Trading Terms

1.0 Interpretation
1.1 In these conditions: "Supplier" means TheBestDrop Wines Pty Ltd t/a West Coast Wine Cellars. "Customer" means the purchaser of the Goods. "Goods" means all the products and services provided by the Supplier to the Customer in accordance with this Contract. "Guarantor" means the guarantor in accordance with clause 8 of this Contract.
1.2 Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee or right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
2.0 General
These conditions (which shall only be waived in writing by the Supplier) shall prevail over all conditions of the Customer's order to the extent of any inconsistency.
3.0 It is agreed that at the Suppliers discretion credit facilities may be discontinued at any time and without notice in the event that:
(a) any director or principal of the Customer refuses to sign a copy of this application;
(b) the Customer breaches payment terms which are strictly 30 days;
(c) the Customer or any of its directors or principals become insolvent or unable to pay its or their debts as they become due;
(d) any of the customer's referees specified below fail or refuse to supply information requested by the Supplier; or
(e) any of the information on this application is wrong or misleading in any particular.
4.0 The Customer authorises and instructs the referees listed above to release any information to the Supplier which the Supplier may request to assist in the Suppliers assessment of this application. The Customer waives all rights under the Privacy Act which are inconsistent with this authority.
5.0 Terms of sale
The Goods and other products sold by the Supplier are sold on these terms and conditions.
6.0 Supplier's quotations
The Supplier's prices and quotations as set out in the Supplier's price lists and any other documentation, may be altered at any time without notice and the Supplier reserves the right to:
6.1 refuse any order based on prices determined from previous price lists or other documentation relating to pre-altered prices;
6.2 add any resulting increase to the purchase price of orders received.
7.0 Shortage
The Customer waives any claim for shortage of any Goods delivered if the claim in respect for short delivery has not been lodged with the Supplier within TWENTY-FOUR (24) hours from the date of receipt of Goods by the Customer.
8.0 Delivery
8.1 The delivery times made known to the Customer are estimates only and the Supplier is not to be liable for any late delivery or non-delivery.
8.2 The Supplier is not liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery of the Goods.
8.3 The Supplier may at its option deliver the Goods to the Customer in any number of instalments unless there is an endorsement overleaf to the effect that the Customer will not take delivery by instalments.
8.4 If the Supplier delivers any of the Goods by instalment, and any ONE (1) of those instalments is defective for any reason:
(a) it is not a repudiation of the contract of sale formed by these conditions; and
(b) the defective instalment is a severable breach that gives rise only to a claim for compensation.
9.0 Loss or damage in transit
9.1 The Supplier is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Supplier is legally responsible for the person who caused or contributed to that loss or damage).
9.2 The Supplier must provide the Customer with such assistance as may be necessary to press claims on carriers so long as the Customer:
(a) has notified the Supplier and the carriers in writing within TWENTY-FOUR (24) hours after loss or damage is discovered on receipt of the Goods;
(b) allows the Supplier's representatives to sight and confirm the damaged stock; and
(c) lodges a claim for compensation on the carrier within NINETY (90) days of the date of receipt of the Goods.
10.0 Guarantee
10.1 In consideration of the Supplier agreeing at the request of the Guarantor to sell the Goods to the Customer on the terms and conditions set out in this Contract, the Guarantor unconditionally guarantees the due punctual payment to the Supplier on demand of all monies under all individual Contracts for the supply of the Goods or all amounts outstanding between the Supplier and the Customer including without limitation, by way of principal or interest, fees, costs, charges, indemnity or damages.
10.2 Nature of guarantee
This guarantee:
(a) is a principal obligation and will not be treated as ancillary or collateral to any other right or obligation however created or arising;
(b) may be enforced against the Guarantor without the Supplier first being required to exhaust any remedy it may have against the Customer or to enforce any security it may hold with respect to the secured moneys;
(c) is a continuing guarantee and indemnity for the whole of the secured moneys and will be irrevocable and will remain in full force and effect until discharged; and
(d) will not be considered as wholly or partially discharged by the payment at any time of any of the secured moneys or by any settlement of account or by any other matter or thing whatsoever and will apply to the present and future balance of the secured moneys.
10.3 Guarantor's liability absolute
The liability of the Guarantor is absolute and will not be affected by any act, omission, matter or thing which but for this provision might operate to release or otherwise exonerate it from its obligations in whole or in part including, without limited the generality of the foregoing:
(a) the grant to the Customer or any other person of any time, waiver or other indulgence or concession, or the discharge or release of any other security or guarantee held by the Supplier in respect of the secured moneys;
(b) the insolvency (which in this guarantee includes; bankruptcy, administration, compromise, arrangement, amalgamation, reconstruction, winding up, dissolution and assignment for or compromise with creditors) of the Customer;
(c) the Supplier exercising or refraining from exercising any other security or guarantee, or any of the rights, powers or remedies conferred on it by law or by the Contract, or any other agreement with any other person, or taking or failing to take any other security or guarantee;
(d) the variation (including a variation which increases the secured moneys), extinguishment, unenforceability, failure, loss, release, discharge, abandonment or transfer either in whole or in part of the Contract or any security or guarantee now or in the future held by the Supplier from any person;
(e) the Customer's obligations under the Contract or any part of them being or becoming wholly or partially illegal, void, voidable or unenforceable;
(f) the failure by the Supplier to give notice to the guarantor of any default by the Customer under the Contract; or
(g) any legal limitation, disability, incapacity or other circumstances related to the Customer.
10.4 Limitations on guarantor's rights
Until the secured moneys have been discharged in full the Guarantor shall not:
(a) be entitled to share in any security held or money received by the Customer or to stand in the place of the Customer in respect of any security or money
(b) take any steps to enforce a right or claim against the Customer in respect of any money paid by the Guarantor to the Supplier under this guarantee; or
(c) have or exercise any rights as surety in competition with the Supplier.
10.5 Insolvency of the Customer
If the Customer becomes insolvent, the Guarantor authorises the Supplier to prove for all moneys which the Guarantor will have paid under this guarantee and to retain and to carry into a suspense account and to appropriate at the discretion of the Supplier any dividends received in the liquidation, bankruptcy or other insolvency of the Customer and all other moneys received in respect of the secured moneys until the Supplier has been paid the secured moneys in full.
10.6 Settlement, discharge and release
Any settlement, discharge or release between the Guarantor and the Supplier will be conditional upon no security or payment to the Supplier by the Customer or any other person being avoided or reduced by virtue of any provisions or enactments relating to insolvency for the time being in force, and the Supplier may recover the value or amount from any such security or payment from the Guarantor subsequently as if that settlement, discharge or release had not occurred.
10.7 Indemnity
If the whole or any part of the secured moneys are or may be irrecoverable from the Customer by the Supplier for any reason whatever whereby the amount thereof or resulting there from is not recoverable from the Guarantor as a surety, then and in each such case:
(a) the Guarantor as a separate and additional liability under this guarantee indemnifies the Supplier in respect of the secured moneys;
(b) as a principal debtor agrees to pay the Supplier when demanded in writing a sum equal to the amount of the secured moneys; and
(c) for the purposes of this indemnity, this clause shall be construed as if the secured moneys were recoverable and the terms of this guarantee will apply as far as possible, with any necessary changes being made.
10.8 Security
The Guarantor has not taken, and will not take without the written consent of the Supplier, any security from the Customer in connection with this guarantee. The Guarantor shall hold any security so taken in trust for the Supplier and as security for the liability to the Supplier under this guarantee. The Supplier shall be under no obligation to marshal in favour of the Guarantor any security whatever held by the Supplier or any funds or assets that the Supplier may be entitled to receive or have a claim upon.
10.9 Joint and several guarantee
Where this guarantee is given by more than one person, the obligations on the part of the Guarantor contained in this guarantee take effect as joint and several obligations and references to the Guarantor take effect as references to those persons or any of them. None of them will be released from liability under this guarantee by reason of any other Guarantor not executing this guarantee, or this guarantee ceasing to be binding as a continued security on any other Guarantor, and the release by the Supplier of any Guarantor from this guarantee will not affect the liability of the other Guarantors.
11.0 Prices
11.1 Unless otherwise stated all prices quoted by the Supplier are net, exclusive of goods and services tax ("GST").
11.2 Prices quoted are those ruling at the date of issue of the quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, cost of material and other charges effecting the cost of supply ruling on the date it is made.
11.3 If the Supplier makes any alterations to the price of the Goods or to any of the inputs either before acceptance of or during the currency of the contract, these alterations are for the Customer's account.
12.0 Payment
12.1 The purchase price in relation to the Goods is payable net and payment of the price of the Goods must be made on or before the 21st day of the month next following the delivery of the Goods unless other terms of payment are expressly stated in the Supplier's invoice to the Customer
13.0 Ownership of the Goods and Dealings in the Goods
13.1 In connection with the Goods while they remain the property of the Supplier, the Customer agrees with the Supplier that:
(a) the Customer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Supplier owes to the Customer;
(b) the Customer cannot claim any lien over the Goods;
(c) the Customer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Supplier;
(d) where the Customer is in actual or constructive possession of the Goods:
(e) the Customer will not deliver them or any document of title to the Goods to any person except as consented to by the Supplier;
(f) it is in possession of the Goods as a bailee of those goods and owes the Supplier the duties and liabilities of a bailee.
13.2 The Supplier and the Customer agree that:
(a) the property of the supplier in the Goods remains with the Supplier until the Supplier has been paid in full for the Goods under all individual contracts for the supply of the Goods or all amounts outstanding between the Supplier and the Customer;
(b) the Customer is a bailee of the Goods until such time as property in them passes to the Customer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full;
(c) pending payment in full for the Goods, the Customer:
(d) must not supply any of the Goods to any person outside of its ordinary or usual course of business;
(e) must not allow any person to have or acquire any security interest in the Goods;
(f) must insure the Goods for their full insurable or replacement value (whichever is the higher);
(g) must not remove, deface or obliterate any identifying label, mark or number on any of the Goods;
13.3 despite Clause 13.2 (c) if the Customer supplies any of the Goods to any person before all monies payable by the Customer have been paid to the Supplier (and have not been claimed or clawed-back by any person standing in the place of or representing the Customer), the Customer agrees that:
(a) it holds the proceeds of re-supply of the Goods on trust for and as agent for the Supplier immediately when they are receivable or are received;
(b) it must either pay the amount of the proceeds of re-supply to the Supplier immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Supplier;
(c) any accessory or item which accedes to any of the Goods by an act of the Customer or of any person at the direction or request of the Customer becomes and remains the property of the Supplier until the Supplier is paid when the property in the Goods (including the accessory) passes to the Customer;
(d) if the Customer fails to pay for the Goods within the period of credit (if any) extended by the Supplier to the Customer, the Supplier may recover possession of the Goods at any site owned, possessed or controlled by the Customer and the Customer agrees that the Supplier has an irrevocable licence to do so.
13.4 The Customer agrees to the registration of a security interest by the Supplier on the Personal Property Securities Register and shall immediately upon request by the Supplier do all things and provide all information as may be necessary to facilitate that registration (including its re-registration, amendment and discharge as required). The Customer also declares that the Supplier security interest is intended to be a first ranking security interest over the goods and all after acquired property supplied or delivered by the Supplier to the Customer and which is if applicable registered as a purchase money security interest on that register.
13.5 The Customer irrevocably waives all rights to receive a verification statement or other notice in respect to any registration event in accordance with the PPSA.
14.0 Returned Goods
14.1 The Supplier is not under any duty to accept Goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case.
14.2 If the Supplier agrees to accept returned Goods from the Customer under Clause 14.1, the Customer must return the Goods to the Supplier at the Supplier's place of business referred to at the head of these conditions.
15.0 Goods sold
All Goods to be supplied by the Supplier to the Customer are as described on the purchase order agreed by the Supplier and the Customer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specifications or enquiry of the Customer.
16.0 Cancellation
No order may be cancelled except with written consent in writing and on terms which will indemnify the Supplier against all losses.
17.0 Other expenses
The Customer agrees to indemnify the Supply against any expenses the Supplier may incur in recovering payment from the Customer of the purchase price and any other amounts, which may be overdue.
18.0 Place of contract
18.1 The contract for sale of the Goods is made in Western Australia from which this document is issued.
18.2 The parties submit all disputes arising between them to the Courts of Western Australia and any Court competent to hear appeals from those Courts in the first instance.