Terms & Conditions of Sale
1. Definitions1.1 "ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth).
1.2 "Agreement" means any agreement for the provision of Goods by us to the Customer.
1.3 "Application" means the Beer Crawl application.
1.4 "Basic Subscription" means the minimum membership class for the Application, where users may only use the standard features of the Application. This membership class does not include the use of proprietary equipment and/or services.
1.5 "Customer" shall mean any customer or any person acting on behalf of and with the authority of the Customer.
1.6 "Goods" shall mean all Goods supplied by us to the Customer (and where the context so permits shall include any supply of services), including the Subscription, and are as described on the invoices as provided by us to the Customer.
1.7 "PPSA" means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
1.8 "Price" shall mean the Price payable for the Goods in accordance with clause 3 of these Terms.
1.9 "Subscription" means the monthly subscription to access and use the Application.
1.10 "Terms" means these Terms & Conditions of Sale.
1.11 "we", "us" and "our" are references to Crawl Media (ABN 83 612 366 758), its successors and assigns or any person acting on our behalf and with our authority .
2. Acceptance2.1 The Terms apply exclusively to every Agreement.
2.2 Any instructions we receive from the Customer for the supply of Goods and/or the Customer's acceptance of Goods supplied by us shall constitute acceptance of the Agreement.
2.3 Where there is more than one Customer, the Customers shall be jointly and severally liable for all obligations under these Terms.
2.4 Upon acceptance of the Agreement by the Customer the Terms are binding and can only be amended with our prior written consent.
2.5 The Customer must provide us with not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer's name and/or any other change in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, email address or business practice). The Customer shall be liable for any loss incurred by us as a result of the Customer's failure to comply with this clause.
2.6 Goods are supplied by us only on these Terms.
3. Price3.1 At our sole discretion, the Price for all Goods shall be either:
(a) as indicated on invoices provided by us to the Customer in respect of Goods supplied; or
(b) the Price at the date of delivery of the Goods according to our current pricelist.
3.2 We reserve the right to change the Price in the event of a variation to our listed Price (including, but not limited to, any variation as a result of fluctuations in currency exchange rates). All variations will be charged and shown as variations on the invoice.
4. Payment for the Subscription4.1 Payment for the Subscription must be made by the Customer in equal monthly instalments.
4.2 If the Customer fails to pay any Subscription instalment, the Customer's Subscription will immediately revert to a Basic Subscription . Upon the Customer paying all instalments due and payable, the Customers Subscription will resume to its chosen subscription class.
4.3 Upon the Customer electing to upgrade its Subscription class, the Customer must pay the full monthly subscription instalment Price payable for the new Subscription class, notwithstanding that the Customer may have paid the full monthly Subscription instalment Price for its previous Subscription class. The Customer's previous Subscription will automatically cease (notwithstanding that the previous Subscription month may not have expired) and the Customer's upgraded Subscription will immediately commence .
5. Payment for all other Goods
5.1 In addition to the Subscription instalments described in clause
4.1, payment for all other Goods(as applicable, at our sole discretion) may be made:
( a ) in full upon the Customer placing its first order; or
( b ) in equal monthly instalments, not exceeding a total amount of 24 months .
5.2 All Goods require a paid Subscription( other than a Basic Subscription) in order to function.
5.3 All instalment payments for Goods are due on each monthly anniversary after the first date on which the Customer placed its order.
5.4 A physical invoice containing details of the Customer's order will be provided to the Customer upon the first delivery of the Goods.
5.5 All subsequent invoices containing details of instalments paid will be delivered by email.
5.6 Time for all payments (including all Subscription instalments in clause 4) is of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due in accordance with clause 5.2.
5.7 All payments (including all Subscription instalments clause 4) will be made by direct debit. The Customer hereby authorises us to process all payments as direct debits using the bank account details provided to us by the Customer.
5.8 If the Customer fails to pay any instalment, we, at our sole discretion, may elect to exercise our rights under clause 13.
5.9 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. Delivery of the Goods6.1 Delivery of the Goods shall take place when the Customer takes possession of or obtains access to the Goods.
6.2 The costs of delivery are in addition to the Price.
6.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer.
6.4 Our failure to deliver shall not entitle either party to treat the Agreement as repudiated.
6.5 Any period or date for delivery of Goods or provision of services stated by us is an estimate only.
6.6 We will use our reasonable endeavours to meet any estimated dates for delivery of the Goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date or to deliver the Goods at all, where due to circumstances beyond our control.
6.7 If we cannot complete any delivery by any estimated date, we will use reasonable endeavours to complete the delivery within a reasonable time.
7. Risk7.1 The risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Goods being taken from our premises.
7.2 The Goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Goods and any other goods or services that may be associated to the Goods.
7.3 Where the Customer expressly requests the Goods to be left outside of its premises for collection, then such Goods shall be left at the Customer's sole risk and it shall be the Customer's responsibility to ensure the Goods are insured adequately or at all.
7.4 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Goods sold by us, unless recoverable from us on the failure of any statutory guarantee under the ACL.
7.5 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, we are entitled to receive all insurance proceeds payable for the Goods. The production of the Terms by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
8. Title8.1 We and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid to us all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to us in respect of the Agreement between us and the Customer.
8.2 Receipt by us of any form of payment shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then our ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) until such time as ownership of the Goods shall pass from us to the Customer, we may give notice in writing to the Customer to return the Goods or any of them to us. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(b) We have the right of stopping the Goods in transit whether or not delivery has been made; and
(c) if the Customer fails to return the Goods to us then we or our 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 Goods are situated and take possession of the Goods; and
(d) the Customer is only a bailee of the Goods and until such time as we have received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to us for the Goods, on trust; and
(e) the Customer shall not deal with our money in any way which may be adverse to us; and
(f) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain our property; and
(g) We can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
9. Liability9.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Goods or related services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or related services or any contractual remedy for their failure.
9.2 We are not responsible for ensuring the Goods (or any goods or services related to the Goods) accord with all necessary licenses, permits, laws and regulations, including requirements in relation to the service of alcohol and standard drink labelling (as imposed throughout the world). Any standard drink statements or indications on the Goods are an approximation only and must not be relied upon by the Customer or consumers in any circumstances. The Customer accepts all responsibility for ensuring compliance with all necessary licenses, permits, laws and regulations in relation to the Goods (or any goods or services related to the Goods), including requirements in relation to the service of alcohol and standard drink statements or indications.
9.3 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against us for failure of a statutory guarantee under the ACL.
9.4 If the Customer on-supplies the Goods to a consumer and:
(a) the Goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of our liability to the Customer;
(b) the Goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of our liability to the Customer;
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.
9.5 If Clause 9.1 or 9.3 do not apply, then other than as stated in the Terms or any written warranty statement, we are not liable to the Customer in any way 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.
9.6 We are not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
9.7 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by us in relation to the Goods or their use or application.
(b) it has not made known, either expressly or by implication, to us any purpose for which it requires the Goods and it has the sole responsibility of satisfying itself that the Goods are suitable for the use of the Customer.
10. PPSA10.1 The terms used in Clause 9 that are defined in the PPSA have the same meaning as in the PPSA.
10.2 Upon assenting to these Terms the Customer acknowledges and agrees that these Terms:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods supplied by us to the Customer;
(ii) all Goods that will be supplied in the future by us 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 we 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, us 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 our prior written consent;
(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 our prior written consent; and
(e) immediately advise us of any material change in its business practices of selling or using the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 We and the Customer agree that sections 96, 125, 129, 142 and 143 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d),132(4), 135 and 157 of the PPSA.
10.6 The Customer shall unconditionally ratify any actions taken by us under clauses 10.3 to 10.5.
11. Defects11.1 The Customer shall inspect the Goods on delivery and shall within 14 days of delivery (time being of the essence) notify us of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford us an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which we have agreed in writing that the Customer is entitled to reject, our liability is limited to either (at our discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the ACL and is therefore also entitled to, at the Customer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
12. Warranty12.1 Subject to clause 9 and requirements of the ACL:
(a) for Goods not manufactured by us, the warranty shall be the current warranty provided by the manufacturer of the Goods .
( b ) We shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods .
13. Default and Consequences of Default
13.1 If the Customer defaults in payment by the due date of any amount payable to us, then all money which would become payable by the Customer to us at a later date on any account becomes immediately due and payable without the requirement of any notice to the Customer.
13.2 In the event that the Customer's payment is dishonoured for any reason the Customer shall be liable for any dishonour fees we may incur.
13.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify us from and against all costs and disbursements incurred by us in pursuing the debt including legal costs on a solicitor and own Customer basis and our collection agency costs .
13.4 Without prejudice to any other remedies we may have, if at any time the Customer is in breach of any obligation( including those relating to payment) we may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions . We will not be liable to the Customer for any loss or damage the Customer suffers because we have exercised our rights under this clause .
13.5 Without prejudice to our other remedies at law, we shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to us shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to us becomes overdue, or in our opinion the Customer will be unable to meet its payments as they fall due; or
(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 .
14.1 We may cancel any Agreement to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving reasonable written notice to the Customer . On giving such notice we shall repay to the Customer any sums paid in respect of the Price . We shall not be liable for any loss or damage whatsoever arising from such cancellation .
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss we incur( including, but not limited to, any loss of profits) up to the time of cancellation .
14.3 Cancellation of orders for Goods made to the Customer's specifications or non - stocklist items will not be accepted once the order has been processed .
15. Unpaid Rights
15.1 Where the Customer has left any item with us for repair, modification, exchange or for us to perform any other service in relation to the item and we have not received the whole of the Price, or the payment has been dishonoured, we shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while we are in possession of the item;
(c) a right to sell the item .
15.2 The lien shall continue despite the commencement of proceedings, or judgment for the Price having been obtained .
16.1 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 .
16.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency .
16.3 These Terms and any Agreement to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland .
16.4 In the event of our breach of this contract, the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods unless required otherwise by the ACL.
16.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by us nor to withhold payment of any invoice because part of that invoice is in dispute .
16.6 We may license or sub - contract all or any part of its rights and obligations without the Customer's consent.
16.7 The Customer cannot license or assign its rights and obligations under this Agreement without our written consent.
16.8 The Customer agrees that we may review the Terms at any time . If, following any such review, there is to be any change to the Terms, then that change will take effect from the date on which we notify the Customer of such change . Except where we supply further Goods to the Customer and the Customer accepts such Goods, the Customer shall be under no obligation to accept such changes .
16.9 Any failure by us to enforce any provision of the Terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision .