1. Purpose

These terms and conditions are the terms and conditions on which Frost Catering Equipment Pty Ltd ACN 138 164 646 (Frost) agrees to supply goods (Goods) or services (Services) to a person who wishes to acquire them (Buyer) and will form the basis of the contract for the supply of Goods or Services by Frost to the Buyer (Supply) (Contract). By placing an order with Frost for the supply of Goods or Services (Order), the Buyer is deemed to have accepted these terms and conditions.

2. Contract

(a) A Contract will be formed when: (i) the Buyer accepts a current written quote issued by Frost setting out the proposed terms of the Supply (Quote); or (ii) if there is no current Quote, or the Buyer does not validly accept a Quote, Frost notifies the Buyer of its acceptance of an Order placed by the Buyer, whether the Order is made in writing, electronically (including by email) or verbally (Order Confirmation). (b) Unless stated otherwise, a Quote remains valid for a period of 30 days from the date of issue. (c) The Buyer accepts a Quote when the Buyer: (i) notifies Frost of its acceptance; (ii) pays any part of the price of the Supply (Price); or (iii) accepts any part of the performance of the Supply, whichever occurs first. (d) Except to the extent, if any, Frost expressly agrees in writing, no standard terms and conditions of the Buyer form part of the Contract. (e) Except as permitted by law, the Buyer may not cancel a Contract, in whole or in part, without the prior written consent of Frost, which consent will not be unreasonably withheld. The Buyer acknowledges that Frost is entitled to require as a condition of giving its consent that the Buyer indemnify Frost against all costs and expenses incurred or damages suffered by Frost in connection with the requested cancellation, including the cost of labour and materials and reasonable administrative charges.

3. Price

(a) The Buyer must pay the Price set out in the Contract or as otherwise agreed by Frost and the Buyer, subject to any adjustment in accordance with the Contract. (b) Unless otherwise stated in the Contract, the Price: (i) excludes fees, duties, taxes, surcharges and all other imposts of any governmental authority; (ii) does not include, and no allowance has been made for: (A) any physical conditions on site which differ from physical conditions which could reasonably have been anticipated by Frost; (B) the preparation of detailed service drawings, plans or the payment of fees which may be required for obtaining government approvals; or (C) storage of Goods by Frost for a period in excess of 14 days. (c) If any of the circumstances identified in clause 3(b)(ii) occur and result in increased costs or expenses to Frost, Frost isentitled to make a reasonable adjustment to the Price to recover the additional costs or expenses.

4. Payment

(a) Frost may issue an invoice for the Price any time after entry into the Contract (Invoice). (b) If the Buyer holds a current credit account with Frost and is not in default under its terms, the Buyer must pay the Priceaccording to the agreed credit terms. (c) If clause 4(b) does not apply and the Quote or Order Confirmation includes payment terms, the Buyer must pay the Price according to those payment terms. (d) Unless clause 4(b) or (c) applies orFrost has agreed otherwise in writing, the following payment terms apply.(e) Subject to the remaining provisions of this clause 4, the Buyer must pay (i) 20% of the Price immediately upon receipt of the Invoice; and (ii) if the Supply comprises only the supply of Goods, the Buyer must pay the remaining balance of the Price before the Goods are delivered: (f) If the Supply comprises only the supply of Goods and the Contract requires Frost to deliver the Goods within 7 days of formation of the Contract, the Buyer must pay the Price in full upon receipt of the Invoice. (g) If the Supply includes any custom-built Goods, the Buyer must pay 50% of the Price before Frost will commence production of the Goods, and must pay the remaining balance of the Price before the Goods are delivered. (h) If the Supply includes the provision of Services, the Buyer must pay: (i) not less than 60% of the Price prior to delivery of the Goods; and (ii) the remaining balance of the Price on completion of the Services and prior to Frost issuing any required certification. (i) If the Buyer is obtaining finance for the acquisition of the Goods, the Buyer is responsible for arranging signature of all contracts with, and complying with all requirements of, the financier in relation to the Goods, including obtaining insurance, prior to delivery of the Goods. Frost may withhold delivery of the Goods until the Buyer provides evidence satisfactory to Frost that all requirements of the financier have been satisfied and Buyer must indemnify Frost from and against any costs or expenses incurred by Frost in relation to any delay. (j) Frost may charge a surcharge on payments made by credit card to reimburse the cost of any bank or processing charges incurred by Frost in respect of the payment.(k) If the Buyer does not pay any amount owing to Frost by the due date, Frost may charge default interest on the unpaid amount at 10% per annum, calculated on a daily basis from the due date until the payment is received in full. (l) Unless otherwise specified, amounts payable under the Contract excludes GST. (m) The Buyer must pay GST to Frost subject to receipt of a valid tax invoice.

5. Credit

(a) Any agreement by Frost to grant the Buyer credit has been or will be made on the basis of a credit account application completed by the Buyer and any additional information (including references) required by Frost. (b) If Frost approves the Buyer’s credit account application, the Buyer must pay all amounts payable within the period of credit and in accordance with any agreed credit terms. (c) If the Buyer holds a credit account, the Buyer must immediately notify Frost in writing of any material change in the Buyer’s financial position or any other information provided by the Buyer in the credit account application.

6. Supply of Goods

(a) Unless otherwise stated in writing, times quoted for delivery of Goods by Frost are given in good faith and are estimates only. The Buyer will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. (b) Unless the Contract provides otherwise:(i) the Price of the Goods does not include delivery; (ii) if Frost agrees to arrange delivery, the Buyer must bear all freight, handling and insurance charges; (iii) if delivery charges are included in the Price, these allow for delivery to kerbside, the ground floor or a designated delivery dock only; (iv) the Buyer is responsible at its own cost for unloading Goods from the relevant delivery vehicle and moving the Goods to the installation or storage location; and (v) if Frost personnel agree to assist with any unloading or moving of the Goods, the Buyer must indemnify Frost for any loss, liability, costs or expenses incurred in providing that assistance.(c) If the Buyer fails to accept delivery within 14 days of receiving notification from Frost that the Goods are ready, the Buyer must pay Frost on demand for all reasonable costs for storage, protection and insurance of the Goods after expiration of such 14 day period. Frost reserves the right to store such Goods at a location of its choosing. (d) The Buyer must inspect all Goods received as soon as practicable following delivery. No claim by the Buyer for shortages of, or damage to, Goods may be made unless such claim is notified to Frost within 5 days of delivery. The Buyer must provide evidence of any shortage as reasonably requested by Frost and must assist Frost to investigate any such claim. Frost will endeavour to rectify any shortages, properly notified and verified in accordance with this clause 6(d), as soon as reasonably practicable after receiving notice but will not be liable for any delay in respect of such rectification. (e) Title in the Goods will pass from Frost to the Buyer upon receipt by Frost in full of the Price. Risk in the Goods will pass from Frost to the Buyer from the time Goods are dispatched to the Buyer. Until such time as title in Goods passes to the Buyer, the Buyer will hold and maintain the Goods as a bailee for Frost. (f) Frost may, in its discretion, accept the return of Goods by the Buyer within 3 months after the date of delivery provided that: (i) the Goods are complete and in original condition, and the packaging is not damaged; (ii) the Goods have not been specifically manufactured, customised or modified for the Buyer; (iii) the Buyer complies with all return arrangements notified by Frost, including delivery arrangements; (iv) the Goods are returned to the location nominated by Frost at the Buyer’s cost and risk; and (v) the Buyer pays a restocking fee to Frost of the greater of: (A) 20% of the Price; and (B) any manufacturer’s surcharge payable by Frost.

7. Installation

(a) If the Contract requires Frost to install the Goods, Frost agrees to perform the installation (Installation) in accordance with the Contract. (b) Frost agrees to: (i) make all reasonable efforts to perform the Installation at the location nominated by the Buyer (Installation Location) at the time set out in the Contract or otherwise quoted by Frost, noting that such time is an estimate only; and (ii) notify the Buyer as soon as reasonably practicable of any anticipated material delays in carrying out the Installation. Unless the Contract provides otherwise, Frost is not responsible for tiling, grouting, plumbing, painting, gas or electrical connections or making good any works affected by other contractors. (c) The Buyer must: (i) notify Frost in writing of any restrictions on access to the Installation Location or hazards at or adjacent to the Installation Location and otherwise provide all required access to Frost to perform the Installation; (ii) provide in a timely manner any deliverables, plant, equipment or materials identified in the Contract as being required to be supplied by the Buyer; (iii) notify Frost in writing within seven days after completion of the Installation of any alleged defect or deficiency in the performance of the Installation; (iv) provide or arrange all services reasonably necessary for Installation.

8. Design Services

(a) Unless, and except to the extent that, the Contract expressly requires Frost to undertake any design or design and construct obligations (Design Services), Frost gives no warranty, and accepts no liability for, any design. (b) If the Contract requires Frost to perform Design Services: (i) Frost must: (A) provide the Design Services in accordance with the Contract; and (B) use reasonable endeavours to ensure the design documents meet the requirements of the Contract; and (ii) the Buyer must: (A) provide in a timely manner all information reasonably requested by Frost in relation to the Design Services; and (B) co-operate with Frost in good faith during the development of any designs to ensure the timely completion of all Design Services.

9. Warranties, Liability and Indemnities

(a) Nothing in the Contract excludes, restricts or modifies any terms, conditions or warranties or Frost’s liability for them which are imposed or implied by any statute, including the Competition and Consumer Act 2010 (Cth), and which by statute cannot be excluded, restricted or modified. Limitations and exclusions are made only to the extent that Frost may legally do so. (b) Frost provides the warranties set out in Annexure A to these terms and conditions. (c) Except as otherwise provided in the Contract and subject to clause 9(a), any terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the performance of the services by Frost are excluded. (d) Subject to clause 9(a), to the maximum extent permitted by law, the Buyer acknowledges and agrees Frost’s liability to the Buyer (and any party claiming through the Buyer against Frost) for any claim for loss or damages (including legal expenses) made in connection with the Contract whether in contract, tort (including negligence), under statute, in equity or otherwise will be limited as follows: (i) for any liability for Goods that are claimed to be defective or deficient, Frost’s liability is limited to the cost of repair or replacement of those Goods, or repayment to the Buyer of the Price of those Goods, at Frost’s election; and (ii) for any liability for Services not being fit for purpose or otherwise claimed to be defective or deficient, Frost’s liability is limited to the provision of the Services again or the payment of the price of having the Services provided again, at Frost’s election. (e) To the maximum extent permitted by law, the Buyer acknowledges and agrees that neither Frost nor any manufacturer or supplier of goods, materials or services to Frost, will be liable for, and the Buyer waives any right it has to claim, any loss notarising naturally according to the usual course of things, any loss of income, loss of actual or anticipated profit, loss of production, loss of contract, loss of customers, goodwill, opportunity or business, loss or spoilage of or damage to stock or loss of data arising under or in connection with the Contract, whether in contract, tort (including negligence), under statute, in equity or otherwise. (f) The Buyer acknowledges, subject to clause 9(a) and otherwise to the maximum extent permitted by law, that any other liability falling outside the application of clauses 9(d) , for any loss or damage arising from or caused in any way by Frost, the Goods or Services or this Contract, is excluded.

10. Personal Property Securities Act

(a) In this clause 10, terms defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given in the PPSA, unless the context requires otherwise. (b) The Buyer acknowledges and agrees that, with respect of the Goods identified in the Contract or otherwise supplied to the Buyer, the Contract constitutes a security agreement and that Frost may register a financing statement in respect of the security interest provided by the Contract. (c) The Buyer grants to Frost a security interest in the Goods supplied to the Buyer by Frost to secure payment of the Price and any other amounts owing, or which may become owing by the Buyer to Frost. The security interest: (i) extends to and continues in all proceeds; and (ii) is a purchase money security interest to the extent to which it secures payment of the unpaid Price. (d) The Buyer must: (i) promptly do anything required by Frost to ensure Frost’s security interest is a perfected security interest and has priority over all other security interests in the Goods; (ii) not do or permit anything to be done that may result in the purchase money security interest granted to Frost ranking in priority behind any other security interest; (iii) not cause or knowingly permit any person to take a security interest over, or to register a financing statement in relation to, the Goods without the prior written consent of Frost; and (iv) immediately notify Frost if it becomes aware of any person taking steps to register a financing statement in relation to the Goods. (e) The Buyer: (i) waives the right under the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing charge statement relating to a security interest created under the Contract; (ii) waives any right it may have under section 115 of PPSA upon enforcement; (iii) to the fullest extent permitted by the PPSA, contractsout of its rights to receive any other notice or statement under any other provision of the PPSA; (iv) agrees to pay all costs incurred by Frost in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR or enforcing or attempting to enforce the security interest created by the Contract including executing subordination agreements; and (v) is responsible for the full costs incurred by Frost (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA. (f) If the Buyer defaults in the performance of any obligation to Frost under the Contract or any other agreement for Frost to provide Goods to the Buyer, Frost may enforce its security interest in any Goods by exercising all or any of its rights under the Contract or the PPSA. (g) Without prejudice to any rights of Frost under this clause 10, and otherwise to the maximum extent permitted by law, the Buyer grants to Frost and its employees, agents and contractors, an irrevocable and unrestricted licence to enter, without notice, any premises owned or occupied by the Buyer for the purposes of identifying and removing, at its option, any Goods belonging to Frost and otherwise to exercise Frosts rights under the PPSA.

11. Information and Documents

(a) The Buyer must ensure that all documents and information provided to Frost in relation to the Supply are accurate and that any use of such material by Frost for the purposes of the Supply does not infringe the rights of any third party. The Buyer indemnifies Frost from and against all claims, losses and damages incurred by Frost in relation to any actual or alleged breach of a third party’s rights, including intellectual property rights, as a result of Frost using or relying on any such materials. (b) All intellectual property rights in the Goods or any plans, designs or other documents or materials created or provided by Frost in relation to the Supply (Frost Materials) remain the property of Frost. The Buyer must not, without Frost’s permission, distribute or copy or use any Frost Materials for any purpose other than to receive the benefit of the Supply. (c) Although every care is taken, Frost does not accept responsibility for any incorrect dimensions or omission of details in any brochures, service plans or drawings. (d) The Price allows for Frost’s costs of undertaking designs and preliminary layouts provided to the Buyer with the Quote. If the Buyer does not accept the Quote, the Buyer must reimburse Frost for those costs on demand.

12. Termination

In addition to any other right of termination: (a) Frost may terminate the Contract immediately by notice to the Buyer if the Buyer breaches the Contract and fails to remedy the breach within 7 days of receiving written notice from Frost requiring the Buyer to do so; (b) the Buyer may terminate the Contract immediately by written notice to Frost, if Frost breaches the Contract and fails to remedy the breach within 14 days of receiving written notice from the Buyer requiring Frost to do so.

13. Governing Law and Jurisdiction

The Contract will be governed by and construed in accordance with the laws in force in the State of New South Wales and Frost and the Buyer submit to the non-exclusive jurisdiction of the courts of that State.

ANNEXURE A – WARRANTY TERMS

1. These warranty terms apply to the supply of goods or services by Frost Catering Equipment Pty Ltd (Frost), except as otherwise expressly agreed by Frost in writing (Warranty Terms).
2. 2. In these Warranty Terms: (a) ‘Buyer’ means the person to whom Goods and/or Services are supplied or are to be supplied by Frost; (b) ‘Contract’ means a contract for the supply of goods or services by Frost to a Buyer; (c) ‘Defect’ means a defect, deficiency or other fault in materials or workmanship, and ‘Defective’ has a corresponding meaning; (d) ‘Excluded Goods’ means quartz lamps, ceramic frets, spark probes, globes and glass. (e) ‘Goods’ means any goods supplied or to be supplied by Frost to the Buyer pursuant to the Contract; (f) ‘Proper Use’ means installation, commissioning, operation and maintenance in accordance with Frost or manufacturer’s documentation; (g) ‘Services’ means any services supplied or to be supplied by Frost to the Buyer pursuant to the Contract; (h) ‘Third Party Goods’ means Goods purchased by Frost from a third party either for incorporation into equipment manufactured by Frost or for sale to the Buyer; and (i) ‘Warranty Period’ means, except as otherwise provided in the Contract: (i) for Goods, 12 months from the date of delivery; and (ii) for Services, 3 months from the date of performance; (b) ‘Warranty Service Request Form’ means the warranty service request form published on Frost’s website or otherwise made available by Frost to the Buyer, from time to time.
3. Third Party Goods purchased by Frost from a third party either for incorporation into equipment manufactured by Frost or for sale to the Buyer are subject to any warranties provided by the supplier or manufacturer. To the maximum extent permitted by law, Frost does not give any warranty with regard to such goods, but will provide reasonable assistance to the Buyer to enforcethe Buyer’s rights against the supplier or manufacturer.
4. Frost warrants that the Goods and Services supplied under the Contract will, under Proper Use, be free from Defects during the Warranty Period (Warranty Against Defects). This Warranty Against Defects does not apply to Excluded Goods.
5. Frost’s obligation to provide the Warranty Against Defects will not extend to any defect or failure caused by fair wear and tear, designs, specifications or any things outside Frost’s scope of supply, accidents, misuse, wilful damage, neglect, failure to service or maintain in accordance with Frost’s or the manufacturer’s instructions, lack of Proper Use, or repairs or modifications to Goods or Services which have been made without Frost’s prior written approval.
6. The Warranty Against Defects is provided by: Frost Catering Equipment Pty Ltd 115 Stenhouse Drive Cameron Park NSW 2285 Telephone: 1300 376 787 Email: admin@frostcatering.com.au
7. If the Buyer considers the Good or Services to be Defective, it must: (a) give Frost notice of the alleged Defect during the Warranty Period by completing and submitting a Warranty Service Request Form to Frost; and (b) allow Frost or its nominee to inspect the Goods or results of the Services within a reasonable time after such notification.
8. If Frost agrees that the Goods or Services are Defective, Frost will, at its option, and subject to these Warranty Terms: (a) repair or replace the Defective goods or pay the cost of the repair or replacement of those Goods; and/or (b) re-perform the Defective Services or pay the cost of their reperformance,(Warranty Services).
9. The Buyer must bear its own costs of making a claim under the Warranty Against Defects, provided that if it is necessary to return Defective Goods, Frost will arrange for the collection and, where relevant, the supply of replacement Goods at Frost’s cost.
10. The Warranty Against Defects does not extend to the provision by Frost of on-site Warranty Services at a location more than 50km from a Frost service depot. If the Buyer requests the provision of Warranty Services at such a location, Frost may, in its absolute discretion, agree to provide such services subject to the Buyer agreeing to pay such travel and other charges as notified by Frost prior to undertaking the relevant services.
11. Frost will use reasonable endeavours to perform the Warranty Services as soon as reasonably practicable and in a manner which minimises any disruption and inconvenience to the Buyer, however, Frost is not required to perform the Warranty Services outside the hours of 8.00am to 4.30pm on business days, but may agree to do so subject to the Buyer agreeing to pay an after-hours call out charge as notified by Frost prior to undertaking the relevant services.
12. This clause 12 applies if the Buyer is a ‘Consumer’ as that term is defined in the Australian Consumer Law which is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).(a) Frost acknowledges the benefits given by the Warranty Against Defects are in addition to any rights or remedies available to the Consumer under the Australian Consumer Law or any other applicable consumer protection laws in relation to the Goods or Services; and (b) Frost provides the following statement: Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
    1.  to cancel your service contract with us; and
    2. to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund for any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
13. Frost makes no other warranty to any person (including the Buyer) in relation to the Goods or Services except those expressly set out in the Contract and those warranties which cannot be specifically excluded under law, including the Australian Consumer Law, and Frost expressly excludes all other terms, conditions, warranties, undertakings, inducements or representations, whether expressly or implied or implied by statute.