Terms & ConditionsPRO BROS PROVIDER PTY LTD
1 Definitions and interpretation
1.1 Definitions. In these terms and conditions, unless the context requires otherwise:
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
Bank Account means:
Account name : Pro Bros Providore
BSB : 032-069
Account Number : 469014
Business Day means a day which is not a Saturday, Sunday or public holiday in New South Wales. Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.
Consumer Guarantee means a consumer guarantee as it applies to supplies made under this agreement, as set out in under Part 3-2, Division 1, Subdivision B of the Australian Consumer Law.
Default Rate means the pre-judgement interest rate set pursuant to the Civil Procedure Act 2005 (NSW) expressed as a percentage per annum.
Force Majeure Event means an act of God, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
GST has the meaning given in GST Law.
GST Law has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means the happening of any one or more of the following events:
(a) in relation to a natural person:
i. that person being unable to pay his or her debts as and when they fall due;
ii. an application and filing for bankruptcy being made in respect of that person; or
iii. a receiver, or receiver and manager, trustee for creditors or trustee in bankruptcy or analogous person being appointed over that person’s assets or undertakings or any of them; or
(b) in relation to a body corporate:
i. that body corporate being unable to pay its debts as and when they fall due;
ii. a receiver, receiver and manager, administrator or liquidator being appointed over that body corporate’s assets or undertakings or any of them;
iii. an application for winding up or other process seeking orders which, if granted, would render that body corporate an externally-administered body corporate being filed and not being withdrawn within 20 Business Days;
iv. that body corporate being or becoming the subject of an order, or a resolution being passed, for the winding up or dissolution of that body corporate; or
v. that body corporate entering into, or resolving to enter into, a deed of company arrangement or an arrangement, composition or compromise with, or proceedings being commenced to sanction such a deed of company arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
Invoice means an invoice issued by Pro Bros to the Customer following acceptance of an Order.
Loss means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.
Pro Bros means Pro Bros Provider Pty Ltd (ACN 600 355 459).
Order has the meaning given in clause 3.1.
PPSA means the Personal Property Securities Act 2009 (Cth).
Product means the products specified in an Accepted Order.
Security Interest has the meaning given in the PPSA.
1.2 Interpretation. In these terms and conditions:
(a) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(b) the word 'includes' and other similar expressions shall not be taken to be words of limitation;
(c) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation;
(d) a reference to these terms and conditions, any other agreement or document includes that agreement or document as novated, varied or replaced and despite any change in the identity of the parties;
(e) a reference to anything required to be ‘written’ or ‘in writing’ will be taken to include e-mail correspondence;
(f) a term or expression given a meaning in the GST Law, that is not otherwise defined in these terms and conditions, has the same meaning in these terms and conditions as in the GST Law; and
(g) a clause, schedule, annexure or part is a reference to a clause, schedule, annexure or part, as the case may be, of these terms and conditions.
2 Agreement to supply
2.1 This document records the terms and conditions on which Pro Bros agrees to supply and deliver Products to the Customer. Pro Bros may at any time vary these terms and conditions without notice.
3 Product orders
3.1 The Customer must submit a purchase order to Pro Bros (each an Order) specifying:
(a) the amount and type of Products it wants supplied;
(b) the address for delivery of those Products; and
(c) any special delivery instructions for those Products (provided always that the delivery date for each Order must fall on a Business Day).
3.2 Each Order constitutes an offer by the Customer to purchase the Products specified in that Order on the terms of these terms and conditions (to the exclusion of any other terms other than those which apply or cannot be excluded by operation of law).
3.3 Pro Bros may, in its sole discretion:
(a) accept an Order by supplying the Products specified in that Order (each an Accepted Order); or
(b) decline an Order (without being obliged to give reason for doing so) by giving notice to that effect to the Customer.
3.4 Upon confirmation of an Accepted Order, Pro Bros will issue the Customer with an Invoice.
3.5 If Pro Bros is unable to supply the quantity of a Product specified in an Order but is able to supply a lesser quantity, it may give notice to that effect to the Customer. The Customer may offer to purchase the lesser quantity by placing a new Order with Pro Bros. For the avoidance of doubt, clause 3.3 applies to offers made in accordance with this clause 3.4.
3.6 Pro Bros reserves the right to stipulate a minimum order quantity at any time for the Products.
4.1 Pro Bros will deliver the Products the subject of an Accepted Order to the address specified in the Accepted Order together with a delivery confirmation for those Products.
4.2 Pro Bros will endeavour to deliver the Products in an Accepted Order within the delivery times specified in the Accepted Order.
4.3 Delivery times given by Pro Bros are estimates only and Pro Bros accepts no liability to the Customer or to any other person if it is unable to deliver Products within an estimated delivery time.
5 Acceptance of Products
5.1 On delivery of Products to the Customer, the Customer must immediately check the quantity against the delivery confirmation and visually inspect the Products for their quality, condition and saleability.
5.2 The Customer will be deemed to have:
(a) accepted each Product received in a delivery from Pro Bros;
(b) acknowledged that it is satisfied as to all of the quantity, condition, quality and saleability of that Product;
(c) to the maximum extent permitted by law, waived any rights it has to make claims against Pro Bros relating to the quantity, condition, quality or saleability of that Product; and
(d) assumed full responsibility for the maintenance of the quality, condition and saleability of that Product after its delivery by Pro Bros,
unless it gives Pro Bros a written notice setting out the nature of any defects within 2 Business Days of the delivery of the Product.
6 Defective Products
6.1 Subject to clause 11, if the Customer can verify to Pro Bros’ reasonable satisfaction that a Product was defective at the time the Product was delivered to the Customer, Pro Bros must use reasonable endeavours to replace the defective Product within 5 Business Days of the Customer returning the defective Products to Pro Bros, at the Customer’s cost.
6.2 Subject to clause 11, if a Product was free from defects when the Product was delivered to the Customer, Pro Bros will not be obligated to replace or refund the cost of that Product to the Customer.
7 Price and payment
7.1 The price of the Products will be as set out in the Invoice.
7.2 The price of the Products quoted by Pro Bros or on Pro Bros’ price list is exclusive of GST. In addition to the price payable for the Products, the Customer must pay to Pro Bros, in accordance with the terms of Pro Bros’ invoice, the GST payable in respect of the supply of those Products.
7.3 Invoices are payable on the terms set out in the Commercial Details.
7.4 Unless Pro Bros has approved the customer to be supplied Products on credit under these terms and conditions, all Orders must be paid in full prior to dispatch to Pro Bros’ Bank Account.
7.5 If the Customer has been granted a credit account by Pro Bros, the Customer must pay Pro Bros the total amount set out in each Invoice issued to the Customer within 14 days of the date of the Invoice.
7.6 The Customer must pay all amounts due to Pro Bros (whether under these terms and conditions or otherwise):
(a) without set-off, deductions counter-claims or conditions; and
(b) in available cleared funds to the Bank Account.
7.7 If the Customer owes any amount to Pro Bros (whether under these terms and conditions or otherwise), Pro Bros may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
(a) withhold all future supplies of Products until that amount has been paid in full; or
(b) set-off that amount against any amount owing by Pro Bros to the Customer.
7.8 If an amount due under these terms and conditions is paid after the due date the Customer must pay Pro Bros, in addition to the overdue amount:
(a) interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
(b) all costs and expenses incurred by Pro Bros in collecting the overdue amount, including legal costs on an indemnity basis.
7.9 The Customer's obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Products.
7.10 Time is of the essence in respect of all amounts payable pursuant to these terms and conditions.
8 Freight and insurance
8.1 Unless otherwise agreed in writing:
(a) Pro Bros will arrange for the freight of the Products to the Customer; and
(b) Pro Bros will not arrange insurance of the Products during freight; and
(c) the price for the Products is inclusive of all freight and other carrier costs.
9 Title and risk
9.1 Risk in each Product passes to the Customer upon dispatch of the Products by Pro Bros or its agent or representatives.
9.2 Until Pro Bros has received payment in full for all Products supplied by Pro Bros under an Accepted Order:
(a) title to the Products shall remain with Pro Bros;
(b) the Products shall, so far as practicable, be kept separate from other goods on the premises of Customer, so as to be readily identifiable as the property of Pro Bros, and
(c) the Customer shall be at liberty to resell the Products in the ordinary course of business unless it fails to make any payment to Pro Bros when it becomes due, defaults in the due performance or observance of any other obligation under these terms and conditions or suffers an Insolvency Event. In any of those circumstances, Pro Bros may by notice in writing to the Customer cancel the Accepted Order and enter upon the Customer’s premises to remove any of the Products to which Pro Bros has retained title and for this purpose the Customer shall afford Pro Bros all reasonable assistance to locate and take possession of the Products.
9.3 The Customer acknowledges that by virtue of clause 9.2, Pro Bros has or will have a Security Interest in the Products and the proceeds from the sale of the Products for the purposes of the PPS, as well as a Security Interest in all of the Customer’s present and after acquired property until paid in full.
9.4 The Customer acknowledges that Pro Bros may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. The Customer agrees to do all things reasonably necessary to assist Pro Bros to achieve perfection of this Security Interest under the PPSA.
9.5 The Customer and Pro Bros agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this Security Interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
(a) section 117 (obligations secured by interests in personal property and land);
(b) section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
(f) paragraph 132(3)(d) (contents of statement of account after disposal);
(g) subsection 132(4) (statement of account if no disposal);
(h) section 142 (redemption of collateral); and
(i) section 143 (reinstatement of security agreement).
9.6 The Customer waives its right to receive a verification statement under section 157 of the PPSA.
10 Force Majeure
10.1 Pro Bros will not be liable for any loss incurred as a result of delay or failure to observe any of these terms and conditions due to an event of Force Majeure. Pro Bros’ obligations under these terms and conditions will be suspended and will resume as soon as the cause of the Force Majeure has ceased to have effect.
11 Limitation of liability and indemnity
11.1 Pro Bros makes no express or implied warranties under these terms and conditions in relation to any Product.
11.2 To the maximum extent permitted by law, Pro Bros will not be liable for indirect, consequential, special, punitive or exemplary damages including but not limited to loss of profits, loss of business, loss by reason of delay, whether arising in negligence, from breach of contract or otherwise, in connection with these terms and conditions.
11.3 To the maximum extent permitted by law, Pro Bros limits its liability for breach of these terms and conditions in relation to any particular supply of Products, to the price of the Products determined in accordance with clause 7.1
11.4 To the maximum extent permitted under the Australian Consumer Law, Pro Bros’ liability for breach of a Consumer Guarantee is limited to any one or more of the following, at Pro Bros’ election:
(a) the replacement of the Products or the supply of equivalent Products;
(b) the payment of the cost of replacing the Products or of acquiring equivalent Products.
11.5 This clause 11 continues to bind the parties after this agreement is terminated.
11.6 Subject to this clause 11, the Customer indemnifies and holds Pro Bros harmless to the full extent permitted by law for any loss or damage whatsoever arising in connection with the supply of the Products to the Customer, including any third-party claims.
12.1 Without prejudice to any other right under these terms and conditions, Pro Bros may terminate this agreement:
a) Without cause on 30 days prior written notice; or
b) Immediately, in the event of:
i. an Insolvency Event affecting the Customer; or
ii. the Customer’s breach of these terms and conditions which remains unremedied for a period of 7 days following written notice from Pro Bros to the Customer.
12.2 Upon termination of this agreement all amounts owing from the Customer to Pro Bros are immediately due and payable.
13.1 These terms and conditions constitute the entire understanding between the parties and supersede all prior agreements, understandings and communications, whether written or oral.
13.2 This Agreement operates as a ‘standing agreement’ and each Accepted Order shall constitute a separate contract for supply of the Products between the parties and Pro Bros may enforce its rights under this Agreement against an Accepted Order, multiple Accepted Orders or the Agreement as a whole.
13.3 Except as required by law, the Customer must not disclose to any person without Pro Bros’ prior written consent the existence of, or details in, these terms and conditions or any other information Pro Bros gives the Customer.
13.4 The Customer may not, without the prior written consent of Pro Bros, assign, transfer or grant any Security Interest over, its right, title and interest in or to these terms and conditions to any person (or agree or purport to do so).
13.5 If any provision of these terms and conditions is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
13.6 All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
13.7 Clauses 1, 7, 8, 9, 11, 13 and any indemnities survive termination or expiration of this Agreement.
13.8 These terms and conditions are governed by and is to be construed in accordance with the laws applicable in New South Wales, Australia.