TERMS & CONDITIONS

The below Terms and Conditions apply to this Agreement. Please read them carefully before you sign the Agreement. All the information in this Agreement is strictly private and confidential.

These terms and conditions form part of the Consumable Service and Equipment Agreement (“Agreement”) between Procaffe Australasia Pty Ltd (ABN. 72558388298) (“Procaffe”) and the Client. The Client acknowledges and agrees that the Service, Equipment, coffee and related products (“Consumables”) supplied by Procaffe are subject to these terms and conditions:

1. GENERAL

1.1 Maintenance of Equipment

Procaffe will service the Equipment and perform repairs as necessary between the hours of 9am to 5pm weekdays to keep the Equipment in good working condition or will at its option replace the Equipment with similar or substantially similar equipment. The Client agrees that it must exercise due care to protect the Equipment and will be responsible for the cost of repairs or replacement caused by unauthorised servicing, extraordinary wear and tear, alteration, tampering with parts, misuse, negligence, fire, theft, loss or damage of or to the Equipment. The Client will operate, clean and maintain the Equipment strictly in accordance with all directions issued by Procaffe in the enclosed ‘Cleaning for Optimum Performance’ document. Failure to comply with the above will result in service charges.

1.2 Use and Supply of Consumables

The Client agrees that during the term of this Agreement the Equipment will be used exclusively to dispense the Consumables only as supplied by Procaffe. Failure to exclusively use Procaffe products will attract servicing and maintenance charges which would normally be covered under the Agreement.

1.3 Payment for Consumables

All purchases of Consumables by the Client will be invoiced on delivery and payment therefore must be made strictly in accordance with these terms and conditions.

1.4 Location of Equipment

The Client agrees that during the term of this Agreement it will not remove the Equipment from the premises where it was initially installed by Procaffe without the prior written consent of Procaffe.

1.5 Terms of Agreement

The term of this Agreement (“Term”) shall commence on the First Monthly Payment Date and shall end one month after the Final Monthly Payment Date set out in this Agreement, subject to the earlier termination of this Agreement in accordance with these terms and conditions.

1.6 Technical Support

• Technical support will be provided between the hours of 8.30am to 4.30pm Monday to Fridays (excluding public holidays).
• Service calls requested and placed outside the above times and days will attract a $150 plus GST Call Out Fee and $150 plus GST per hour of labour or part thereof.
• Parts that require replacing after the warranty period has elapsed, that are not listed in an attached Schedule, will be supplied and invoiced at the recommended retail price.
• Failure to exclusively use Procaffe products will attract servicing and maintenance charges which would normally be covered under the Agreement.
• Failure to troubleshoot via phone when requested by Procaffe staff, will result in a service charge when attendance on-site by a technician is deemed to have been a job that could have been resolved by phone troubleshooting.

1.7 Fault Reports and Replacement Equipment

At least, a minimum of, a similar or same piece of equipment will be made available and be installed within 48 hours of a reported fault if the equipment cannot be repaired on site.

1.8 Machine Settings

Machine settings and tastings are set to the Client’s desired settings at installation (“Initial Settings”). Any changes to the Initial Settings post-installation will be at the Client’s expense, at Procaffé’s then-current service rates.

The client hereby grants Procaffé the right, for the duration of this agreement, to display Procaffé branding, promotional content and advertising (including third party advertising, if any) on any digital screens or displays that form part of the equipment, provided that such content does not interfere with the normal operations of the equipment.

1.9 Technician Parking

On-site parking for Procaffe Technician/s must be provided to facilitate the service of equipment. If on-site parking cannot be provided, Procaffe reserves the right to on-charge this to the customer.

2. EQUIPMENT LOAN RENTAL

Where the Client agrees with Procaffe to rent the Equipment from Procaffe the following terms and conditions apply:

2.1 Payments

(a) The Client will pay to Procaffe or as Procaffe directs the Monthly Payments set out in this Agreement on the first day of each month for the Term which, unless otherwise required by law, are non-refundable.
(b) The Client acknowledges that for Procaffe to offer the Client an Equipment
loan rental option Procaffe may need to obtain credit support from an authorised financial institution. If the Client elects to take up this option it agrees that should it receive at any time notification from the authorised financial institution to make Monthly Payments as it directs then the Client will do so immediately, whether or not Procaffe confirms the direction.

2.2 Payments

(a) The Client acknowledges that Procaffe may, without giving the Client notice, sell, assign or otherwise dispose of or deal with Procaffe’s interest in the Equipment or this Agreement to the authorise financial institution.
(b) The Lessee may apply to assign this Agreement but the Client acknowledges that
Procaffe (or the authorise financial institution is not obliged to agree.

3. CONSUMABLE/CONSUMPTION PACKAGE

3.1 Property

The Client acknowledges that the Equipment is the property of an authorised financial institution or Procaffe, whose rights, powers and remedies as owner of the Equipment will not in any way be limited, abridged, affected or prejudiced by this Agreement.

3.2 Payments and Pricing

Procaffe may change consumables pricing at its discretion according to world commodity and currency fluctuations. The Client will pay Procaffe according to terms specified on the Consumables, Service and Equipment Agreement.

3.3 Residual Payment

Subject to the Client’s compliance with these terms and conditions throughout the Term:

• the Client may make an offer to purchase the Equipment upon payment of the Final Monthly Payment; and
• if Procaffe agrees it will procure that property in and title to the Equipment will pass to the Client immediately upon receipt by Procaffe from the Client of the Final Monthly Payment and the Residual Payment.

3.4 Rental Inclusions

Rental covers repair and maintenance for all service required as a result of fair wear and tear. It does not include delivery charges, replacement of lost parts or repair work required as result of mis-use or inappropriate use, including non-compliance with the cleaning instructions and use of non-Procaffe products. Failure to comply with these instructions will lead to contract termination.

3.5 Rental Term

The Client must provide 30 days notice prior to the expiry of the rental term. Should the Client fail to provide adequate notification the contract will continue on a monthly basis until the 30 day notification is provided to, and accepted by, Procaffe.

3.6 If committed to a minimum quantity per month and consumptions falls short of this required monthly amount a charge will result for the difference.

4. CHANGE OF OWNERSHIP

If the Client sells or transfers its business to a third party without the prior written consent of Procaffe, and that party does not enter into an agreement with Procaffe (under the same or substantially similar terms and conditions as the Agreement) for at least the balance of the Term, the client must comply with the Termination obligations as outlined in Clause 7.

5. PROPERTY AND TITLE

5.1 Until all monies due to Procaffe under this Agreement have been paid in full in accordance with this Agreement and unless otherwise stated in this Agreement:

• 5.1.1 property in the Consumables and the Equipment remains with Procaffe or an authorised financial institution and the Client agrees to hold them as bailee for Procaffe or an authorised financial institution;
• 5.1.2 where this Agreement is terminated for any reason the bailment will also be terminated without notice to the Client and Procaffe may thereupon take possession of the Consumables and/or the Equipment (“Possession”);
• 5.1.3 the Client authorises Procaffe by its servants or agents to enter any premises owned leased or otherwise occupied by the Client or any other person by reasonable force to obtain Possession or to inspect the Consumables and/or the Equipment and the Client indemnifies Procaffe in respect of any action in trespass or any other action or claim taken or made by any person against Procaffe as a result of Procaffe exercising its right to obtain Possession or inspection of the Consumables and/or the Equipment; and
• 5.1.4 if the Consumables are sold by the Client or become as a result of their use by the Client incorporated into another product which is subsequently sold by the Client, the Client acknowledges that such sale is by the Client as bailee for and on behalf of Procaffe and the Client agrees to hold the proceeds of sale on trust for Procaffe until payment is made in full to Procaffe for all amounts owing to Procaffe in accordance with this Agreement.

 

5.2 Until sale by the Client of the Consumables the Client undertakes to store the Consumables at the Client’s premises separately from the Client’s own property or that of any other person in a manner which makes them readily identifiable as Consumables of Procaffe.

6. INSURANCE

For so long as the Client have possession of Consumables and the Equipment owned by Procaffe or the Authorised Financial Institution the Client must:

6.1 insure the Consumables and the Equipment for their full replacement value against:

• 6.1.1 loss or damage howsoever caused;
• 6.1.2 public liability for bodily injury or death or damage to property or the environment arising in connection with the use of the Consumables or Equipment up to $20,000,000;
• 6.1.3 any other liability that the law requires or that it would be prudent for the Client to insure against; and
• 6.1.4 any other liability that Procaffe reasonably requires the Client to insure against;

6.2 produce to Procaffe within seven (7) days of request evidence of the currency of such policy(ies) of insurance;

• 6.3 not do or omit to do, or permit any person to do or omit to do, anything that could prejudice any insurance policy with respect to the Consumables or the Equipment;
• 6.4 not vary any insurance policy with respect to the Consumables or the Equipment without Procaffe’s prior written consent;
• 6.5 advise Procaffe immediately in writing of any event, matter or thing of which the Client is or becomes aware which may form the basis of a claim under any insurance policy referred to in Clause 6.1;
• 6.6 provide Procaffe with any information concerning such event, matter or thing upon request; And
• 6.7 ensure that Procaffe’s and an authorised financial institution’s interests in the Consumables and/or Equipment are noted on the above insurance policies.

7. TERMINATION

Subject to the Client’s compliance with this Agreement throughout the Term, the Client may terminate this Agreement by 30 days written notice to Procaffe (“Notice”) and when delivering the Notice to Procaffe the Client must pay to Procaffe:

• 7.1 an amount equal to 100% of such part of the Full Contract Price as remains unpaid as at the date of the Notice; and is calculated as: the total sum of the minimum monthly kilos multiplied by the sell price for the unused quantity contracted under this agreement
• 7.2 where the minimum monthly kilos have not been specified a default minimum monthly kilo quantity of 12 kilos per month will be substituted as the minimum monthly quantity to be used as part of the calculation
• 7.3 in addition and forming part of the calculation for early termination, as part of the Full Contract price is a penalty multiplier which is at:

• 4 times the remaining rental for early termination under 12 months
• 3 times the remaining rental for early termination between 13 months and 24 months
• 2 times the remaining rental for early termination between 25 months and 36 months
• 1.5 times the remaining rental for early termination between 27 months and 48 months

• 7.4 any other monies owing to Procaffe as at the date of the Notice, whereupon Procaffe may by its servants or agents enter any premises owned leased or otherwise occupied by the Client or any other person by reasonable force to obtain Possession of the Equipment and/or the Consumables and the Client hereby indemnifies and shall keep indemnified Procaffe in respect of any action in trespass or any other action or claim taken or made by any person against Procaffe as a result of Procaffe exercising its right to obtain Possession of the Equipment and/or the Consumables.

8. DEFAULT

If the Client:

• 8.1 fails to pay any amount owing to Procaffe in accordance with this Agreement;
• 8.2 becomes or is declared bankrupt, takes any step to obtain protection from (or is granted protection from) its creditors under any applicable legislation, does anything that would entitle the Client or any creditor to appoint an administrator, receiver, receiver-manager, controller or mortgagee or to present a petition for winding up or to exercise any other rights over or against the Client’s assets; or
• 8.3 breaches or unlawfully repudiates this Agreement, the Client authorises Procaffe by its servants or agents to enter any premises owned leased or otherwise occupied by the Client or any other person by reasonable force to obtain Possession or to inspect the Equipment and/or the Consumables and the Client hereby indemnifies and shall keep indemnified Procaffe in respect of any action in trespass or any other action or claim taken or made by any person against Procaffe as a result of Procaffe exercising its right to obtain Possession or inspection of the Equipment and/or the Consumables and all outstanding Monthly Payments become immediately due and payable.

9. INSOLVENCY

9.1 The Client warrants that it is at the time of this Agreement solvent and there are no circumstances which would entitle the Client or any creditor to declare the Client bankrupt, take any step to protect the Client from its creditors under any applicable legislation, appoint an administrator, receiver, receiver-manager, controller or mortgagee or to present a petition for winding up or to exercise any other rights over or against the Client’s assets;

9.2 The Client’s right to possession of the Consumables and the Equipment shall cease if the Client becomes or is declared bankrupt, takes any step to obtain protection from (or is granted protection from) its creditors under any applicable legislation, does anything or fails to do anything which would entitle the Client or a creditor to appoint an administrator; receiver, receiving manager, controller or mortgagee or any other person to take possession of any assets of the Client or which would entitle any person to present a petition for winding up.

10. WARRANTIES

10.1 All warranties, conditions and liabilities implied by law other than those which may not be lawfully excluded under the Competition and Consumer Act 2010 or any other Commonwealth State or Territory Legislation are excluded from this Agreement.

10. 2 The Client indemnifies and shall keep indemnified Procaffe in respect of any action or claim for loss or damage of any kind against Procaffe arising in connection with the exercise by Procaffe of its rights pursuant to these terms and conditions.

11. RELEASE

To the extent permitted by law, the Client hereby releases Procaffe from any claim arising out of the supply of any Consumables or Equipment by Procaffe to the Client.

12. GOVERNING LAW

These terms and conditions and this Agreement shall be governed by the laws of Victoria and the Client irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of Victoria or the Commonwealth of Australia and any courts of appeal from those courts.

13. INCONSISTENCIES

To the extent of any inconsistencies between the terms of this Agreement and the terms of any other prior agreement or document, the terms of this Agreement shall prevail and the parties shall execute such further documentation as may be required to amend such agreements or documents in accordance with this Agreement.

The client and supplier agrees to the terms and conditions set out in this agreement and that all stores stated in a ‘Annexure A’ will be covered under this agreement.

14. TRIAL PERIOD AND TERMINATION CLAUSE

14.1 The Customer will be provided with a trial period of twenty-eight (28) days from the date of installation or commencement of service (“Trial Period”). The Customer must notify Procaffe in writing of their intention to cancel the trial prior to the expiry of the Trial Period.
14.2 If the Customer does not provide written notice of cancellation before the end of the 28-day Trial Period, the Customer will be deemed to have accepted the service and agrees to enter into a fixed term agreement of thirty-six (36) months commencing immediately upon expiry of the Trial Period.

15. PERSONAL PROPERTY SECURITY ACT

15.1 In this clause ‘PPSA’ means the Personal Property Securities Act 2009 (Cth); ‘PPS Lease’ has the same meaning as in the PPSA; ‘PPSR’ means the Personal Property Securities Register, and ‘Security Interest’ has the same meaning as in the PPSA.
14.2 The Client agrees and acknowledges that this Agreement is a PPS Lease for the purposes of the PPSA and that Procaffe has a Security Interest over the Equipment.
15.3 The Client agrees (a) to do all things necessary and provide Procaffe on request all information Procaffe’s requires, to register a financing statement or financing change statement on the PPSR; and (b) not to change its name or other details on the PPSR without first notifying Procaffe.
15.4 The Client waives its rights to receive a verification statement in respect of any financing statement or financing change statement in respect of the Security Interest created by this Agreement.
15.5 To the maximum extent permitted by law, the Client agrees that the following sections of the PPSA will not apply: section 130, section 142 and section 143.
15.6 To the maximum extent permitted by law, the parties contract out of the following sections of the PPSA: section 95, section 123(2), section 125, section 129(2), section 132(3) (d), section 134(2) and section 135.

16. AGREEMENT AUTHORISATION

The supplied terms and conditions apply to this Agreement. Please read them carefully before you sign the Agreement. All information in this Agreement is strictly private and confidential. By acknowledging this Agreement, and confirming you have done so by ticking the box, the Client acknowledges they have read, received and understood the Terms and Conditions document.