Terms and Conditions of Trade

1. Definitions

1.1 “SEBC” refers to South East Brewing Company Pty Ltd ACN 157 729 443.

1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

1.3 “Goods” means all Goods or Services supplied by SEBC 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).

1.4 “Price” means the Price payable for the Goods as agreed between SEBC and the Customer in accordance with clause 4 below.

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 (“Delivery”) of the Goods.

2.2 These terms and conditions may only be amended with SEBC’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and SEBC.

3. Change in Control

3.1 The Customer shall give SEBC 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, or business practice). The Customer shall be liable for any loss incurred by SEBC as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1 At SEBC’s sole discretion, the Price shall be either: (a) as indicated on any invoice provided by SEBC to the Customer; or (b) the Price as at the date of Delivery of the Goods according to SEBC’s current price list; or (c) SEBC’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2 SEBC reserves the right to change the Price if a variation to SEBC’s quotation is requested.

4.3 At SEBC’s sole discretion a deposit may be required

4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by SEBC, which may be: (a) on Delivery of the Goods; (b) by way of instalments/progress payments in accordance with SEBC’s payment schedule; (c) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by SEBC.

4.5 Payment for Goods supplied on consignment shall be due to SEBC immediately upon sale of all of the Goods supplied or sixty (60) days from the date of Delivery whichever first occurs. In the event the Buyer returns any of the consigned Goods then payment shall only be due for the Goods supplied but not returned.

4.6 Payment may be made by bank cheque, electronic/online banking, or by any other method as agreed to between the Customer and SEBC.

4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to SEBC an amount equal to any GST SEBC must pay for any supply by SEBC under this or any other agreement for the sale of the Goods. 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 Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price

5. Delivery of Goods

5.1 Delivery of the Goods is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at SEBC’s address; or (b) SEBC (or nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

5.2 At SEBC’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.

5.3 The Customer must take Delivery by receipt or collection 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 SEBC shall be entitled to charge a reasonable fee for re-delivery and/or storage.

5.4 SEBC may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.5 Any time or date given by SEBC to the Customer is an estimate only. The Customer must still accept Delivery of the Goods even if late and SEBC will not be liable for any loss or damage incurred by the Customer as a result of the Delivery being late.

6. Goods On Consignment

6.1 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 SEBC requires redelivery of them to SEBC, whichever first occurs. (c) If SEBC requires re-delivery of the Goods such re- Delivery shall be at the Customer’s cost. (d) the Customer shall notify SEBC on a weekly basis of all consignment Goods sold during the previous week’s end period and shall within seven (7) days of that weekly advice pay SEBC for the Goods sold (e) Replacement consignment Goods will normally be supplied but shall be at the sole discretion of SEBC.

6.2 SEBC reserves the right to issue from time to time with a Consignment Reconciliation Statement to the Customer for completion and return within seven (7) days indicating whether the stock as listed is still on hand. If Goods have been sold, a covering order must be returned with the Consignment Reconciliation Statement.

6.3 In the event that the Goods cannot be accounted for in accordance with the Consignment Reconciliation Statement, then it is fair to assume that the Goods have been sold and the Customer will be responsible for payment and an invoice will be issued accordingly to the Customer.

7. Risk

7.1 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.

7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, SEBC is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SEBC is sufficient evidence of SEBC’s rights to receive the insurance proceeds without the need for any person dealing with SEBC to make further enquiries.

7.3 If the Customer requests SEBC to leave Goods outside SEBC’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.

7.4 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, SEBC reserves the right to vary the Price with alternative Goods as per clause 4.2. SEBC also reserves the right to halt all Services until such time as SEBC and the Customer agree to such changes.

7.5 Any advice, recommendation, information, assistance or service provided by SEBC in relation to Goods supplied is given in good faith and shall be accepted without liability on the part of SEBC 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.

8. Access/Damage

8.1 It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by SEBC. The Customer shall pay the cost of replacement, repair or rectification to any paths, driveways, and access routes to the property.

9. Title

9.1 SEBC and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid SEBC all amounts owing to SEBC; and (b) the Customer has met all of its other obligations to SEBC.

9.2 Receipt by SEBC 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

9.3 It is further agreed that: (a) until ownership of the Goods passes to the Customer in accordance with clause 9.1 the Customer is only a bailee of the Goods and must return the Goods to SEBC on request. (b) The Customer holds the benefit of the Customer’s insurance of the Goods on trust for SEBC and must pay to SEBC 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 SEBC and must pay or deliver the proceeds to SEBC 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 SEBC and must sell, dispose of or return the resulting product to SEBC as it so directs. (e) The Customer irrevocably authorises SEBC to enter any premises where SEBC believes the Goods are kept and recover possession of the Goods. (f) SEBC 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 SEBC. (h) SEBC may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

10. Personal Property Securities Act 2009 (“PPSA”)

10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

10.2 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 that have previously been supplied and that will be supplied in the future by SEBC to the Customer

10.3 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 SEBC 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 10.3(a)(i) or 10.3(a)(ii);

(b) indemnify, and upon demand reimburse, SEBC 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 charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of SEBC;

(d) not register or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of SEBC.

(e) Immediately advise SEBC of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

10.4 SEBC 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.

10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

10.7 Unless otherwise agreed to in writing by SEBC, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

10.8 The Customer must unconditionally ratify any actions taken by SEBC under clauses 10.3 to 10.5.

10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

11. Security and Charge

11.1 In consideration of SEBC agreeing to supply the Goods, 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).

11.2 The Customer indemnifies SEBC from and against all SEBC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SEBC’s rights under this clause.

11.3 The Customer irrevocably appoints SEBC and each director of SEBC as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.

12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

12.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify SEBC 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 as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow SEBC to inspect the Goods.

12.2 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).

12.3 SEBC acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, SEBC makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. SEBC’s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.5 If the Customer is a consumer within the meaning of the CCA, SEBC’s liability is limited to the extent permitted by section 64A of Schedule 2.

12.6 If SEBC is required to replace the Goods under this clause or the CCA, but is unable to do so, SEBC may refund any money the Customer has paid for the Goods.

12.7 If the Customer is not a consumer within the meaning of the CCA, SEBC’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 SEBC at SEBC’s sole discretion; (b) limited to any warranty to which SEBC is entitled, if SEBC did not manufacture the Goods; (c) Otherwise negated absolutely.

12.8 Subject to this clause 12, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 12.1; and (b) SEBC 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.

12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, SEBC 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; (b) the Customer using the Goods for any purpose other than that for which they were designed; (c) the Customer continuing the use of any Goods 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 SEBC; (e) fair wear and tear, any accident, or act of God;

12.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by SEBC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that SEBC has agreed to provide the Customer with the second-hand Goods and calculated the Price of the second-hand Goods in reliance of this clause 12.10.

12.11 SEBC may in its absolute discretion accept non-defective Goods for return in which case SEBC may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.

12.12 Notwithstanding anything contained in this clause, if SEBC is required by law to accept a return then SEBC will only accept a return on the conditions imposed by that law.

13. Intellectual Property

13.1 Where SEBC has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of SEBC

13.2 The Customer warrants that all designs, specifications or instructions given to SEBC will not cause SEBC to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SEBC against any action taken by a third party against SEBC in respect of any such infringement.

13.3 The Customer agrees that SEBC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SEBC has created for the Customer.

14. Default and Consequences of Default

14.1 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 SEBC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14.2 If the Customer owes SEBC any money the Customer shall indemnify SEBC from and against all costs and disbursements incurred by SEBC in recovering the debt (including but not limited to internal administration fees, legalcosts on a solicitor and own client basis, SEBC’s collection agency costs, and bank dishonour fees).

14.3 Without prejudice to any other remedies SEBC may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions SEBC may suspend or terminate the supply of Goods to the Customer. SEBC will not be liable to the Customer for any loss or damage the Customer suffers because SEBC has exercised its rights under this clause.

14.4 Without prejudice to SEBC’s other remedies at law SEBC shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SEBC shall, whether or not due for payment, become immediately payable if: (a) any money payable to SEBC becomes overdue, or in SEBC’s opinion the Customer will be unable to make a payment when it falls due; (b) 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

15. Cancellation

15.1 SEBC may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice SEBC shall repay to the Customer any money paid by the Customer for the Goods. SEBC shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.2 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by SEBC as a direct result of the cancellation (including, but not limited to, any loss of profits).

15.3 Cancellation of orders for Goods 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.

16. Privacy Act 1988

16.1 SEBC collects personal information about the Customer (if a sole trader, individual trustee or partnership of individuals) for the purposes set out in its Privacy Policy. This policy may be located at www.kaijubeer.com.au. A hardcopy of this policy can also be provided to the Customer upon request.

16.2 The Privacy Policy Sets out: the personal information SEBC collects; how SEBC collects it and uses this information; how the Customer may access or correct it; and how the Customer may make a complaint in respect of SEBC’s management of the information.

16.3 By the Customer providing instructions to SEBC for the supply of Goods, the Customer is consenting to SEBC collecting, handling, using, disclosing and otherwise dealing with the Customer’s personal information (including credit related personal information) in accordance with terms of SEBC ’s Privacy Policy and in accordance with Australia’s privacy laws.

17. Notices

17.1 Any written notice given under this contract shall be delivered by handing the notice to the other party in person, leaving it at the address of the other party stated in this contract, or by sending it by registered post to the address of the other party as stated in this contract.

18. General

18.1 The failure by SEBC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SEBC’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.

18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Victoria in which SEBC has its principal place of business, and are subject to the jurisdiction of the courts of Swan Hill in that state.

18.3 Subject to clause 12, SEBC 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 SEBC of these terms and conditions (alternatively SEBC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

18.4 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 SEBC nor to withhold payment of any invoice because part of that invoice is in dispute.

18.5 SEBC may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

18.6 The Customer agrees that SEBC may amend these terms and conditions at any time. If SEBC makes a change to these terms and conditions, then that change will take effect from the date on which SEBC notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for SEBC to provide Goods to the Customer

18.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

18.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and legal obligations on it.

Personal / Director Guarantee and Indemnity

(To be completed by one or more directors or guarantors. Only one guarantor signature is required unless otherwise requested by SEBC.)

In consideration of South East Brewing Company Pty Ltd ACN 157 729 443 ("SEBC") granting credit to the Customer, I/We (each a "Guarantor"; and together the "Guarantors", if more than one) unconditionally and irrevocably:

GUARANTEE the due and punctual payment to SEBC of all moneys which are now or in future owing to SEBC by the Customer.

HOLD HARMLESS AND INDEMNIFY SEBC against any liability or loss arising from goods or services supplied to the Customer.

ACKNOWLEDGE that this Guarantee and Indemnity constitutes a continuing and enforceable obligation, binding as a deed.

CONFIRM that I/We have received, read, and understood SEBC’s Terms and Conditions of Trade.

I/WE (also referred to as the “Guarantor/s”) UNCONDITIONALLY AND IRREVOCABLY:

GUARANTEE the due and punctual payment to SEBC of all moneys now owing and all future amounts, including any liabilities under contracts, Terms & Conditions, and obligations.

If the Customer does not pay, the Guarantor will immediately pay on demand.

The Guarantor charges all present and future assets (including land and property) as security and acknowledges this as a security agreement under the Personal Property Securities Act 2009 (PPSA).

The Guarantor authorises SEBC to:

(a) register a financing statement;

(b) register any document required by law; or

(c) correct defects in such registrations.

HOLD HARMLESS AND INDEMNIFY SEBC on demand against any liability (including damages, costs, losses, and legal fees) in connection with:

(a) supply of goods/services;

(b) recovery of money and enforcement of this Guarantee;

(c) settlements involving disputes with third parties.

I/WE FURTHER ACKNOWLEDGE AND AGREE THAT:

I/We have read and understood SEBC’s Terms and Conditions and agree to be bound by them.

This Guarantee is continuing, irrevocable, and remains until all obligations are fulfilled.

No extension of credit or delay in enforcement affects the Guarantor’s liability.

If any payment is reversed, the liability remains as if it was never paid.

Multiple guarantors are jointly and severally liable.

I/We have been advised to seek independent legal advice and understand the liability.

I/We authorise SEBC to obtain and share credit information with third parties and credit agencies.

The information provided may be used for assessment and enforcement of this Guarantee.

This Guarantee and Indemnity remains in effect until all amounts owing by the Customer to SEBC are fully paid.

Note:

If the Customer is a sole trader or partnership, the Guarantor(s) should be another suitable person.

If the Customer is a club or incorporated society, the Guarantor(s) should be the president, secretary, or committee member.

South East Brewing Company Pty Ltd (KAIJU! Beer) collects the information on this form, including the names, contact details, dates of birth, driver's licence numbers and home addresses of directors and guarantors, a licence photo and signatures, to assess this application, decide whether to give the business credit, run the account and recover money owed.

We may contact the trade references you give and ask about the business's payment history with them. We may obtain a commercial credit report on the business, and on each guarantor, from a credit reporting body, and we may tell a credit reporting body or a debt collector about an overdue account.

Identity details and signatures are kept in private storage that only the people who approve accounts and our accounts team can open. We do not use them for marketing or give them to anyone else except as set out here or as the law requires.

You can ask to see or correct what we hold by emailing hq@kaijubeer.com.au. If you are unhappy with how we have handled your information, tell us first at the same address; you can also complain to the Office of the Australian Information Commissioner at oaic.gov.au.