TERMS AND CONDITIONS OF TRADE
Please read the under mentioned terms carefully. If you do not understand these terms and conditions of trade you should seek independent legal advice.
These Terms and Conditions of Trade bind the Customer both personally and as trustee of any trusts of which the Customer is trustee and, without limitation, the assets of any such trusts are available to meet payment of any monies due and owing to the Company, whether arising from an Event of Default or otherwise.
2. CHANGE OF OWNERSHIP
The Customer must notify the Company, no later than 14 days prior to any change in the owner of the Customer, of the intended change in owner. Failure to do so, may result in the current owners of the Customer, being responsible for future debts of any new owner. The provision of credit to the Customer pursuant to these Terms and Conditions and the Application are not automatically transferred to a new owner upon a change in owner, and the Company may decline provide credit to a new owner, at its discretion, acting reasonably.
3. MINIMUM ORDER
National minimum order value of $250.00 in total applies to all sales orders. Higher minimum order values may apply for Regional areas outside of major cities – please consult your Sales Area Manager or contact National Customer Service if required.
4. PAYMENT TERMS
Nett all purchases and freight – Payable by the 14th day of the month following the month of invoice. Payment to the Company, without any right of set-off or for part payment, shall be made in cash with the Customer’s order. This is unless the Customer completes the Company’s Application for Credit and the Company approves that Application and any conditions relating to that approval are satisfied by the Customer. Whereupon such “Account Customers” can make full payment for all invoiced items in any manner stipulated by the Company. Full terms and conditions of sale and supply of services apply as per the Company’s Price List and as per the Company’s Application for Credit forms. Payments shall be made payable to the Company. Payments by cheque shall not be deemed made until the cheques have been cleared.
5. PAYMENT BY CREDIT CARD
Notwithstanding the required arrangements for payment above, if, after ordering and being invoiced for the agreed prices for the goods and freight, an Account Customer wishes to pay by credit card, a separate service fee will be charged by the Company. Such service fee will have no bearing on the rights of customers in respect of claiming title in the goods whether customers pay for the goods in their own right. Such service fee will be separate from the contract for the sale of goods and from any contracted freight services and will not form any part of the LUC prices stated. Customers are not obliged to pay by credit card. As noted above the service fee is only chargeable if an Account Customer wishes to pay by credit card after ordering and being invoiced. Therefore if an Account Customer pays by credit card when ordering, no such service fee will be charged. The service fee for payments made by credit card (Visa and MasterCard) will be on charged as 1.5% or 3.0% (AMEX) of the amount invoiced. These percentages are subject to change from time to time at the Company’s discretion. These service fees are to recover the average cost incurred by the Company in accepting payments by credit cards. These service fees comply with the Reserve Bank of Australia Surcharging Standard issued in March 2013.
All Goods will be at the Customer's risk ex-warehouse. The Company can arrange freight (including any additional services) for the Customer unless declined by the Customer. If freight is declined, the Customer must make its own arrangements for delivery of Goods at its own cost. In order to recognise a claim for damage or loss during freight by the Company’s arranged carriers, the Company must be notified at the time of delivery. Claims of any other nature will not be accepted unless made within 24 hours of delivery. The Company reserves the right to refuse any claim.
7. CHANGE OF OWNERSHIP
The Customer agrees to notify the Company in writing of any change to ownership of the Customer within 7 days of such change, and indemnifies the Company against any loss or damage incurred by it as a result of the Customer’s failure to notify the Company of any change. The Company also reserves the right to withdraw the Customer's approved credit status in relation to the sale of Goods, and all outstanding amounts will become immediately due and payable and future deliveries can only be made by payment of cash on delivery.
If the Customer commits an Event of Default, the Company may, in addition to to any other rights available to it at law or pursuant to these Terms and Conditions of Trade: (a) charge interest on all overdue payments at two percent (2%) per month from the due date until the date of payment (or otherwise as allowed under the law), and (b) suspend all further delivery of Goods or further performance of any other contract with the Customer. Casama Group Pty Ltd (ACN 004 564 069) Application for Credit Account March 2018 www.winesource.com.au Page 6 of 10
9. PRICES FOR GOODS AND OPTIONAL PREMIUM FREIGHT SERVICES
The Company provides only one kind of delivery service. This is an optional premium freight service designed to provide a minimum turnaround where customers require their goods to be delivered. Accordingly customers who require such services are advised that the respective freight price is comparable with other major independent provider’s rapid turnaround service prices. Prices for Goods and optional freight services are subject to alteration without notice. The wholesale price stated in the price list excludes Wine Equalisation Tax (WET) but includes a component for freight arranged by the Company under a separate contract, unless the freight service is declined by the Customer. The LUC price includes amounts for the following separate charges: (i) goods and WET under a separate contract; and (ii) the freight service under another separate contract. All Goods and freight services (unless declined) are subject to GST. WET is calculated on the price of wine only unless exempt. Freight services will be arranged by the Company under a separate contract (at the customer's option) and be charged to the Customer’s account such costs are included in the LUC price unless declined by the customer, in which case no charge for freight services will apply. The freight service charge (excluding GST) is calculated for equalisation purposes at 9.75% of the LUC price plus GST unless otherwise agreed. Where the customer declines the freight service, the customer must advise the Company beforehand so that arrangements can be made for reasonable access for the customer to pick up the goods at the Company’s warehouse and/or offices. In these circumstances the freight service charge will not apply and will be deducted from the LUC price. Freight service charges above are calculated as a flat-rate ex-warehouse but only for minimum quantities of 5 cartons. Any fees payable in respect of overdue accounts and subsequent optional credit card arrangements are the subject of separate contracts and do not form any part of the consideration payable for goods and freight services within the LUC price. Any rebates (whether monthly, quarterly or annually) provided to customers under ongoing or special arrangements are totally referable to discounts on goods only notwithstanding how such rebates might be calculated. These rebates are not a discount on any freight services that might be required.
10. RETENTION OF PROPERTY
Property in goods sold by the Company will not pass to the Customer until the earlier of:-Payment in full of the price of the goods inclusive of any GST (excluding any freight charge and other fees, where applicable); and sale by the Customer to a bona fide purchaser in the ordinary course of the Customer's business. The Customer acknowledges and agrees that a continuing purchase money security interest is created by this retention of title provision granted by the Customer to the Company, as the secured party, over the goods sold to the Customer. Where the Customer sells the goods to a bona fide purchaser in the ordinary course of Customer’s business the Customer acknowledges and agrees the continuing purchase money security interest extends to all and any proceeds of the goods and this continuing purchase money security interest attaches to the goods and all and any proceeds of the goods as at the date the Customer signs this Application for Credit Account. The Customer will continue to ensure the Company’s priority against any subsequent security interest and/or purchase money security interest over the goods and/or proceeds where the Customer is the grantor of that security interest. The above retention of title clause is subject to the following conditions:- i) The Customer, for the purposes of preserving the Company’s interests, will on receipt of its goods ensure such goods are kept separate from that stock fully paid (the “other stock”) where the Customer has clear property or title in the goods; (ii) Such demarcation of stocks shall continue until the Company’s stock has been fully paid for by the Customer; (iii) Subsequently, the Customer can transfer goods separately held to the “other stock” when the goods are fully paid for; (iv) All "unpaid stock will not only be kept separate by the Customer from the “other stock”, but also sufficiently identified to enable the Company to readily repossess such should the Customer not fulfil the terms for full payment within the required time; (v) In the event that the Customer defaults in the payment of any monies owing or an insolvency event occurs in respect of the Customer (meaning any step is taken for the liquidation or administration of the Customer or the appointment of a receiver, receiver and manager or other controller to any of the Customer’s assets), then the Company and its employees or agents shall have the right to enter without notice, upon the Customer’s premises or any premises where the goods are known to be stored to repossess the goods and for this purpose, the Customer grants reasonable access rights to the Company and its employees or agents shall be entitled to do all reasonable things necessary to secure re-possession; (vi) In the event the Company’s goods are ordered and delivered to the Customer’s premises and then subsequently mixed in with the “other stock”, or if the Goods are "used" (as interpreted under the tax law), the Customer will forfeit ownership in the “other stock” and title will revert back to the Company for such stock until full payment is received by the Company.
11. SECURITY FOR PAYMENT
This clause will only apply to present or future goods sold by the Company to the Customer which are in the possession or control of the Customer and in respect of which property has passed to the Customer (“the Customer’s goods”). The Customer grants a continuing security interest in the Customer's goods, and all and any proceeds thereof, to the Company as the secured party, which attaches to the Customer’s goods in favour of the Company with due and punctual payment by the Customer of all indebtedness (present or future, actual or contingent) of the Customer to the Company. The Customer will continue to ensure the Company’s priority against any subsequent security interest of any kind over the Customer’s goods and/or proceeds thereof where the Customer is the grantor of that security interest.
12. PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest in connection with these Terms and Conditions of Trade, the Customer agrees that the following provisions of the PPSA will not apply: section 95 (notice of removal of accession), to the extent that it requires the Company to give notice to the Customer, section 96 (when a person with an interest in the whole may retain an accession) subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Customer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention) and section 143 (reinstatement of security agreement). Casama Group Pty Ltd (ACN 004 564 069) Application for Credit Account March 2018 www.winesource.com.au Page 7 of 10
Notices or documents required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA. The Customer consents to the Company affecting a registration on the PPSA register in relation to any security interest in connection with these Terms and Conditions of Trade and the Customer agrees to provide all assistance reasonably required to facilitate this. The Customer waives the right to receive notice of a verification statement in relation to any registration on the register. In these Terms and Conditions of Trade, the following words have the respective meanings given to them in the PPSA: account, proceeds, purchase money, register, registration, security interest and verification statement.
13. PROMOTIONAL AND BONUS GOODS
All Goods (including bonus Goods) provided in samples, tastings or exhibitions or in promotional campaigns (hereafter referred to as ‘promotionals’) in any form directly or indirectly to Customers for their own use or as giveaways or own sale are sold in conjunction with product invoiced, notwithstanding any reference to or otherwise in Customer orders. The cost of promotionals, unless otherwise agreed, shall be included in the selling price of any Goods invoiced. Invoices for specified orders shall be issued by the Company showing a composite price for the products, including the cost of any promotionals provided. There is no requirement to itemise separately the amount for the promotionals, nor make any specific reference in invoices or in any other documents. All promotionals provided may be supplied in any form at the discretion of the Company or in any specific agreement with the Customer. Such promotional goods may be disposed of by sampling, tasting, exhibitions or as otherwise agreed and includes those promotionals used on behalf of the Customer by the Company. The cost of promotionals shall be recovered in the price of other goods sold and invoiced on an equalisation basis, notwithstanding variation in actual physical provision, and they shall still be regarded as being sold to the Customers, even if not fully recovered in the specific invoice price. The promotionals can be provided at any time, not necessarily at the time of the invoice of other goods and the Company reserves the right to recover stocks of such from the Customer's premises if amounts owed are unpaid within the specified time.
Irrespective of any terms and conditions in the Customer’s order form, or irrespective of the Customer not reading the Terms and Conditions of Trade, acceptance (by retaining the Goods or any other method) of the Goods ordered by the Customer will be conclusive acceptance of the Terms and Conditions of Trade contained herein. These Terms and Conditions of Trade may only be changed, if required by law, by a written agreement signed by both the Customer and the Company or, if agreement is not required by law, by the Company noting an amendment to these Terms and Conditions of Trade on the Company’s website or in the Company’s updated price lists. Any failure by the Company to insist on strict compliance with any term of these Terms and Conditions of Trade or any delay by the Company in exercising its rights under these Terms and Conditions of Trade will not constitute a variation or waiver of any term of these Terms and Conditions of Trade or any right available to the Company. These Terms and Conditions of Trade will be governed by and construed in accordance with the laws in force in the State of Victoria, Australia and the Company and the Customer submit to the exclusive jurisdiction of the courts of that State.
In these Terms and Conditions:
Event of Default means any of the following events:
(a) the Customer fails to pay for the goods and if applicable, freight, in accordance with clause 4 of these Terms and Conditions;
(b) the Customer is in breach of these Terms and Conditions or the Application;
(c) if the Customer is a Company:
(i) an order is made or a resolution is effectively passed for the winding up of the Customer,
(ii) the Customer resolves to appoint a receiver, receiver and manager, administrator, controller or provisional liquidator or a receiver, receiver and manager, controller, administrator or provisional liquidator is appointed;
(iii) the Customer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; or
(iv) the Customer stops payment or is deemed unable to pay its debts within the meaning of the Act;
(d) If the Customer is a natural person:
(i) an order is made for the Customer’s bankruptcy or the Customer becomes an “insolvent under administration” as defined in the Bankruptcy Act 1966 (Cth);
(ii) the Customer enters into an arrangement under Part X of the Bankruptcy Act 1966 (Cth);
(iii) the Customer dies or becomes mentally or physically incapable of managing his or her affairs ;
(iv) an order Is applied for or made to place the assets and affairs of the Customer under administration;
(v) the Customer ceases to or threatens to cease carrying on business.