Ordering Terms & Conditions

TERMS AND CONDITIONS OF SUPPLY

 

GENERAL

1. These terms and conditions apply to all orders for the supply of Goods placed by the Franchisee with the Supplier.

 

INTERPRETATION

2. In this document:

2.1.   Consumer Guarantees means the guarantees provided in Schedule 2 of the Competition & Consumer Act 2020 (Cth);

2.2.   Costs means any costs, charges, expenses, outgoings, payments or other expenditure of any nature reasonably incurred by the Supplier in supplying Goods to the Franchisee including but not limited to the cost incurred by the Supplier in respect to the processing of any payment made by the Franchisee;

2.3.   Franchisee means the Franchisee or Manager named in the Franchise Agreement for the store receiving the delivery of Goods;

2.4.   Franchise Agreement means the agreement between the Franchisee and the Supplier granting the non-exclusive franchise and right to the Franchisee to conduct the business at the Premises and is taken to also include any Management Agreement to manage a business at the Premises;

2.5.   Goods means any goods available for order in the Supplier’s MacroMatix system;

2.6.   GST is defined in the GST Law;

2.7.   GST Law is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

2.8.   MacroMatix means the cloud based software employed by the Supplier for inventory management;

2.9.   PPS Law means the Person Property Securities Act 2009 (Cth) (PPSA) and any amendment made at any time to the Corporations Act 2001 (Cth) or any other legislation as a consequence of the PPSA;

2.10.   Premises means the store receiving the delivery of the Goods;

 2.11.   Purchase Order means the purchase order for Goods issued by the Franchisee to the Supplier from time to time containing a description of the Goods required and includes a purchase order issued by Macromatix or any other system or process approved by the Supplier;

2.12.   Rate means 10% per annum;

2.13.   Related Body Corporate means the same as in the Corporations Law; and

2.14.   Supplier means Craveable Brands Pty Ltd ACN 151 143 065 or a Related Body Corporate of Craveable Brands Pty Ltd.

3. Any terms defined in the Franchise Agreement shall have the same meaning in these Terms and Conditions as they do in the Franchise Agreement, unless stated otherwise in this document;.

 

PURCHASE ORDERS

4. The Franchisee must generate a Purchase Order for Goods through the Supplier’s MacroMatix system, or a system or process approved by the Supplier.

5. The Purchase Order is an irrevocable offer by the Franchisee to the Supplier to supply Goods on these Terms and Conditions and is deemed accepted by the Supplier when the Supplier agrees to supply the Goods, in the Purchase Order, to the Franchisee.

6. If there is an approved system pursuant to clause 4 then:

6.1.   the Franchisee is responsible for uploading the prices for the Goods, as amended from time to time, on to that system as soon as reasonably practicable after the Supplier provides the price for the Goods;

6.2.   the Supplier is not responsible for any errors of the Franchisee in entering the prices on to the system or the Franchisee’s failure to enter the prices into the system; and

6.3.   the Franchisee will be invoiced based on the prices for the Goods ordered at the price in the Supplier’s system.

7. The Supplier, acting reasonably, may refuse to accept a Purchase Order, or part of a Purchase Order, placed by the Franchisee.

8. The Franchisee may cancel or amend a Purchase Order, or any part of a Purchase Order by contacting the third party who is delivering the Goods:

8.1.   at any time up to 5pm on the day prior to the Goods being dispatched, at no cost to the Franchisee; or

8.2.   any time after 5pm on the day prior to the Goods being dispatched, which may result in a fee being charged for the change.

9. Each Purchase Order forms a separate contract between the Franchisee and the Supplier incorporating all of these Terms and Conditions.

9.1.   In certain circumstances and with the Supplier’s prior approval, the Franchisee may be permitted to place an order to purchase Goods directly with a supplier of the Supplier.

PRICES & PAYMENTS

11. The Franchisee confirms that they are purchasing the Goods on a wholesale basis to on-sell or re-supply to their customers at the Premises and that as such they may not be entitled to all of the consumer guarantees under the Australian Consumer Law.

12. Unless otherwise expressly agreed by the Supplier in writing all Goods will be charged at the Supplier’s prices current as at the dates of delivery. Prices may be subject to change without notice.

13. Unless otherwise stated, the prices for the Goods are exclusive of GST. The Franchisee must pay GST at the same time and in the same manner as the price for the Goods. The Supplier will give the Franchisee a tax invoice showing the applicable GST for the purposes of the GST Law.

14. The Franchisee will be invoiced for the Goods supplied pursuant to the Purchase Order

15. Subject to clause 16.1 and unless otherwise agreed in writing, payment for all Goods is due on the date stated in the invoice for that Purchase Order, as directed on the invoice, which in any event will not be less than 7 days.

16. Non-payment of any or all Goods by the due date will be considered by the Supplier to be a breach of these Terms and Conditions and, in addition to any other rights, the Supplier may undertake to:

16.1.   cancel the Franchisee’s right to order Goods on commercial credit terms with the Supplier and instead request payment on or before delivery;

16.2.   charge interest on any outstanding amount, calculated from the day following the date upon which payment should have been made, at the Rate and payable on demand; and

16.3.  exercise its rights pursuant to clause 32.

17. Monies owed by the Franchisee to the Supplier shall become due immediately upon the commencement of any act or proceeding in which the Franchisee’s solvency is involved.

18. The Franchisee agrees to pay to the Supplier all Costs associated with the supply of Goods to the Franchisee on the date for payment of the Goods stipulated in clause 15.

19. The Franchisee is liable for and must indemnify the Supplier against any and all losses, damages, liabilities, costs, charges and expenses suffered or incurred by the Supplier arising directly or indirectly from or in connection with the Franchisee’s default, failure to pay, or breach of any of these Terms and Conditions and the Franchisee must pay all such amounts on demand.

 

DELIVERY

20. The Goods will be delivered to the Premises specified in the Purchase Order on the date specified in the Purchase Order;

21. The Supplier may engage a third party to deliver the Goods on its behalf. Where the Supplier subcontracts its obligations, the Supplier retains responsibility for all the obligations of the Supplier under these Terms and Conditions.

22. Delivery of the Goods shall be considered effected upon unloading at the Premises or upon collection by the Franchisee or the Franchisee’s agent or courier (as the case may be).

RETURNS

23. The Franchisee must not accept delivery of Goods that are defective or damaged.

24. If Goods are delivered to the Franchisee and accepted into the Premises then:

24.1.   the Supplier will not accept any returns on Goods that are perishable; and

24.2.   it will be at the discretion of the Supplier as to whether it accepts the return of Goods that are non-perishable.

25. Failure of the Franchisee to inspect the Goods before accepting them into its possession will not prejudice the Supplier’s rights in clause 24.

26. The Franchisee is responsible for ensuring the accuracy of the Purchase Order and any returns required as a result of an error of the Franchisee will be at the discretion of the Supplier.

27. Any returns or claims in relation to Goods must be made within 48 hours of delivery of the Goods to the Franchisee. All claims and/or returns must be processed via the third party who is delivering the Goods in the Purchase Order.

 

WARRANTY & LIABILITY

28. Except where the Franchisee is a Consumer under the Australian Consumer Law (Schedule 2 Competition & Consumer Act 2010) and the Goods are subject to the Consumer Guarantees and other than as expressly set out in these Terms and Conditions, the Supplier excludes all implied terms, conditions, warranties and guarantees (whether statutory or otherwise) and all liability however arising for any loss or damage whether direct, indirect, special or consequential (including loss of profits or loss of goodwill) arising in any way out of or in connection with the Goods and/or these Terms and Conditions, except to the extent that the Franchisee suffers direct loss or damage (excluding any indirect, special or consequential loss, loss of profits and loss of good will) as a result of any negligent or wilful act or omission of the Supplier.

29. Without prejudice or admission as to the operation of the Australian Consumer Law or any other legislation, if any term, condition, warranty or guarantee is implied into these Terms and Conditions or applies to the Goods which by law cannot be excluded, but may be limited, the Supplier’s liability for any breach of any such term, condition, warranty or guarantee (including to any person claiming through the Franchisee) is limited, at the Supplier’s option, to:

29.1.   the replacement of the goods or the supply of equivalent goods; or

29.2.   the payment of the cost of replacing the goods or acquiring equivalent goods.

 

PROPERTY & RISK – RETENTION OF TITLE

30. Property in and ownership of the Goods does not pass to the Franchisee until:

30.1.   the Supplier has received payment in full of all monies owing to the Supplier by the Franchisee on all accounts; and

30.2. the Supplier has received title in the Goods from its supplier.

31. The risk of loss or damage to the Goods shall pass to the Franchisee upon delivery to the Franchisee or upon collection of the Goods by the Franchisee or the Franchisee’s agent or courier (as the case may be).

32. If the Franchisee fails to pay for any Goods within the period of credit extended by the Supplier to the Franchisee the Supplier may recover possession of all Goods (in which property has remained with the Supplier) at any site owned, possessed or controlled by the Franchisee and the Franchisee agrees that the Supplier has an irrevocable licence to do so without incurring any liability to the Franchisee or any person claiming through the Franchisee.

 

PERSONAL PROPERTY SECURITY ACT 2009

33. The Franchisee consents to the Supplier maintaining, protecting and perfecting its rights, title and interest in any Goods or other personal property supplied by the Supplier to the Franchisee and the proceeds of such Goods or other personal property, by registration under the PPS Law, and agrees to do anything reasonably requested by the Supplier to enable it to do so (including without limitation amending these Terms and Conditions or executing a new agreement).

34. For the purpose of the PPS Law, the Franchisee and Supplier contract out each provision which, under section 115(1) of the PPSA, they are permitted to contract out of (except sections 117, 118, 120, 123, 125, 126, 128, 129 and 134 of the PPSA), and the Franchisee waives its right to receive each notice or statement which, under section 157(3) of the PPSA, it is permitted to waive.

35. The Franchisee waives its right to receive anything from the Supplier under section 275 of the PPSA, inclusive of any Verification Statement and/or confirmation of registration of a Financing Statement and agrees not to make any request of the Supplier under that section. The Supplier and the Franchisee agree for the purposes of section 275(6) of the PPSA that neither of them will disclose information of the kind mentioned in section 275(1) of the PPSA.

36. All costs and expenses arising as a result of actions taken pursuant to clause 33 of these Terms and Conditions will be for the account of the Franchisee.

 

RECALL

37. The Supplier, a third party supplier of the Supplier or any government agency or department, may at any time issue a product recall or withdrawal in relation to any Goods supplied pursuant to these Terms and Condition if they consider it is necessary (in its absolute discretion) in order to reduce the level of risk and minimise potential harm to the Franchisee’s customers or because of the risk of litigation.

38. If at any time a product recall or product withdrawal is issued in relation to any Goods supplied under these Terms and Conditions (irrespective of who has issued it) then:

38.1.   the Franchisee agrees to co-operate with the Supplier with respect to the return, storage or disposal of the Goods, (at the Supplier’s direction) the preparation and maintenance of relevant records and reports, and notification to any customers;

38.2.   the Supplier agrees to pay all reasonable costs of the Franchisee involved in complying with the obligations in clause 1, including the costs of the Goods that are recalled.

 

FORCE MAJEURE

39. An obligation of the Supplier under these Terms and Conditions (including without limitation the obligation to supply Goods) is suspended for the time and to the extent the Supplier is prevented from or delayed in performing the relevant obligation by any circumstances beyond the reasonable control of the Supplier including without limitation an act of God, war, acts of terror, unlawful acts against public order or authority, restraint of a government agency, strikes, lockouts, raw material shortages, accidents or breakdowns in plant or machinery or failure of delivery by the Supplier’s supplies, restrictions imposed or shortages (whether staff, goods or materials) experienced in connection with the COVID-19 pandemic (Force Majeure Event).

40. The Supplier shall not under any circumstances be liable to the Franchisee for any loss or damage suffered or incurred by the Franchisee arising from or in connection with the Supplier’s failure to delay in performing the relevant obligation.

41. The Supplier may terminate any purchase order or these Terms and Conditions if, in the Supplier’s reasonable opinion, it believes a Force Majeure Event will prevent the Supplier from supplying Goods indefinitely.

 

ASSIGNMENT AND TERMINATION

42. The rights granted by these Terms and Conditions are personal to the Franchisee and the Franchisee may not assign, transfer or part with its rights under these Terms and Conditions without the Supplier’s consent, which may be withheld in its absolute discretion.

43. These Terms and Conditions shall terminate immediately upon the termination of the Franchise Agreement or upon written notice from the Supplier to the Franchisee.

44. The termination of these Terms and Conditions shall be without prejudice to the rights of either party against the other in respect of anything done or omitted under these Terms and Conditions prior to such termination or in respect of any sum and/or other claims outstanding at the time of termination.

 

WAIVER AND SET OFF

45. Failure by the Supplier to enforce any of these Terms and Conditions shall not be construed as a waiver of any of the Supplier’s rights hereunder or a waiver of a continuing breach. A waiver of any right of the Supplier must be in writing and signed by the Supplier.

46.The Franchisee’s obligation to make the payments provided for in these Terms and Condition and otherwise to perform its obligations herein is not affected by any circumstances, including without limitation any set-off, counterclaim, recoupment or other right with the Franchisee may have against the Supplier.

 

ACCEPTANCE

47. Acceptance by the Franchisee of these Terms and Conditions as amended from time to time may be by performing an act that is done with the intention of indicating acceptance of these Terms and Conditions, including but not limited to continuing to order goods.

 

JURISDICTION

48. The proper law of all agreements arising between the Supplier and the Franchisee is the law of the State of New South Wales and the parties agree that all claims and disputes relating to the Goods shall be determined in the Court of competent jurisdiction nearest Sydney.

 

SUPERSEDES

49. Unless the Supplier otherwise agrees in writing and to the extent permitted by law, these terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of Goods, and contain the only terms and conditions of supply (Terms and Conditions) to which the Supplier will be bound in connection with the supply of Goods to the Franchisee, and the Franchisee agrees that these Terms and Conditions will in all circumstances prevail over the Franchisee’s terms of purchase (if any) and any other documentation issued by the Franchisee.

 

NOTICES

50. Any notice or demand given pursuant to these Terms and Conditions will be in writing and will be delivered or posted to the relevant party at the address specified in the Franchise Agreement or as advised in writing from time to time.

ASSISTANCE

51. The Franchisee must:

51.1.   provide all relevant information and assistance reasonably required by the Supplier in connection with as statutory health or safety investigation in connection with the supply of the Goods; and

51.2.   on request by the Supplier provide to the Supplier and its employees, agents and consultants any information and assistance required to identify, evaluate, implement and report on any matter required by law in respect of the performance of the Supplier’s obligations under this Agreement.

 

UPDATING TERMS AND CONDITIONS

 52. The Supplier reserves the right to amend these Terms and Conditions at any time and from time to time however any amendment made will not apply to the purchase of any Goods that were the subject of a Purchase Order that was made prior to the date of the amendments.