Last Updated: August 2024
1. Interpretation and Definitions
Unless qualified by or inconsistent with the context:
1.1 “Application” means the Supplier’s New Wholesale Customer Application Form;
1.2 “Business Day” means Monday to Friday, except a day which is a proclaimed public holiday, in South Australia and those days between 24 December and 2 January;
1.3 “Claim” means any claim, action, proceeding, demand, cost, damage, loss, expense, liability incurred or suffered by, or brought or made or recovered against any person and however arising (whether or not presently ascertained, immediate, future or contingent);
1.4 “Commencement Date” means the earlier of the date the Customer’s Application is accepted by the Supplier or the date the last party signs these Supply Terms;
1.5 “Confidential Information” includes all information of either party that the other party knows or ought to know is confidential and includes (but is not limited to) the terms of these Supply Terms or it is disclosed to another party that is confidential or proprietary, whether verbally or in writing and whether marked confidential or not;
1.6 “Consequential Damages” means any indirect, special, consequential, punitive or exemplary damages, expenses, losses or costs including loss of anticipated or actual revenue or profits, loss of or inability to use equipment, a failure to realise anticipated savings, lost data, down time costs or loss of goodwill;
1.7 “Customer” means the company, partnership, sole trader, trust or other entity listed in the Application and otherwise receiving Products from the Supplier;
1.8 “Delivery Address" means the address listed for delivery on the Application, unless agreed otherwise between the parties in writing;
1.9 “End Date” means the date these Supply Terms are terminated in accordance with clause 19;
1.10 “Guaranteed Money” means any amount that the Customer is or may at any time be liable (actually, prospectively or contingently) to pay to the Supplier under or in connection with these Supply Terms (including arising in consequence of the Customer's breach or default). A reference to Guaranteed Money includes any part of it;
1.11 “Guarantor” means the people named in the Application as
Guarantor(s);
1.12 “Insolvency Event” means, in respect of any person:
1.12.1 an order being made, or the person passing a resolution, for its winding up;
1.12.2 an application being made to a court for an order for the
person’s winding up;
1.12.3 an administrator or a receiver and/or any other person being appointed to that person or any of its property or taking possession of any of its property;
1.12.4 that person failing, or being taken to fail, to comply with a statutory demand;
1.12.5 that person suspending payment of its debts, ceasing (or threatening to cease) to carry on all or a material part of its business, stating that it is unable to pay its debts or becoming otherwise insolvent;
1.12.6 the person being declared bankrupt; or
1.12.7 the person being taken by applicable law to be unable to pay its debts or to be otherwise insolvent;
1.13 “Intellectual Property” means all intellectual property rights including,
without limitation:
1.13.1 patents, copyright, registered designs, rights in circuit layouts, trade marks, domain names, inventions, secret processes, trade secrets, know how, product trade dress, discoveries and improvements and modifications of any kind;
1.13.2 the right to have Confidential Information kept confidential; and
1.13.3 any application or right to apply for registration of any of the rights listed above;
1.14 “Laws” means all applicable laws from time to time, including all such Laws of Australia;
1.15 “notice” means written notice and “notify” means notify in writing;
1.16 “Order” means a written order given by the Customer to the Supplier in such form as the Supplier may reasonably determine from time to time;
1.17 “PPSA” means the Personal Property Securities Act 2009 (Cth), and includes any regulation made under the PPSA (each as amended from
time to time) or any amendment made at any time to any other legislation as a consequence of the PPSA.
1.18 “Price” means the total price for Products which will be mutually agreed
between the Supplier and the Customer and approved in an Order;
1.19 “Products” means the tobacco goods and accessories supplied by the Supplier to the Customer from time to time and includes such goods, collectively and individually;
1.20 “Security Interest” means:
1.20.1 security interest under the PPSA or security for the payment of money or performance of obligations, including a mortgage, pledge, lien, charge, assignment by way of security, hypothecation, secured interest, title retention arrangement, preferential right, trust arrangement or other arrangement (including without limitation, any set-off or ‘flawed-asset’ arrangement) having the same or equivalent commercial effect as a grant of security;
1.20.2 a purchase money security interest, whereby a security interest taken in collateral, to the extent that it secures all or part of a purchase price;
1.20.3 an agreement to create or give any arrangement referred to in paragraphs 1.20.2 or 1.20.3 of this definition.
1.21 “Supplier” means Viva Energy Retail SMGB Pty Ltd ABN 44 670 895 904;
1.22 “Supply Terms” means these terms and conditions and any special
conditions agreed between the parties; and
1.23 “Term” means the period commencing on Commencement Date and ending on the End Date.
2. Special Conditions
The special conditions, if any, set out in a side letter or Order signed by the Customer and the Supplier, will form part of these Supply Terms and to the extent of any inconsistency with these Supply Terms, the special conditions will prevail.
3. Term
These Supply Terms commence on the Commencement Date and continue for the Term.
4. Engagement and Exclusivity
Unless agreed otherwise in writing between the parties:
4.1 The Customer exclusively engages the Supplier as the seller of the Products and the Supplier has agreed to supply the Products to the Customer in accordance with these Supply Terms and the Orders; and
4.2 For the avoidance of doubt, during the Term, the Customer agrees not to purchase any tobacco products, tobacco accessories or related products from any party or supplier other than the Supplier, without the Supplier’s prior written consent. If a third party offers the Customer more favourable supply terms than the Supplier for a Product, the Customer must immediately notify the Supplier and the Supplier will have first right to supply such Products to the Customer on no more favourable terms than the third party offer before the Customer exercises any of its rights under these Supply Terms.
5. Ordering, Delivery and Packaging
5.1 The Customer will send Orders electronically to the Supplier for the supply of Products to the Customer specifying the quantity and quality of the Products required, the date for delivery and the Delivery Address (if different to the Application). If the Supplier and Customer have agreed a minimum order quantity for Orders, the Customer must ensure each Order meets the minimum order quantity, otherwise the Supplier may not process the Order.
5.2 The Supplier accepts an Order by written confirmation to the Customer within 48 hours after receipt (except if on a non-Business Day, the next Business Day thereafter).
5.3 The Supplier may cancel an Order that has not been delivered if:
5.3.1 the Customer is in breach, or likely to breach, any term of these Supply Terms;
5.3.2 the Supplier reasonably determines that the Customer will not be able to pay for the Products or any debts as and when they fall due;
5.3.3 the Supplier is not reasonably satisfied that the Products will be delivered in accordance with the Order; and
5.3.4 subject to any Laws, the Customer suffers an Insolvency Event.
5.4 If an Order is cancelled under clause 5.3:
5.4.1 the Customer will not be liable to pay anything for Products not delivered before cancellation;
5.4.2 the Customer may request a credit in respect of any payments made for the cancelled Products not delivered and, if requested, the Supplier may grant the Customer the credit;
5.4.3 the cancellation will not affect either party’s rights against the
other party; and
5.4.4 the Supplier is not responsible for any Claim suffered by the Customer as a consequence of the cancellation.
6. Delivery
6.1 The Supplier will deliver the Products to the Customer in accordance with the delivery terms mutually agreed between the parties.
6.2 The Supplier will ensure that all Products delivered to the Customer are packaged, labelled, marked, ticketed and loaded in accordance with the Customer’s instructions and requirements of the freight carrier.
6.3 The Customer is responsible and liable for all costs, charges, taxes, levies and other arrangements associated with the delivery of the Products from the Supplier to the Customer.
7. Title and Risk
7.1 Unless otherwise advised by the Supplier in writing, all risk in the Products passes to the Customer on delivery of the Products and title to the Products will pass to the Customer when the Supplier has received payment in full for the Products.
7.2 Until payment in full for the Products has been made to the Supplier by the Customer, the Customer will hold the Products on trust as trustee for the Supplier and will keep all Products stored separately from other products of the Customer and clearly labelled as Products of the Supplier.
7.3 Until title of the Products passes to the Customer (including in any events of default payment by the Customer), the Customer hereby irrevocably authorises and grants the Supplier a licence to access any location where the Products are (or may) be stored by the Customer to inspect the Products and/or take possession of the Products. The Customer indemnifies and will keep indemnified the Supplier against any damages, losses, costs or liabilities suffered or incurred by the Customer as a result of the Supplier exercising its rights under this clause.
8. PPSA
8.1 The Customer acknowledges and agrees that:
8.1.1 The Customer grants a Security Interest to the Suppler in:
8.1.1.1 the Products;
8.1.1.2 any and all other goods previously supplied by the Supplier to the Customer (if any); and
8.1.1.3 any and all other goods supplied by the Supplier to the Customer (or to its account) during the continuance of the relationship between the Supplier and the Customer; and
8.1.2 the Security Interest granted under this clause 8:
8.1.2.1 extends to and continues in all proceeds, accessions and processed or comingled goods; and
8.1.2.2 is a purchase money security interest to the extent to which it secures payment of amounts owing by the Customer to the Supplier in respect of the Products.
8.2 The Customer must not do or permit anything to be done that may result in the purchase money security interest granted to the Supplier under this clause 8 ranking behind any other Security Interest (including without limitation by virtue of section 64 of the PPSA).
8.3 The Customer agrees to sign any further documents and/or provide any further information, (which information the Customer warrants to be complete, accurate and up to date in all respects), or do any other things that the Supplier reasonably requires (such as obtaining consents, completing, signing and producing documents and supplying information):
8.3.1 to perfect and maintain the perfection of the Supplier’s Security Interest (including by registering a financing statement or finance change statement on the Personal Property Security Register (PPSR) and ensuring that the Security Interest is enforceable, perfected and otherwise effective;
8.3.2 for the purpose of enabling the Supplier to apply for any registration, or give any notification, in connection with a Security Interest so that it obtains the priority reasonably required by the Supplier; and
8.3.3 for the purpose of enabling the Supplier to exercise powers in connection with the Security Interest.
8.4 The Customer agrees to:
8.4.1 meet its own costs in connection with this clause 8 and any reasonable and substantiated costs of the Supplier;
8.4.2 not register a financing change statement or a change demand in respect of the Products without prior written consent of the Supplier; and
8.4.3 give the Supplier 14 days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details and immediately advise the Supplier of any material change in its business practices of selling goods which would result in a change in the nature of proceeds derived from such sales.
8.5 The Security Interest will continue until the later of (a) the End Date, and
(b) the Customer has paid all amounts owing to the Supplier.
9. Prices & Payment
9.1 The Customer will pay the Price to the Supplier for the Products supplied.
9.2 The Supplier may increase or amend the Price of a Product during the Term with prior written notice to the Customer.
9.3 The parties may agree to increase the Price if there has been a material increase in the cost of the manufacturing compliance; labour; raw materials; or logistics, such increase only effective following the date of the agreed variation, such variation to be in writing and signed by both parties.
9.4 Unless otherwise agreed in writing by the parties, the Supplier must issue an invoice to the Customer for the deposit amount (if any), issue an invoice to the Customer upon delivery of the Products for the balance together with an accompanying bill of lading.
9.5 Each invoice will prominently state the Order number.
9.6 The Customer must pay a compliant invoice by electronic funds transfer to the Supplier within the agreed payment terms with the Supplier. If there are no agreed payment terms, the default payment terms are seven (7) days of receipt of an accurate and compliant invoice.
9.7 The Supplier reserves the right to charge the Customer interest on any overdue amount at a rate equal to the Commonwealth Bank of Australia 90 days bank bill rate plus 5% per annum from the due date until payment in full is made.
10. Supplier’s Obligations
10.1 During the Term, the Supplier agrees that it will:
10.1.1 ensure that the Supplier and the Products comply with all Laws and Australian industry standards including but not limited to packaging and labelling;
10.1.2 provide all relevant information reasonably requested by the Customer;
10.1.3 inform the Customer of any delays;
10.1.4 obtain and maintain all necessary licenses as required by for the sale of the Products; and
10.1.5 keep the Customer fully informed of any manufacturing, quality, warranty or performance issues in respect of the Products.
10.2 The Supplier may subcontract any of its obligations under these Supply Terms without the prior written consent of the Customer.
11. Customer’s Obligations
11.1 During the Term, the Customer agrees that it will:
11.1.1 ensure time is of the essence for payment of the Products;
11.1.2 comply with all obligations and requirements in these Supply Terms;
11.1.3 comply with all Laws and Australian industry standards and obtaining and maintaining all licences in respect of purchasing and reselling the Products;
11.1.4 provide all information or documentation reasonably requested by the Supplier; and
11.1.5 not infringe or aid in the infringement of any Intellectual Property rights of the Supplier.
12. Product Quality
12.1 The Customer has the right to inspect the Products upon delivery. If any Products supplied are defective or faulty, the Customer must notify and provide evidence to the Supplier as soon as reasonably possible upon delivery.
12.2 If the Supplier (acting reasonably) determines that Products are defective or faulty (and such defect or fault is not caused or contributed to by the Customer), the Supplier will, at the Supplier’s discretion, provide replacement Products or provide a credit to at least the value of the defective or faulty Products.
13. Intellectual Property
13.1 The Supplier owns all Intellectual Property owned by the Supplier at the Commencement Date. Nothing in these Supply Terms transfers, assigns, licences or provides any rights to any Intellectual Property of the Supplier to the Customer, unless agreed otherwise in writing between the parties.
13.2 The Customer agrees that, without the Supplier’s prior written consent, the Customer will not use any branding, trade marks or other Intellectual Property of the Supplier for any reason whatsoever.
14. Warranties
The Supplier represents and warrants to the Customer that:
14.1 it holds all required accreditations and approvals to supply the Products;
14.2 the Products are free from all encumbrances;
14.3 the Products comply with the Order specifications and any other requirements agreed between the parties; and
14.4 if a Product does not satisfy any warranty set out in this clause, the Customer is entitled to (at the Supplier’s option):
14.4.1 receive a refund for the Price paid; or
14.4.2 receive a credit from the Supplier for the Price paid. The Customer represents and warrants to the Supplier that:
14.4.3 it holds and will hold all required accreditations and approvals to purchase and resell the Products;
14.4.4 it is authorised to and can lawfully enter into these Supply Terms;
14.4.5 it will maintain the insurances described in clause 18 for the Term; and
14.4.6 it will observe any policies and reasonable directions of the Supplier notified to it by employees or representatives of the Supplier.
15. Supplier’s Indemnity
15.1 The Supplier releases and indemnifies the Customer from and against any Claim arising directly or indirectly out of:
15.1.1 a breach of the Law by the Supplier;
15.1.2 a negligent act or omission of the Supplier; and
15.1.3 any defects in any Products,
except to the extent that the Claim is directly or indirectly attributable to the negligent act or omission of the Customer.
15.2 Notwithstanding any other provision of these Supply Terms, the Supplier will not in any circumstances be liable to the Customer for any Consequential Damages.
16. Customer’s Indemnity
16.1 The Customer releases and indemnifies the Supplier from and against any Claim arising directly or indirectly out of:
16.1.1 a breach of these Supply Terms by the Customer (including any reasonable and substantiated costs incurred by the Supplier due to any default of the Customer);
16.1.2 a breach of Law by the Customer; and
16.1.3 a negligent act or omission of the Supplier,
except to the extent that the Claim is directly attributable to the negligent act or omission of the Supplier.
17. Product Recall
17.1 If a party becomes aware of any actual, potential or threatened defect in any Products in which the Customer has taken physical possession that ought not to be offered for sale to the public having regard to the nature and extent of the actual, potential or threatened defect, then that party must immediately give notice to the other party of:
17.1.1 all reasonable detail of the affected Products;
17.1.2 the nature of the defect; and
17.1.3 the action the party has taken or proposes to take in relation to the defect.
17.2 Each party must promptly comply with all the requirements of the Law in relation to a Product recall.
17.3 The Supplier may carry out a voluntary Product recall in its sole discretion and at its own cost:
17.3.1 for safety reasons;
17.3.2 to maintain consumer confidence in the Product;
17.3.3 in anticipation of a mandatory product recall; and/or
17.3.4 as may otherwise be required for the Supplier to comply with any Law.
17.4 Unless otherwise agreed between the parties, the parties will bear their own costs in respect of a Product recall.
18. Insurance
The Customer will effect and maintain appropriate insurance policies having regard to the nature of the Products, nominating the Supplier as an interested party. To avoid doubt, the Customer must maintain public and product liability insurance of no less than $20m per occurrence and professional indemnity insurance of no less than $2m. The Customer will provide a certificate of currency evidencing the insurance policies held by the Customer upon request by the Supplier.
19. Termination and Suspension
19.1 Either party may terminate or suspend these Supply Terms at any time by giving the other party 60 days’ written notice.
19.2 Either party (“non-defaulting party”) may terminate these Supply Terms or suspend any obligations under these Supply Terms (including Orders and delivery obligations) immediately by notice to the other party (“defaulting party”) if:
19.2.1 the defaulting party breaches any of the terms of these Supply Terms and within 14 days of receiving a notice from the non- defaulting party specifying the breach, has not remedied it;
19.2.2 the defaulting party commits a serious breach of any other terms of these Supply Terms such as would reasonably justify immediate termination or suspension of these Supply Terms; or
19.2.3 to the maximum extent permitted by Law, the defaulting party suffers an Insolvency Event.
19.3 Any termination will not affect the rights and obligations pursuant to these Supply Terms which existed or accrued prior to termination.
19.4 Any suspension may be for a reasonable period of time determined by the non-defaulting party, or until the defaulting party remedies the default.
20. Consequences of Termination and Suspension
Upon termination or suspension of these Supply Terms for any reason:
20.1 the parties must immediately cease to use any Intellectual Property of the other party;
20.2 the Customer must immediately forward to the Supplier all copies of all materials in any form, in the Customer’s possession or control containing the Supplier’s Intellectual Property;
20.3 neither party will say nor do anything to prejudice the other party or the Products; and
20.4 all moneys owing and outstanding to the Supplier from the Customer whether the due date has occurred or passed shall become immediately due and payable and additionally, the Supplier reserves the right to charge the Customer any and all reasonable expenses incurred by the Supplier in order to recover the outstanding monies owed to the Supplier.
21. Confidentiality
21.1 Both parties must keep all Confidential Information confidential.
21.2 A party may use or disclose the Confidential Information only:
21.2.1 to fulfill its obligations under these Supply Terms;
21.2.2 to professional advisors on a confidential basis for the purpose of obtaining advice; or
21.2.3 if the other party has consented in writing.
22. Dispute Resolution
In the event of any dispute, controversy or claim arising out of or relating to these Supply Terms, or the breach, termination or invalidity thereof (“Dispute”), either party may notify the other party of the existence and nature of the Dispute and the parties must exercise good faith in seeking to resolve the dispute by negotiation between themselves.
23. Modern slavery
Each party represents and warrants that:
23.1 it will notify the other party if it becomes aware of any actual or suspected modern slavery in its supply chain;
23.2 it has implemented due diligence procedures to identify modern slavery in all parts of its supply chain;
23.3 it maintains and completes a set of records to trace the supply chain of the Products and their constituent components supplied to the Customer;
23.4 it will respond to the other party’s enquiries, cooperate with any investigation and allow the other party to audit any books, records or other documentation in accordance with these Supply Terms; and
23.5 any information provided to the other party in accordance with this clause 23 is true and accurate and can be relied upon for the purposes of the Modern Slavery Act 2018 (Cth).
24. Force Majeure
24.1 A party will not be liable for its inability to perform its obligations under these Supply Terms as a result of an act of God, war, act of terrorism, prohibitive governmental regulations, labour dispute or any other cause beyond that party's reasonable control. If such a force majeure event occurs, the party suffering it will notify the other party of the occurrence and expected duration of that event. The party suffering the force majeure event must use all reasonable endeavours to overcome that force majeure event.
24.2 If a force majeure event renders performance of these Supply Terms impossible for a continuous period of at least 3 calendar months, either party may by notice to the other, terminate these Supply Terms.
25. Entire agreement
These Supply Terms (along with the Application) contain the entire agreement between the parties in respect of the subject matter. These Supply Terms supersede any prior agreement or understanding (if any) between the parties.
26. Amendments
Any amendment to these Supply Terms must be made in writing executed by the parties or duly authorised officers of the parties.
27. No partnership or joint venture
The parties must not by reason of these Supply Terms in any way be deemed to be or become partners or agents of one another or be or become members of a joint venture.
28. Costs
28.1 Each party must pay its own costs and fees relating to the negotiation, preparation and execution of these Supply Terms.
28.2 A party that breaches these Supply Terms will pay all damages, losses, costs and expenses incurred by the other party in consequence of that breach but without limit to any other rights or remedies which the party not in breach may have as a result of that breach.
29. Notices
Any notice to be given by one party to any other must be signed by the party giving the notice or by one of its officers or its duly authorised lawyer or agent and is received in full and legible form at the addressee’s address and deemed received on the day it is actually received.
30. Convention on the International Sale of Goods
Neither the Convention on the International Sale of Goods nor the law of any country enacting that Convention will apply to these Supply Terms.
31. Assignment
31.1 These Supply Terms are strictly personal to the Customer, and it will not assign any of its rights or obligations under these Supply Terms without the Supplier’s prior written consent.
31.2 Any change in the ownership structure of the Customer will be deemed an assignment by the Customer.
31.3 The Supplier may assign its rights and obligations under these Supply Terms.
32. Severability
The invalidity or unenforceability of any clause or part of any clause shall not affect the enforceability of the remainder of these Supply Terms.
33. Waiver
33.1 The failure by one party to insist upon strict performance by the other party of any of the terms of these Supply Terms will not be deemed a waiver of any term or a breach by the other party of any term of these Supply Terms.
33.2 A waiver of any term of these Supply Terms by a party must be in writing executed by that party or one of its duly authorised officers or lawyers.
34. Governing Law
These Supply Terms is to be construed according to South Australian laws and the parties submit themselves to the non-exclusive jurisdiction of the Courts of South Australia.
35. Counterparts
These Supply Terms may be executed in any number of counterparts and all counterparts taken together will constitute one and the same instrument.
GUARANTEE
36. Guarantee
The Guarantor irrevocably and unconditionally guarantees to the Supplier that the Customer will pay the Guaranteed Money at the times and in the manner provided in these Supply Terms for payment and comply with the Customer's obligations under the Supply Terms.
37. Indemnity
37.1 The Guarantor irrevocably and unconditionally indemnifies The Supplier in respect of all Claims which The Supplier may suffer, sustain or incur directly or indirectly arising from or in connection with:
37.1.1 the Customer not paying the Guaranteed Money;
37.1.2 the Customer not complying with the Customer's obligations under the Supply Terms; and
37.1.3 the Supplier not being able to recover any or all of the Guaranteed Money from the Customer or enforce any or all of the Customer's obligations under the Supply Terms for any reason,
whether or not the Supplier or the Guarantor knew or should have known about a fact or circumstance that gives rise to a Claim under this indemnity.
37.2 It is not necessary for the Supplier to incur expense or make a payment before enforcing this indemnity.
38. Payment under guarantee
38.1 If the Customer does not pay the Guaranteed Money at the times and in the manner for payment or comply with the Customer's obligations under these Supply Terms, the Guarantor must, on demand, pay the Guaranteed Money to the Supplier or comply with the Customer’s obligations under the Supply Terms or both, as the case may be, whether or not the Supplier has demanded that the Customer pay or comply.
38.2 The Guarantor hereby charges all interests (freehold and leasehold) in real and personal property held now or in the future by a Guarantor. The Guarantor agrees that if demand is made by the Supplier it will immediately execute a mortgage or other instrument of security, or consent to a caveat (as required by the Supplier) and in the event the Guarantor fails to do so within a reasonable time the Guarantor hereby irrevocably and by way of security appoints any credit manager or solicitor engaged by the Supplier to be its true and lawful attorney to execute and register such instrument. The Guarantor authorises the attorney appointed pursuant to this clause to enter into conflict transactions within the meaning of the Power of Attorney Act 1984 (SA)
or other applicable legislation. The Guarantor will pay all of the costs associated with this charge.
39. Primary obligations
The guarantee and indemnity:
39.1 are principal obligations and are not ancillary or collateral to any other obligations;
39.2 may be enforced by the Supplier against the Guarantor even if the Supplier does not enforce other security it holds in respect of the Customer’s obligations or a right against any other guarantor (if any); and
39.3 are independent of and in addition to any other guarantee, indemnity or security The Supplier holds.
40. Continuing nature
The guarantee and indemnity is a continuing security and will be discharged in any way or be considered or deemed to be discharged in any way until the Supplier unconditionally releases the Guarantor in writing or until all of the Guarantor's obligations are complied with.
41. Liabilities and rights not affected
The Supplier’s rights and the Guarantor's liabilities and obligations will not be released, discharged, modified, impaired or affected by anything which might otherwise affect them at law or otherwise including, without limitation, one or more of the following:
41.1 the death of or an insolvency event occurring in respect of any person
including the Guarantor or Customer;
41.2 a change in the legal capacity, rights or obligations of the Guarantor;
41.3 the fact that the Guarantor or Customer is a trustee, nominee, joint owner, joint venturer or a member or a partnership, firm or association;
41.4 an assignment of rights by the Guarantor in connection with the Guaranteed Money;
41.5 the assignment, variation, extension, expiration or termination of the Supply Terms;
41.6 laches, acquiescence, delay, acts, omissions or mistakes on the part of the Supplier;
41.7 that no notice, claim or demand for payment, performance or observance has been given to or made upon the Customer or any other person;
41.8 that no steps or proceedings have been taken against the Customer;
41.9 any waiver by the Supplier of or delay or failure of The Supplier to enforce any of the provisions of the Supply Terms;
41.10 the acceptance by The Supplier of any security or additional security from the Customer;
41.11 that the Supply Terms or any obligation in the Supply Terms accepted by or imposed on the Customer is void or defective or cannot be legally enforced against the Customer;
41.12 that the Customer whether in equity or law or by statute or otherwise was prohibited from or was without capacity power or authority to enter into the Supply Terms or to accept any obligation contained in the Supply Terms or that The Supplier had or ought to have had knowledge or notice (whether actual or constructive) that the Customer was so prohibited or was without any such capacity power or authority;
41.13 any loss, release or discharge by The Supplier of the Supply Terms or any other agreement; and
41.14 any release or discharge of the Customer by The Supplier or by others or by operation of any law.
42. Waiver of rights
The Guarantor waives:
42.1 any claim, right of set off or counterclaim or any defence which might reduce or discharge the Guarantor's liability;
42.2 any right it has of first requiring The Supplier to commence proceedings against or enforce any other right against the Customer or any other person before claiming against the Guarantor; and
42.3 any legal or equitable rights it has that are inconsistent with its obligations under the guarantee and indemnity.
43. Suspension of Guarantor rights
Until The Supplier has received all the Guaranteed Money, is satisfied that it will not have to repay any of it and is satisfied that all the Customer's obligations under the Supply Terms have been complied with, the Guarantor is not entitled on any ground whatsoever, and must not:
43.1 assert any right of subrogation in respect of any moneys paid to The Supplier;
43.2 claim for any reason to have a right to the benefit of the guarantee or security that The Supplier holds in connection with the Supply Terms;
43.3 make a claim or enforce a right against the Customer or its property; or
43.4 prove or claim or exercise voting rights if a liquidator, provisional liquidator, administrator or trustee in bankruptcy is appointed in respect of the Customer.
44. Death or insolvency of Customer
44.1 In the event of the death of or insolvency of the Customer the Guarantor must not without the prior written consent of The Supplier be entitled either directly or indirectly to receive the benefit of any dividend or
payment or to lodge any proof or to make any claim in respect of same in competition with The Supplier so as to diminish any amount that but for such dividend payment proof or claim The Supplier would be entitled to receive.
44.2 Any dividend or other payment that The Supplier may receive in any such circumstances will not prejudice the right of The Supplier to recover from the Guarantor so much of the Guaranteed Money as has not been paid to The Supplier.
45. Reinstatement of guarantee
If any payment or other transaction in connection with the Supply Terms is void, voidable, unenforceable or defective or is claimed to be so and that claim is upheld or settled then:
45.1 the liability of the Guarantor is to be what it would have been if the payment or other transaction had not been made; and
45.2 the Guarantor must do everything necessary to put The Supplier back into the position it would have been if the payment or other transaction was not void, voidable, unenforceable or defective.
Stock Returns Policy
1. Purpose
This Policy outlines the procedures and requirements for the return of stock purchased from Viva Energy Retail SMGB Pty Ltd (SMGB) by you (Customer).
This Policy is to apply to any Customer purchase from SMGB to ensure a smooth and fair process for both Customers and SMGB.
2. Policy Details
Customer Responsibility for Change of Mind or Incorrect Orders
Customers are solely responsible for their decisions regarding purchases and placing an order. If a Customer changes their mind, or orders an incorrect product, they may elect to return the unwanted items for a refund if the product is eligible for a return.
3. Requesting a Return
If a Customer is requesting a return they must at all times be eligible (and comply with the obligations under item 4) and must notify SMGB by Contacting the Wholesale Support Team on +61 8 8333 9700.within 28 days from the date of the invoice containing the goods requesting to be returned.
4. Return Eligibility
Products can only be returned if:
a. the Customer provides evidence of purchase via a valid invoice issued by SMGB noting the products that the Customer intends to return; and
b. the invoice must indicate that the product was purchased within 28 days from the Customer placing a request for return. The Customer agrees and acknowledges that SMGB will not accept any returns requested after this period; and
c. the returned items must be in the same condition as they were delivered, in whole and complete packaging and in saleable condition (at SMGB’s sole discretion). The Customer agrees and acknowledges that SMGB will not accept any returns on items that are not fit for re-sale in their absolute discretion.
5. Acceptance of a Return
SMGB will accept an eligible Customer return and communicate the same to the Customer. The Customer agrees and acknowledges that any return will be subject to the Return Fee outlined in Item 6 and Customer compliance with item 7.
In instances of standard metro SMGB delivery locations, SMGB will co-ordinate the collection of the returned items with the Customer acting in good faith and the Customer will make available the returned items in accordance with item 4.
In instances of delivery outside standard SMGB areas where third party logistics providers facilitate deliveries on behalf of SMGB, the Customer agrees and acknowledges that it will be solely responsible for all additional fees and costs associated with the co-ordination and collection of the returned items. The Customer will make available the retuned items in accordance with item 4. The Customer agrees and acknowledges that any third party logistic costs will be passed directly onto the customer and charged in the same manner as the Return Fee. For the avoidance of doubt the Customer acknowledges and agrees that these additional costs are in addition to the Return Fee.
6. Packaging Returned Goods
The Customer is required to package the returned goods and have a physical copy of the invoice relating to the returned goods presented to the Driver at the time of collection of the eligible returns.
7. Driver Protocol for Returns
Drivers are instructed by SMGB not to accept any returned products unless the Customer presents a valid invoice that corresponds to the purchase of the returned item.
8. Return Fee
The Customer agrees and acknowledges that a return fee of $25 inc. GST (Return Fee) will be applied to any Customer return.
This fee will be included in the subsequent invoice issued by SMGB to the Customer.
This fee will be covers administrative costs associated with processing returns.
9. Discretionary Waiver of Fees
The Return Fee may be waived by SMGB in only in instances where SMGB is requesting the Customer returns goods.
10. Contact Information
For any questions regarding this policy or to initiate a return, customers can contact our Support Team at +61 8 8331 6842.
11. Acknowledgment
By making a purchase with SMGB, customers acknowledge and agree to the conditions in this Policy.
12. Review and Adjustments
This policy is subject to review and adjustments as needed to reflect operational needs and customer service standards.