applicant to be an exact benchmark for the Products, and must only be construed as a general example of the type and quality of the Products.


Notice

  • A notice, demand, consent or authority given or made to any person under these Terms & Conditions must be in writing. It may be given or made by:
  1. delivering it to the recipient (in which case it will be deemed to be given or made when delivered);
  2. posting it to the address of the recipient (in which case it will be deemed to be given or made on the second business day following the date of posting);
  3. leaving it at the address of the recipient (in which case it will be deemed to be given or made when left at the address, unless it was left after 5.00pm (WST) in which case it will be deemed to be given or made the next business day); or
  4. emailing it to the recipient (in which case it will be deemed to be given or made upon sending).  
  • Notices under this clause may be signed:
  1. if given by an individual, by the person giving the notice;
  2. if given by a body corporate, by a director, secretary or authorised officer of that body corporate; or
  3. by a solicitor or other agent of the person giving the notice.


General

  • Amendment: KBC may amend, revoke or replace these Terms & Conditions at any time by notice to the Applicant, without requiring the consent of the Applicant. Any amendment, revocation or replacement of these Terms & Conditions shall take effect immediately upon such notice, from which time these Terms & Conditions shall operate in respect of the amended, revoked or replaced Terms & Conditions
  • Time of the essence: Time is of the essence in respect of the Applicant’s payment obligations under these Terms & Conditions.
  • Unconditional: The Applicant’s obligations under these Terms & Conditions are unconditional and unaffected by any facts, matters or things which may release the Applicant from part or all of its obligations. None of the following matters limits the rights of KBC under these Terms & Conditions or affects the obligations of the Applicant under these Terms & Conditions in any way:
  1. any failure, delay, relaxation or indulgence on the part of KBC in exercising any power or right conferred upon it under these Terms & Conditions;
  2. any arrangement or agreement by KBC to allow the Applicant time to pay any sum due under these Terms & Conditions;
  3. any failure to register the Charge on the PPSA;
  4. any negligence, act or omission on the part of KBC under these Terms & Conditions;
  5. any assignment by KBC of the rights under these Terms & Conditions;
  6. any change in control in KBC within the meaning of section 50AA of the Corporations Act 2001 (Cth) (Control); 
  7. any event of insolvency occurring in relation to KBC including the appointment of administrators, receivers, receivers and managers, liquidators, or similar officers; or
  8. the cessation of business by KBC.
  • Force majeure: Any obligation on the part of KBC shall be relieved and suspended to the extent affected by a force majeure event. Force majeure events may include but shall not be limited to fire, earthquake, strike, lock-out, accident, lightning, storm, flood, explosion, war, acts of terrorist, machinery breakdown, difficulty in procuring suitable materials for production of the Products, acts of God, and such other circumstances (whether similar or dissimilar) beyond the reasonable control of KBC.
  • Assignment: The Applicant must not assign or purport to assign its obligations under these Terms & Conditions without the prior written consent of KBC. KBC may assign and of its rights or obligations under these Terms & Conditions without the prior written consent of the Distributor. KBC may also assign or subcontract the production, manufacture or supply of the whole or any part of the Products to be supplied pursuant to these Terms & Conditions, without requiring the consent of the Applicant.
  • Change in Control: In the event the Applicant intends to sell more than 50% of its issued share capital or controlling shareholder, the Applicant must notify and seek the consent of KBC to the proposed sale.
  • GST: All amounts payable under these Terms & Conditions are GST exclusive unless otherwise stated. If any GST is payable on a taxable supply as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), the amount payable by the Applicant for that taxable supply will be payable by the Applicant.
  • Proceedings: KBC shall be at liberty to commence legal proceedings against the Applicant at any time, without first having to issue a notice of default under these Terms & Conditions.
  • Entire agreement: These Terms & Conditions contain the entire agreement and understanding between KBC and the Applicant with respect to their subject matter. No representation, undertaking or covenant given by either party to the other prior to the date of this application has any effect on the terms of these Terms & Conditions.
  • Governing Law: These Terms & Conditions are governed by and must be construed in accordance with the laws of Western Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Western Australia and all courts which have jurisdiction to hear appeals from those courts, and waives any right to object to proceedings being brought in those courts for any reason.