Wholesale Terms & Conditions
The following terms and conditions of trade apply to each supply of products by Abstract Coffee Roasters to the Client when ordered via the Ordermentum platform, and to each supply of services or equipment by Abstract Coffee Roasters to the Client as governed by the relevant Agreement.
The following terms are defined:
1.1. “Abstract” - Greenrise Pty Ltd t/a Abstract Coffee Roasters;
1.2. “Agreement” - the form or agreement to which these T&Cs attach and/or are incorporated, and includes a tax invoice;
1.3. “Client” - the person or entity described in the Agreement;
1.4. “Collateral” - the Products, and means the same as in the PPSA;
1.5. “Equipment” - all of the Equipment supplied to the Client by AbstractAbstract that has a serial number, and/or as described in the Agreement;
1.6. “Order” - when Abstract sends to the Client a tax invoice;
1.7. “Grantor” - the Client, and means the same as in the PPSA;
1.8. “Parties” - Abstract and the Client(s);
1.9. “PPSA” - the Personal Property and Security Act 2009 (Cth);
1.10. “PPSR” - the Personal Property and Securities Register;
1.11. “Secured Party” - Abstract, and means the same as in the PPSA;
1.12. “Products” - all products and/or services sold/supplied by Abstract to the Client from time to time;
1.13. “Secured Property” - the Products described in the tax invoices, and means the same as in the PPSA;
1.14. “Security Agreement” - the Agreement, including these T&Cs;
1.15. “Special Order” - an Order that relates to or involves customised or ‘one off’ supplied Products or Equipment;
1.16. “T&Cs” - these Terms and Conditions of Trade.
2.1. The Parties enter the Agreement together with and on these T&Cs.
2.2. The Agreement incorporates the entire agreement of the Parties. It replaces all prior agreements, understandings or representations.
2.3. The Guarantor hereby guarantees, and indemnifies Abstract against and from, any and all losses that may arise with respect to any and all of the Client’s obligations pursuant to the Agreement, including the indemnity obligations in cl. 14 and 15 below, and any variation agreed to by the Parties. The Guarantor also charges its land and property under cl. 3.2.2 below.
2.4. All obligations owed by the Parties pursuant to the Agreement, or at law, including the Guarantor, are owed joint and severally.
2.5. The Client and the Guarantor acknowledge that the Agreement contains important and legally binding obligations. They warrant that they have obtained legal advice, or been given the opportunity to, and have chosen not to do so, prior to agreement.
3. ROT, Charge over Land, and PPSA
3.1 Abstract retains title to the Products and/or the Equipment described in the Agreement until the Client pays Abstract the full amount for the Products and/or Equipment in accordance with these T&Cs.
3.2. If the Client breaches the Agreement, or any of these T&Cs, or on termination:
3.2.1. The Client irrevocably authorises Abstract to enter upon such land as may be necessary to seize possession of and remove any Products and/or Equipment that Abstract retains title to pursuant to cl. 3.1 above. The Agreement and these T&Cs are evidence of the Client’s express written irrevocable authorisation for Abstract, or its officers or agents, to do this;
3.2.2. The Client and Guarantor irrevocably charge all real and personal property in their names, or to which they have a beneficial interest. They consent to Abstract lodging a caveat over land to secure any amount owed to Abstract, including any amount payable under the indemnities in cls. 14 and 15 below.
3.3. The Parties acknowledge and agree that when Abstract supplies the Client with Products and/or Equipment, and those Products and/or Equipment are not fully paid for by the Client, those Products and/or Equipment are Secured Property under this Security Agreement, and the Grantor grants the Secured Party a Security Interest within the meaning of s.12 of the PPSA.
3.4. The Parties acknowledge and agree that the Secured Property becomes the Collateral, and that the Security Interest attaches to the Collateral for the purposes of s.19 of the PPSA.
3.5. A Security Interest under cl.3.3 above is a Purchase Money Security Interest (“PMSI”) within the meaning of s.14 of the PPSA.
3.6. The Client irrevocably authorises Abstract to register its Security Interest on the PPSR, and shall indemnify Abstract for the costs of registration.
3.7. The Client agrees to act/refrain from acting, in a manner consistent with Abstract’s perfection or protection of its Security Interest.
3.8. The Client acknowledges and agrees that Abstract will have the power to seize, retain, or dispose of the Collateral, in accordance with Chapter 4 of the PPSA, except in so far as:
3.8.1. Section 95 does not apply to the extent that Abstract is required to give notice of an accession;
3.8.2. Sections 96, 125, and 129 do not apply;
3.8.3. Section 130 does not apply to the extent that Abstract is required to give notice of disposal of the Collateral;
3.8.4. Section 132(3)(d), 132(4), 135, 142 and 143 do not apply;
3.8.5. Section 157 does not apply to the extent that the Client is entitled to a Notice of Variation Statement.
4. Duration of Agreement
4.1. These T&Cs apply to each Order and supply of Products or Equipment from Abstract to the Client, and as defined in the Agreement. These T&Cs apply from the date of an Order, and terminates on the date that Abstract has received full payment of all monies due and owing, including any loss, interest or costs.
5. Pricing, Cancellations and Returns
5.1. The Client acknowledges and agrees that the pricing described in the Agreement is subject to change.
5.2. The Client agrees that Abstract will not accept the cancellation of a Special Order, or return of Products or Equipment subject of a Special Order, or the return of Products or Equipment that require commissioning as these items cannot be readily resold.
5.3. The Client may request, and Abstract may accept, at its sole discretion, cancellation of an Order and/or return of Products or Equipment, subject to:
5.3.1. The Client paying a restocking fee of 10% of the value of any unused Products or unused Equipment that does not require commissioning or decommissioning; or
5.3.2. The Client paying a restocking fee of 15% of the value of any unopened consumable Products, provided they are returned to Abstract within 10 business days of the Order.
6.1. Abstract shall give the Client written notice of a variation to the Agreement, and the client may object to the variation within 20 business days of receiving it.
6.2. Variations to the Agreement shall be valid and binding if in writing, signed by the Parties, or if the Client continues to accept the supply of Products or Equipment from Abstract after the date of notice of variation referred to in this cl. 6.1.
6.3. The Client will be liable for the price of any Products or Equipment ordered and supplied irrespective of a written variation.
7. Delivery, Inspection and Use
7.1. In the event that the Agreement is for the supply of Equipment, the Client will inspect the Equipment at the time of taking possession of it, and warrants and agrees that: -
7.1.1. The Equipment is clean, in good condition, and in safe working order. If not, the Client will immediately notify Abstract;
7.1.2. The Client has received sufficient instructions as to the proper and safe operation of the Equipment, and is familiar with its proper and safe use. If not, the Client will immediately notify Abstract.
7.2. In the event that the Agreement is for the supply of Products, the Client will inspect the Products at the time of taking possession of them, and warrants and agrees that they are fit for purpose, as described, and merchantable. If not, then within 7 days of possession, the Client will notify Abstract of any issue, with full details of that issue.
7.3. The Client will ensure that any person who uses the Equipment has received training on the Equipment’s correct operation and cleaning as required in Equipment manual(s).
7.4. If the Client does not provide notice to Abstract in accordance with this cl. 7, Abstract will not be liable for any loss or damage arising from or related to an alleged issue, and the Client agrees that it is liable to continue to perform the Agreement, and make any payment due, irrespective of an alleged issue.
8. Warranty and Maintenance of Equipment
8.1. If the Client is provided with Equipment, the Client agrees to:
8.1.1. Maintain the Equipment in a proper and clean condition, follow cleaning instructions, use cleaning materials recommended by Abstract or the manufacturer, and make and keep written records of such maintenance;
8.1.2. If Abstract retains title to the Equipment, give Abstract access to the Equipment for inspection upon reasonable notice;
8.1.3. If Abstract retains title to the Equipment, and is not satisfied that the Equipment is being maintained or operated according to the manufacturer’s requirements, then Abstract may, at its sole discretion, terminate the Agreement and repossess the Equipment.
8.2. The Client will be charged Abstract’s RRP for any consumables required to maintain the Equipment, including but not limited to filters, seals, showers, and cleaning products.
8.3. If the Client purchases Equipment under warranty(s), the Client agrees that it shall comply with the Abstract Equipment Warranty Policy for End Users, provided at the time of purchase.
8.4. The Client agrees that Abstract and Abstract’s accredited technicians have the exclusive right to service and repair all Equipment under warranty. If in doubt, the Client agrees to contact Abstract to confirm the details of an Abstract accredited technician.
8.5. The Client agrees that a breach of this cl. 8 will render any warranty void.
9. Payment Terms
9.1. On the date of the Order, the Client becomes liable to pay Abstract the full amount of an Order by the payment date, subject to cl. 5.3.
9.2. The Client will not set off any amount it alleges is owing against any amount that is payable under the Agreement.
9.3. Payment is for and Order is due within the period specified in the Agreement, or the relevant tax invoice.
9.4. If the Client does not pay a tax invoice on time then, Abstract may, at its discretion, enforce the Agreement, including cl. 14 below.
10. Provision of Credit
10.1. Abstract’s payment terms create a relationship of creditor (Abstract) and debtor (the Client).
10.2. The Client authorises Abstract to collect, retain, use, record, and disclose credit information about the Client for the purpose of assessing and reporting, matters related to the Client’s credit.
10.3. The Client agrees that a failure to pay Abstract’s invoices on time may be reported to a credit provider or reference organisation, including Dun and Bradstreet Debt Management Services, and that this may affect the Client’s credit rating.
10.4. Abstract shall collect, maintain and use the Client’s information in accordance with the Privacy Act 1988 (Cth).\
11. Assignment, Lease, Loan, or Sale
11.1. Abstract may assign its rights under the Agreement without the Client’s permission.
11.2. The Client may not assign any rights under the Agreement without Abstract's express written consent.
11.3. The Client shall not lease, loan, assign, sell, transfer, mortgage, or charge the Products or the Equipment without
Abstract’s prior written consent.
12. Limitation of Liability
12.1 The Client agrees that Abstract is not liable for any loss or damage of any kind, including general, special, expected, or liquidated damages, direct or indirect loss, consequential loss, loss of bargain, or lost profits, that the Client suffers, or may suffer, and that is in any way related to the supply of Products or Equipment under the Agreement.
13. Notification and Change in Business Details
13.1. Any notification required by these T&Cs must be in writing.
13.2. For the duration of the Agreement, the Client will provide Abstract with 2 business days’ notice of a change, or proposed change, in the Client’s business details, including, but not limited to, change of business name, ownership, shareholding, control, trading or registered business address, the location of the Collateral, or any inability to pay its debts as and when they fall due.
14.1. Abstract may cease supplying Products or Equipment to the Client at any time, including for non-payment in accordance with cl. 9, without notice, and without reason, subject to the Agreement.
14.2. Abstract will provide the Client notice of a breach of the Agreement.
14.3. The Client must remedy a breach within seven (7) days.
14.4. If the breach is not remedied, or cannot be remedied, Abstract may terminate the Agreement.
14.5. If the Agreement is terminated and the Client owes Abstract money whilst remaining in possession of Products or Equipment, the Client authorises Abstract and its agents to enter upon such land as may be necessary to recover the Products or Equipment.
14.6. If the Equipment is de-installed from the Client’s premises for any reason, and the Client does not remain a customer of Abstract, then a de-installation fee is payable in accordance with the Agreement. The Client and Guarantor acknowledge and agree that the early termination fee is a genuine pre-estimate of Abstract’s loss in relation to de-installing and repossessing the Equipment.
14.7. If Abstract provides notice of a breach of the Agreement, all money due and owing to Abstract is immediately due and payable, and the Client will pay interest at 8% above the rate set by the Reserve Bank from time to time.
14.8. If Abstract terminates the Agreement before the Client pays all money owing, then the Client will pay:
14.8.1. General damages; and/or
14.8.2. The early termination fee; and/or
14.8.3. Liquidated damages, if applicable under the Agreement.
14.9. The Client and Guarantor acknowledge that any liquidated damages payable are a genuine pre-estimate of Abstract losses relating to the termination of the Agreement.
14.10. The Client and the Guarantor acknowledge and agree that any de-installation fee, early termination fee, or liquidated damages, are separate amounts applicable in separate specific circumstances, and these do not limit Abstract’s rights at common law, including the right to seek general damages.
14.11. The Client warrants that they will indemnify Abstract for any losses, including legal costs on a full indemnity basis, of and incidental to a breach of the Agreement, including the recovery of Products, Equipment, or money or owed to Abstract, and/or the costs of restoring recovered Products or Equipment to good working order.
14.12. The Guarantor guarantees the Client’s indemnity in cl. 14.11.
14.13. Termination of the Agreement does not affect Abstract’s right to enforce the Agreement.
15.1. The Client accepts full responsibility for all claims in respect of any injury to person, economic loss, loss of productivity, or loss or damage to property, related to the Products or Equipment, except in so far as a claim is due to the negligence of Abstract, and the Client shall indemnify Abstract for any loss, including legal expenses on a full indemnity basis, related to such a claim.
15.2. The Guarantor guarantees the Client’s indemnity in this cl. 15.
16.1. Any words, part of clause or clause in these T&Cs will be deleted only to the extent of any inconsistency with any other clause or term in any other document(s) forming part of the Agreement, and with such deletion being only for the benefit of Abstract.
17.1. Any clause, or part of a clause in these T&Cs are severable to the extent that they are not permitted by law, and so that the invalidity, unenforceability, or waiver of any of the clauses, or parts of clauses, shall not affect the validity and enforceability of the remaining clauses.
18.1. Abstract does not waive any of its rights under these T&Cs or the Agreement by reason of any delay in enforcing its rights.
19.1. These T&Cs are governed by the laws of New South Wales, and the Parties irrevocably submit to the jurisdiction of the Courts of New South Wales.
20.1. If goods and services tax (GST) applies to any supply under this Agreement, the Client must pay the GST applicable in addition to the price stated in this Agreement and Abstract must give the Customer a tax invoice.
Updated 27 January 2021