1. Interpretation

In these Terms and Conditions:

InterAmerican means InterAmerican Coffee Pty Limited (ACN 638 157 294) or any related corporation or legal entity.

Customer means the person, firm, corporation, government or semi-government authority purchasing goods and/or services from InterAmerican.

Goods means such products, including but not limited to, the supply of coffee products and other goods and services as InterAmerican may, at its discretion, agree.

Terms and Conditions means these terms and conditions of sale.

2. General

• These Terms and Conditions shall apply to the supply of Goods by InterAmerican to the Customer.
• InterAmerican is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the Customer delivered to InterAmerican with respect to the purchase of or order for Goods or otherwise which are at variance with, in derogation from or additional to these Terms and Conditions. The Customer is bound by these Terms and Conditions notwithstanding anything to the contrary in any purchase order, purchase form or other similar document delivered by the Customer to InterAmerican.

3. Contract

• The matters referred to in these Terms and Conditions constitute a contract between InterAmerican and the Customer. These Terms and Conditions shall prevail over any other terms and conditions that may contain terms and conditions that may be inconsistent or contrary to those contained herein.
• These Terms and Conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by InterAmerican and the Customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to these Terms and Conditions, shall be the whole of the contract between InterAmerican and the Customer.
• InterAmerican in its reasonable discretion reserves the right to cease supply, discount or suspend the supply of Goods to any Customer at any time.
• No agent or representative of InterAmerican is authorised to make any representations, warranties, conditions or agreements not expressly confirmed by InterAmerican in writing and InterAmerican is not bound in any way by such unauthorised statements nor can such statements be taken to form part of these Terms and Conditions.

4. Description of Goods

The description of Goods as stipulated on invoices or order forms is provided by way of identification only and the use of that description shall not constitute a description under any contract of sale. Any description of any Goods in any brochure, document or other sales literature used by InterAmerican shall not form part of any agreement between InterAmerican and the Customer.

5. Pricing

• Subject to clause 2, the price for Goods shall be as quoted in writing by InterAmerican. If a price is not quoted, then it shall be in accordance with InterAmerican’s current price list. Verbal quotations are subject to written confirmation.
• InterAmerican reserves the right without notice to alter the price of Goods, whether or not a deposit or part payment has been received by InterAmerican, and to invoice the Customer for any subsequent extra amount payable where the costs of the Goods to InterAmerican has altered due to circumstances beyond its control including, but without limiting the generality of the foregoing, any variation in InterAmerican’s exchange rates, GST or other taxes, levies, imposts, duties, premiums, fees or charges however designed and to correct errors and omissions.

6. Payment

• Unless otherwise agreed in writing by InterAmerican, payment is to be made to InterAmerican for Goods in accordance with agreed payment terms.
• If the Customer fails to comply with the terms of payment in clause 1, then the Customer agrees that InterAmerican is:

• entitled to impose a late premium charge amounting to 2% per month on all undisputed monies and charges owing by the Customer from time to time and the Customer will be liable for all costs including GST relating to any legal action taken by InterAmerican to recover monies due from the Customer; and
• hereby irrevocably authorised by the Customer to enter the Customer’s premises as indicated in this application (or any premises under the control of the Customer or as agent of the Customer in which Goods are stored at such premises e.g. Third party logistics provider), for the purposes of taking possession of any Goods supplied by InterAmerican but not paid for, if InterAmerican has reasonable grounds to expect that InterAmerican may find any part of the Goods there and the Customer authorises InterAmerican by its employees and agents to take reasonable actions to obtain such possession. This clause 2(b) applies even if InterAmerican holds some negotiable instrument or security for the unpaid amount.
  • If InterAmerican does take possession of the Goods pursuant to clause 2(b) and is unable to resell the Goods at the same price (or more) as was invoiced to the Customer by InterAmerican, then InterAmerican shall be entitled to make such claim, demand or institute and, if necessary, an action to recover any loss or damage sustained by InterAmerican due to InterAmerican not being able to obtain the invoiced price plus the added expenses incurred by InterAmerican as a result of non-payment by the Customer.
  • In the event of partial delivery of the Goods, invoices may be issued by InterAmerican and will be payable by the Customer in respect of such partial delivery.
  • No discount shall be allowed except where otherwise agreed by InterAmerican in writing.

7. Application for a commercial credit account

• The Customer agrees that for the purpose of processing its application for a commercial credit account, InterAmerican may request and receive from a credit reporting agency a credit report containing personal financial information about the Customer (Privacy Act 1988 (Cth)).
• The Customer agrees that InterAmerican may give to and seek from other credit providers named in its commercial credit account application and any providers that may be named in a credit report issued by a credit reporting agency, information about its credit arrangements. The Customer understands that this information may include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act 1988 (Cth).
• Where a Customer opens a commercial credit account with InterAmerican, the Customer may be required to nominate referees or guarantors (that shall be acceptable to InterAmerican) prior to credit being approved by InterAmerican.
• InterAmerican reserves the right to withdraw at any time any credit facilities extended to the Customer where payment is not received or where such other acts or omissions of the Customer are objectionable to InterAmerican.

8. Delivery

• Unless InterAmerican otherwise agrees in writing, GST, delivery, carriage insurance, handling, storage and packaging and any other expenses relating to Goods shall be charged to and paid by the Customer.
• In the absence of specific instructions from the Customer, InterAmerican will select the carrier and make such agreement with the carrier on behalf of the Customer as InterAmerican in its absolute discretion deems appropriate.
• InterAmerican will make all reasonable efforts to have Goods delivered to the Customer on the date agreed between the parties, but time is not of the essence in these Terms and Conditions and InterAmerican will not in any event be liable for any loss or damage directly or indirectly sustained from any delay in delivery or failure to give notice of any such delay.
• InterAmerican reserves the right to deliver Goods by instalments at its absolute discretion and in such circumstances the Customer shall accept delivery of such Goods by instalments.
• Where in order to deliver or collect Goods, InterAmerican or its carrier enters upon the Customer’s premises, the Customer shall provide full and safe access to InterAmerican or its carrier and shall be liable for and indemnify InterAmerican and its carrier against the cost of all loss, damage to property and injury to persons, occurring directly or indirectly as a result of the failure by the Customer to ensure the said full and safe access.
• The Customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of Goods at its premises.
• Where InterAmerican agrees to collect Goods from the Customer’s premises, the Customer shall ensure that the Goods are all available for collection at an easily accessible central point and that they are ready for loading at the time InterAmerican arrives to collect them.
• Claims by the Customer for short, damaged or incorrect deliveries must be made within 7 days from the date of the invoice.

9. Return of Goods

• Returned Goods must be accompanied by an advice note stating the original invoice number(s) relating to the Goods and the nature of any claimed defect, together with any such further information as InterAmerican may require.
• Where the Customer returns Goods, InterAmerican may refuse to replace or refund the purchase price of the Goods and return them to the Customer at the Customer’s cost.
• If InterAmerican is of the opinion that Goods, when returned, are otherwise than in the same condition as when they were delivered to the carrier or directly to the Customer, a charge equal to the cost necessary to restore the Goods to their original condition shall be payable by the Customer upon demand by InterAmerican.
• If Goods are returned to InterAmerican, which InterAmerican is unable to resell to a third party or resell for the same amount as was invoiced to the Customer by InterAmerican, then InterAmerican may charge the Customer an amount equal to the loss incurred as a result of the Customer returning the Goods.
• No return of Goods will be accepted or a credit note issued by InterAmerican for any Goods specifically acquired or custom-made for the Customer.

10. Ownership and risk

• Notwithstanding any credit granted to or anything contained in these Terms and Conditions to the Customer, InterAmerican will retain the full legal and beneficial ownership and title in and to all the Goods delivered to the Customer by InterAmerican until the Customer has paid to InterAmerican the full amount due on all outstanding invoice(s) to InterAmerican. Until then, the Customer will:
• hold and sell the Goods as trustee, fiduciary agent and bailee for InterAmerican;
• store the Goods separately and with the interest of InterAmerican as owner clearly marked on the Goods and the area in which they are stored; and
• not charge, mortgage or encumber the Goods.
  • The Customer will ensure that Goods are kept in good and serviceable condition and secure the Goods from risk, damage and theft and keep the Goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.
  • Any proceeds received by the Customer from the resale of Goods shall be held by the Customer as trustee for InterAmerican to the extent of the unpaid invoiced price of those Goods and the proceeds of the sale shall be forwarded to InterAmerican in full as soon as is reasonably practicable after receipt by the Customer. Where the proceeds of sale are less than the amount owing by the Customer to InterAmerican, such proceeds shall be applied in practical satisfaction to the invoiced price or amount outstanding until all monies owing to InterAmerican for all Goods supplied by InterAmerican to the Customer have been paid for in full by the Customer to InterAmerican.
  • In cases where the Customer collects Goods or arranges collection of Goods using a third party, the Customer shall be liable from the point Goods leave InterAmerican’s premises and any damage to the Goods shall be at the expense of the Customer. Where delivery is executed by InterAmerican (or it’s agent), the customer shall be liable from the point that goods are received at the customers premises (or any premises under the control of the Customer or as agent of the Customer in which Goods are stored at such premises. E.G. third party logistics provider).
• The Customer acknowledges that by virtue of clause 1 and 10.3, InterAmerican has a security interest in the Goods for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) and to the extent the PPS Act applies.
• The Customer acknowledges that InterAmerican may do anything reasonably necessary, including but not limited to, registering any security interest which InterAmerican has over the Goods on the Personal Property Security Register established under section 147 of the PPS Act in order to perfect the security interest and comply with the requirements of the PPS Act.
• The Customer agrees to do all things reasonably necessary to assist InterAmerican to undertake the matters set out in clause 6.
• The Customer and InterAmerican agree that, pursuant to section 115 of the PPS Act, the following provisions do not apply in relation to a security interest in the Goods to the extent, if any, mentioned (words in this provision have the same meaning as in the PPS Act):

• section 95 (notice of removal of accession), to the extent that it requires the secured party to give a notice to the grantor;
• subsection 121(4) (enforcement of liquid assets–notice to grantor);
• 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;
• paragraph 132(3)(d) (contents of statement of account after disposal); and
• subsection 132(4) (statement of account if no disposal).
  • The Customer irrevocably and unconditionally waives its right to receive any notice of any verification statement in respect of any financing statement or financing change statement relating to these Terms and Conditions.

• Where the context permits, terms used in this clause 10 have the meanings given to them in the PPS Act.

11. Warranties, extent of liability and indemnity

• InterAmerican warrants that if defects appear in Goods:

• under proper and normal use; and
• which in InterAmerican’s opinion, acting reasonably, exceed acceptable defect levels relevant to the Goods,

it will, at its option, replace the Goods or refund the purchase price. This warranty is subject to the Customer making a claim in writing to InterAmerican within 1 month of the date of the invoice.

• The standard warranty period of all Goods, is 1 month from the date of the invoice.
• The warranty in clause 1 does not apply in circumstances where:

• the Goods are not defective;
• the defects in the Goods are within acceptable defect levels relevant to the Goods;
• the Goods were used for a purpose other than for which they were intended;
• the Goods were repaired, modified or altered by any person other than InterAmerican;
• the defect has arisen due to misuse, neglect or accident;
• the Goods have not been stored or maintained as recommended by InterAmerican; or
• the Customer is in breach of any of these Terms and Conditions.
• To the extent permitted by law, neither InterAmerican nor the Customer will have any liability for any indirect or consequential loss (including loss of revenue, loss of profit, loss of opportunity or financing costs) suffered or incurred by the other party.
• InterAmerican will not be liable for any loss or damage directly or indirectly suffered by the Customer or any third party where InterAmerican has failed to meet any delivery date or cancels or suspends the supply of Goods.
• InterAmerican’s liability to the Customer arising out of or in connection with the supply of Goods whether in contract, tort (including negligence) equity or otherwise (including in respect of claims by third parties), is limited to the value of the Goods supplied. However, the limitation in this clause 6 shall not apply to the extent that a liability is one that InterAmerican by law is not able to contract out of or limit.
• To the full extent permitted by law, the Customer agrees to indemnify and at all times hereafter to keep indemnified and hold InterAmerican, its officers, employees or contractors, and each of them harmless against all claims for loss or damage (whether as a result of negligence or otherwise) to the extent any claim for loss or damage is caused by the Customer’s use, possession, ownership or resale to a third party of the Goods. The indemnity in this clause 7 shall survive termination of these Terms and Conditions.
• 12. Intellectual property
• The Customer acknowledges that InterAmerican owns all rights (including all intellectual property rights) in all documents, materials and information (including service manuals and training presentation documents) relating to the Goods supplied by InterAmerican to the Customer under these Terms and Conditions (Materials).
• InterAmerican grants to the Customer a perpetual, non-transferable, non-exclusive, royalty free licence to use and/or exercise all intellectual property rights in the Materials solely for the purposes of utilising the Goods supplied by InterAmerican to the Customer under, and in the manner contemplated by, these Terms and Conditions.

• 13. Governing law and jurisdiction

These Terms and Conditions and the contract governed thereby shall be governed by and construed in accordance with the laws from time to time of the State of New South Wales.

• • 14. Force majeure

To the extent permitted by law, the Customer releases InterAmerican from all and any liability for and in relation to or occurring out of any failure or transaction in performance of its obligations hereunder done in part or in whole to any cause whatsoever beyond InterAmerican’s reasonable control.

• • 15. Waiver

No waiver of any breach of these Terms and Conditions shall be held or construed to be a waiver of any other subsequent or antecedent breach of these Terms and Conditions.

• • 16. Implied conditions and warranties

All implied conditions and warranties (statutory or otherwise) are hereby expressly excluded from these Terms and Conditions insofar as they are capable of being excluded by agreement.

• • 17. Severance

If, at any time, a provision of these Terms and Conditions is or becomes illegal, invalid or unenforceable in any respect under the laws of Australia, that will not affect or impair the legality, validity or enforceability of any other provision of these Terms and Conditions.