1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Dipacci” means Dipacci Coffee Company Pty Ltd, including associated trading entities Dipacci Espresso Equipment Suppliers, its successors and assigns or any person acting on behalf of and with the authority of Dipacci.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Dipacci to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by Dipacci to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Equipment” means all Equipment including any accessories supplied on hire by Dipacci to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Dipacci to the Customer.
1.6 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Dipacci to the Customer.
1.7 “Business Day” shall mean any day which is not a Saturday, Sunday, Public Holiday, special holiday, or a bank holiday in the state in which this Contract is applied. If the giving of any notice, the making of any payment, or the doing of any act required or permitted under this Contract, the timing of which falls on a day which is not a Business Day, then the timing for such actions shall be extended and will be allowed to take place on the next Business Day, but no later.
1.8 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.9 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.10 “Charges” means the Charges payable (plus any GST where applicable) for the Goods and/or Equipment hire as agreed between Dipacci and the Customer in accordance with clause 7 below.
1.11 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods/Equipment.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods/Equipment on credit shall not take effect until the Customer has completed a credit application with Dipacci and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods/Equipment request exceeds the Customers credit limit and/or the account exceeds the payment terms, Dipacci reserves the right to refuse Delivery.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.7 The Customer shall give Dipacci not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Dipacci as a result of the Customer’s failure to comply with this clause.
2.8 Any advice, recommendation, information, assistance or service provided by Dipacci in relation to Goods/Equipment and/or Services supplied is given in good faith, is based on Dipacci's own knowledge and experience and shall be accepted without liability on the part of Dipacci and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods/Equipment and/or Services. Furthermore, the Customer acknowledges that the technical information provided on Dipacci’s website is advisory only and should not be relied on for any design, process or production. Dipacci may (at their sole discretion) undertake specific technical advisory work on request from the Customer. Dipacci accepts no responsibility for any loss or damage caused through reliance on any information contained therein.
2.9 None of Dipacci’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Dipacci in writing nor is Dipacci bound by any such unauthorised statements.
2.10 These terms and conditions may be meant to be read in conjunction with Dipacci’s Hire or Loan Machine Form, and:
(a) where the context so permits, the terms ‘Goods’ or ‘Services” shall include the supply of any Hire or Loan Machine; and
(b) only goods purchased through Dipacci are to be dispensed through all Equipment. Furthermore, it is agreed by both parties that Loan Equipment is offered “Free on Loan” subject to the Customer maintaining the agreed monthly purchases; and
(c) hired Equipment is subject to a hire period and payment conditions as details on the Loan Machine Form; and
(d) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3. Authorised Representatives
3.1 The Customer acknowledges that Dipacci shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to Dipacci, that person shall have the full authority of the Customer to order any Goods/Equipment, Services and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to Dipacci for all additional costs incurred by Dipacci (including Dipacci’s profit margin) in providing any Goods/Equipment, Services or variation/s requested thereto by the Customer’s duly authorised representative.
5. Ordering and Specifications
5.1 Each order which is so accepted shall constitute an individual legally binding contract between Dipacci and the Customer.
5.2 All Goods and/or Equipment supplied by Dipacci shall be in accordance with the specifications or descriptions (if any) expressly listed or set out on the face of the quotation or order. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the order.
6. Errors and Omissions
6.1 The Customer acknowledges and accepts that Dipacci shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Dipacci in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Dipacci in respect of the Services.
6.2 In the event such an error and/or omission occurs in accordance with clause 6.1, and is not attributable to the negligence and/or wilful misconduct of Dipacci; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
7. Charges and Payment
7.1 At Dipacci’s sole discretion the Charges shall be either:
(a) as indicated on any invoice provided by Dipacci to the Customer; or
(b) Dipacci’s quoted price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 Dipacci reserves the right to change the Charges:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection, availability of stock, limitations to accessing the site, obscured machine defects, safety considerations, or prerequisite work by any third party not being completed, etc.) which are only discovered upon commencement of the Services; or
(c) if during the course of the Services, the Goods are not or cease to be available from Dipacci’s third party suppliers, then Dipacci reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(d) in the event of increases to Dipacci in the cost of labour or raw materials, or fluctuations in currency exchange rates, which are beyond Dipacci’s control.
7.3 Variations will be charged for on the basis of Dipacci’s quotation, and will be detailed in writing, and shown as variations on Dipacci’s invoice. The Customer shall be required to respond to any variation submitted by Dipacci within ten (10) Business Days. Failure to do so will entitle Dipacci to add the cost of the variation to the Charges. Payment for all variations must be made in full at the time of their completion.
7.4 At Dipacci’s sole discretion:
(a) a non-refundable deposit shall be required; and
(b) payment of the remaining balance of the Charges shall be:
(i) made by instalments in accordance with Dipacci’s payment schedule and/or Hire Contract;
(ii) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(iii) the date specified on any invoice or other form as being the date for payment; or
(iv) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Dipacci.
7.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Dipacci.
7.6 Dipacci may in its discretion allocate any payment received from the Customer towards any invoice that Dipacci determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Dipacci may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Dipacci, payment will be deemed to be allocated in such manner as preserves the maximum value of Dipacci’s Purchase Money Security Interest (as defined in the PPSA) in the Goods/Equipment.
7.7 The Customer shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Customer by Dipacci nor to withhold payment of any invoice because part of that invoice is in dispute.
7.8 Unless otherwise stated the Charges does not include GST. In addition to the Charges, the Customer must pay to Dipacci an amount equal to any GST Dipacci must pay for any supply by Dipacci under this or any other agreement for the sale of the Goods/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Charges. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
8. Delivery of Goods/Equipment
8.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at Dipacci’s address; or
(b) Dipacci (or Dipacci’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
8.2 At Dipacci’s sole discretion, the cost of delivery is either included in the Charges or is in addition to the Charges.
8.3 Any time specified by Dipacci for Delivery of the Goods/Equipment is an estimate only and Dipacci will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods/Equipment to be delivered at the time and place as was arranged between both parties.
8.4 Where Dipacci is requested to store the Customer’s Goods or Equipment, or where the Equipment is not collected within twenty-four (24) hours of advice to the Customer that it is ready for collection, then Dipacci (at its sole discretion) may charge a daily fee for storage.
8.5 The Customer accepts and acknowledges that:
(a) if Dipacci has been requested by the Customer to diagnose a fault that requires the disassembly and/or testing of the machine, all costs involved will be charged to the Customer irrespective of whether or not the repair of the machine goes ahead; and
(b) Dipacci is entitled to retain any components replaced during the provision of the Services; and
(c) Dipacci reserves the right to retain all proceeds obtained from the sale of such components.
9. Goods On Consignment
9.1 Where Goods are supplied on consignment the following provisions apply specifically to those Goods:
(a) the Goods shall be at the Customer’s risk from the time of delivery and the Customer shall be responsible for insuring the Goods.
(b) the Customer may retain possession of the Goods until the Customer sells them or Dipacci requires re-delivery of them to Dipacci, whichever first occurs.
(c) if Dipacci requires re-delivery of the Goods such re-delivery shall be at the Customer’s cost.
(d) the Customer shall notify Dipacci on a fortnightly basis of all consignment Goods sold during that fortnightly period and shall within seven (7) days of that fortnightly advice pay Dipacci for the Goods sold.
9.2 Payment for Goods supplied on consignment shall be due to Dipacci normal terms and conditions immediately upon the sale of all of the Goods supplied or twelve (12) months from the date of delivery whichever first occurs. In the event the Customer returns any of the consigned Goods then payment shall only be due for the Goods supplied but not returned.
10. Out of Stock/Substitution
10.1 Dipacci will use its reasonable endeavours to ensure that all Goods ordered by the Customer are supplied to the Customer. If the Goods ordered are not available in stock or are discontinued, Dipacci shall work with the Customer on a case by case basis where options may include back order of Goods or amendment to the order.
11. Product Specifications
11.1 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Dipacci or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Dipacci.
12. Risk to Goods
12.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
12.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Dipacci is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Dipacci is sufficient evidence of Dipacci’s rights to receive the insurance proceeds without the need for any person dealing with Dipacci to make further enquiries.
12.3 If the Customer requests Dipacci to leave Goods outside Dipacci’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
12.4 Where Dipacci is required to install the Goods/Equipment, the Customer warrants that the structure of the premises in or upon which the Goods/Equipment is to be installed or erected is sound and will sustain the installation and work incidental thereto, and Dipacci shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
12.5 The Customer acknowledges that Dipacci is only responsible for Goods that are replaced by Dipacci and that in the event that other components subsequently fail, the Customer agrees to indemnify Dipacci against any loss or damage to the machine, Goods, or caused by the components, or any part thereof howsoever arising.
12.6 Dipacci shall not be liable for the loss of or damage to the machine, or its accessories, while being serviced or being repaired, unless caused by the negligence of Dipacci or Dipacci’s employees.
12.7 It is the Customer’s responsibility to ensure that the machine is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst being stored at Dipacci’s premises. The machine is at all times stored and repaired at the Customer’s sole risk.
13. Title to Goods
13.1 Dipacci and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Dipacci all amounts owing to Dipacci; and
(b) the Customer has met all of its other obligations to Dipacci.
13.2 Receipt by Dipacci 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.
13.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 13.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Dipacci on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Dipacci and must pay to Dipacci the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Dipacci and must pay or deliver the proceeds to Dipacci on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Dipacci and must sell, dispose of or return the resulting product to Dipacci as it so directs;
(e) the Customer irrevocably authorises Dipacci to enter any premises where Dipacci believes the Goods are kept and recover possession of the Goods;
(f) Dipacci may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Dipacci;
(h) Dipacci may commence proceedings to recover the Charges of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Customer 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 Goods/Equipment and/or collateral (account) – being a monetary obligation of the Customer to Dipacci for Services – that have previously been supplied and that will be supplied in the future by Dipacci to the Customer.
14.3 The Customer undertakes to:
(a) 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 Dipacci may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, Dipacci 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 Goods/Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Dipacci;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of Dipacci;
(e) immediately advise Dipacci of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
14.4 Dipacci and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
14.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by Dipacci, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Customer must unconditionally ratify any actions taken by Dipacci under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14.10 Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 14 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 14 will apply generally for the purposes of the PPSA.
15. Security and Charge
15.1 In consideration of Dipacci agreeing to supply the Goods/Equipment, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Customer indemnifies Dipacci from and against all Dipacci’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Dipacci’s rights under this clause.
15.3 The Customer irrevocably appoints Dipacci and each director of Dipacci as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Customer must inspect the Goods/Equipment on Delivery and must within fifteen (15) days of Delivery notify Dipacci in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Dipacci to inspect the Goods/Equipment.
16.2 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).
16.3 Dipacci acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Dipacci makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. Dipacci’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Customer is a consumer within the meaning of the CCA, Dipacci’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 In the event that the Customer proceeds to on-sells the Goods to a consumer and the Goods are deemed not to be of a kind ordinarily acquired for personal, domestic or household use or consumption, then Dipacci’s liability to the Customer shall be:
(a) the amount specified in section 274 (1) of the ACL as the absolute limit; or
(b) payment of any amount required under section 274 of the ACL shall be the absolute liability due by Dipacci to the Customer; and
(c) howsoever, arising under or in connection with the sale, installation, use of, storage, or any other dealings with the Goods by the Customer or any third party, the liability shall be (unless subject to clause 16.7) an amount equal to:
(i) the cost of replacing the Goods;
(ii) the costs of obtaining equivalent Goods; or
(iii) the cost of having the Goods repaired, whichever is the lowest amount.
16.7 If Dipacci is required to replace the Goods under this clause or the CCA, but is unable to do so, Dipacci may refund any money the Customer has paid for the Goods.
16.8 If the Customer is not a consumer within the meaning of the CCA, Dipacci’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by Dipacci at Dipacci’s sole discretion;
(b) limited to any warranty to which Dipacci is entitled, if Dipacci did not manufacture the Goods;
(c) otherwise negated absolutely.
16.9 Subject to this clause 16, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 16.1; and
(b) Dipacci has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.10 Notwithstanding clauses 16.1 to 16.9 but subject to the CCA, Dipacci shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods/Equipment;
(b) the Customer using the Goods/Equipment for any purpose other than that for which they were designed;
(c) the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by Dipacci;
(e) fair wear and tear, any accident, or act of God.
16.11 Notwithstanding anything contained in this clause if Dipacci is required by a law to accept a return then Dipacci will only accept a return on the conditions imposed by that law.
16.12 Subject to clause 16.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
17. Intellectual Property
17.1 Where Dipacci has developed, drawn or written plans or specifications in respect of the Goods/Equipment for the Customer, then the copyright in those drawings and documents shall remain vested in Dipacci, and shall only be used by the Customer at Dipacci’s discretion.
17.2 The Customer warrants that all specifications or instructions given to Dipacci will not cause Dipacci to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Dipacci against any action taken by a third party against Dipacci in respect of any such infringement.
17.3 The Customer agrees that Dipacci may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Dipacci has created for the Customer.
18. Default and Consequences of Default
18.1 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 a half percent (2.5%) per calendar month (and at Dipacci’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes Dipacci any money the Customer shall indemnify Dipacci from and against all costs and disbursements incurred by Dipacci in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Dipacci’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies Dipacci may have under this Contract, if a Customer has made payment to Dipacci, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Dipacci under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to Dipacci’s other remedies at law Dipacci shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Dipacci shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Dipacci becomes overdue, or in Dipacci’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Dipacci;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
19. Cancellation
19.1 Without prejudice to any other remedies Dipacci may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Dipacci may suspend or terminate the supply of Equipment to the Customer. Dipacci will not be liable to the Customer for any loss or damage the Customer suffers because Dipacci has exercised its rights under this clause.
19.2 Dipacci reserves the absolute right to:
(a) cancel, terminate, or determine this Contract;
(b) on giving such notice in respect of 19.2(a) Dipacci prior to installation Dipacci shall repay to the Customer any money paid by the Customer for the Goods/Equipment. Dipacci shall not be liable for any loss or damage whatsoever arising from such cancellation (whether direct or indirect) by Dipacci as a direct result of such breach and/or cancellation; and
(c) immediately repossess the Equipment;
20. at any time before or during the hire period, without reason, without prior notice, without payment of compensation and without prejudice to any other rights which Dipacci may have against the Customer. Dipacci or its agents may enter any property, premises or vehicle where the Equipment may be kept, for this purpose.
20.1 In addition to clause 19.2 in these terms and conditions, Dipacci shall be entitled to cancel the Contract if:
(a) Dipacci reasonably believes that a third party may attempt to take possession of the Equipment;
(b) the Equipment is at risk.
20.2 In the event that the Customer cancels Delivery of Goods/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Dipacci as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.3 Cancellation of orders for Goods/Equipment made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
21. Privacy Policy
21.1 All emails, documents, images or other recorded information held or used by Dipacci is Personal Information, as defined and referred to in clause 21.3, and therefore considered Confidential Information. Dipacci acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Dipacci acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by Dipacci that may result in serious harm to the Customer, Dipacci will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
21.2 Notwithstanding clause 21.1, privacy limitations will extend to Dipacci in respect of Cookies where transactions for purchases/orders transpire directly from Dipacci’s website. Dipacci agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Dipacci when Dipacci sends an email to the Customer, so Dipacci may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Dipacci’s website.
21.3 The Customer agrees for Dipacci to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by Dipacci.
21.4 The Customer agrees that Dipacci may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) 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
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
21.5 The Customer consents to Dipacci being given a consumer credit report to collect overdue payment on commercial credit.
21.6 The Customer agrees that personal credit information provided may be used and retained by Dipacci for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods/Equipment; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods/Equipment.
21.7 Dipacci may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
21.8 The information given to the CRB may include:
(a) Personal Information as outlined in 21.3 above;
(b) name of the credit provider and that Dipacci is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Dipacci has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Dipacci, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.9 The Customer shall have the right to request (by e-mail) from Dipacci:
(a) a copy of the Personal Information about the Customer retained by Dipacci and the right to request that Dipacci correct any incorrect Personal Information; and
(b) that Dipacci does not disclose any Personal Information about the Customer for the purpose of direct marketing.
21.10 Dipacci will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
21.11 The Customer can make a privacy complaint by contacting Dipacci via e-mail. Dipacci will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
23. Trusts
23.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Dipacci may have notice of the Trust, the Customer covenants with Dipacci as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Customer will not without consent in writing of Dipacci (Dipacci will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
24. General
24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which Dipacci has its principal place of business, and are subject to the jurisdiction of the Courts of Victoria.
24.3 Subject to clause 16, Dipacci shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Dipacci of these terms and conditions (alternatively Dipacci’s liability shall be limited to damages which under no circumstances shall exceed the Charges of the Goods/Equipment hire).
24.4 Dipacci may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
24.5 The Customer cannot licence or assign without the written approval of Dipacci.
24.6 Dipacci may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Dipacci’s sub-contractors without the authority of Dipacci.
24.7 The Customer agrees that Dipacci may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Dipacci to provide Goods/Equipment to the Customer.
24.8 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.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
Additional Terms & Conditions Applicable to Hire Only
25. Licence to Use
25.1 Dipacci grants to the Customer a personal, non-exclusive, non-transferable, limited licence to use the Equipment, provided that:
(a) the Customer ensures the Equipment is serviced and filters replaced at intervals commensurate with the machine usage or manufacturers recommendations exclusively by Dipacci or an authorised servicing agent, which shall be additionally charged to the Customer; and
(b) any consumables and sundry items (including, but not limited to, cleaning products for the Equipment) which are to be utilised in conjunction with the Equipment are purchased exclusively from Dipacci.
25.2 If the Customer fails to adhere to clause 25.1, Dipacci may (at their sole discretion) terminate the Hire Contract or apply penalty charges to the Customer’s account, the amount immediately becoming due and payable.
25.3 The Price includes two scheduled services annually (which shall be performed by Dipacci or its representatives), comprising new water filter cartridge and wearing parts.
25.4 Dipacci will supply breakdown service free of charge for problems limited to the correct function of boilers, electrical, or electronic components. Problems caused by inappropriate coffee grind, failure to maintain the Equipment in good working order, or any other negligence or abuse, will be charged to the Customer at Dipacci’s standard rates (including travel time; the first hour travel is covered by callout costs, Ad hoc mechanical breakdowns will be attended to within forty-eight (48) hours of Dipacci being made aware of said breakdown (by Dipacci or its representatives). During the rental period, no other service company is permitted to service the Equipment without Dipacci’s written permission. Failure to comply with this clause renders the Customer liable for any costs in repairing the Equipment.
25.5 Under no circumstances shall hire of the Equipment by the Customer be subject to a trial period of that Equipment.
26. Hire Charges
26.1 The Customer is required to pay Hire Charges for the on-going use of the Equipment. The Charges payable for the duration of the Hire Period is stipulated, and is due and payable, as per Dipacci’s Hire Contract. Dipacci may adjust the Charges from time to time (as per clause 7.2) upon one (1) month’s written notice to the Customer.
26.2 Charges shall commence from either the time the Equipment is:
(a) collected by the Customer from Dipacci’s premises; or
(b) delivered by Dipacci (or Dipacci’s nominated carrier) to the Customer’s nominated address; or
(c) the date specified on Dipacci’s Hire Contract (whichever first occurs).
26.3 Hire charges shall be paid on a monthly, as specified on the Hire Contract, the first payment falling due on the date the Customer accepts the Hire Contract, with subsequent payments due on the 1st of each month. To terminate the hire on, or after, the Minimum Hire Period, the Customer must give Dipacci not less than one (1) months’ notice of termination. The hire will then terminate on the last day of the notice period. If the Customer does not terminate the hire at the end of the Minimum Hire Period, payments will continue at the same amount and frequency until notice is received.
26.4 The commencement date shall be the date of installation of the Equipment, or from the date of signing, whichever, is the earlier. Fixed Hire Contract shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least one (1) months required notice as defined in the Contract prior to the expiration date of the initial term or any additional term.
26.5 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless Dipacci confirms special prior arrangements in writing.
26.6 At Dipacci’s sole discretion, Hire Charges on the Equipment may be waived for a stipulated period, depending on the amount of consumables the Customer purchases from Dipacci.
27. Risk to Equipment
27.1 Dipacci retains property in the Equipment nonetheless all risk for the Equipment passes to the Customer on Delivery.
27.2 The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies Dipacci for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer.
27.3 The Customer will insure, or self-insure, Dipacci’s interest in the Equipment 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 affect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Customer:
(a) agrees to:
(i) contain an agreement within the Customer’s insurance policy that:
(A)written notification of any cancellation must be provided to Dipacci; and
(B)the Customer’s insurance policy will continue to be in force for the benefit of Dipacci for a minimum of thirty (30) days after the written notice of cancellation has been provided to Dipacci;
(ii) supply (upon request) a certificate of currency for such insurance policies;
(b) will not:
(i) use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim;
(ii) (without prior written consent) permit any reduction in limits or coverage in the Customer’s insurance policy affecting or relating to the Equipment or this Contract.
27.4 The Customer accepts full responsibility for and shall keep Dipacci indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
28. Title to Equipment
28.1 The Equipment is and will at all times remain the absolute property of Dipacci.
28.2 If the Customer fails to return the Equipment to Dipacci then Dipacci or Dipacci’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
28.3 The Customer is not authorised to pledge Dipacci’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
29. Access and Installation of the Equipment
29.1 Where the Customer is a tenant (and therefore not the owner of the land and premises where the Equipment is to be installed) then the Customer warrants that full consent has been obtained from the owner for Dipacci to install the Equipment on the owner’s land and premises. The Customer acknowledges and agrees that they shall be personally liable for full payment of the Charges for all Services provided under this Hire Contract and to indemnify Dipacci against any claim made by the owner of the premises (howsoever arising) in relation to the installation of the Equipment and the provision of any related Services by Dipacci except where such claim has arisen because of the negligence of Dipacci when installing the Equipment.
29.2 The Customer agrees that they shall upon request from Dipacci provide evidence that:
(a) they are the owner of the land and premises upon which the Services are be undertaken; or
(b) where they are a tenant, that they have the consent of the owner for the Equipment to be installed on the land and premises upon which the Services are be undertaken.
29.3 The Customer shall:
(a) ensure that Dipacci has clear and free access to the Delivery site at all times to enable them to effect Delivery and/or undertake the Services. Dipacci shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Dipacci; and
(b) be responsible for providing Dipacci while at the site with adequate access to utilities required to install the Equipment (including that there are appropriate energy outlets in proximity to the installation site of the Equipment, etc.);
(c) ensure that the site is prepared for the installation of the Equipment to Dipacci’s and/or the manufacturers specifications and fully disclose any information that may affect Dipacci’s installation procedures;
(d) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Customer to adhere to the installation schedule agreed to between Dipacci and the Customer, any additional costs will be invoiced to the Customer in accordance with clause 7.2.
30. Customer’s Responsibilities
30.1 The Customer shall:
(a) maintain the Equipment as is required by Dipacci (including, but not limited to, maintaining the overall appearance, water, and replacing filters, broken or defaced gauges or glass components, etc.);
(b) notify Dipacci immediately by telephone of the full circumstances of any mechanical breakdown, accident, fault, defect, damage or loss of the Equipment or attempts to seize the Equipment. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
(c) satisfy itself at commencement that the Equipment is suitable for its purposes and that all systems and controls are fully operational;
(d) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Dipacci or posted on the Equipment;
(e) ensure that all persons operating the Equipment are suitably instructed in its safe and proper use;
(f) comply with all statutory, governmental and other legal requirement (including any occupational health and safety or environmental laws) relating to the Equipment and its operation;
(g) make the Equipment available for inspections, examination, testing, repair or maintenance of the Equipment by Dipacci upon reasonable prior writing notice by Dipacci;
(h) ensure that no components of the Equipment are removed or exchanged except where defective and in the course of usual and proper service or replacement;
(i) only use genuine parts to maintain the Equipment;
(j) on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Dipacci;
(k) keep the Equipment in their own possession and control and shall not assign the benefit of the Hire Contract nor be entitled to lien over the Equipment;
(l) employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work;
(m) not (or attempt to):
(i) 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 or damage the Equipment without Dipacci’s prior written consent;
(ii) relocate the Equipment without Dipacci’s prior written consent. Where it is agreed, it is the Customer’s responsibility to arrange the relocation and installation of the Equipment at its own cost and must ensure that the Equipment is not damaged as a result of the relocation and re-installation;
(iii) exceed the recommended capacity limits of the Equipment;
(iv) fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.
30.2 Immediately on request by Dipacci the Customer will pay:
(a) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to Dipacci;
(b) all costs incurred in cleaning the Equipment;
(c) the cost of repairing any damage to the Equipment caused by:
(i) the Customer’s failure to comply with the provisions of clause 30.1;
(ii) the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(iii) the negligence of the Customer or the Customer’s agent;
(iv) vandalism, or (in Dipacci’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer;
(d) any lost hire fees Dipacci would have otherwise been entitled to for the Equipment, under this, or any other Hire Contract;
(e) the cost of any consumables provided by Dipacci and used by the Customer.
31. Warranty
31.1 Subject to clause 16, the Customer acknowledges and agrees that the Equipment may be covered by a manufacturers express warranty and repairs to the Equipment may be affected under such warranty. In all other cases, repairs to the Equipment will be at the Customer’s cost.
32. Lease to Own
32.1 Upon expiry of the Hire Period, provided the Customer has made full payment of all monies payable and fulfilled their obligations under this Contract, the Customer may enter into a separate agreement to acquire ownership of the Equipment by payment to Dipacci of the specified amount, and in this case clauses (title to goods, delivery, risk, returns and warranty) shall be applicable.
