Terms and Conditions

Following are the Terms and Conditions of Trade (“Trading Terms”) for CALIBRE CRAFT BEER TRADING CO PTY LTD (ACN 159 867 795) including, but not limited to any subsidiary or associated entity and as trustee of any trust from time to time, and any other entity acquired or incorporated by or through the foregoing (individually and together called “Calibre”).

1. Payment:
   • The Customer must pay for all purchases on or prior to delivery, or (if Credit Terms have been extended or Calibre otherwise agrees in writing prior to delivery) within 14 days from date the invoice is generated, or within any alternative credit period granted in writing by Calibre (at its discretion). Amounts payable by the Customer under the Credit Terms and Trading Terms must be paid in full without deduction, retention or set-off of any kind and for any reason.
   • For the avoidance of doubt, the time for payment may be (at Calibre’s discretion and without prejudice to the foregoing) as directed by Calibre:
     • on delivery of the goods;
     • before delivery of the goods;
     • by way of instalments/progress payments in accordance any payment schedule approved in writing by Calibre;
     • the date specified on any invoice or other form as being the date of payment; or
     • otherwise in accordance with paragraph 1(a) of these Trading Terms.
   • At Calibre’s sole discretion, a non-refundable deposit may be required, payable as directed by Calibre.
   • Payment may be made by cash, cheque (at Calibre’s discretion), electronic/online banking, credit card (which will include a surcharge of up to 2% of the total price, with a minimum surcharge of $10.00 per transaction) or by any other method agreed to by Calibre in writing.
   • Time for payment of any goods is of the essence.
2. Price:
   • At Calibre’s sole discretion, the price shall be either:
     • as indicated on any invoice provided by Calibre to the Customer; or
     • the price as at the date of delivery of the goods according to Calibre’s current price list; or
     • Calibre’s quoted price, which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days unless withdrawn earlier.
   • Unless stated otherwise, the price does not include GST, which is payable in addition to the price in accordance with these Trading Terms.
3. Quotations:
   • Any quotation given by Calibre must be in writing.
   • All quotations issued by Calibre are based on the then current prices and are subject to availability.
   • Unless otherwise specified in writing or withdrawn earlier, any quotation issued by Calibre will be valid for 30 days.
   • Quotations will not be construed as an offer or obligation to supply in accordance with the quotation. Calibre may, at its discretion, reject any order to purchase received by it.
   • In the event that Calibre forms the view that the subject matter of a quotation is to form part of a larger transaction or series of transactions and/or the circumstances giving rise to the quotation have materially changed, Calibre will not be bound by the quotation.
   • The Customer must pay any reasonable fees and charges, as advised by Calibre at its discretion, relating to the holding of any Products referred to in a quotation pending placement of an order and/or after an order is placed if the Products are required to be held by Calibre.
   • Calibre reserves the right to vary an invoice or quotation (including the price quoted):
     • if a variation to the Products which are to be supplied is requested;
     • if a variation to the Products originally scheduled (including any applicable designs, plans and/or specifications) is requested;
     • in the event of increases to Calibre in the cost of labour or goods, or fluctuations in currency exchange rates, which are beyond Calibre’s control; or
     • at any time prior to receipt of any order in respect of the quotation.
   • Any proposed request by the Customer to vary any quotation and/or the supply of any Products must be made in writing to Calibre at a reasonable time prior to the supply and/or delivery of products.
   • The Customer acknowledges and agrees that it has not relied upon any representation made by Calibre (including the employees or agents of Calibre) in relation to the Products, other than as supplied in writing contained within the quotation.
4. Supply and lien:
   • Calibre reserves the right to accept or reject, at its discretion, any order, acceptance of quotation, or offer to purchase received by it.
   • Placement of any order (whether verbally or in writing), acceptance of any quotation and/or offering to purchase (in any form) will constitute acceptance of these Trading Terms.
   • All supply by Calibre (whether pursuant to a quotation, order or otherwise) is subject to availability. Calibre may allocate available stock at its absolute discretion, and does not have to allocate stock for the benefit of the Customer or any other person.
   • Insofar as Calibre requires payment upfront or on delivery, Calibre may withhold supply or delivery pending payment.
   • Where the Customer has left any item with Calibre for repair, modification, exchange or for Calibre to perform any other service in relation to the item, and Calibre has not received the whole of any monies owing to it by the Customer, Calibre shall have:
     • a lien on the item; and
     • the right to retain or sell the item, with such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
   • The lien of Calibre shall continue despite the commencement of proceedings and/or judgment for any monies owing to Calibre having been obtained against the Customer.
5. Purpose of credit: The Customer acknowledges and agrees that the credit to be provided to the Customer by Calibre is to be applied wholly or predominantly for commercial purposes.
6. Deposits and variations:
   • Calibre may require a deposit to be paid prior to the commencement of the delivery of Products. Calibre will refund any deposit paid by the Customer in the event the agreement is terminated prior to the commencement of the delivery of Products.
   • Variations to the Products will be charged for on the basis of Calibre’s quotation, and will be detailed in writing, and shown as variations on Calibre’s invoice.
   • If the Customer does not agree with the variations proposed by Calibre, they must notify Calibre in writing within ten (10) business days from receipt of the notice of the variations that the variations are not agreed to.
   • Should the Customer fail to respond to any variation proposed by Calibre, Calibre will be entitled to add the cost of the variation to the amount of any quotation and/or to the invoice total. Payment of the variation must be made in full at the time of their completion.
7. Interest and Administration fee: Calibre is entitled to charge the Customer:
   • interest on amounts not paid within the credit period specified by Calibre at a rate equivalent to 3% p.a. above the annual business overdraft interest rate of its principal banker, as determined and calculated by Calibre, in its discretion; and
   • if any account remains unpaid at the end of 21 days after the invoice is generated, an immediate amount the greater of $50.00 or 10.0% of the amount overdue for administration fees, which sum shall become immediately due and payable. The Customer acknowledges that this fee is a genuine pre-estimate by Calibre of the loss, costs and expenses which shall be incurred by reason of the Customer’s default in payment and the recovery thereof.
8. Taxes and GST and other Duties: Each amount payable by the Customer under these Trading Terms in respect of a Taxable Supply by Calibre is a GST exclusive amount and on receipt of a tax invoice the Customer must, in addition to that amount and at the same time, pay the GST payable in respect of that supply. “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services) Act 1999 (Cth). If there is an imposition of any tax, duty, excise, charge, impost or levy in respect of the supply of Products made at any time by any local, State or Commonwealth government in connection with the supply of Products or this agreement (including, without limitation, the Wine Equalisation Tax), the Customer must pay the amount thereof upon demand by Calibre. 
9. Withdrawal or Variation of Credit: Calibre may at any time, without the need to provide a reason, vary or withdraw any credit granted to the Customer. Where the Customer completes a further Application for Commercial Credit, that Application will not be in derogation of but in addition to any previous general trading terms existing except as notified by Calibre (or any of its related entities, subsidiaries and assigns and as Trustee of any Trust) in writing.
10. Charge over Customer’s Property: As security for payment to Calibre of all moneys payable by the Customer and for the Customer’s obligations generally under these Trading Terms, the Customer charges in favour of Calibre the whole of the Customer’s undertaking, property and assets (including without limitation all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired. The Customer irrevocably appoints each Officer as the Customer’s attorney to do all things necessary to create and register each such charge. Upon demand by Calibre, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to Calibre to further secure payment of the money payable by the Customer. If the Customer fails within a reasonable time of such demand to execute such mortgage or other instrument, then the Customer acknowledges that Calibre may execute such mortgage or other instrument as the Customer’s attorney pursuant to the appointment of Calibre as the Customer’s attorney set out in these Trading Terms. Where the Customer has previously entered into any agreement  with Calibre by which it has granted a charge, mortgage or other security in favour of Calibre, those interests shall continue and co-exist with the obligations and security interests granted herein. 
11. Suspension or Ceasing of Supply and Cancellations:
    • Calibre may in Calibre’s complete discretion and without incurring any liability to the Customer, cease or suspend supply of Products to the Customer or amend these Trading Terms.
    • Without limiting these Trading Terms, if an Event of Default occurs, Calibre may, without prejudice to Calibre’s other rights, call up moneys owed to Calibre by the Customer, retain all moneys paid on account, or cease further deliveries and recover from the Customer all loss of profits and other costs arising from the Event of Default and/or take immediate possession of any Products for which payment remains outstanding.
    • If an Event of Default occurs, the Customer (and any Guarantor(s)) remains liable under these Trading Terms for payment of all liabilities and amounts incurred hereunder. The Customer remains liable under these Trading Terms even if Calibre receives a third party payment, a dividend and/;or any other payment in reduction or partial reduction of the amounts outstanding to Calibre.
    • Upon cancellation, cessation or suspension of supply by Calibre to the Customer, all amounts due, owing or payable pursuant to these Trading Terms become immediately due and payable by the Customer to Calibre.
    • Calibre may cancel any quotation, agreement, contract or arrangement to which these Trading Terms apply, and/or may cancel the delivery of Products at any time before the Products are delivered by giving written notice to the Customer.
    • Calibre shall not be liable for any loss, damage, claim or monies arising out of or in connection with any cessation, cancellation or suspension of supply to the Customer.
    • Subject to these Trading Terms, the Customer may make a request to cancel any order and/or the supply or delivery of Products up to forty-eight (48) hours prior to the proposed delivery date (or as otherwise advised by Calibre in writing). The acceptance of the request to cancel any order and/or the supply or delivery of Products will be at Calibre’s discretion.
    • The Customer acknowledges that cancellations of orders (or parts thereof) will only be accepted by Calibre (in its absolute discretion) where the Customer advises of the cancelation within a reasonable time prior to delivery. Orders advised for cancellation by the Customer that have been loaded onto a delivery vehicle will incur a 10% restocking fee payable by the Customer. The Customer acknowledges and agrees that the said fees are a genuine pre-estimate by Calibre in relation to the loss, costs and expenses that will be incurred by Calibre in connection with the cancellation of orders.
    • In the event that a cancellation of order requested by the Customer is accepted by Calibre, the customer will remain liable for any and all loss, damage, claim and/or monies (including, but not limited to, any loss of profits) arising out of or in connection with the cancellation.
    • No cancellation of orders for Products made to the Customer’s specifications, or for non-stocklist items will be accepted after an order is placed and/or production has commenced (whichever is earlier).
12. Liability of Calibre: Calibre will not be liable for any loss or damage whatsoever suffered by the Customer as a result of any act, omission or statement made by Calibre, its employees, contractors or agents.
13. Certification: A statement signed by an Officer certifying the amount of any moneys payable by the Customer, or identifying any Products as being “unpaid for” is, in the absence of manifest error, conclusive and binding on the Customer.
14. Notification of Change of Details:
    • The Customer must give Calibre not less than fourteen (14) days prior written notice of any proposed change of the Customer’s details (including but not limited to changes to the name, address, contact numbers or business practice).
    • The Customer must provide written notice to Calibre of any change in the Customer’s structure or management, including any change of director, shareholder, partnership, trusteeship or address within seven (7) days of the change.
    • The Customer acknowledges and agrees that it will be liable for and will pay any loss or damage incurred by Calibre as a result of the Customer’s failure to comply with these Trading Terms.
    • In the event of a change of directors, the Customer will require any new director to sign a guarantee and indemnity in terms acceptable to Calibre, which guarantee will be in addition to, and not in derogation of any previous grant of security in favour of Calibre.
15. Continuing Guarantee: All guarantees under or related to these Trading Terms will be continuing guarantees and will terminate only with Calibre’s written agreement.
16. Set-Off: Calibre may at any time set-off amounts owed by Calibre to the Customer against amounts owed by the Customer to Calibre.
17. Property:
    • Where Products are to be supplied by way of sale, property in the Products shall not pass until the Customer has paid all money owing to Calibre in full. Risk in the Products passes to the Customer at the time of delivery.
    • The Customer holds the Products as fiduciary bailee and agent for Calibre and must keep the Products physically separate from all other goods of the Customer, and clearly identified as owned by Calibre until payment of all moneys owed by the Customer to Calibre. If an Event of Default occurs, then without prejudice to Calibre’s other rights, Calibre may, without notice to the Customer enter any premises occupied by the Customer or any other place where the Products may be and recover possession of the Products. The Customer acknowledges and agrees that it will be responsible for payment of Calibre’s costs and expenses in exercising its rights under this clause, and that entry will not give rise to action of trespass (or similar action) on the part of Calibre including its employees, servants and/ or agents.  Calibre may sell or otherwise deal with Products which have been retaken at its absolute discretion, and (insofar as it is necessary to do so) the Customer grants an irrevocable license to Calibre to do all things necessary to sell Products retaken, including (but not limited to) Products bearing the name or trademark of the Customer. 
    • If the Customer sells any of the Products supplied while money is owed to Calibre, the Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds.
    • If the Products are resold, or goods and/or services using the Products are manufactured and resold by the Customer, the Customer holds all of the book debts owed in respect of such sales and proceeds of such sales in trust for Calibre. Such part of the book debts and proceeds will be deemed to equal in dollar terms the amount owed by the Customer to Calibre at the time of the receipt of such book debts. The Customer must not assign or grant a security interest in respect of such book debts without Calibre’s prior written consent.
    • If the Customer uses the Products in some manufacturing process of its own or of some third party, then the Customer shall hold such part of the proceeds of such manufacturing process as relates to such Products in trust for Calibre. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Calibre and at the time of payment of such proceeds the Customer’s obligation to pay the amount owed for such Products will be discharged.
18. Risk:

• Where Calibre retains ownership of any Products in accordance with these Trading Terms, the risk of Products shall pass to the Customer upon delivery. The Customer will be responsible for insuring the Products on, or before, the time for delivery to the Customer.
• In the event of any damage caused to Products during delivery and prior to ownership passing to the Customer, Calibre will be entitled to obtain the benefit of any insurance proceeds payable with respect to the damaged Products. The production of these terms and conditions will be deemed sufficient evidence for the purpose of proving any claim for insurance proceeds by the Customer.
• If, for any reason Calibre reasonably forms the opinion that the Customer’s premises is not safe for the Delivery of Products to proceed, then Calibre shall be entitled to delay the delivery of Products pursuant to these Trading Terms until Calibre is satisfied that it is safe for the delivery of Products to proceed.
• Calibre will not be held liable for any damages or losses suffered by the Customer as a result of the Customer’s failure to follow, adhere to or act upon the advice or recommendations with respect to the Products provided by Calibre to the Customer or its agents and representatives.

19. Personal Property Securities Act 2009 (Cth) (“PPSA”):

“Financing statement”, “financing change statement”, “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meaning given to them by the PPSA.

(a) In consideration of Calibre supplying the Products to the Customer at the request of the Customer, the Customer:

• grants to Calibre a “Purchase Money Security Interest” (“PMSI”) in all Products supplied by Calibre to the Customer from time to time as security for payment of the purchase price of the Products;
• grants to Calibre a “Security Interest” (“SI”) in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) from time to time as security for payment of any amount owed by the Customer to Calibre and as security for the performance by the Customer of the obligations set out in the Credit Terms and/or these Trading Terms;
• agrees that any Products or proceeds of sale of the Products coming into existence after the date of these Trading Terms will come into existence subject to the PMSI and SI granted herein and these Trading Terms without the need for any further action or agreement by any party;
• acknowledges that the Customer has received valuable consideration from Calibre and agrees that it is sufficient; and
• agrees that the PMSI and SI has attached to all Products supplied now or in the future by Calibre to the Customer and that the attachment of the PMSI has in no way been deferred or postponed.
• Calibre reserves the right to register a financing statement in the Personal Properties Securities Register to perfect the PMSI and/or SI created under these Trading Terms.
• The costs of registering a financing statement or a financing change statement can be charged to the Customer by Calibre at Calibre’s complete discretion, and may, where applicable, be charged to the customer’s credit account with Calibre.
• The Customer must promptly, on request by Calibre, execute all documents and do anything else reasonably required by Calibre to ensure that the PMSI and SI created under these Trading Terms constitutes a perfected security interest.
• The Customer must not agree to allow any person to register a financing statement over any of the Products in which Calibre has any PMSI and/or SI without the prior written consent of Calibre and will immediately notify Calibre if the Customer becomes aware of any person or entity taking steps to register a financing statement in relation to any such Products.
• The Customer must not allow the Products to become accessions or commingled with other goods unless Calibre has first perfected any PMSI or SI that Calibre has in relation to the Products.
• If Calibre perfects any PMSI and/or SI that Calibre has in relation to the Products, the Customer must not do anything that results in Calibre having less than the security or priority granted by the PPSA that Calibre assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage.
• The Customer irrevocably grants to Calibre the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Calibre has cause to exercise any of Calibre’s rights under Chapter 4 of the PPSA, and the Customer will indemnify Calibre for any claims made by any third party as a result of such exercise.
• The Customer acknowledges and agrees that:
• nothing in sections 125, 132(3)(d), 142 and 143 of the PPSA will apply to these Trading Terms;
• the Security Agreement created by these Trading Terms may only be reinstated on the terms considered appropriate by Calibre at its complete discretion.
• The Customer acknowledges and agrees that to the full extent permitted by law and mentioned below, the following provisions of the PPSA will not apply to the enforcement of any PMSI and SI created under these Trading Terms, and the Customer waives it’s right to:
• not have goods damaged or be inconvenienced any more than necessarily incidental if Calibre removes an accession under s.92 PPSA;
• to receive notice of any intention to remove an accession under s.95(1)(a);
• to apply to the Court for an order postponing the removal of the “accession” or to determine the amount payable to Calibre for the retention of the accession under s.97 PPSA;
• to receive notice of a decision to enforce the security interest in personal property in the same way as an interest in land which secures the same obligation under s.118(1)(b)(i) PPSA;
• to receive notice of the enforcement of liquid assets under s.121(4) PPSA;
• to receive notice of any proposal to dispose of collateral under s.130(1)(a) PPSA;
• to receive a Statement of Account if no disposal under s.132(4) PPSA;
• to receive notice of any proposal to retain collateral under s.135(1)(a) PPSA; and
• to receive notice of a verification statement in relation to any registration event (including registration of a financing statement or a financing change statement) relating to the PMSI and SI created under these Trading Terms under s.157 PPSA.

20. Minimum Orders: Calibre may (at its absolute discretion) require and/or enforce minimum order values and/or quantities of Product per delivery region.
21. Liquor Licensing Obligations & Warranties: At each time the Customer places an order for liquor products and each time such order is filled by Calibre, the Customer warrants and represents to Calibre that:
    • it holds a valid and current licence to order, purchase, sell and distribute Licensed Goods in the conduct of its business ("Licence") under and in accordance with all applicable laws; and
    • it is not in breach of, nor has it had the terms of its, License revoked, varied or restricted and no condition has been imposed on the Licence which prohibits it from ordering, purchasing, selling or distributing the Licensed Goods in the conduct of its business

The Customer acknowledges and agrees that Calibre has relied upon the said warranties and representations in respect of each and every supply by Calibre to the Customer. 

22. Effect of Other Terms: These Trading Terms are supplemented by the Credit Terms on Calibre’s website at calibrebeer.com from time to time, and are in no way affected or amended by any other express or implied terms. No terms of the Customer apply to any agreement between the Customer and Calibre.
23. Expenses: The Customer must pay to Calibre any costs, charges and expenses (including all stamp duty and legal fees and costs and debt recovery expenses on a full indemnity basis as a liquidated debt) incurred by Calibre in connection with the entry into these Trading Terms, the exercise or attempted exercise of any power, right or remedy under these Trading Terms and/or the failure of the Customer to comply with these Trading Terms.
24. Service of Notices and Documents: All notices or documents required to be given to Calibre for the purposes of the PPSA must be given in accordance with the PPSA. Any notices or documents required to be given by Calibre to the Customer for the purposes of the PPSA or for any other purposes will be effectively ‘given’, ‘served’ and ‘delivered’ if sent by Calibre to the Customer by pre-paid ordinary post to any one of the following addresses:

• the last address for the Customer known to Calibre;
• if the Customer is a Company, the registered office or principal place of business; or
• if the Customer trades under a registered business name, any address contained on a current business extract for that business name.

25. Transactions: The Customer will be liable for all transactions and expenses involving the Customer’s account including any fraudulent use of the account by the Customer or any person authorised by the Customer to use the account or the Customer’s employees, agents or contractors. The Customer will also be liable for any fraudulent use of the Customer’s account which is directly or indirectly caused or contributed to by the Customer’s negligence.
26. Application of Moneys Received: If Calibre receives or recovers money in respect of a debt of the Customer, Calibre may use the money to pay off whichever debt or part of a debt Calibre chooses and is not compelled to apply the money as directed by the Customer or any other person. To the extent that payments have been allocated to invoices issued by Calibre, Calibre may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at Calibre’s absolute discretion.
27. Indemnity:
    • The Customer will indemnify Calibre in relation to any direct or indirect claim, loss, liability or damage suffered by Calibre or any other person arising out of or in connection with the supply of Products by Calibre, these Trading Terms, and/or as a result of the Customer’s negligence and/or breach of these Trading Terms. For the avoidance of doubt, this indemnity includes (but is not limited to) legal fees and expenses of Calibre (whether in connection with these Trading Terms, exercising its rights hereunder, or otherwise in respect of any claim, loss, liability or damage suffered by Calibre or any other person) on a full indemnity basis.
    • In addition to all other indemnities set out in these Terms of Sale, the Customer indemnifies Calibre, its employees, agents and contractors:
      • against any claims made against Calibre by any third party in respect of any claim, loss, liability or damage suffered by Calibre, death or injury to any other person) on a full indemnity basis. , except to the extent the liability arises out of an act or omission of Calibre, its employees, contractors or agents;
      • in respect of any cost, loss, damage or liability (including consequential loss, loss of profits or pecuniary or special damages) incurred by Calibre resulting from any claim arising from or in connection with any design, the installation or use of Products. The Customer accepts full responsibility and liability for any design, installation and use of Products including, in respect of the design for the infringement of any patent, registered design or other similar matters; and
      • against all losses and expenses which Calibre may suffer or incur due to the failure of the Customer to fully observe its obligations under these Trading Terms.

28. Trusts: These Trading Terms bind the Customer (and/or any Guarantor) both personally and as trustee of any trusts of which the Customer (and/or any Guarantor) is trustee (whether or not the said trust was disclosed to Calibre). The Customer warrants and represents to Calibre that Calibre has a right to be indemnified out of any trust assets, and that the Customer has the power under any trust deed to enter into these Trading Terms on behalf of the trust.
29. Joint and Several: If the Customer consists of more than one person, the obligations of each person are joint and several.
30. Severance: Each clause, subclause and part of these Trading Terms is separate and independent. If any clause or subclause or part is found to be invalid or ineffective, the other clauses or subclauses or parts will not be adversely affected.
31. Waiver: Any waiver by Calibre must be in writing signed by In the event that Calibre elects not to exercise any of Calibre’s rights arising in connection with these Trading Terms, Calibre’s election will not constitute a waiver of any rights relating to any other breach of these Trading Terms.
32. Amendments: These Trading Terms may only be amended with Calibre’s express written agreement. In the event that Calibre amends these Trading Terms, if the Customer does not agree with any amendment, they must notify Calibre in writing within fourteen (14) days of the date of the amendment, upon which Calibre will be at liberty to agree in writing, suspend or terminate the agreement with the Customer, at its discretion. In the absence of receipt of written notice from the Customer within fourteen (14) days, the Customer is deemed to have accepted the amendment. Unless notice in accordance with this clause is given prior, the placement of any order after amendment of these Trading Terms constitutes a binding and conclusive acceptance of these Trading Terms (as amended).
33. Assignment: The Customer may not assign any agreement under these Trading Terms without Calibre’s prior written consent.
34. Application of Laws: The Customer acknowledges and agrees that these Trading Terms are governed by the laws of Queensland, and the laws of the Commonwealth of Australia which are in force in Queensland. The Customer submits to and consents to the laws of Queensland, and to the central courts of that state as having jurisdiction over these Trading Terms. 
35. Delivery and/or provision of Products:
    • The date or time for any delivery stated by Calibre is an estimate only. Calibre is entitled to extend the commencement and/or completion dates in its reasonable discretion and/or in the event Calibre is unable to complete for reasons outside of its control, including but not limited to any failure by the Customer to:
      • make a selection; or
      • have the site ready for the delivery; or
      • notify the Customer that the site is ready.
    • Calibre will endeavour to meet all delivery estimates provided, however, the failure to do so will not give rise to grounds for cancellation or termination, or claim for loss and damages by the Customer.
    • Insofar as it is practical to do so, Calibre will provide reasonable notice to the Customer of any changes to the estimated delivery times and notice ahead of the initial estimate provided.
    • Calibre may, by written agreement with the Customer, extend the commencement and/or completion dates.
    • The Customer authorises Calibre to deliver Products to the place nominated by the Customer (“Premises”), and to leave the Products at the Premises, whether or not any person is present to accept delivery, and is deemed to have accepted delivery and liability for all Products immediately after Calibre either notifies the Customer that the Products are ready for collection, or upon Calibre delivering the Goods to the Premises.
    • Calibre shall not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the Premises.
    • The Customer is responsible to insure any Products partly or completely installed or delivered on site against theft or damage.
    • The Customer will pay all reasonable storage and insurance charges in relation to Products (manufactured or not) which are stored by Calibre on the Customer’s behalf.
    • The Customer must inspect Products on delivery.
    • Delivery is taken to occur at the earliest of:

• the Customer or the Customer’s nominated carrier takes possession of the Products from Calibre; or
• Calibre (or Calibre’s nominated carrier) delivers the Products to the Premises.
  • The cost of delivery is payable by the Customer. At Calibre’s sole discretion, the cost of delivery will either be included in the price (where indicated) or in addition to the price.
  • The Customer must take delivery by receipt or collection of the Products when they are made available by Calibre for delivery. In the event that the Customer is unable to take delivery of the Products, Calibre will be entitled to charge a reasonable fee (at its discretion) for storage and/or re-delivery.
  • Delivery of Products to a third party nominated by the Customer is delivery for the purpose of these Trading Terms.
  • Calibre may affect delivery of Products (whether the subject of one or more quotation, order and/or purchase) by separate instalments. In that event, each separate instalment shall be invoiced and paid in accordance with the provisions in these Trading Terms. Delivery by instalments will not give rise to grounds for cancellation or termination, or claim for loss and damages by the Customer.
  • The Customer hereby acknowledges and agrees that it will accept variation in quantities of Products ordered at plus or minus 5% (or as otherwise notified by Calibre) and will pay pro-rata for the actual quantity delivered.
  • The Customer must take delivery of Products tendered for delivery by Calibre, notwithstanding that the quantity delivered is greater or less than the quantity ordered and/or purchased.
  • The Customer must accept delivery of all Products, purchases and/or orders, even if the delivery or supply of the same is late. Calibre will not be liable for any claim, loss, damage and/or monies associated with any late delivery or supply.

36. Partial Delivery/Forward Orders: If the Customer places forward Orders or requests partial or instalment Delivery and/or if Calibre elects (at its discretion) to deliver any order by instalments and/or by partial delivery, the Customer agrees:
    • to pay for so much of any Order as is from time to time delivered by Calibre; and
    • that no delay or failure to fulfil any part of any Order will entitle the Customer to cancel or vary any Order or delay or reduce any payment.
37. Access:
    • The Customer acknowledges and agrees that Calibre will be provided with clear, free and safe access to the nominated site at all times to enable the delivery of Products to be completed. Calibre is not responsible for any loss or damage caused to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas).
38. Compliance with Laws:
    • The Customer and Calibre agree to comply with the provisions of all relevant statutes, regulations, government bylaws, local and other public authorities which may apply to the delivery of Products, including any work health and safety laws relating to building and construction sites, and other relevant safety standards or legislation.
    • The Customer acknowledges and agrees that it is responsible for obtaining and for payment of all necessary licences and approvals required to deliver Products.
39. Delay: Calibre shall not be liable for any failure to deliver or for any delay in delivery of Products occasioned by any cause whatsoever, whether or not beyond the control of Calibre.
40. Claims:
    • The Customer must inspect all Products delivered to the Customer or its nominated agent and advise Calibre of any errors or omissions with within twenty-four (24) hours (or such other time period for perishable, dry, security or other Products as notified by Calibre from time to time) of delivery to the Premises (“Inspection Period”) in order to ensure that Products supplied and/or delivered are as ordered by the Customer and there is no mis-delivery, shortage, defect or damage to the Products as delivered.
    • The Customer must notify Calibre within the Inspection Period if Products are found to be other than as ordered by the Customer or if the Customer alleges there has been any mis-delivery, shortage, defect or damage. The Customer acknowledges and agrees that all claims for ullages and short deliveries must be submitted within the Inspection Period, advising the nature of the claim and invoice number, by faxing or emailing the relevant advice (credit returns and shortages) to Calibre. For the avoidance of doubt, invoices will be deemed to be accurate if the Customer does not notify Calibre of any discrepancy within the Inspection Period. 
    • Subject to these Trading Terms, if the Customer has not notified Calibre within the Inspection Period that Products delivered were not as ordered by the Customer, or that Products were either mis-delivered, there was a shortage, and/or that the Products suffered any damage or defect, then the Products will be deemed to have been delivered in good condition and as ordered by the Customer.
    • Notwithstanding any claim made by the Customer under this section, the Customer must make payment in accordance with these Trading Terms without deduction, retention or set-off of any kind for any reason.
    • The Customer acknowledges and agrees that any Products damaged by the Customer or by the Customer’s transport company remain the responsibility of the Customer (and/or their carrier) and that Calibre is in no way liable for damages sustained in transit.
    • The Customer acknowledges and agrees that Calibre retains all intellectual property in any designs and documents relating to goods which that credits to the Customer will only be applied at the discretion of Calibre, and no credits will be accepted without prior inspection and authorisation by an Calibre representative.
    • Products supplied by Calibre must be resold by the Customer in the same consequential order as the Products have been supplied by Calibre. All Products of the same type as the Products supplied by Calibre will be deemed to have been supplied by Calibre unless the Customer proves to the contrary at the time Calibre claims to be entitled to possession of such Products.
    • The Customer must not advertise, use or make representations in relation to any intellectual property of Calibre (or any of the Products themselves) in any way without in the prior written consent of Calibre.
    • The Customer acknowledges and agrees that it has provided a warranty that it will not alter or amend any designs, specifications and/or original packaging (as supplied by Calibre). The Customer must not alter or interfere in any way with the Products or remove any labelling or instructions provided by the Customer will not (and will not cause Calibre to) infringe upon any patent, registered design, trademark or intellectual property of another person in the execution of the Customer’s order(s). The Customer will indemnify Calibre against any action taken by a third party in respect of any infringement (actual or alleged) of this provision with the Products.
    • Calibre may use any documents, designs, drawings, plans or products created for the Customer for the purpose of marketing or entry into a competition at no cost to Calibre.
41. Intellectual Property:
    • The Customer acknowledges and agrees that Calibre retains all intellectual property in any designs, drawing, products and documents relating to goods which have been designed, drawn or developed by Calibre.
    • The Customer must not advertise, use or make representations in relation to any intellectual property of Calibre (or any of the Products themselves) in any way without the prior written consent of Calibre.
    • The Customer acknowledges and agrees that it has provided a warranty that all designs, specifications or instructions provided by the Customer will not cause Calibre to infringe upon any patent, registered design, trademark or intellectual property of another person in the execution of the Customer’s order(s). The Customer will indemnify Calibre against any action taken by a third party in respect of any infringement (actual or alleged) of this provision.
    • Calibre may use any documents, designs, drawings, plans or products created for the Customer for the purpose of marketing or entry into a competition at no cost.
42. Liability for Defective Products and Exclusions:
    • The Products are deemed to be defective only if any Products:
      • are not of merchantable quality;
      • are not fit for any purpose for which they are acquired by Customer;
      • do not conform to any sample, specification or other description given to Calibre by the Customer in relation to the Products;
      • being in the nature of services, are not of a reasonable standard, quality, value or grade; or
      • do not comply with any consumer guarantee or implied warranty applicable to the supply of the Products which cannot be excluded (including pursuant to the Competition and Consumer Act 2010 (Cth) (“CCA”)).
    • Where Products are defective (as defined in clause 40(a)) Calibre’s liability will be limited to, and Calibre may, at its discretion, elect to:
      • replace the Products; or
      • repair the Products or reimburse the Customer for the cost of repairing the Products; or
      • in the case of Products being in the nature of services, re-supply the services; or
      • if payment of the purchase price for the Products has not been made by the Customer - release the Customer from any obligation to pay the purchase price; or
      • if payment of the purchase price for the Products has been made by the Customer - refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Products to Calibre; and
      • in any case, reimburse to the Customer any cost incurred by the Customer in transporting the Products to the Customer from Calibre.
    • To the extent permitted by law, Calibre will not accept the return of Products unless:
      • prior authorisation has been given (which will not be unreasonably withheld);
      • the claim is supported by the relevant invoice;
      • the Products are in the same condition as at the date of supply;
      • the Products are returned via Calibre’s nominated carrier and at Calibre’s designated rates;
      • the Customer is able to confirm that the Products have been properly stored and handled in accordance with all manufacturer’s specifications and any applicable health and safety requirements and legislation;
      • original invoice and proof of purchase is provided; and
      • in the case of Products delivered in a damaged state or Products delivered other than in accordance with the Customer's order, Calibre was given notice in accordance with these Trading Terms.
    • The Customer agrees and acknowledges that no employee or other representative of Calibre is authorised to provide advice, recommendation, information or representation in relation to any Products or services supplied.
    • The Customer acknowledges and agrees that no Product will be deemed to be defective by reason of any conduct of the Customer (or any other person), including, but not limited to, any failure of the Customer to store, use or otherwise deal with the Products in accordance with the manufacturer’s recommendations;
    • Other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to these Trading Terms whether in contract, in tort, under statute or otherwise are only as specified in these Trading Terms and are subject to the limitations set out in these Trading Terms, and the following limitations:
      • Calibre, and Calibre’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 40(a) except to comply with its obligations (subject to the other provisions and limitations in this clause 40) under clause 40(b);
      • all conditions, warranties and other terms pertaining to the condition or quality of Products are excluded to the extent permitted by law (including the CCA);
      • the Customer warrants and represents that it is relying upon its own skill, knowledge and judgment in relation to the quality of Products, and their fitness for any purpose that may be required, and not upon any conduct or representation of Calibre, or any of Calibre’s officers, employees or agents, and acknowledges and agrees that any assistance given for or on behalf of Calibre is received at the Customer’s risk, and shall not be deemed to be given as advice, and is not relied upon by the Customer (or anyone claiming through the Customer);
      • no dealing with Calibre shall be (or shall be deemed to be) a sale by sample;
      • Calibre shall not be liable nor responsible for any failure of Products to comply with any requirements of the Customer (or any other person), whether relating to the manufacture, design, fabrication, installation, intended use or otherwise;
      • all Products are sold subject to any manufacturer’s trading terms, warranties and/or representations applicable to those Products;
      • the Customer acknowledges and agrees that Calibre will not be responsible for (or be liable in any way relating to) Products which are:
    • made or performed to designs, drawings, specifications and/or procedures (etc) and/or with materials which are provided and/or approved (whether fully or in part) by or on behalf of the Customer, and/or
    • utilised, stored handled and/or maintained incorrectly or inappropriately; and/or
    • used, misused, abused, improperly applied and/or altered in any way, whither by the Customer, or by accident;
      • the Customer is responsible to check all Products for compliance with all relevant applicable standards and regulatory bodies before the use, on-sale, application of Products, and to use or apply all Products in accordance with those standards and with all recommendations of the manufacturer, Calibre and/or in accordance with good commercial practice;
      • if Calibre publishes material concerning any Products and/or the sale thereof, anything so published which is incompatible with these Trading Terms is expressly excluded; and
      • the Customer must not make any claim or demand, or take any action or other proceeding against Calibre, or any of Calibre’s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract or opportunity, increased costs or expenses, loss of goodwill or any indirect, special or consequential loss of whatever nature including of any loss of a type described in this subclause, whether or not reasonably foreseeable, reasonably contemplatable or actually contemplated by the parties at the time of execution of these Trading Terms, arising out of, or in any way directly or indirectly relating to these Trading Terms including in relation to any of the matters referred to in clause 40(a), whether related to the Customer or any third party, or otherwise.
    • Subject to the remainder of this clause 40, the Customer:
      • releases and forever discharges Calibre, and each of Calibre’s officers, employees and agents, from all claims under or in relation to these Trading Terms; and
      • indemnifies Calibre and each of Calibre’s officers, employees and agents in respect of all loss, damages and expenses relating to, or arising out of, any claim.
    • To the extent permitted by law Calibre’s total liability for any claim under or in relation to these Trading Terms is limited to the price paid by the Customer for the Products the subject of the claim.
43. Stock Discretion: Calibre has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
44. Products and Pricing: The availability, description and/or price of Products is subject to change from time to time without notice. Descriptions of taste and/or flavour of Products are indicative only. For the avoidance of doubt, the provision of Products by Calibre at a specified price or rate at any time does not effect the pricing of any product in the future. A current price list can be provided at the Customer’s request from time to time by making a request to a Calibre representative. The price on any invoice issued by Calibre from time is, in the absence of manifest error, conclusive and binding on the Customer.  Products may be discontinued by Calibre at any time, at Calibre’s discretion. 
45. Special Orders and Specifications:
    • The Customer warrants and agrees that all information provided to Calibre for special orders are accurate and correct in all respects.
    • The Customer must make payment immediately upon request for all Products requested to the Customer’s special order, or other specification which are not sold ordinarily by Calibre as stock Products.
    • All Products requested to the Customer’s special order, or other specification (or otherwise which are not sold ordinarily by Calibre as stock Products) shall not be returnable to Calibre, and nor shall the Customer be entitled to any rebate, reduction, refund, discount or set-off in respect of such Products.
    • To the extent permissible by law, any illustration, drawing, specification and/or other design information provide by Calibre are drafts and approximates, and are to be treated as confidential and are not to be made use of without the prior written consent of Calibre.
46. Return on Ordinary Stock Items:
    • Products ordinarily sold by Calibre as stock Products will not be returnable (other than in accordance with clause 40(c)) to Calibre for credit to the Customer’s account after the Inspection Period has elapsed unless notice has been given in accordance with these Trading Terms.
    • The Customer must advise of the proposed return within the Inspection Period and will be credited in full provided that the Products are in their original packaging and in a saleable condition. Calibre will issue the Customer with a credit note upon return and inspection of the goods.
    • The Customer must provide the following information to Calibre prior to the acceptance of return of any Products by Calibre: invoice number, invoice date, date delivered, stock code, reason for return and quantity returned.
    • The costs of returning the Products and administration fees payable to Calibre will be paid by the Customer including, but not limited to an administration return processing fee (of not less than $5.00) and a per carton warehouse re-shocking fee (payable per carton or part thereof at not less than $10.00 per carton). The Customer acknowledges and agrees that the said administration fee is a genuine pre-estimate by Calibre in relation to the loss, costs and expenses that will be incurred by Calibre in connection with the return,
    • Any Products incorrectly supplied by Calibre will be returned to Calibre at no charge to the Customer.
    • The original invoice price for goods returned will apply to credits unless otherwise stated.
    • Calibre may, at its absolute discretion, accept returns outside of the Inspection period. Any returns not notified within the Inspection Period will incur a 20% restocking fee on all Products returned to cover the restocking, packaging and other related charges. The Customer acknowledges and agrees that the restocking fee is a genuine pre-estimate by Calibre in relation to the loss, costs and expenses that will be incurred by Calibre in connection with the return, and that those amounts are payable in addition to the amounts referred to in paragraph 43(d) above.
    • Calibre retains the right to reject any returns which do not comply with these Trading Terms.
    • For the avoidance of doubt, Calibre shall not be required to accept the return of Products under any circumstances and will only, at its election, accept the return of Products which are undamaged and in a good and saleable condition, and which are not special orders referred to in these Trading Terms.
47. Inherent Characteristics of Products: The Customer acknowledges that Products supplied by Calibre may:
    • differ in appearance from images published and/or provided by Calibre, and any images published and/or provided by Calibre are indicative only;
    • have variations in colour, texture and inherent quality;
    • be susceptible to change and/or damage when exposed to elements (including sun, rain, temperature);
    • be perishable;
    • be unusable if not stored within the manufacturer’s specifications;
    • become dangerous if stored improperly or otherwise than in accordance with the manufacturer’s specifications.
48. Formation of Contract:
    • Where the Customer has completed an Application for Commercial Credit, the contract and/or agreement is formed at the time the Application for Commercial Credit is tendered, which shall constitute an offer to acquire Products on credit, and the opening of the credit account and/or fulfilment of an order on that account on the Credit Terms, which shall constitute acceptance.
    • Alternatively, where no Credit Terms have been entered into, each order placed by the Customer constitutes an offer to acquire Products from Calibre, and the placement of an order, either verbally or in writing, shall imply acceptance of these Trading Terms unless otherwise agreed in writing. Only acceptance by Calibre of the Customer’s order shall complete any agreement, and such acceptance may be written, oral, or constituted by Calibre supplying Products to the Customer.
49. On Sale: In the event that any Product supplied or purchased from Calibre is sold, used or on-sold to a third party, the Customer must not make any representations or misrepresentations to any person about the Products, and the Customer will indemnify Calibre for any claims, losses, damages and/or allegations made by any third party as a result of the same.
50. General:

• Calibre is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God, force majeure event, or any other activity beyond Calibre’s control.
• Calibre may licence and/or assign all or any part of its rights and/or obligations under this agreement without the Customer’s consent.
• The Customer is not entitled to assign or licence without the written approval of Calibre.
• Calibre may elect to subcontract out any part of the delivery of the Products but shall not be relieved from any liability or obligation under this agreement by doing so. The Customer acknowledges and agrees that it does not have authority to provide instructions to any contractor’s or subcontractors of Calibre without the prior written authority of Calibre.

51. Definitions & interpretation: In these Trading Terms unless the context requires otherwise:
    • “Credit Terms” means the General Credit Terms annexed to the Application for Commercial Credit, as amended from time to time, and any Guarantee and Indemnity in respect thereof.
    • “Credit-related information” includes “credit information”, “credit reporting information”, “credit eligibility information” and/or “regulated information” (as the context permits) within the meaning of those terms in the Privacy Act.
    • “Customer” means the customer whose details appear in the Application for Commercial Credit and the Customer’s subsidiaries, holding companies and other related entities, and any guarantor in respect thereof, or (if no Application for Commercial Trading Account has been completed) any person or entity who places an order for and/or receives Products supplied by Calibre.
    • “Event of Default” means any of the following events:
      • the Customer fails to pay for any Products in accordance with the Credit Terms and/or these Trading Terms, and/or the Customer otherwise breaches the Credit Terms and/or these Trading Terms;
      • if the Customer is in breach of any obligations under the Credit Terms and/or these Trading Terms and/or any other agreement between the Customer and Calibre;
      • the Customer ceases or threatens to cease carrying on business;
      • if the Customer is a company: an order is made or a resolution is effectively passed for winding up of the Customer, or the Customer goes into liquidation, or the Customer stops payment or is deemed unable to pay the Customer’s debts within the meaning of the Corporations Act 2001 (Cth); if the Customer is a natural person: an order is made for the Customer’s bankruptcy, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs.
    • “Inspection Period” means within 24 hours of delivery of Products to the relevant Premises (or such other time period for perishable, dry, security or other Products as notified by Calibre from time to time)
    • “Officer” means each director, secretary, credit manager and authorised representative of Calibre.
    • “Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time, the Australian Privacy Principles, and/or the Privacy (Credit Reporting) Code.
    • “Products” includes all products and/or services supplied by or through Calibre to the Customer (including, but not limited to, all consultation, manufacturing and installation services and/or all goods supplied or made available by Calibre to the Customer from time to time).
    • “Trading Terms” means these Terms and Conditions of Trade.
52. Interpretation:
    • In these Trading Terms, unless the context requires otherwise, all references to a party include the party’s successors and permitted assigns.
    • No provision of these Trading Terms will be construed adversely against a party solely because the party was responsible for drafting the provision.
    • These Trading Terms, read together with any Credit Terms and related documents, constitute the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by Calibre and the Customer in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
    • Notwithstanding the preceding paragraph, in circumstances where there are pre-existing written Credit Terms between the Customer and Calibre, these Trading Terms are intended to be read together with and co-exist with the terms herein, and, to the extent of any inconsistency, the Credit Terms will prevail.
53. Privacy and Collection:
    • The Customer authorises and consents to requests for credit reports as detailed on Calibre’s website at calibrebeer.com.
    • The Customer hereby agrees to be bound by these Trading Terms, the Credit Terms and any terms published from time to time on Calibre’s website at calibrebeer.com and warrants that the information given by the Customer to Calibre is true and accurate and warrants that the Customer has disclosed all information relevant to any application for supply of Products from Calibre.
    • The Customer understands that it need not give any of the personal information requested by Calibre, however without this information it may not be possible for Calibre to process any application or provide the Customer with an appropriate level of service.
    • By signing any application and or proceeding in accordance with these Trading Terms, the Customer authorises Calibre to collect, hold, use, and disclose its personal information in the manner set out in these Trading Terms and in Calibre’s Privacy Policy and Credit Reporting Policy (as may be amended from time to time).
    • The Customer acknowledges having read and understood Calibre’s Privacy Policy and Credit Reporting Policy and that it is aware that copies of those policies are available on Calibre’s website at calibrebeer.com or in an alternative form and free of charge from Calibre’s Privacy Officer upon request.