Coffee Services Agreement
Maicap Coffee Pty Ltd ACN 646 893 441 (Biz-Cup)
The party specified in Item 1 of the Schedule (Customer)
The party specified in Item 2 of the Schedule (Guarantor)
Parties
- MAICAP COFFEE PTY LTD ACN 646 893 441 of 8 Croydon Road, Keswick SA 5035 (Biz-Cup)
- The party specified in Item 1 of the Schedule (Customer)
- The party specified in Item 2 of the Schedule (Guarantor)
Background
- Biz-Cup supplies a managed coffee solution to business customers and, as part of that solution, Biz-Cup may provide equipment, consumables, accessories, maintenance-related items and related services.
- The Customer wishes to acquire, and Biz-Cup agrees to supply, the Services on the terms of this Agreement.
Operative Provisions
1. Definitions and interpretation
Definitions. In this Agreement unless the context otherwise requires:
Accessories means any grinder, milk fridge, water filtration system or other accessory, ancillary item or related equipment supplied by Biz-Cup in connection with the Services.
Additional Charges means any charges for delivery, installation, removal, servicing, replacement, damage, Customer Error, filter replacement or other charges notified by Biz-Cup.
Agreement means this Coffee Services Agreement.
Biz-Cup Personnel means any director, officer, employee, agent, representative, volunteer or contractor of Biz-Cup other than Customer Personnel.
Business Day means any day upon which trading banks in the State are open for business not being a Saturday, Sunday or public holiday pursuant to the relevant State law.
Commencement Date means the date specified in Item 6 of the Schedule.
Confidential Information means all confidential information treated by Biz-Cup as confidential including, but not limited to: Personal Information; personal, financial, and other information concerning Biz-Cup Personnel, suppliers and customers; trade secrets, know-how and confidential business methods; financial, accounting, marketing and technical information, customer and supplier lists, pricing information, operating procedures, databases, source codes, software, systems, methodologies and other proprietary information of Biz-Cup; any information of which the Customer or any of its officers, employees, agents or contractors becomes aware or which it generates in the course of or in connection with this Agreement or the supply of the Services; any confidential information of a third party disclosed to or accessed by the Customer through Biz-Cup or in connection with this Agreement; all notes, analyses, compilations, reports, records and copies based on, derived from or incorporating any such information; and the terms of this Agreement, but does not include any information that was public knowledge at the date of this Agreement or became so at a later stage (other than as a result of a breach of confidentiality by, or involving, the Customer).
Consumables means the coffee, cups, lids, chocolate, chai, sugar and other consumable products supplied by Biz-Cup.
Customer means the party specified in Item 1 of the Schedule and includes its officers, employees, agents, contractors, successors and permitted assigns.
Customer Error means any loss, damage, malfunction, performance issue or service requirement arising directly or indirectly from: (a) misuse, abuse, neglect or improper operation of the Equipment; (b) use of the Equipment otherwise than in accordance with Biz-Cup’s instructions; (c) use of non-approved consumables, accessories or cleaning products; (d) unauthorised interference with, modification to, relocation of or repair to the Equipment; (e) failure to maintain required utilities, water quality, site conditions or operating environment; or (f) any act or omission of the Customer or any person at the Site other than Biz-Cup Personnel.
Customer Personnel means any officer, employee, agent or contractor of the Customer.
Delivery means, as applicable: (a) for Equipment, the time at which the Equipment is delivered to or installed at the Site; and (b) for goods supplied separately under this Agreement, the time at which the Customer takes possession of those goods or they leave Biz-Cup’s premises where Biz-Cup has arranged carriage at the Customer’s request.
Equipment means any coffee machine, grinder, milk fridge, water filtration system or other plant, equipment or item supplied by Biz-Cup to the Customer as part of the Services, including any item described in Item 8 of the Schedule, and includes any replacement, substituted or additional equipment.
Fees means all amounts payable by the Customer under this Agreement, including the Service Fees and all Additional Charges.
Force Majeure Event means any act, event or circumstance beyond a party’s reasonable control, including act of God, fire, flood, storm, earthquake, war, riot, civil commotion, governmental action, labour shortage, supply chain interruption, utility failure or transport disruption.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantor means each person who signs this Agreement, a guarantee schedule or any related document as guarantor and includes their executors, administrators, successors and assigns.
Minimum Term means the minimum period specified in Item 7 of the Schedule (if any).
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
Privacy Law means: (a) the Privacy Act 1988 (Cth); (b) the Australian Privacy Principles; and (c) any other applicable law relating to the collection, use, storage or disclosure of Personal Information.
Security Interest has the meaning given in the PPSA.
Service Fees mean the recurring fees payable by the Customer to Biz-Cup for the Services, as described in Item 5 of the Schedule or otherwise notified by Biz-Cup in accordance with this Agreement.
Services means the managed coffee solution supplied by Biz-Cup to the Customer under this Agreement, including the Equipment, goods and services specified in Item 8 of the Schedule for one or more Sites and any other goods or services supplied by Biz-Cup under this Agreement.
Site means each premises specified in Item 3 of the Schedule or otherwise approved by Biz-Cup in writing where any part of the Services is supplied or any Equipment is located.
Special Conditions means the special conditions specified in Item 9 of the Schedule.
State means the State or Territory described in Item 4 of the Schedule.
Term means the period commencing on the Commencement Date and continuing for the Minimum Term and thereafter until terminated in accordance with this Agreement.
Interpretation. In this Agreement unless the context otherwise requires: headings are for ease of reference and do not affect the interpretation of this Agreement; the singular includes the plural and vice versa; words denoting any gender include all genders; other grammatical forms of defined words have corresponding meanings; references to clauses, parties, persons, legislation and currency carry their usual contractual meaning; the Annexures, Schedules and Background form part of this Agreement; a provision must not be construed against a party merely because that party drafted it; and each provision is to be read as severable so that the invalidity of one provision does not affect the remainder.
2. Nature of Relationship
The parties acknowledge and agree that this Agreement is a commercial agreement for the supply by Biz-Cup of the Services to the Customer; Biz-Cup supplies the Services as an independent service provider and not as an employee, agent, partner or fiduciary of the Customer; nothing in this Agreement creates a relationship of employment, partnership, joint venture, agency or trust between the parties; and the Customer has no authority to bind Biz-Cup, and Biz-Cup has no authority to bind the Customer, except as expressly stated in this Agreement.
3. Nature of Agreement
Biz-Cup agrees to supply the Services to the Customer, and the Customer agrees to acquire the Services from Biz-Cup, on the terms of this Agreement. The parties acknowledge and agree that this Agreement is for the supply of an integrated managed coffee service; any Equipment supplied by Biz-Cup is supplied as part of that service and not by way of sale unless Biz-Cup expressly agrees otherwise in writing; title to the Equipment remains vested in Biz-Cup at all times; and the Customer has only a contractual right to use the Equipment at the Site during the Term, subject to this Agreement. Nothing in this Agreement gives the Customer any proprietary interest in the Equipment.
4. Term
This Agreement commences on the Commencement Date and continues for the Minimum Term. Following expiry of the Minimum Term, this Agreement continues on a month-to-month basis unless and until terminated in accordance with clause 19.
5. Services
Biz-Cup will supply the Services to the Customer during the Term in accordance with this Agreement. Without limitation, the Services may include: provision, installation and commissioning of Equipment; provision of Accessories; supply of Consumables; routine servicing, support, maintenance and troubleshooting; supply and replacement of water filters and related components; repair or replacement of Equipment or components; and any other services or items specified in Item 8 of the Schedule or otherwise agreed by Biz-Cup.
Biz-Cup may, at any time and in its discretion, replace any Equipment with equipment of equivalent or superior functionality; vary the brands, types or specifications of Consumables or Accessories supplied; temporarily suspend the Services where reasonably necessary for servicing, repairs, safety, non-payment, breach or operational reasons; and determine the method, timing and manner of supplying the Services, provided Biz-Cup acts reasonably.
If Biz-Cup provides any Equipment to the Customer as part of the Services, the Customer must exercise due care and diligence in the use, custody and control of the Equipment; keep the Equipment clean and in good operating condition (subject to fair wear and tear and Biz-Cup’s maintenance obligations); is responsible for the Equipment, including any loss or damage to it, from delivery until return; must use the Equipment only at the Site and only for its intended purpose and in accordance with Biz-Cup’s instructions; must not part with possession of, relocate, alter, tamper with, repair or permit any third party to use or interfere with the Equipment without Biz-Cup’s prior written consent; must not sell, dispose of, encumber, part with possession of or on-hire the Equipment; and must immediately make the Equipment available to Biz-Cup for inspection, servicing, replacement, decommissioning or collection on request or on termination.
Biz-Cup is not obliged to supply any goods or services outside the scope of the Services unless separately agreed in writing. Where the Services are supplied to more than one Site, this Agreement applies separately and collectively to all Sites and Equipment, and a breach relating to one Site or Equipment is deemed a breach of the Agreement as a whole.
6. Site Conditions, Access and Customer Obligations
The Customer must, at its cost: ensure the Site is safe, suitable, accessible and properly prepared for delivery, installation, servicing and removal of the Equipment; provide and maintain all required utilities and connections, including adequate power, water supply, drainage and any other services reasonably required; ensure the Site remains free from obstructions and reasonably accessible to Biz-Cup Personnel; and provide Biz-Cup with all reasonable assistance and access required to supply the Services.
If the Site is not ready, safe or accessible when Biz-Cup attends, Biz-Cup may charge the Customer its reasonable abortive attendance, delay, transport, labour, storage and related costs. The Customer is responsible for ensuring that all Customer Personnel comply with this Agreement and any reasonable instructions of Biz-Cup. The Customer must give Biz-Cup at least 7 days’ prior written notice of any proposed change in the Customer’s structure, ownership, control, directorship, shareholders, trusteeship, partnership, business name or management, or any proposed sale or disposition of any substantial part of the Customer’s business or assets.
7. Quotes, Orders and Variations
Any quotation provided by Biz-Cup is an estimate only, unless expressly stated otherwise, and remains open for acceptance for 7 days unless Biz-Cup specifies a different period in writing. A quotation does not constitute a binding offer by Biz-Cup and may be withdrawn, corrected or altered at any time before Biz-Cup accepts the Customer’s order. Biz-Cup may vary or withdraw any quotation if the Customer provides incomplete or inaccurate information; the Customer varies the order or scope of Services; there is delay caused by the Customer; Biz-Cup agrees to provide additional goods or services after the quotation date; Biz-Cup experiences supplier or operating cost increases; or a circumstance beyond Biz-Cup’s reasonable control requires the variation. No order is binding on Biz-Cup unless and until accepted or confirmed by Biz-Cup.
8. Exclusivity and Approved Products
The Customer must exclusively purchase from Biz-Cup, and exclusively use with the Equipment, all Consumables and any Accessories or related products that Biz-Cup reasonably requires for the operation, performance, protection or servicing of the Equipment. The Customer must not use any coffee, chocolate, chai, cups, lids, cleaning products, filters, accessories or other items with the Equipment unless supplied or approved by Biz-Cup. Any use of non-approved products constitutes a material breach and any resulting issue, malfunction, loss or damage will be deemed Customer Error.
9. Fees and Payments
In consideration of Biz-Cup supplying the Services, the Customer must pay the Fees. Unless otherwise agreed in writing, all Service Fees are payable monthly in advance. Biz-Cup may invoice the Customer for Service Fees monthly in advance; Consumables as supplied; Additional Charges as incurred or anticipated; and any other amount payable. The Customer must pay each invoice in full by the due date, without set-off, deduction, withholding or counterclaim. In the event of a genuine dispute, the Customer must still pay the undisputed portion by the due date. Biz-Cup may require payment by direct debit, credit card or other nominated payment method, and may impose reasonable administration fees or card surcharges.
If the Customer fails to pay any amount when due: interest accrues on the overdue amount at a rate equal to 2% per annum above the rate charged from time to time by the Commonwealth Bank of Australia on overdraft accounts, calculated daily; Biz-Cup may suspend supply of the Services immediately until all overdue amounts are paid; all costs of recovery (including legal costs on a full indemnity basis and debt collection agency fees) are recoverable as a debt due; and Biz-Cup may apply payments first to interest, charges, costs and expenses and then to the principal debt.
If the Customer has provided direct debit details, the Customer consents to Biz-Cup debiting those details for all amounts payable, including overdue amounts. Biz-Cup may vary the Fees from time to time by notice, including to reflect CPI increases, supplier cost increases, increases in coffee bean prices, changes in operating costs, changes in law, changes to the Services or other reasonable commercial factors.
10. Delivery, Risk and Goods Supplied Separately
Risk in the Equipment passes to the Customer on Delivery and remains with the Customer until the Equipment is returned to or collected by Biz-Cup. If Biz-Cup supplies any goods separately, risk in those goods passes in accordance with the definition of Delivery. Where the Customer requests special delivery arrangements or that Biz-Cup arrange carriage, risk in goods supplied separately passes when the goods leave Biz-Cup’s premises. If delivery, installation, servicing or collection is delayed by the Customer, the Customer is liable for any resulting extra charges, losses or expenses.
11. Defects, Warranty and Service Issues
The Customer must notify Biz-Cup within 7 Business Days after Delivery of any non-complying aspect of, defect in, or shortage relating to any goods supplied separately. If the Customer fails to notify Biz-Cup within that period, Biz-Cup will be deemed to have discharged its obligations in respect of those goods, subject always to any non-excludable rights under applicable law. Biz-Cup warrants that goods supplied will be of acceptable quality, subject to this clause and applicable law. For goods not manufactured by Biz-Cup, the Customer has only the benefit of any manufacturer’s warranty to the extent available.
Biz-Cup is not liable for any defect, malfunction or service issue caused by Customer Error; failure to follow Biz-Cup’s instructions; continued use after a defect becomes apparent; changes, repairs, alterations or interference by any person other than Biz-Cup; or use beyond design parameters or contrary to manufacturer instructions. To the maximum extent permitted by law, Biz-Cup’s liability for defective goods or services is limited, at Biz-Cup’s option, to re-supplying, repairing, replacing or paying the cost of repair or replacement.
12. Confidential Information
The Customer must (and must ensure Customer Personnel) use Confidential Information only for the purposes of this Agreement and keep it confidential except where required by law to disclose. The Customer must only use Personal Information for the purpose of this Agreement; observe and comply with the Privacy Law and any privacy policy provided by Biz-Cup; promptly follow any reasonable direction of Biz-Cup; and immediately notify Biz-Cup of any suspected or actual unauthorised use, copying or disclosure. The Customer must ensure that each person to whom it discloses Confidential Information complies with this clause and notify Biz-Cup of any suspected or actual breach.
13. Credit, Privacy and Authorisations
The Customer authorises Biz-Cup to obtain from a credit reporting agency a credit report containing personal or commercial credit information about the Customer; and to give to and receive from credit providers, insurers, financiers and debt recovery providers information in Biz-Cup’s possession about the Customer’s creditworthiness, credit standing, credit history and credit capacity. Biz-Cup may use such information to assess credit applications; assist Biz-Cup in avoiding default; notify other credit providers of a default; assess ongoing creditworthiness; and otherwise administer the commercial relationship.
14. Insurance
The Customer must maintain throughout the Term: public liability insurance for the Site and the Customer’s business for an amount not less than $20,000,000 per occurrence; and any other insurance reasonably required to cover the Customer’s risks in connection with the Equipment and the Services. The Customer must provide evidence of insurance on or before the Commencement Date, and on request thereafter.
15. Indemnity and Limitation of Liability
To the extent permitted by law, the Customer will indemnify Biz-Cup and its officers, employees and agents against any and all liability, damage, loss, expense, costs and proceedings arising directly or indirectly as a result of any breach of this Agreement by the Customer; any Customer Error; any loss of or damage to the Equipment while in the Customer’s possession; any injury or property damage from the Customer’s use of the Equipment or Site condition (except to the extent caused by Biz-Cup’s negligence); and any unauthorised use, relocation, interference or disposal of the Equipment.
To the maximum extent permitted by law, Biz-Cup is not liable for any consequential, indirect or special loss or damage, including loss of profit, revenue, opportunity, goodwill or business interruption. Biz-Cup’s aggregate liability is limited to the total Service Fees paid by the Customer in the 3 months immediately preceding the event giving rise to the claim.
16. Equipment Ownership, PPSA and Recovery
Title to all Equipment remains with Biz-Cup at all times. The Customer holds the Equipment as bailee for Biz-Cup until returned. The Customer must keep the Equipment identifiable as Biz-Cup’s property and must not remove, obscure or interfere with any label, plate, marking or identifier. Biz-Cup may enter the Site or any premises to inspect, service, repair, replace or recover the Equipment, and the Customer irrevocably licences Biz-Cup and its representatives to do so.
This Agreement creates a Security Interest in favour of Biz-Cup in respect of the Equipment and any proceeds. The Customer consents to Biz-Cup registering any Security Interest on the PPSR and waives its right (to the extent permitted by law) to receive any notice, verification statement or financing change statement. The Customer must not sell, assign, dispose of, or grant any Security Interest over any Equipment.
17. Goods and Services Tax
The terms used in this clause have the meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). The amount payable for any taxable supply made under this Agreement is exclusive of GST (unless otherwise stated) and shall be increased by the rate of GST imposed by law. A party making a taxable supply must give the recipient a tax invoice at the same time payment is received, or within five Business Days thereafter.
18. Guarantee
In consideration of Biz-Cup entering into this Agreement at the request of the Guarantor, the Guarantor unconditionally and irrevocably guarantees to Biz-Cup the due and punctual performance by the Customer of all of the Customer’s obligations under this Agreement, including payment of all amounts payable. If the Customer does not pay any amount due, the Guarantor must pay that amount on demand, without deduction, set-off or counterclaim, whether or not Biz-Cup has first demanded payment from or taken action against the Customer or any other person.
The liability of the Guarantor is a continuing obligation and is not affected by any variation, renewal, extension, replacement or termination of this Agreement; any delay, indulgence, waiver or concession granted by Biz-Cup; Biz-Cup taking or failing to take any security or enforcing or failing to enforce any right; the insolvency, administration, liquidation or deregistration of the Customer; or any other act or omission. If there is more than one Guarantor, each Guarantor is jointly and severally liable. The Guarantor’s obligations are principal obligations and not merely as surety.
19. Termination
After expiry of the Minimum Term, either party may terminate by giving not less than 14 days’ written notice before the next monthly billing date. Biz-Cup may terminate immediately by written notice if the Customer fails to pay any amount due; breaches this Agreement and (where capable of remedy) fails to remedy within 7 days’ notice; uses non-approved Consumables or otherwise breaches clause 8; suffers an insolvency event; sells, disposes of, encumbers, parts with possession of or relocates any Equipment without consent; or commits repeated Customer Error or otherwise materially interferes with the Services. Biz-Cup may also suspend the Services immediately if the Customer fails to pay any amount due.
On termination or expiry: all amounts owing become immediately due and payable; the Customer must immediately cease using the Equipment and provide safe and unobstructed access to recover it; the Customer must pay Biz-Cup’s reasonable costs of decommissioning, removal, transport, storage, cleaning, repair and rectification; and the rights and obligations accrued before termination are not affected.
20. Force Majeure
Neither party is liable for any delay or failure to perform its obligations under this Agreement to the extent caused by a Force Majeure Event. A party affected by a Force Majeure Event must use reasonable endeavours to mitigate its effects and resume performance as soon as reasonably practicable.
21. Sub-contracting
Biz-Cup may sub-contract the manufacture, supply or performance of any part of the Services or any goods supplied under this Agreement. Biz-Cup remains responsible for the acts and omissions of its subcontractors to the extent required by law.
22. Inconsistency
If any provision of this Agreement is offensive to or inconsistent with any statute, regulation, award, industrial agreement or other edict having the force of law, then to the extent of that offence or inconsistency (and not otherwise) this Agreement will be of no effect and the offensive or inconsistent provisions will be severed from the balance of the Agreement.
23. Notices
Any notice required to be given under this Agreement must be in writing addressed to the address of the intended recipient (as updated by notice). For Biz-Cup: 18 Croydon Road, Keswick SA 5035 · Email: accounts@bizcup.com.au · Attention: Accounts Biz-Cup. For the Customer: as set out in Item 1 of the Schedule. A notice must be signed by a person duly authorised by the sender. A notice is deemed given when delivered by hand at the time of delivery; when sent by email at the time shown in the delivery confirmation report; when sent by express post on the next Business Day (or seventh Business Day if sent overseas); and otherwise at the time of receipt. If receipt is on a non-business day or after 4.00 pm local time, the notice will be deemed given on the next business day.
24. General
This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations. This Agreement prevails over any inconsistent term in any purchase order or other document issued by the Customer, unless Biz-Cup expressly agrees otherwise in writing. Biz-Cup may vary this Agreement by written notice to the Customer where reasonably required to reflect changes in law, operational requirements, systems or business practice, provided no such variation will affect accrued rights or materially alter the essential commercial basis during the Minimum Term without the Customer’s agreement.
No person acting on Biz-Cup’s behalf has authority to make any promise, representation or undertaking or to add to or change this Agreement except in writing signed by Biz-Cup. The Customer’s rights under this Agreement are not assignable or transferable without Biz-Cup’s prior written consent. If the Customer consists of more than one person or entity, their liability is joint and several. The Customer charges in favour of Biz-Cup all of its estate and interest in any land or other assets in which it now has or later acquires any legal or beneficial interest, as security for all monies owed, and consents to the lodging of any caveat or similar security notice. Clerical errors are subject to correction and do not bind Biz-Cup. If any provision is invalid or unenforceable, that provision is to be read down if possible and otherwise severed. A failure or delay by Biz-Cup to exercise any right does not operate as a waiver. This Agreement may only be amended in writing signed by both parties, except where this Agreement expressly permits Biz-Cup to vary by notice. This Agreement is governed by the law in force in the State, and the parties submit to the non-exclusive jurisdiction of the courts of that State. This Agreement may be executed in any number of separate counterparts (including by email exchange).
