Trade Terms & Conditions
Terms and Conditions
In these Conditions, except where the context otherwise requires, the following words and expressions have the following meanings:
Conditions means the Credit Application Form and the Terms and Conditions.
Corporations Act means the Corporations Act 2001 (Cth).
Credit Limit means the credit limit specified in the Credit Application Form.
Customer means the person named as such in the Credit Application Form.
Goods means any goods supplied by the Supplier to the Customer, including fridges.
Guarantor means the person(s) named as such in the Credit Application Form.
Insolvency Event means, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Cusomer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
Payment Terms means the payment terms (if any) set out in the Credit Application Form, or otherwise 7 days after the date of invoice.
Penalty Interest Rate means the penalty interest rate prescribed by the Penalty Interest Rate Act 1983 (Vic).
PPSA means the Personal Property Securities Act 2009 (Cth).
Security Interest means:
- in relation to any personal property (as defined in the PPSA and to which the PPSA applies), has the same meaning as in the PPSA and includes any fridges supplied by the Supplier under these Conditions; and
- in relation to any other property, means any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power;
Services means any services provided by the Supplier to the Customer.
Supplier means Global Wine Merchants Pty Ltd ACN 652 818 445.
- Supply of Goods and Services
- The Supplier may agree to supply Goods and/or Services to the Customer from time to time.
- These Conditions shall:
- apply to the supply of all Goods and/or Services by the Supplier to the Customer, including the provision of any credit; and
- prevail over any other contract, agreement or arrangement between the Supplier and the Customer as to its subject matter, unless the parties expressly agree otherwise.
- This clause applies where the Supplier is supplying Goods in the form of fridges to store wine.
- The Supplier retains legal and equitable title in any Fridges and Fridges remain the property of the Supplier at all times and the Supplier reserves the right to repossess and reclaim any fridge at any time.
- No other wine or products, other than Goods supplied by the Supplier, are allowed to be stored in the fridge supplied by the Supplier.
- The Customer must do all things necessary to comply with clause 9 below to register a security interest in any fridge.
- Payment Terms and Credit
- The Customer agrees to pay for Goods and Services supplied by the Supplier in accordance with the Supplier’s prevailing price list, portfolio or quote (as applicable).
- The Customer must pay in accordance with the Payment Terms, without any deduction or setoff, the price charged by the Supplier for Goods or Services supplied to the Customer, subject to the Supplier issuing a valid tax invoice to the Customer.
- The Supplier may, at its sole discretion and without any obligation, provide credit to the Customer up to the Credit Limit.
- The Supplier may, at any time and for any reason at its sole discretion, refuse to supply any Goods or Services to the Customer. Any such refusal shall not affect the credit terms which apply to any amounts the Customer then owes to the Supplier.
- The balance of the Customer’s account to the Supplier will become due and payable immediately if:
- the Customer fails to comply with these Conditions; or
- suffers an Insolvency Event.
- Any amount not paid by the due date will incur interest at a rate of 2% above the Penalty Interest Rate calculated daily and compounded monthly.
- Any discount offered or given by the Supplier in respect of Goods or Services supplied to the Customer shall cease to apply if the Customer does not pay for such Goods or Services by the due date for payment.
- Where the Customer has not paid for any Goods, the Customer shall keep such Goods separate and shall allow access to the Supplier to repossess such Goods where any payment is more than 30 days overdue of where the Customer goes into receivership, liquidation or administration.
- The Customer agrees to provide full details of its credit card account to the Supplier and authorises the Supplier to charge such account with any overdue amounts and merchant fees associated with credit card providers.
- Where more than one party is liable for payment of this account, they will be liable jointly and severally.
- In the event of the Customer being in default of his obligation to pay and the overdue account is then referred to a debt collection agency, and/or law firm for collection and the agency charges commission on a contingency basis the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the Customer must pay one hundred percent of any the original amount owed and all of any commission charged by an agency.
- In the event where the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on prushka.com.au.
- The Customer must immediately advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets). The Customer acknowledges that, despite any such event, change, or step the Customer remains liable to pay the price for all Goods or Services supplied.
- The Customer and each Guarantor represents and warrants to the Supplier that any information it has provided to the Supplier as an inducement for the Supplier to provide credit to the Customer is true, complete and accurate. The Customer and each Guarantor must immediately inform the Supplier if there is any change to such information.
- SPECIAL PAYMENT TERMS FOR INTERNATIONAL ORDERS
- If you are ordering Goods that are sourced internationally, the Supplier may require a deposit as agreed with the Customer.
- There may be a significant delay between between the time the Customer places an order and pays the deposit for Goods and the time the Customer receives the Goods.
- The Customer acknowledges and agrees that due to the delay between the initial ordering of the Goods and the Goods being delivered and the international nature of the Goods, the final price paid for these international Goods is subject to any material fluctuations in the foreign exchange rate at the time of delivery. The Customer agrees to pay the final price as advised prior to delivery of the Goods.
- The Supplier will not be liable for any Claims or issues caused by price fluctuations for international orders or delays.
- In the event of any inconsistency between this clause and clause 4, this clause will prevail.
- Delivery and Risk
- Risk in relation to any Goods passes to the Customer on delivery of the Goods.
- Delivery of Goods will be to the Customer’s address as supplied by the Customer. Delivery must not be refused by the Customer.
- If the Supplier has expressly agreed to deliver the Goods to another place, risk in the Goods passes immediately on delivery of the Goods to that place by the Supplier or its agent.
- The Customer must lodge a written claim in relation to the quantity or quality of any Goods or Services with the Supplier within 7 days Tof delivery of such Goods or supply of such Services, failing which the Customer shall be deemed to have accepted delivery of the Goods or performance of the Services and shall not have any further claims against the Supplier.
- The Customer must lodge a written claim in relation to any invoice within 24 hours of receipt of the invoice from the Supplier, failing which the invoice will be deemed to have been accepted by the Customer.
- If the Supplier agrees to accept a return of any Goods, then the Customer must return such Goods in their original packaging and in good order and condition.
- Credit notes will be issued if Goods received are faulty or damaged.
- Retention of title
- The Supplier retains legal and equitable title in any Goods supplied to the Customer until the Supplier receives full payment in cleared funds of all amounts owing by the Customer to the Supplier.
- Where the Supplier has legal and equitable title to any Goods, including fridges:
- the Customer must not sell or dispose of such Goods without the prior written consent of the Supplier or in the ordinary course of the Customer’s business;
- as between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of the Supplier;
- the proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for the Supplier and the Customer is under a duty to account to the Supplier for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to the Supplier for Goods supplied;
- the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, and clearly designate the Goods as the property of the Supplier;
- the Customer must store the Goods in such a way they are clearly identified as the property of the Supplier and keep full and complete records of the physical location of the Goods and the ownership of the Goods by the Supplier;
- the Supplier is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way;
- in order to exercise such entitlement, the Supplier and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles.
- The Supplier’s reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
- The Customer shall indemnify the Supplier against any claim or liability arising from or connected with the Supplier exercising or enforcing its rights under this clause 8.
- The retention of title arrangement described in clause 8 constitute the grant of a Security Interest (as defined in the PPSA) by the Customer in favour of the Supplier. This Security Interest shall continue in the proceeds received by the Customer for any of the Goods sold by the Customer to any third party.
- The supply of Goods under these Conditions may also constitute the grant of additional Security Interests (as defined in the PPSA), including under clauses 3, and the Customer must do all things necessary to ensure the registration of the Supplier’s Security Interests.
- The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Supplier’s Security Interest is a perfected security interest.
- The Customer will not enter into any security agreement that permits any other person to have or to register any Security Interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its Security Interest.
- For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4),135, 142 or 143 of the PPSA in relation to the Goods.
- The Customer hereby waives any rights the Customer may otherwise have to:
- receive any notices the Customer would otherwise be entitled to receive under sections 95, 118, 121, 130, 132 or 135 PPSA;
- apply to a Court for an order concerning the removal of an accession under section 97 PPSA;
- object to a proposal of the Customer to purchase or retain any collateral under sections 130 and 135 PPSA;
- receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any Security Interest the Supplier may have in Goods supplied to the Customer from time to time.
- For the purposes of this clause words and expressions used or defined in the PPSA shall have the same meaning.
- As security for any amounts due to the Supplier from time to time, the Customer charges all of its present and future legal and equitable interest in any and all real property to the Supplier.
- The Customer, agrees, on request by the Supplier, to execute any documents and do all things reasonably required by the Supplier, including any analogous implied term under the applicable governing law, to perfect the security granted under clause 1.
- The Customer appoints the Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps reasonably necessary to protect and enforce the Supplier’s rights under this clause 10.
- The Customer indemnifies the Supplier on an indemnity basis against all costs and expenses incurred by the Supplier in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
- The Customer consents unconditionally to the Supplier lodging a caveat(s) noting its interest in any real property.
- A statement in writing signed by an authorised officer of the Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
- Implied Terms
To the extent permitted by law or unless expressly included in these Conditions, all terms, conditions, representations or warranties in relation to the supply of the Goods or Services are excluded.
- Limitation of Liability
- To the extent permitted by law, the liability of the Supplier arising from or in connection with the supply of any Goods or Services to the Customer, whether in contract, tort, statute or otherwise, shall, at the election of the Supplier, be limited to:
- re-supply of all or part of the relevant Goods or Services; or
- refund of an amount not exceeding the amount paid by the Customer to the Supplier for the relevant Goods or Services.
- Neither party shall be liable to the other party in contract, tort, statute or otherwise for any claim or liability incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
- Guarantee and Indemnity
- In consideration of the Supplier agreeing to supply Goods and/or Services to the Customer, the Guarantor(s) guarantees the due and punctual performance of the Customer’s obligations under these Conditions.
- The Guarantor(s) indemnifies the Supplier against all costs, losses and expenses which the Supplier incurs as a result of any default by the Customer.
- The guarantee and indemnity given by the Guarantor(s) under this clause is continuing and will not be affected:
- if the Supplier grants any extension of time or other indulgence to the Customer or varies the terms of the Customer’s account (even if this increases any Guarantor’s liability);
- by the release of any of Guarantor or if this guarantee and indemnity is or becomes unenforceable against any Guarantor;
- by any payment by the Customer being later avoided by law, whether or not the Guarantor(s) has been given notice of these matters.
- In order to secure the due and punctual performance of the Customer’s obligations under these Conditions, each Guarantor charges all of its present and future legal and equitable interest in any real property in favour of the Supplier.
- Without limiting the generality of the charge in clause 4, each Guarantor agrees on request by the Supplier to execute any documents and do all things reasonably required by the Supplier to register a mortgage over any real property. In the event that a Guarantor fails to deliver the requested documents, the Guarantor hereby appoints the Supplier to be its lawful attorney for the purposes of executing and registering such documents. Each Guarantor indemnifies the Supplier on an indemnity basis against all costs and expenses incurred by the Supplier as the case may be in connection with the preparation and registration of such mortgage.
- Each Guarantor consents unconditionally to the Supplier lodging a caveat(s) noting its interest in any real property.
- If any payment made by or on behalf of the Customer is alleged to be void or voidable by any liquidator or like officer of the Customer under any law related to insolvency, each Guarantor must indemnify the Supplier against any costs or losses it may incur in connection with such claim.
- If the charge created by clause 4 is or becomes void or unenforceable, it may be severed from this Guarantee without any effect on the Supplier’s rights against the relevant Guarantor.
- If a Guarantor is a trustee of a trust, the Guarantor enters into these Conditions in both the Guarantor’s personal capacity and as trustee of that trust.
- If there are two or more Guarantors, then:
- they shall be jointly and severally bound by these Conditions;
- the Supplier may at any time, and from time to time, proceed against any or all of them in respect of their obligations as the Supplier may choose in its absolute discretion; and
- the Supplier is not to be obliged to make any claim against all of the
- Until all of the Customer’s obligations have been paid or satisfied in full, a Guarantor must not (except with the prior written consent of the Supplier) either directly or indirectly, and either before or after the winding up or bankruptcy of the Customer, or any person, take any steps to recover or enforce a right or claim against the Customer relating to any sum paid by the Guarantor to the Supplier under these Conditions, including without limitation proving or claiming in competition with the Supplier so as to diminish any distribution, dividend or payment which, but for the proof or claim, the Supplier would be entitled to receive pursuant to the winding up or bankruptcy of the Customer.
- Force Majeure
If any party is delayed in, or prevented from, performing any of its obligations under these Conditions (other than payment of money) due to any circumstances beyond its reasonable control or influence, the party affected by those circumstances will be excused from performing those obligations for as long as and to the extent that the delay or prevention continues, without being in breach of this deed, and so long as that party:
- keeps the other party fully informed of the circumstances and the effect upon the performance of its obligations of those circumstances; and
- takes all reasonably practicable steps to limit the effects of those circumstances on the performance of its obligations.
- The Customer and each Guarantor authorises the Supplier to:
- obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee and from any other credit provider or credit reporting agency for the purpose of assessing this application for credit, or in connection with any guarantee given to the Supplier;
- use, disclose or exchange with other credit providers information about the Customer’s or any Guarantor’s credit arrangements in order to assess this application for credit, monitor credit worthiness and collect overdue accounts; and
- disclose the contents of any credit report to any officer, employee or agent of the Supplier on a need to know basis.
Unless otherwise agreed by the Supplier, all amounts payable in relation to the Goods supplied by the Supplier to the Customer are expressed to be exclusive of GST. If GST is payable by the Supplier in connection with the supply of such Goods, then the Customer agrees to pay an amount equal to the GST liability in addition to the amount payable for the Goods.
- In these Conditions except to the extent that the context otherwise requires:
- words importing the singular include the plural and vice versa and words importing a gender include other genders;
- where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings;
- references to a clause, schedule or annexure shall be construed as references to a clause of or schedule or annexure to these Conditions and references to these Conditions include its schedules and any annexures;
- a reference to a party to these Conditions or any other document or agreement includes its successors and permitted assigns;
- a reference to a party shall be construed as a reference to a party to these Conditions;
- a reference to a document or agreement including these Conditions includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
- in the interpretation of these Conditions, headings shall be disregarded;
- references to currency shall be construed as references to Australian currency;
- if any day appointed or specified by these Conditions for the payment of any money falls on a non-Business Day, the day so appointed or specified shall be deemed to be the next Business Day.
- These Conditions contain the entire understanding of the parties as to its subject matter and there is no other understanding, agreement, warranty or representation whether expressed or implied in any way defining or extending or otherwise relating to these provisions or any of the matters to which these Conditions relates, and may only be altered in writing and signed by all parties.
- The Supplier may assign its rights under these Conditions, including any security interest granted to it under these Conditions, by written notice to the Customer.
- The failure of a party at any time to require full or partial performance of any provision of these Conditions will not affect in any way the full right of that party to require that performance subsequently.
- The waiver of any party of a breach of a provision of these Conditions will not be deemed a waiver of all or part of that provision or of any other provision or of the right of that party to avail itself of its rights subsequently.
- Any waiver of a breach of these Conditions must be in writing signed by the party granting the waiver, and will be effective only to the extent specifically set out in that waiver.
- The parties agree and acknowledge that:
- all the provisions of these Conditions are reasonable in all the circumstances and that each provision is and will be deemed to be severable and independent; and
- if all or any part of any provision is judged invalid or unenforceable in all the circumstances, it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
- These Conditions are governed by and are to be construed in accordance with the laws of the State of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria, Australia, and Courts entitled to hear appeals from these Courts.
EXECUTED AS AN AGREEMENT
EXECUTED by Global Wine Merchants Pty Ltd ACN 652 818 445 in accordance with Section 127 of the Corporations Act 2001 (Cth):
Director/Sole Director and Sole Secretary
EXECUTED by in accordance with Section 127 of the Corporations Act 2001 (Cth):
Director/Sole Director and Sole Secretary
SIGNED SEALED AND DELIVERED by the said in the presence of:
Name of Witness (Print)