The terms and conditions below (Online Terms) relate to the supply by CUB Pty Ltd (ACN 004 056 106) (CUB) of its range of beverages to the CUB customer.
Online account
1.1 In these Online Terms, unless the context indicates otherwise, ‘CUB Customer’ refers to the legal entity (such as a company) that wishes to purchase goods from CUB that are specified in an Order (Goods).
1.2 CUB will issue an online account (Account) to the CUB Customer to enable the CUB Customer to place orders to purchase Goods that are advertised on the CUB website (Order).
1.3 The CUB Customer may appoint one or more individuals as an agent of the CUB Customer. Once the individual accepts the Terms and Conditions for individual authorised users, then that individual will be appointed as the CUB Customer’s agent and will be referred to as an Authorised User in the Online Terms.
1.4 The CUB Customer warrants that an Authorised User appointed under clause 1.3 has the authority to:
(a) Bind the CUB Customer to the Online Terms; and
(b) Place Orders from time to time using the CUB Customer’s account.
1.5 The CUB Customer must submit all orders via its account.
1.6 The CUB Customer is responsible for maintaining the confidentiality and integrity of its account information, including its login details.
1.7 The CUB Customer is responsible for keeping its account information, secure confidential and up to date, including its email addresses, billing and delivery addresses, telephone numbers and direct debit or other relevant payment details.
1.8 The CUB Customer agrees that:
(a) It is responsible for all orders placed through its account by any individual irrespective of whether or not that individual has been properly appointed as an authorised user by the CUB customer to place an order on the CUB customer’s behalf; and
(b) CUB may rely on any representation made by an individual that it is an authorised user and permitted to place an order on the CUB customer’s behalf.
Formation of agreement
2.1 The CUB Customer acknowledges and agrees that by submitting an Order the CUB Customer makes an offer (Offer) to CUB for CUB to supply it with the Goods.
2.2 The CUB Customer acknowledges that it may only make an Offer for Goods which are being advertised to the CUB Customer via the CUB website at the time the Offer is made.
2.3 A contract will be formed between CUB and the CUB customer in respect of an offer when CUB notifies the CUB customer in writing that it accepts the offer by emailing the CUB customer a dispatch confirmation notice or the goods are delivered in accordance with clause 4 (Agreement).
2.4 Each contract which is formed under clause 2.3 will comprise of the terms in the order and the online Terms. The CUB customer acknowledges that an order to supply the goods may also require CUB to include the delivery of equipment including kegs, casks, barrels, reusable drums and pallets (Delivery Equipment).
2.5 CUB is not bound to accept any offer and may not accept any offer for any reason and in the sole discretion of CUB.
Price and payment
3.1 Unless otherwise agreed by the parties, the price the CUB customer must pay for the goods will be the price for the goods as displayed in the CUB customer’s account and any applicable delivery fee.
3.2 Prices shown in the CUB customer account are in Australian dollars and inclusive of GST. Prices are subject to change effective immediately upon posting to the website or other form of notification.
3.3 If GST is payable on any supply made by CUB under these online terms, the CUB customer must pay CUB, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the CUB customer is required by these online terms to reimburse or indemnity CUB for any loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that CUB will be entitled to claim for the loss or amount incurred and increased by the amount of any GST payable by CUB in respect of the reimbursement or payment. In this clause, words and expressions which are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) have the same meaning given to them by the GST Act.
3.4 The CUB customer must pay CUB for the goods using the payment method available to the CUB customer through its account at the time it places an Order. The CUB Customer consents to the total amount payable by the CUB customer for the goods being debited immediately from its nominated account by CUB (or an authorised third party) when the CUB customer submits an order.
3.5 CUB will not be responsible for any fees, charges or penalties that the CUB customer’s bank may charge it in the event CUB debits an amount from the CUB customer’s nominated account which exceeds the amount of funds currently deposited in that account.
Delivery of Goods
4.1 CUB will deliver the Goods to the CUB customer by:
(a) The CUB customer or its agents collecting the goods at CUB’s (or a CUB supplier’s) premises;
(b) CUB delivering the goods to the place of delivery specified in an order; or
(c) A method otherwise agreed between CUB and the CUB customer.
4.2 Where the CUB customer has agreed to collect the goods at CUB’s (or our supplier’s) premises, CUB will endeavour, but is not obliged to, procure that the goods will be available for collection by the CUB customer or its agents between the hours of 9.00 am and 5.00 pm Monday to Friday (excluding public holidays) at the place of collection specified in an order.
4.3 Where CUB is required to deliver the goods, CUB will endeavour, but is not obliged, to deliver goods between the hours of 9.00 am and 5.00 pm Monday to Friday (excluding public holidays) at the place of delivery specified in an order.
4.4 If the CUB customer returns or fails to accept or collect any delivery of the goods, CUB shall be entitled to payment of those goods and treat the obligation to supply the remainder of the Goods (if any) as cancelled by the CUB customer. The CUB customer will be responsible for the storage cost and risk of any goods that the CUB customer returns or fails to take delivery until the risk in the goods passes to CUB in accordance with clause 6.4.
4.5 CUB will use reasonable endeavours to deliver the goods on any specified delivery date estimated by CUB. However, delivery and dispatch dates are estimates only and CUB will not, in any circumstances or for any reason, be liable for late or part delivery of the goods and later deliver of the goods does not entitle the CUB customer the right to cancel any order for the goods.
4.6 There must be a representative of the CUB customer present at the delivery or collection location at the time the goods are delivered or collected, and if no representative is present, a redeliver fee may be charged by CUB.
4.7 Where CUB delivers any delivery equipment with the goods, all delivery equipment must be handled by the CUB customer in accordance with clauses 6.6 and 6.7.
Return of Goods
5.1 Subject to clause 9, if the CUB customer believes the goods supplied by CUB are not in accordance with the description, quality or quantity set out in an order, the CUB customer must notify CUB within two business days of the date of delivery or collection of the goods.
5.2 Subject to clause 9, if CUB, at its sole discretion, determines that the goods specified in the CUB customer’s notice do not meet the description, quality or quantity set out in an order, CUB may, at its sole discretion, supply replacement goods to the CUB customer or provide the CUB customer with a credit to be applied against future orders.
5.3 Subject to clause 9, all goods returned for replacement or credit under this clause 5 must be packed in their original containers by the CUB customer and if the goods are soiled or damaged the goods may be rejected by CUB or credited at a reduced amount in CUB’s sole discretion.
Title and risk of Goods
6.1 Title to, and property in, any goods supplied to the CUB customer remain with CUB and will only pass to the CUB customer once all moneys owing to CUB have been paid in full.
6.2 Risk in the goods passes to the CUB customer upon the goods being removed from CUB’s premises (or that of CUB’s supplier) for delivery to, or collection by, the CUB customer.
6.3 The CUB customer is responsible for arranging, and taking out in its own name and cost, any insurance in respect of the goods from the time risk passes to the CUB customer under clause 6.2.
6.4 In the event the CUB customer is required to return any goods to CUB, risk in the goods passes to CUB on confirmation of receipt of the goods by CUB.
6.5 Until full title in and ownership of the goods passes to the CUB customer in accordance with clause 6.1 and while the goods remain in the CUB customer’s full control and possession, the CUB customer holds the goods as CUB’s bailee and must not sell, lease, dispose of or otherwise deal with the goods in any way without CUB’s prior written consent.
6.6 Property in delivery equipment supplied by CUB with the goods will not pass to the CUB customer. The CUB customer is entitled to hold the delivery equipment on behalf of CUB only for the purposes of the consumption of the liquid content or its resale or such other purpose permitted by CUB. Subject to CUB’s prior agreement, and provided that the pallets are in good order and condition, any pallets supplied by CUB may be exchanged with the CUB customer’s pallets or a pallet dehire arrangement may operate. All empty kegs, reusable drums and pallets will be returned to CUB at the CUB customer’s cost. Where delivery is arranged by CUB, the CUB customer must retain these items in good order and condition until collected by CUB or its authorised agent. If pallets are not returned, exchanged or dehired, a fee equivalent to the cost of the pallets or the pallet hiring charge plus GST and any other expenses incurred by CUB may be invoiced to the CUB customer.
6.7 The CUB customer warrants that any delivery equipment is not, and will not become, a fixture, and further agree to allow CUB to do such things as it considers necessary to ensure that equipment does not, and will not become, a fixture (including un-affixing equipment). Where required by CUB, the CUB customer will procure consents from the landlord and any freehold mortgagee of premises in which any equipment is located, in a form reasonably required by CUB, to ensure that CUB’s rights to any equipment are protected.
6.8 CUB warrants that it has the right to sell and transfer full and unencumbered title to, and property in the Goods, to the CUB customer.
Use of Goods
7.1 Unless otherwise agreed in writing by CUB, goods supplied to the CUB customer by CUB and intended by the CUB customer to be dispensed for consumption on licenced premises shall be dispensed from taps and other devices bearing CUB’s product name or other logo associated with the product. No goods shall be dispensed for consumption from:
(a) A tap or device bearing the name or logo unless the goods relate to that name or logo; or
(b) An unbranded tap.
7.2 The CUB customer must not alter, damage, remove or tamper with any packaging that the goods are supplied in, such as bottles, cans, kegs and casks.
7.3 Goods supplied by CUB and intended by the CUB customer for consumption on licensed premises shall not be mixed with other liquids or substances except at the express request of a consumer for the purposes of consumption.
7.4 The CUB Customer warrants that it holds all necessary regulatory approvals (including licences) to sell the goods to consumers.
7.5 Unless otherwise agreed in writing by CUB, CUB sells the goods to the CUB customer for resale in Australia only. The CUB customer must not sell or otherwise supply the goods:
(a) Outside of Australia; or
(b) In Australia where the CUB customer knows, believes or ought reasonably suspect that the goods are intended for resale outside of Australia.
7.6 If CUB sells Goods to the CUB customer for sale outside Australia, the CUB customer must not sell or otherwise supply the goods:
(a) Inside of Australia; or
(b) Outside Australia where the CUB customer knows, believes or ought reasonably suspect that the goods are intended for resale inside Australia.
7.7 The CUB customer must indemnity CUB and keep CUB indemnified against all actions, claims, proceedings or demands which may be brought against it,
arising out of any breach of clauses 7.5 or 7.6 by the CUB customer. Furthermore, if the CUB customer breaches these clauses, in addition to any other rights CUB may have, the CUB customer will forfeit any discounts, allowances or rebates.
7.8 Unless CUB directs otherwise, the CUB customer is authorised to sell the goods pursuant to any bona fide transaction in the normal course of its business and the CUB customer assigns the proceeds of such sale to CUB absolutely and not by way of security. The proceeds of sale of any goods owned by CUB received by the CUB customer shall be deposited by the CUB customer on trust for CUB separately from any other funds or moneys until such time as the CUB customer has paid for the goods in full. The CUB customer acknowledge that the sale of the goods by an administrator or receiver shall not be a sale in the ordinary course of the CUB customer’s business.
PPSA
8.1 Words and expressions used in this clause 8 which are not defined in these Online Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
8.2 Unless the CUB Customer has paid for the Goods in respect of an Order before they are delivered to the CUB Customer, the CUB Customer acknowledges that:
(a) The agreement for the supply of Goods and Delivery Equipment (excluding pallets) created under these Online Terms is a security agreement for the purposes of the PPSA, under which the CUB Customer grants CUB a security interest in the Goods and Delivery Equipment (excluding pallets) to secure all monies owing by the CUB Customer to CUB from time to time;
(b) Where CUB has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
(c) CUB is not obliged to act in any way to dispose of or to retain any Goods and Delivery Equipment (excluding pallets) which have been seized by CUB or any person nominated by CUB under its rights under the PPSA.
8.3 Without limiting anything else in these Online Terms, the CUB Customer consents to CUB effecting a registration on the Personal Property Securities
Register (PPSR) in relation to any security interest created by or arising in connection with, or contemplated by, these Online Terms, including in relation to the Goods and Delivery Equipment (excluding pallets). The CUB Customer agrees to promptly do all things necessary to ensure that any security interest created under these Online Terms is perfected and remains continuously perfected, CUB’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
8.4 The CUB Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by CUB for that purpose in relation to the Goods and Delivery Equipment (excluding pallets). Without limiting the foregoing, the CUB Customer must:
(a) Create and implement appropriate policies and systems to register a security interest in relation to the Goods and Delivery Equipment (excluding pallets) where the CUB Customer on sells the Goods and Delivery Equipment (excluding pallets) to a third party; and
(b) Where appropriate, take reasonable steps to identify security interests in relation to the Goods and Delivery Equipment (excluding pallets) in the CUB customer ‘s favour and to perfect and protect them, with the highest priority reasonably available.
8.5 The CUB Customer must indemnify, and on demand reimburse, CUB for all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for the enforcement of any rights arising out of any of CUB’s security interests.
8.6 The CUB Customer must not change its name, address or contact details without providing prior written notice to CUB and must not register a financing change statement or a change demand without CUB’s prior written consent.
8.7 To the extent that the PPSA permits, the CUB Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
8.8 The CUB Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, where CUB has given prior written consent.
Warranties and liabilities
9.1 Words and expressions used in this clause 9 which are not defined in these Online Terms but are defined in the Competition and Consumer Act 2010 (Cth) (ACL) have the meaning given to them in the ACL.
9.2 If the CUB Customer is a consumer and CUB supplies Goods which, for the purposes of the ACL, are of a kind ordinarily acquired for personal, domestic or household use or consumption (PDH Goods), CUB acknowledges that the CUB Customer may have certain rights under the ACL in respect of the consumer guarantees as they apply to the PDH Goods supplied by CUB and nothing in these Online Terms should be interpreted as attempting to exclude, restrict or modify the application of those rights.
9.3 If the CUB customer is a consumer and any goods supplied by CUB to the CUB customer are non PDH goods, CUB’s liability to the CUB customer in connection with any breach of the consumer guarantees in respect of those non PDH goods is limited (at CUB’s discretion) to the cost of CUB resupplying the non PDH goods or payment of the cost of having the non PDH goods supplied again.
9.4 To the extent permitted by law, CUB expressly excludes all liability in respect of the Goods supplied by CUB to the CUB Customer, if
(a) The CUB Customer is not a consumer; or
(b) The ACL does not apply.
9.5 If CUB is liable to pay damages to the CUB Customer under the ACL in relation to the supply of Goods which are non PDH Goods, CUB’s liability to the CUB Customer is limited to an amount equal to the lower of:
(a) The cost of replacing the goods by CUB or a third party;
(b) The cost of obtaining equivalent goods by CUB or a third party; or
(c) The cost of having the goods repaired by CUB or a third party.
9.6 Without limiting any other provisions in these Online Terms, CUB is not liable for any loss the CUB customer suffers as a result of:
(a) Improper use or consumption of the goods; and
(b) Misuse or neglect of the goods or any other use or consumption of the goods which is outside of the ordinary commercial application of the goods or is otherwise inconsistent with CUB’s instructions in relation to the use or consumption of the goods.
9.7 The aggregated liability of CUB to the CUB customer arising out of or in connection with the agreement, will in no event exceed an amount equal to the amount of the price payable by the CUB customer under that contract.
Indemnity
10.1 The CUB Customer indemnifies and holds CUB harmless from and against all losses (including all legal costs, and any other associated fees and costs) for which CUB incurs as a direct or indirect result of:
(a) Recovering any amounts the CUB Customer owes to CUB (including any fees paid to a debt collector or similar);
(b) Any breach of the Agreement by the CUB Customer; or
(c) Any negligent or wilful act or omission by the CUB Customer, the CUB Customer’s employees, agents, servants, contractors or others for whom the CUB Customer is legally responsible.
Privacy
11.1 CUB handles personal information in accordance with its Privacy Policy. A copy of CUB’s Privacy Policy can be found online.
Marketing
12.1 CUB may send the CUB Customer, its employees and agents information, advertising, promotional or other marketing material from time to time. This material may be in relation to the Goods the CUB Customer has ordered, or other products or information that CUB may consider to be relevant, useful or otherwise informative to the CUB Customer. To unsubscribe from receiving this information, please ‘Contact Us ’.
Termination
13.1 Without limiting CUB’s other rights under these Online Terms, CUB may terminate an Agreement with immediate effect by written notice to the CUB Customer if:
(a) A receiver, receiver and manager, liquidator, provisional liquidator or official manager, administrator, controller or trustee in bankruptcy is appointed over all or any of the CUB Customer’s assets or a scheme of arrangement is proposed or approved in respect of the CUB Customer;
(b) A petition is presented for the winding up or bankruptcy of the CUB Customer; or
(c) The CUB customer breaches any term of an Agreement, including these Online Terms.
13.2 On termination of the Agreement, the CUB Customer must, at its own cost and within 10 days of the date of termination, return to CUB all Goods the subject of an Agreement (other than any Goods which have been paid for by the CUB Customer) and any displays or other promotional materials in relation to the Goods.
13.3 In addition to CUB’s termination rights in clause 13.1, CUB may, at its sole discretion, close the CUB customer’s online account immediately by providing written notice to the CUB customer or an authorised representative, if the CUB customer breaches any term of an agreement, including these Online Terms.
13.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
Miscellaneous
14.1 The CUB customer acknowledges and agrees that it has not relied on any representations, inducements or statements made to it by CUB regarding the supply of the goods and the CUB customer has satisfied itself that the goods are fit for the purposes the CUB customer requires the goods.
14.2 The CUB Customer must not assign or otherwise deal with any of its rights or obligations under these Online Terms without CUB’s prior written consent. CUB may assign, subcontract or deal with any of its rights or obligations under these Online Terms at any time and without any requirement to notify the CUB customer.
14.3 The contract formed under clause 2.3 constitutes the entire agreement between the CUB customer and CUB in respect of the supply of the goods and supersedes all previous communications, representations, understandings or agreements.
14.4 If any provision of these Online Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Online Terms without affecting the validity or enforceability of the remaining provisions.
14.5 These Online Terms are governed by the laws in force in Victoria, and the CUB Customer and CUB submit to the non-exclusive jurisdiction of the courts of Victoria.
14.6 A failure to exercise or delay in exercising any rights under these Online Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Online Terms must be in writing and is only effective to the extent set out in that written waiver.
14.7 In these Online Terms:
(a) The singular includes the plural and vice versa;
(b) The word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) A reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(e) Headings are inserted for convenience and do not affect the interpretation of these Online Terms;
(f) No provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Online Terms or the inclusion of the provision in the Online Terms; and
(g) All monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
Individual Authorised Users Terms and Conditions
A Carton & United Breweries customer (CUB Customer) may nominate one or more individuals as an agent (Authorised Users) to place online orders to purchase goods advertised by CUB, on its behalf. CUB may grant an Authorised User access to a CUB customer’ online account to enable that authorised User to order goods in accordance with the CUB Online Conditions of Sale above. Authorised users must agree to the following terms in order to gain access to a CUB customer’s online account. I understand and agree that:
(a) I am authorised to act as an agent on behalf of the CUB customer in relation to the CUB online conditions of sale;
(b) Without limiting the above, I have the authority from the CUB customer to bind the CUB customer to the CUB online conditions of sale, including to purchase goods on behalf of the CUB customer;
(c) I must only access and use the online account to purchase goods on behalf of a CUB Customer and for no other purpose;
(d) I am responsible for protecting the confidentiality and integrity of my online account login details and password; and
(e) I am responsible for the day to day administration of my individual online account information, such as regularly changing my password, keeping my account details up to date and notifying the account administrator if I no longer require access.