“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.
“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.
“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.
“Services” means all Services supplied by Zest Tea Australia to the Client at the Client’s request from time to time.
“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.
“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.
“Price” means the price payable for the Services as agreed between
Zest Tea Australia and the Client in accordance with clause of this
The 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
These 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.
These 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.
The 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.
At 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.
Zest 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.
In 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
At Zest Tea Australia’s sole discretion a non-refundable deposit may be required.
Time 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
Payment 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.
Unless 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.
Any 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
Irrespective 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
Zest 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 .
Once 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.
The 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.
Zest 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
Receipt 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.
In this clause financing statement, financing change statement,
security agreement, and security interest has the meaning given to it by
Upon 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.
The 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
Zest 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.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless 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.
The Client must unconditionally ratify any actions taken by Zest Tea Australia under clauses to .
Subject 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.
In 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).
The 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.
The 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
Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
The 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
Under 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).
Zest Tea Australia acknowledges that nothing in these terms and
conditions purports to modify or exclude the Non-Excluded Guarantees.
Except 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.
If 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.
If 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.
If the Client is not a consumer within the meaning of the CCA, Zest
Tea Australia’s liability for any defective Services or Incidental Items
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.
Notwithstanding 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.
Where 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.
The 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.
Whether 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
The 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.
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 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.
If 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).
Without 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.
Without 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
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
Each 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.
Zest 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.
In 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).
The 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.
The 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.
The 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).
The 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
Zest 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.
The 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.
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.
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
16.5 Zest Tea Australia may license or sub-contract all or any
part of its rights and obligations without the Client’s consent.
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
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
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.