Definitions

  1. Morgan’s shall mean Morgans Coffee Roasters Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Morgans Coffee Roasters Pty Ltd.
  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 Morgan’s to the Customer.
  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.
  4. Goods shall mean Goods supplied by Morgan’s 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 Morgan’s to the Customer.
  5. Services shall mean all Services supplied by Morgan’s to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
  6. Price shall mean the price payable for the Goods as agreed between Morgan’s and the Customer in accordance with clause 3 of these Terms of Trade.
  7. Equipment shall mean Goods supplied by Morgan’s to the Customer for the purpose of loan.
  1. Acceptance
  1. Any instructions received by Morgan’s from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Morgan’s shall constitute acceptance of these Terms of Trade.
  2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
  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 Morgan’s.
  4. The Customer shall give Morgan’s not less than fourteen (14) days prior written notice of any proposed change of 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 Morgan’s as a result of the Customer’s failure to comply with this clause.
  5. These terms and conditions are to be read in conjunction with Morgan’s’ “Product Supply Agreement” (where applicable. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
  1. Price And Payment
  1. At Morgan’s’ sole discretion the Price shall be either:
    1. as indicated on invoices provided by Morgan’s to the Customer in respect of Goods supplied; or
    2. Morgan’s’ current price at the date of delivery of the Goods according to Morgan’s’ current Price list; or
    3. Morgan’s’ quoted Price (subject to clause 3.2) which shall be binding upon Morgan’s provided that the Customer shall accept Morgan’s’ quotation in writing within thirty (30) days.
  2. Morgan’s reserves the right to change the Price in the event of a variation to Morgan’s’ quotation.
  3. At Morgan’s’ sole discretion a deposit may be required.
  4. At Morgan’s’ sole discretion:
    1. payment shall be due on delivery of the Goods; or
    2. payment shall be due before delivery of the Goods; or
    3. payment for approved Customers shall be made by instalments in accordance with Morgan’s’ payment schedule.
  5. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
  6. By signing the Credit Card Authorisation Form set out in Annexure 3, the Customer gives Morgan’s authority to charge the nominated credit card with the amount of any outstanding invoice after 7 days from the date the invoice is issued to the Customer.
  7. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Morgan’s.
  8. 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.
  1. Delivery Of Goods
  1. At Morgan’s’ sole discretion delivery of the Goods shall take place when:
    1. the Customer takes possession of the Goods at Morgan’s’ address; or
    2. the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Morgan’s or Morgan’s’ nominated carrier); or
    3. the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
  1. At Morgan’s’ sole discretion the costs of delivery are:
    1. included in the Price; or
    2. in addition to the Price; or
    3. for the Customer’s account.
  2. 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 Morgan’s shall be entitled to charge a reasonable fee for redelivery.
  3. 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 agreement.
  4. Morgan’s may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
  5. The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
    1. such discrepancy in quantity shall not exceed five percent (5%); and
    2. the Price shall be adjusted pro rata to the discrepancy.
  6. The failure of Morgan’s to deliver shall not entitle either party to treat this contract as repudiated.
  7. Morgan’s shall not be liable for any loss or damage whatever due to failure by Morgan’s to deliver the Goods (or any of them) promptly or at all.
  1. Risk
  1. All risk for the Goods passes to the Customer on delivery even if Morgan’s retains ownership of the Goods in accordance with clause 6.
  2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Morgan’s is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Morgan’s is sufficient evidence of Morgan’s’ rights to receive the insurance proceeds without the need for any person dealing with Morgan’s to make further enquiries.
  1. Title
  1. Morgan’s and Customer agree that ownership of the Goods shall not pass until:
    1. the Customer has paid Morgan’s all amounts owing for the particular Goods; and
    2. the Customer has met all other obligations due by the Customer to Morgan’s in respect of all contracts between Morgan’s and the Customer.
  2. Receipt by Morgan’s 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 Morgan’s’ ownership or rights in respect of the Goods shall continue.
  3. It is further agreed that:
    1. where practicable the Goods shall be kept separate and identifiable until Morgan’s has received payment and all other obligations of the Customer are met; and
    2. until such time as ownership of the Goods passes from Morgan’s to the Customer, Morgan’s may give notice in writing to the Customer to return the Goods or any of them to Morgan’s. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
    3. Morgan’s has the right to stop the Goods in transit whether or not delivery has been made; and
    4. if the Customer fails to return the Goods to Morgan’s then Morgan’s or Morgan’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
    5. the Customer is only a bailee of the Goods and until such time as Morgan’s has received payment in full for the Goods, the Customer willll hold any proceeds from the sale or disposal of the Goods on trust for Morgan’s; and
    6. the Customer shall not deal with the money of Morgan’s in any way which may be adverse to Morgan’s; and
    7. 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 Morgan’s; and
    8. Morgan’s can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
    9. until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Morgan’s will be the owner of the end products.
  1. Customer’s Disclaimer
  1. The Customer hereby disclaims any right to rescind or cancel any contract with Morgan’s or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Morgan’s and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
  1. Defects
  1. The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Morgan’s of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Morgan’s 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 fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Morgan’s has agreed in writing that the Customer is entitled to reject, Morgan’s’ liability is limited to either (at Morgan’s’ discretion) replacing the Goods or repairing the Goods, except where the Customer has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
  1. Returns
  1. Returns will only be accepted provided that:
    1. the Customer has complied with the provisions of clause 8.1; and
    2. Morgan’s has agreed in writing to accept the return of the Goods; and
    3. the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
    4. Morgan’s will not be liable for Goods which have not been stored or used in a proper manner; and
    5. the Goods are returned in the condition in which they were delivered and with all packaging material in as new condition as is reasonably possible in the circumstances.
  2. Morgan’s (at their sole discretion) will not accept the return of Goods if the Customer decides that they do not like the flavour of the product unless the product is obviously defective.
  1. The Competition and Consumer Act 2010 (Cth) (“CCA”) and Fair Trading Acts (“FTA”)
  1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA that is applicable in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
  1. Warranty
  1. For Goods not manufactured by Morgan’s, the warranty shall be the current warranty provided by the manufacturer of the Goods. Morgan’s 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.
  2. To the extent permitted by statute, no warranty is given by Morgan’s as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Morgan’s shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
  1. Intellectual Property
  1. Where Morgan’s has designed, drawn or written Goods for the Customer, the copyright in those designs, drawings and documents shall remain vested in Morgan’s, and shall only be used by the Customer at Morgan’s’ discretion.
  2. The Customer warrants that all designs or instructions to Morgan’s will not cause Morgan’s to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Morgan’s against any action taken by a third party against Morgan’s in respect of any such infringement.
  1. Default & Consequences of Default
  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 per cent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
  2. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Morgan’s from and against all costs and disbursements incurred by Morgan’s in pursuing the debt including legal costs on a solicitor and own client basis and Morgan’s’ collection agency costs.
  3. Without prejudice to any other remedies Morgan’s may have, if at any time the Customer is in breach of any obligation (including those relating to payment) of the Product Supply Agreement or these Terms of Trade, Morgan’s may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms of Trade. Morgan’s will not be liable to the Customer for any loss or damage the Customer suffers because Morgan’s has exercised its rights under this clause.
  4. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten per cent (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.
  5. Without prejudice to Morgan’s’ other remedies at law Morgan’s shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Morgan’s shall, whether or not due for payment, become immediately payable in the event that:
    1. any money payable to Morgan’s becomes overdue, or in Morgan’s’ opinion the Customer will be unable to meet its payments as they fall due; or
    2. 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
    3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  1. Security And Charge
  1. Despite anything to the contrary contained herein or any other rights which Morgan’s may have howsoever:
    1. where the Customer and/or the Guarantor (if any) is the owner 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 Morgan’s or Morgan’s’ nominee to secure all amounts and other monetary obligations payable under these Terms of Trade. The Customer and/or the Guarantor acknowledge and agree that Morgan’s (or Morgan’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;
    2. should Morgan’s elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Morgan’s from and against all Morgan’s’ costs and disbursements including legal costs on a solicitor and own client basis; and
    3. the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Morgan’s or Morgan’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.
  1. Cancellation
  1. Morgan’s may cancel any contract to which these Terms of Tradeapply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Morgan’s shall repay to the Customer any sums paid in respect of the Price. Morgan’s shall not be liable for any loss or damage whatever arising from such cancellation.
  2. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Morgan’s (including, but not limited to, any loss of profits) up to the time of cancellation.
  1. Privacy Act 1988 as amended
  1. The Customer and/or the Guarantor/s agree for Morgan’s 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 Morgan’s.
  2. The Customer and/or the Guarantor/s agree that Morgan’s 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:
    1. to assess an application by Customer; and/or
    2. to notify other credit providers of a default by the Customer; and/or
    3. 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
    4. to assess the credit worthiness of Customer and/or Guarantor/s.
  3. The Customer consents to Morgan’s being given a consumer credit report to collect overdue payment on commercial credit (section 18K(1)(h) Privacy Act 1988).
  4. The Customer agrees that personal credit information provided may be used and retained by Morgan’s for the following purposes and for other purposes as shall be agreed between the Customer and Morgan’s or required by law from time to time:
    1. provision of Goods; and/or
    2. marketing of Goods by Morgan’s, its agents or distributors in relation to the Goods; and/or
    3. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
    4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
    5. 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.
  5. Morgan’s may give information about the Customer to a credit reporting agency for the following purposes:
    1. to obtain a consumer credit report about the Customer; and/or
    2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
  1. Equipment Loan
  1. The Equipment shall at all times remain the property of Morgan’s and is returnable on demand by Morgan’s. In the event that the Equipment is not returned to Morgan’s in the condition in which it was delivered Morgan’s retains the right to charge the price of repair or replacement of the Equipment.
  2. The Customer shall;
    1. keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
    2. not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
    3. keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Morgan’s to the Customer.
  3. The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, Morgan’s’ interest in the Equipment and agrees to indemnify Morgan’s 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 Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
  4. The Customer will be bound by the terms of the Equipment Loan Application set out in Annexure 2.
  1. General
  1. If any provision of these Terms of Trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  2. These Terms of Trade 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.
  3. Morgan’s shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Morgan’s of these Terms of Trade.
  4. In the event of any breach of this contract by Morgan’s the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
  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 Morgan’s.
  6. Morgan’s may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
  7. Morgan’s reserves the right to review these Terms of Trade at any time. If, following any such review, there is to be any change to these Terms of Trade, then that change will take effect from the date on which Morgan’s notifies the Customer of such change.
  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.

The failure by Morgan’s to enforce any provision of these Terms of Trade shall not be treated as a waiver of that provision, nor shall it affect Morgan’s’ right to subsequently enforce that