Terms and Conditions of Trade

Toby’s Estate Coffee Pty Ltd – Terms & Conditions of Trade

1. Definitions
1.1 “Toby’s Estate” shall mean Toby’s Estate Coffee Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Toby’s Estate Coffee Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Toby’s Estate to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean the goods supplied by Toby’s Estate to the Customer (and where the context so permits shall include any supply of services
as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Toby’s Estate to
the Customer.
1.5 “Services” shall mean all services supplied by Toby’s Estate to the Customer and includes any advice or recommendations (and where the
context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Toby’s Estate and the Customer in accordance with clause 3 of these
terms and conditions.

2. Acceptance
2.1 Any instructions received by Toby’s Estate from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by
Toby’s Estate shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this contract, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the
written consent of Toby’s Estate.
2.4 The Customer shall give Toby’s Estate not less than fourteen (14) days prior written notice of any proposed change of Toby’s 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 Toby’s Estate as a result of the
Customer’s failure to comply with this clause.

3. Price And Payment
3.1 At Toby’s Estate’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Toby’s Estate to the Customer in respect of Goods supplied; or
(b) Toby’s Estate’s current price at the date of delivery of the Goods according to Toby’s Estates current Price list; or
(c) Toby’s Estate’s quoted Price (subject to clause 3.2) which shall be binding upon Toby’s Estate provided that the Customer shall accept Toby’s
Estate’s quotation in writing within thirty (30) days.
3.2 Toby’s Estate reserves the right to change the Price in the event of a variation to Toby’s Estate’s quotation.
3.3 At Toby’s Estate’s sole discretion a deposit may be required.
3.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice or a ny other forms. If no time is stated then payment
shall be due fourteen (14) days following the date of the invoice.
3.5 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (Amex and Diners cards excluded), or by direct credit, or by
any other method as agreed to between the Customer and Toby’s Estate.
3.6 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
4.1 At Toby’s Estate’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Toby’s Estate’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Toby’s Estate or Toby’s Estate’s nominated carrier).
4.2 At Toby’s Estate’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Toby’s Estate shall be entitled to charge a reasonable fee for redelivery.
4.4 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.
4.5 The failure of Toby’s Estate to deliver shall not entitle either party to treat these terms and conditions as repudiated.
4.6 Toby’s Estate shall not be liable for any loss or damage whatever due to failure by Toby’s Estate to deliver the Goods (or any of them) promptly
or at all.

5. Risk
5.1 If Toby’s Estate retains Toby’s ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to Toby’s ownership passing to the Customer, Toby’s Estate is
entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Toby’s Estate is sufficient
evidence of Toby’s Estate’s rights to receive the insurance proceeds without the need for any person dealing with Toby’s Estate to make further enquiries.

6. Title
6.1 The supply of the Goods by Toby’s Estate under these terms and conditions to the Customer creates a registrable security interest under the Personal Property Securities Act 2009 (Cth)., and Toby’s Estate’s ownership of the Goods shall not pass until:
(a) the Customer has paid Toby’s Estate all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Toby’s Estate in respect of all contracts between Toby’s Estate and the
Customer.
6.2 Receipt by Toby’s Estate of any form of payment other than cash shall not be deemed to be payment until that form of payment has been
honoured, cleared or recognised and until then Toby’s Estate’s Toby’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Toby’s Estate shall have received payment and all other obligations
of the Customer are met; and
(b) until such time as Toby’s ownership of the Goods shall pass from Toby’s Estate to the Customer Toby’s Estate may give notice in writing to the
Customer to return the Goods or any of them to Toby’s Estate. Upon such notice the rights of the Customer to obtain Toby’s ownership or any
other interest in the Goods shall cease; and
(c) Toby’s Estate shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Toby’s Estate then Toby’s Estate or Toby’s Estate’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Toby’s Estate has received payment in full for the Goods then the Customer
shall hold any proceeds from the sale or disposal of the Goods on trust for Toby’s Estate; and
(f) the Customer shall not deal with the money of Toby’s Estate in any way which may be adverse to Toby’s Estate; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of
Toby’s Estate; and
(h) Toby’s Estate can issue proceedings to recover the Price of the Goods sold notwithstanding t hat Toby’s ownership of the Goods may not
have passed to the Customer; and
(i) until such time that Toby’s ownership in the Goods passes to the Customer, if the Goods are converted into
other products, the parties agree that Toby’s Estate will be Toby’s Estate of the end products.

7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Toby’s Estate or to sue for damages or to claim restitution
arising out of any misrepresentation made to the Customer by Toby’s Estate and the Customer acknowledges that the Goods are bought relying
solely upon the Customer’s skill and judgement.

8. Defects
8.1 The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Toby’s Estate of
any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Toby’s Estate
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 Toby’s Estate has agreed in writing that the Customer is entitled to reject, Toby’s Estate’s liability is limited to either (at Toby’s Estate’s
discretion) replacing the Goods or repairing the Goods, or re-performing the Services. Where the Customer is a consumer as defined in the CCA,
but not otherwise, the Customer may also be entitled to a refund.

9. Returns
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) Toby’s Estate has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) Toby’s Estate will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances .

10. The Competition and Consumer Act 2010 (Cth) (“CCA”)
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. Warranty
11.1 For Goods not manufactured by Toby’s Estate, the warranty shall be the current warranty provided by the manufacturer of the Goods. Toby’s
Estate shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the
manufacturer of the Goods.
11.2 To the maximum extent permitted by law, no warranty is given by Toby’s Estate as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Toby’s Estate shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

12. Intellectual Property
12.1 Where Toby’s Estate has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Toby’s Estate, and shall only be used by the Customer at Toby’s Estate’s discretion.
12.2 The Customer warrants that all designs or instructions to Toby’s Estate will not cause Toby’s Estate to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Toby’s Estate against any action taken by a third party against Toby’s Estate in respect of any such infringement.

13. Default & Consequences of Default
13.1 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 and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Toby’s Estate from and against all costs and
disbursements incurred by Toby’s Estate in pursuing the debt including legal costs on a solicitor and own client basis and Toby’s Estate’s
collection agency costs.
13.3 Without prejudice to any other remedies Toby’s Estate may have, if at any time the Customer is in breach of any obligation (including those
relating to payment), Toby’s Estate may immediately suspend or terminate the supply of Goods to the Customer and any of its other
obligations under these terms and conditions. Toby’s Estate will not be liable to the Customer for any loss or damage the Customer suffers
because Toby’s Estate has exercised its rights under this clause or clause 13.5.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become
immediately due and payable.
13.5 Without prejudice to Toby’s Estate’s other remedies at law Toby’s Estate 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 Toby’s Estate shall, whether or not due for payment, become immediately payable in the event that:
(a) the Customer ceases trading;
(b) the Customer discontinues purchasing the Goods from Toby’s Estate;
(c) the Customer assigns or disposes of its business without the written consent of Toby’s Estate;
(d) the Customer on-sells products to other suppliers for resale;
(e) any money payable to Toby’s Estate becomes overdue, or in Toby’s Estate’s opinion the Customer will be
unable to meet its payments as they fall due; or
(f) 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
(g) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the
Customer.

14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which Toby’s Estate may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is Toby’s Estate of land, realty or any other asset capable of being charged, both the
Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other
asset to Toby’s Estate or Toby’s Estate’s nominee to secure all amounts and other monetary obligations payable under these terms and
conditions. The Customer and/or the Guarantor acknowledge and agree that Toby’s Estate (or Toby’s Estate’s nominee) shall be entitled to
lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have
been met.
(b) should Toby’s Estate elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor
shall indemnify Toby’s Estate from and against all Toby’s Estate’s costs and disbursements including legal costs on a solicitor and own client
basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Toby’s Estate or Toby’s Estate’s nominee as
the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.

15. Cancellation
15.1 Toby’s Estate 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 Toby’s Estate shall repay to the Customer any sums paid in respect of the Price. Toby’s Estate shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Toby’s Estate (including, but not limited to, any loss of profits) up to the time of cancellation.

16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for Toby’s Estate 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 Toby’s Estate.
16.2 The Customer and/or the Guarantor/s agree that Toby’s Estate may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for
the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit
providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to Toby’s Estate being given a consumer credit report to collect overdue payment on commercial credit (Section
18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by Toby’s Estate for the following purposes and for
other purposes as shall be agreed between the Customer and Toby’s Estate or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Toby’s Estate, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 Toby’s Estate may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

17. Unpaid Toby’s Estate’s Rights
17.1 Where the Customer has left any item with Toby’s Estate for repair, modification, exchange or for Toby’s Estate to perform any other Service in relation to the item and Toby’s Estate has not received or been tendered the whole of the Price, or the payment has been dishonoured, Toby’s
Estate shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Toby’s Estate is in possession of the item;
(c) a right to sell the item.
17.2 The lien of Toby’s Estate shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

18. Loan Coffee Machines
18.1 The loan coffee machine shall at all times remain the property of Toby’s Estate and is returnable on demand by Toby’s Estate. In the event that the loan coffee machine is not returned to Toby’s Estate in the condition in which it was delivered Toby’s Estate retains the right to charge the Price of repair or replacement of the loan coffee machine.
18.2 The Customer shall;
(a) keep the loan coffee machine in their own possession and control and shall not assign the benefit of the loan coffee machine nor be entitled
to lien over the loan coffee machine.
(b) not alter or make any additions to the loan coffee machine including but without limitation altering, make any additions to, defacing or
erasing any identifying mark, plate or number on or in the loan coffee machine or in any other manner interfere with the loan coffee machine.
(c) keep the loan coffee machine, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any
maintenance schedule as advised by Toby’s Estate to the Customer.
18.3 The Customer accepts full responsibility for the safekeeping of the loan coffee machine and the Customer agrees to insure, or self insure, Toby’s Estate’s interest in the loan coffee machine and agrees to indemnify Toby’s Estate against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the loan coffee machine. Further the Customer will not use the loan coffee
machine nor permit it to be used in such a manner as would permit an insurer to decline any claim. The Customer will promptly provide Toby’s
Estate with the insurance certificates of currency for the same on request.

19. General
19.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the
jurisdiction of the courts of New South Wales.
19.3 Despite anything contained in these terms and conditions, to the maximum extent permitted by law, Toby’s Estate shall be under no liability
whatever to the Customer for any indirect, special or consequential loss, damage, claim or expense of any kind, including any legal fees, loss
of profit, business opportunity, contracts, costs of capital, savings, financing costs, any increase in operating costs or any economic loss that
is unforeseeable or incidental, arising out of or in connection with these terms and conditions the Goods or the Services, whether in contract,
tort (including negligence) or equity, under statute, common law or otherwise, howsoever caused. suffered by the Customer arising out of a
breach by Toby’s Estate o.
19.4 Despite anything else in these terms and conditions, to the maximum extent permitted by law, the total liability of Toby’s Estate for all claims arising out of, or in connection with these terms and conditions, whether arising in contract, tort (including negligence), indemnity, strict liability, breach of warranty or statute is limited to the total Price of the Goods supplied in the twelve month period preceding the relevant
cause of action accruing.
19.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by Toby’s
Estate.
19.6 Toby’s Estate may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
19.7 Toby’s Estate reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to
these terms and conditions, then that change will take effect from the date on which Toby’s Estate notifies the Customer of such change.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 The failure by Toby’s Estate to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Toby’s Estate’s right to subsequently enforce that provision.

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