Terms & Conditions of Trade

Forster Elite Operations Pty Ltd (As an Australian distributor of Zest Tea Products) – Terms & Conditions of Trade

1.Definitions
1.1“Zest Tea Australia” means Forster Elite Operations Pty Ltd (in the capacity of running a website to distribute Zest Tea products), its successors and assigns or any person acting on behalf of and with the authority of Forster Elite Operations Pty Ltd.
1.2“Client” means the person/s requesting Zest Tea Australia to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3“Incidental Items” means any goods, software, training materials, databases, proposals, tender documents and other electronic tools (“tools”) supplied, consumed, created or deposited incidentally by Zest Tea Australia in the course of it conducting, or supplying to the Client, any Services.
1.4“Services” means all Services supplied by Zest Tea Australia to the Client at the Client’s request from time to time.
1.5“Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.6“Prohibited Content” means any content on a Web Site that: is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code; orcontains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; oris, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
1.7“Price” means the price payable for the Services as agreed between Zest Tea Australia and the Client in accordance with clause of this contract.
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2.Acceptance
2.1The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Zest Tea Australia.
2.2These terms and conditions may only be amended with Zest Tea Australia’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Zest Tea Australia.
2.3These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Zest Tea Australia’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
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3.Change in Control
3.1The Client shall give Zest Tea Australia not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Zest Tea Australia as a result of the Client’s failure to comply with this clause.
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4.Price and Payment
4.1At Zest Tea Australia’s sole discretion the Price shall be either: as indicated on any invoice provided by Zest Tea Australia to the Client; orthe Price as at the date of delivery of the Services according to Zest Tea Australia’s current Price list; orZest Tea Australia’s quoted price (subject to clause ) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2Zest Tea Australia reserves the right to change the Price in the event of a variation to Zest Tea Australia’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to Zest Tea Australia in the cost of materials and labour or due to changes in the advertising rates charged by the advertising medium provider the website) will be charged for on the basis of Zest Tea Australia’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3In the event any additional Services are requested once the quotation has been agreed to, then these additional Services shall be charged at Zest Tea Australia’s current hourly rate, or current Price list.
4.4At Zest Tea Australia’s sole discretion a non-refundable deposit may be required.
4.5Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Zest Tea Australia, which may be: before delivery of the Services;fourteen (14) days following the date of the invoice;the date specified on any invoice or other form as being the date for payment; orfailing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Zest Tea Australia.
4.6Payment may be made by electronic/on-line banking, credit card (plus a surcharge of up to three (3%) of the Price), or by any other method as agreed to between the Client and Zest Tea Australia.
4.7Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Zest Tea Australia an amount equal to any GST Zest Tea Australia must pay for any supply by Zest Tea Australia under this or any other agreement for providing Zest Tea Australia’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
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5.Delivery of Services
5.1Any time specified by Zest Tea Australia for delivery of the Services is an estimate only and Zest Tea Australia will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that Zest Tea Australia is unable to supply the Services as agreed solely due to any action or inaction of the Client then Zest Tea Australia shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
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6.Risk
6.1Irrespective of whether Zest Tea Australia retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Zest Tea Australia may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
6.2Zest Tea Australia reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause .
6.3Once accepted by the Client, Zest Tea Australia’s written quotation shall be deemed to interpret correctly the Client’s instructions. Zest Tea Australia shall not be responsible for errors or omissions due to oversight or inadvertent misinterpretation of those instructions.
6.4The Client acknowledges and agrees that Zest Tea Australia shall not be held liable for any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of Zest Tea Australia.
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7.Title
7.1Zest Tea Australia and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until: the Client has paid Zest Tea Australia all amounts owing for the Services; andthe Client has met all other obligations due by the Client to Zest Tea Australia in respect of all contracts between Zest Tea Australia and the Client.
7.2Receipt by Zest Tea Australia 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 Zest Tea Australia’s ownership or rights in respect of the Incidental Items shall continue.
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8.Personal Property Securities Act 2009 (“PPSA”)
8.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
8.2Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Incidental Items that have previously been supplied and that will be supplied in the future by Zest Tea Australia to the Client.
8.3The Client undertakes to: promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Zest Tea Australia may reasonably require to; register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;register any other document required to be registered by the PPSA; orcorrect a defect in a statement referred to in clause or ; indemnify, and upon demand reimburse, Zest Tea Australia for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;not register a financing change statement in respect of a security interest without the prior written consent of Zest Tea Australia;not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of Zest Tea Australia.
8.4Zest Tea Australia and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
8.6The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
8.7Unless otherwise agreed to in writing by Zest Tea Australia, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8The Client must unconditionally ratify any actions taken by Zest Tea Australia under clauses to .
8.9Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
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9.Security and Charge
9.1In consideration of Zest Tea Australia agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2The Client indemnifies Zest Tea Australia from and against all Zest Tea Australia’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Zest Tea Australia’s rights under this clause.
9.3The Client irrevocably appoints Zest Tea Australia and each director of Zest Tea Australia as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Client’s behalf.
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10.Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
10.1The Client must inspect Zest Tea Australia’s Services on completion of the Services and must within seven (7) days notify Zest Tea Australia in writing of any evident defect in the Services or Incidental Items provided (including Zest Tea Australia’s workmanship) or of any other failure by Zest Tea Australia to comply with the description of, or quote for, the Services which Zest Tea Australia was to supply. The Client must notify any other alleged defect in Zest Tea Australia’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Zest Tea Australia to review the Services or Incidental Items that were provided.
10.2Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3Zest Tea Australia acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Zest Tea Australia makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Zest Tea Australia’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5If the Client is a consumer within the meaning of the CCA, Zest Tea Australia’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6If Zest Tea Australia is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Zest Tea Australia may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
10.7If the Client is not a consumer within the meaning of the CCA, Zest Tea Australia’s liability for any defective Services or Incidental Items is: limited to the value of any express warranty or warranty card provided to the Client by Zest Tea Australia at Zest Tea Australia’s sole discretion;otherwise negated absolutely.
10.8Notwithstanding clauses to but subject to the CCA, Zest Tea Australia shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: the Client failing to properly maintain or store any Incidental Items;the Client using the Incidental Items for any purpose other than that for which they were designed;the Client continuing to use any Incidental Item after any defect became apparent or should have become apparent to a reasonably prudent operator or user;interference with the Services by the Client or any third party without Zest Tea Australia’s prior approval;the Client failing to follow any instructions or guidelines provided by Zest Tea Australia;fair wear and tear, any accident, or act of God.
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11.Intellectual Property
11.1Where Zest Tea Australia has developed Incidental Items such as software, training materials, databases, proposals, tender documents and other electronic tools (“tools”) in providing the Services for the Client, then the copyright in the software, training materials, databases, proposals, tender documents and other electronic tools shall remain vested in Zest Tea Australia, and shall only be used by the Client at Zest Tea Australia’s discretion.
11.2The Client warrants that any software, databases, electronic tools or instructions provided by the Client to Zest Tea Australia will not cause Zest Tea Australia to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Zest Tea Australia against any action taken by a third party against Zest Tea Australia in respect of any such infringement.
11.3Whether Zest Tea Australia or the Client retains the copyright in relation to tools which are specifically developed for the Client shall be as is agreed, recorded in writing, and signed by both parties to this agreement.
11.4The Client agrees that Zest Tea Australia may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which Zest Tea Australia has created for the Client.
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12.Default and Consequences of Default
12.1Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Zest Tea Australia’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2If the Client owes Zest Tea Australia any money the Client shall indemnify Zest Tea Australia from and against all costs and disbursements incurred by Zest Tea Australia in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Zest Tea Australia’s collection agency costs, and bank dishonour fees).
12.3Without prejudice to any other remedies Zest Tea Australia may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Zest Tea Australia may suspend or terminate the supply of Services to the Client. Zest Tea Australia will not be liable to the Client for any loss or damage the Client suffers because Zest Tea Australia has exercised its rights under this clause.
12.4Without prejudice to Zest Tea Australia’s other remedies at law Zest Tea Australia shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Zest Tea Australia shall, whether or not due for payment, become immediately payable if: any money payable to Zest Tea Australia becomes overdue, or in Zest Tea Australia’s opinion the Client will be unable to make a payment when it falls due;the Client 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; ora receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
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13.Confidentiality
13.1Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
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14.Cancellation
14.1Zest Tea Australia may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice Zest Tea Australia shall repay to the Client any money paid by the Client for the Services. Zest Tea Australia shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Zest Tea Australia as a direct result of the cancellation (including, but not limited to, any loss of profits).
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15.Privacy Act 1988
15.1The Client agrees for Zest Tea Australia to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Zest Tea Australia.
15.2The Client agrees that Zest Tea Australia may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes: to assess an application by the Client; and/orto notify other credit providers of a default by the Client; and/orto exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/orto assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3The Client consents to Zest Tea Australia being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4The Client agrees that personal credit information provided may be used and retained by Zest Tea Australia for the following purposes (and for other purposes as shall be agreed between the Client and Zest Tea Australia or required by law from time to time): the provision of Services; and/orthe marketing of Services by Zest Tea Australia, its agents or distributors; and/oranalysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/orprocessing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/orenabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
15.5Zest Tea Australia may give information about the Client to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Client;allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.6The information given to the credit reporting agency may include: personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);details concerning the Client’s application for credit or commercial credit and the amount requested;advice that Zest Tea Australia is a current credit provider to the Client;advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;information that, in the opinion of Zest Tea Australia, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;that credit provided to the Client by Zest Tea Australia has been paid or otherwise discharged.
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16. General

16.1 The failure by Zest Tea Australia to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Zest Tea Australia’s right to subsequently enforce that provision. 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.

16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the New South Wales in which Zest Tea Australia has its principal place of business, and are subject to the jurisdiction of the Moss Vale Court in that state.

16.3 Subject to clause Zest Tea Australia shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Zest Tea Australia of these terms and conditions (alternatively Zest Tea Australia’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).

16.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Zest Tea Australia nor to withhold payment of any invoice because part of that invoice is in dispute.

16.5 Zest Tea Australia may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

16.6 The Client agrees that Zest Tea Australia may amend these terms and conditions at any time. If Zest Tea Australia makes a change to these terms and conditions, then that change will take effect from the date on which Zest Tea Australia notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Zest Tea Australia to provide Services to the Client.

16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

16.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

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