TERMS AND CONDITIONS SECURITY AND PRIVACY AGREEMENT

In these Terms, the words below have the following meanings:
Claim means any action, claim or demand, whether arising in contract, tort (including negligence), under statute, at common law or otherwise.
Equipment means any equipment we provide to you (pursuant to these Terms or any other arrangement).
GST has the meaning given in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Product means any beer or spirits making product or equipment distributed by us and supplied by us to you.
Product Price means the purchase price payable for the sale of the Product excluding any applicable Service Fee.
Separate Service Contract see clause 5.
We, us or our, refers to the New Zealand Craft Brewing Company (AU) Limited (ABN 45623870020) entity that supplies you with a Product.
You or your means the legal entity of the customer specified on an invoice or in any credit application or other agreement with us, or the customer to whom our goods are supplied, and if more than one person, each of them jointly and severally.

    Buying the Product

  1. Unless otherwise agreed in writing, you request that we supply Products to you on these Terms.
  2. We may accept or decline any order for the Product in whole or in part. On acceptance, these Terms apply (unless we have made a separate written agreement with you about supply of the Product).
  3. We may change the specifications or ingredients of any Product from time to time and we are not required to notify you of such a change.

    4. Delivery and Freight

  4. You agree to pay any freight charges and fees as advised by us applicable to all Product deliveries.  You acknowledge and consent to us delivering any Products to you using a subcontractor or a third party member of our distribution network.
  5. As a separate and independent contract from the contract relating to the Product, you agree to contract with us to deliver, on your behalf, any Product you order to you at the delivery location agreed between us and you.
  6. The Product is deemed to be delivered when the Product arrives at your nominated delivery point, which delivery point must be safe and fully accessible. Neither we, nor our carriers or members of our distribution network are required to collect a signature from you or other proof of delivery.
  7. You cannot cancel an order once we have accepted it and you cannot refuse to accept delivery.
  8. Whilst delivery in most cases should be within 7 business days, any delivery times communicated by us to you are estimates only, and you are not entitled to refuse to accept delivery of Products due to a delay in delivery. You acknowledge that we are not liable to you for any costs or losses that you suffer or incur as a result of any late delivery of the Products.
  9. We are entitled to charge you additional fees to cover any delay or storage needed if we attempt to deliver the Product to you, but cannot for any reason.

    10. Charges and Payment

  10. Our prices are subject to alteration without notice. Unless we otherwise agree in writing, the price payable for the Products will be our current price at the date of delivery (plus any freight and delivery charges or other applicable charges payable by you).
  11. The charges specified in our standard price list, or quoted to you by us from time to time, do not include GST unless expressly specified otherwise.
  12. The Product price is separate and distinct from any applicable Freight charge or Service Fee. Even though the amounts may be listed in one invoice they are not a single lump sum consideration but represent separate consideration for each independent contract.
  13. You must pay all charges listed in an invoice (including any GST and other taxes payable in connection with the supply or under these Terms) without set-off by the due date specified in the invoice. Time is of the essence with respect to this requirement.
  14. If you pay by cheque, payment is not made until cleared funds are credited to our account. If you pay by credit card, we may charge you an additional amount to cover service fees.
  15. We may charge you interest on any late payments at the Reserve Bank Interbank Overnight Cash Rate + 2%, calculated daily and compounding monthly, until you pay the overdue amounts.
  16. We are entitled to apply any payments we receive from you against any invoice or liability you have to us (including interest payments). This provision revokes any different or contrary direction given by you to us.
  17. If you do not pay any amounts payable under these Terms by their due date or you become bankrupt, insolvent or have a receiver, manager or liquidator appointed to you, then all monies for all Product and Equipment delivered to you become immediately due and payable (regardless of any agreed credit terms) and we are entitled to suspend all further delivery of Product and Equipment under this or any other arrangement and all further performance of any other contract between you and us, until you pay all amounts due.
  18. You indemnify us for all costs we incur because of any overdue payment, including dishonour fees, collection fees or legal fees.
  19. If any payment you make is voided or conceded to be void or is voidable at our election, then that payment does not discharge your debt to us, and we remain the owner of the Product.

    20. Ownership & Return of Product and Equipment

  20. We remain the owner of the Product specified in this invoice until you have paid all money you owe us for the Product and for any other Product we have supplied to you.
  21. We remain the owner of any Equipment we may supply you at all times. Except for equipment purchased for resale, you must not part with possession or control of our Equipment at any time, or attempt to sell it.
  22. After we deliver the Product or Equipment to you and while we still own it, you hold it for us as our bailee, which carries certain legal obligations including a duty to take care of the Product or Equipment. You promise to fulfil all your legal obligations as bailee.
  23. You must store or keep the Product and Equipment so that it is clearly identifiable as our property while we still own it. If you sell the Product while we still own it, we have the right to trace any proceeds of sale.
  24. We grant you the right to sell the Products to a third party before you have received title to them provided that where you sell the Products before such title has been transferred you agree to hold the proceeds from that sale on trust for us and you must pay those proceeds to us on demand.
  25. Until you have paid us the charges in full for all monies payable to us, we may repossess the Product and Equipment which we own and you authorise us or our nominees to enter any premises they believe the Product and Equipment are located to repossess the Product and Equipment and to inspect your records.
  26. We may resell Product and Equipment which we repossess on any terms and as we see fit. We may apply the proceeds to repay any debt you owe us.
  27. We are not liable for any damage caused to the premises during any repossession. You indemnify us against any Claim for the damage made by another person.
  28. If these Terms (or a transaction in connection with it) is or contains a security interest for the purposes of the Personal Property Securities Act 2009 (“PPSA”), you must upon request do anything which we consider necessary for the purposes of ensuring that the security interest is enforceable, perfected and otherwise effective, and to enable us to apply for any registration, give any notification, and to exercise any rights in connection with the security interest.
  29. We are not obliged, before exercising a right under these Terms or conferred by law, to give you any notice or demand, or allow a lapse of time, that is required by law unless the notice, demand or lapse of time cannot be excluded. To the extent permitted by law, you expressly waive any rights you may have under the PPSA (including without limitation s. 157) to be given any such notices or demands.

    30. Risk and insurance

  30. Risk in the Product and any Equipment passes to you as soon as it is delivered to you, to your premises or the place nominated by you and agreed by us.

    31. Recalls

  31. In the event of a product recall over Products you have acquired from us, you shall give us such assistance as we reasonably require in relation to that recall.

    32. Restrictions

  32. You must not do anything (including failing to act) that we believe is likely to adversely affect our reputation, sales or brands.
  33. You must notify us in advance of any change in your ownership, shareholders, directors, registered office or business address.

    34. Disputes, Claims and Refunds

  34. You must inspect the Product and any Equipment within 48 hours of it being delivered to you.
  35. You must raise any Claims or dispute relating to the Product, the Equipment, an invoice or payment within 48 hours of the Product/Equipment being delivered to you. Otherwise, you waive and give up all Claims you have against us.
  36. In the absence of manifest error, our written records in relation to a delivery of Products will be conclusive evidence of the type and quantity of Products delivered and of the date and time of delivery.
  37. In the absence of manifest error, certification from our authorised representative will be conclusive evidence of the amount owed for the Products.

    38. Liability

  38. To the maximum extent permitted by law (including Part 3-2 of the Australian Consumer Law), we limit our liability to you in respect of any Claim relating to the Product, the Equipment or any services we provide to you in connection with them to our choice of supplying equivalent Product or Equipment, or resupplying the services, or giving you a credit for any price paid or payable for the Product, Equipment or services.
  39. We warrant that we will provide you with good title to the goods and that the goods will be of merchantable quality and except for those statutory guarantees that apply under the Australian Consumer Law, we exclude all other express or implied warranties or representations about the Products, Equipment or services we provide to you in connection with them.
  40. Except as provided in clause 51, we are not liable to you for any Claim in relation to lost profits or savings or any indirect or consequential losses.
  41. Neither we nor you are liable to the other for any failure to perform an obligation under these Terms (other than the payment of money) where we are prevented from performing because of an act of God, natural disaster, terrorism, war or any other occurrence beyond the relevant party’s reasonable control.
  42. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.

    43. Indemnity and charge

  43. To the maximum extent permitted by law, you indemnify us, and agree to keep us indemnified, against:
    1. all losses we incur;
    2. all liabilities we incur; and
    3. all costs actually payable by us to our own legal representatives (whether or not under a costs agreement) and other expenses we incur in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), arising directly or indirectly as a result of or in connection with the supply of Products by us to you:
    4. except to the extent that we incur such losses, liabilities and/or costs as a result of our breaching the warranties set out in clause 40 or a condition or warranty which cannot lawfully be excluded under that clause; or
    5. except to the extent that we incur such losses, liabilities and/or costs due to wilful misconduct on the part of us or any of our employees or agents acting within the scope of their employment.
  44. You must pay to us all liabilities, costs and other expenses referred to in clause 44, whether or not we have paid or satisfied them.
  45. You charge to us any interest that you may have in any real or personal property (including tangible, intangible, freehold and leasehold property) now or in the future, in any capacity (whether beneficially, as trustee of any trust or otherwise), to secure payment of all monies owed to us by you in any capacity, on your own account or with others, now or in the future.
  46. You irrevocably consent to the lodgement of a caveat or caveats over any real property in respect of any interest of ours arising from these Terms.

    47. Goods and Services Tax (GST)

  47. In clauses 49 and 50 of these Terms, capitalised terms have their meanings given in the GST Act.
  48. If we make a Taxable Supply to you under these Terms for a Consideration which represents its Value, then you must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. Our right to payment under this clause is subject to a valid Tax Invoice, Recipient Created Tax Invoice or Adjustment Note being delivered to you.
  49. Each of the parties to this agreement acknowledges that it is registered for GST and that it will notify the other party in a timely manner if it is not, or if it ceases to be, registered.

    50. Privacy and Spam

  50. We may use your personal information to obtain and process credit reports about you, to manage and enforce our rights under these Terms, to meet our legal obligations to you and for direct marketing and promotional purposes, and you consent to such use.
  51. We may disclose your personal information to our contractors or agents on strictly confidential terms, and you consent to such disclosure.
  52. Details of privacy and information are listed below under “Collecting and Disclosing Private Information”.

    53. General

  53. These Terms (including any details included on an invoice) constitute the whole agreement between you and us and may only be varied by us in writing.
  54. You may not assign or transfer your rights and obligations under these Terms without our prior written consent.
  55. These are our standard terms of supply and we may change them from time to time on 7 days’ notice. When you order Product from us, you are offering to acquire them on the most up-to-date version of these Terms as made available at www.nzcraftbrewing.com or as otherwise notified to you.
  56. If you are acting as the trustee of any trust (whether disclosed or not), then you declare, warrant and represent that you are entering any agreement with us both in your own capacity and as trustee of the trust with the ability to bind, and the intention of binding, both and any charge over property will, without limitation, extend to the property of that trust.
  57. Any leniency, indulgence or extension of time we grant you (whether under these Terms or under any other dealing with you) does not affect our rights in any way and does not constitute a waiver of those rights or of any of these Terms.
  58. Any remedies in these Terms do not limit or affect any remedies available to us in law or equity.
  59. The invalidity or unenforceability of any provision of these Terms does not affect the validity or enforceability of the remaining provisions.
  60. You must pay any stamp duty payable on any registration under these Terms.
  61. These Terms are governed by the laws of State in which the Product/Equipment is delivered to you.  You and we accept the non-exclusive jurisdiction of those courts.

PRIVACY POLICY - COLLECTING AND DISCLOSING PRIVATE INFORMATION
What information can be disclosed?
The Privacy Act 1988 (Part II and Part IIIA), allows the following, as well as further, information about you to be disclosed:

  • details to identify you - including, name(s) and alias(es), sex, date of birth, current and 2 previous addresses, current or last known employer, and driver’s licence number
  • that you have applied for credit and the amount and/or that Lion Pty Ltd and its associated and related entities (the Company) is a current credit provider to you
  • a credit default by you, including payments overdue for at least 60 days and details of any collection action against you
  • certain information entered or recorded on the National Personal Insolvency index and/or information about a judgment of an Australian court (other than criminal proceedings) relating to credit provided to, or applied for by, an individual
  • advice that payments previously notified as unpaid are no longer overdue and/or the fact that credit provided to you has been paid or otherwise discharged
  • information about overdue payment(s) equal to or more than $150
  • in specified circumstances, if, in the opinion of the Company, you have committed a serious credit infringement (eg you have acted fraudulently)
  • other specified information about your credit worthiness, credit standing credit history or credit capacity

When can information be disclosed?
This information can be disclosed for the purpose of:

  • assessing your application for commercial credit or your credit worthiness
  • continuing to supply you with credit
  • notifying credit providers about the status of credit provided to you by the Company if you are in default with payments
  • collecting overdue payments from you including passing such information to a debt collection agency and/or a credit reporting body
  • allowing or enabling a credit reporting body to maintain a credit file about you

Who can give or obtain information?
The Company may:

  • obtain a commercial and/or a consumer credit report containing information about you from a credit reporting body
  • exchange credit information about you with a credit reporting body and other providers of credit to you named in your credit application or in a credit report from a credit reporting body

Guarantors
The Company may give a guarantor, or a person who is considering becoming a guarantor, credit information about you for the purpose of enabling the guarantor to decide whether to act as guarantor or to keep informed about the guarantee.

Trade insurer
A registered trade insurer may obtain a consumer credit report about you from a credit reporting body to assess whether to provide trade insurance to the Company in relation to your application for commercial credit.

Marketing purposes
The Company may use, and share with its associated and related entities, information about you for marketing it and their products with you.