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Australian Distilling Co Pty Ltd – Terms and Conditions of Supply
1. Introduction: These terms and conditions (Terms) are the terms governing the sale of liquor products (Products) by Australian Distilling Co Pty Ltd (ABN 21 621 832 826) (SA liquor licence number: 51409809) (Australian Distilling Co, we, us or our) to our wholesale customers (you, your) and will be incorporated by reference, deemed part of, and govern all Orders placed by you and accepted by us.
2. Amendment: We reserve the right to review and amend these Terms at any time by publishing a notice or amended Terms on our website (australiandistillingco.com.au). Any amendments to these Terms will apply to Orders received by us after the date we publish the amended Terms on our website. By placing an Order, you agree and accept these Terms as modified from time to time.
3.1 Ordering: When you wish to purchase Products, you must submit a written purchase order in the form and manner required by us from time to time (Order). You are responsible for ensuring the accuracy of the details of each Order.
3.2 Obligation to Supply: The obligation on us to supply, and the obligation on you to purchase, Products will arise only on acceptance by us of an Order.
3.3 Acceptance of Orders: We are not obliged to accept any Orders but once an Order has been accepted by us, no cancellations, postponements or variations (in whole or in part) may be made without our prior written consent (which may be withheld in our absolute discretion).
3.4 Contract Formation: A separate contract (Contract) between you and us, for the sale by us and the purchase by you of the Products is entered into when we accept an Order. Each such Contract is comprised of these Terms and the relevant accepted Order and excludes any other terms and conditions (including but not limited to any alternative terms or variations to these Terms purported to be made by you in the Order you submit to us). Unless the parties expressly agree otherwise in writing, in the event of any inconsistency between these Terms and the terms of an accepted Order, these Terms will prevail to the extent of the inconsistency.
4.1 Prices for Accepted Orders: The following prices apply to accepted Orders:
4.1.1 for Orders you place or confirm by reference to a quote from us, the prices specified in the quote; and
4.1.2 for other Orders, our standard prices on the day we accept the Order.
4.2 Variation of Price: We may vary prices that would otherwise apply under clause 4.1 at any time to rectify typographical or similar errors.
4.3 GST: Prices are exclusive of GST, all other taxes, handling and delivery costs unless expressly stated otherwise.
5. Invoicing and Payment: We will issue an invoice to you for the total amount payable for the Products (including GST, other taxes, handling and delivery costs) (Invoice Amount) on acceptance of an Order. You must pay the Invoice Amount in full without set-off or counterclaim or any kind of deduction within 30 days of the date of the invoice or in accordance with credit terms agreed under a separate agreement by both parties by a method specified in the invoice, noting that payment by credit card may be subject to a surcharge amount as specified in the invoice.
6. Delivery, Title, Risk and Insurance:
6.1 Delivery Dates: We will use all reasonable endeavours to supply the Products requested in an accepted Order, to the delivery address specified by you in the Order and meet your requested delivery dates. You acknowledge that delivery dates requested by you or quoted by us are indicative and approximate only, and that time is not of the essence for the purpose of this Contract.
6.2 Delays with Delivery Dates: If we are unable to supply the Products in accordance with clause 6.1, including without limitation as a result of events of force majeure or otherwise, we will promptly notify you in writing of the anticipated extent and duration of our inability to supply.
6.3 No Claims for Late Deliveries: In no circumstances will we be liable or otherwise responsible to you for any Claims you incur if we fail to deliver or are prevented from delivering the Products to you by any estimated or confirmed delivery date. We reserve the right to make instalment deliveries.
6.4 Failure to Accept Delivery: If you cannot take delivery of the Products, request delivery be postponed or return the Products to us without our prior written consent (which may be withheld in our absolute discretion) then:
6.4.1 on and from that time, you are responsible for those Products and they are at your risk (although they remain our property until full payment is made); and
6.4.2 you agree to pay our reasonable packing, handling and storage costs.
6.5 Risks in Products: Risk in and responsibility for the Products passes to you at the time of delivery to the premises specified in the Order.
6.6 Ownership of Products: Notwithstanding delivery of the Products, we remain the legal and beneficial owner of all Products until you have paid and discharged in full any and all indebtedness to us on any account whatsoever, including in respect of the price of the Products delivered to you.
6.7 Obligations: Whilst title to the Products supplied remains with us under clause 6.6, you acknowledge that you:
6.7.1 hold the Products as bailee for us;
6.7.2 must store the Products separately and in a manner so that the Products can be readily identified;
6.7.3 may sell the Products in the ordinary course of business as our agent; and
6.7.4 if the Products are sold or they are the subject of an insurance claim, must hold the proceeds of sale or insurance claim on trust for us.
6.8 Insurance: You warrant and represent to us that you will insure all Products for their reinstatement value and notify your insurer that the Products remain our property until full payment is made by you for the Products.
6.9 Default: If you Default, we, and/or our personnel and agents are irrevocably authorised by you to enter, without prior notice, onto the premises where the Products are stored to remove the Products delivered, without liability for trespass or any resulting damage. You indemnify us against any claim, loss, damage or expense that may arise from or in relation to us properly exercising our rights under this clause.
7. No Modifications: Without our prior written consent (which may be withheld in our absolute discretion), you must:
7.1 not modify, adapt or amend the Products in any way and, without limitation, you must not remove, alter or deface any label or packaging on or relating to the Products;
7.2 ensure that any notices relating to Intellectual Property rights appearing on the Products or on any literature relating to the Products or on packaging in respect of the Products are not altered or removed; and
7.3 not affix your name or logo on the Products.
8. Defects and Returns:
8.1 Inspection of Products: You must inspect the Products on delivery and, within 48 hours of delivery, notify us in writing of any alleged defect, shortage in quantity, damage or inconsistency with the description or invoice.
8.2 Our Rights: To the maximum extent permitted by law:
8.2.1 we are not obliged to recognise any claim for incorrect pricing, incomplete or incorrect delivery of Products or Products being delivered in a damaged state, if the claim is not made within 48 hours of delivery; and
8.2.2 no Products may be returned to us without our prior written approval (which may be withheld in our absolute discretion) and then only upon such terms and conditions as we may require in our absolute discretion.
8.3 ACL: Our Products come with guarantees that cannot be excluded under the ACL. Any rights you have at law including under the ACL which cannot be excluded, restricted or modified are in addition to your rights under this Contract.
8.4 Acknowledgement: The parties acknowledge and agree that this Contract:
8.4.1 is subject to;
8.4.2 does not purport to exclude, restrict or modify; and
8.4.3 does not have the effect of excluding, restricting or modifying,
any laws which cannot be excluded, restricted or modified – and this Contract will be read and applied accordingly.
9. Late Payment: If you are subject to a Distress Event or any amount you owe us is not paid within 7 days of the due date for payment or you are in breach of any material terms of any Contract (Default), then despite any previously agreed arrangement and in addition to all other rights and remedies available to us:
9.1 we may elect that all amounts you owe us become immediately due and payable;
9.2 we may suspend or cancel any outstanding accepted Orders without liability to you;
9.3 we may require you to pay us interest on all overdue amounts from the due date to the day of payment calculated daily at an annual rate equal to the Reserve Bank of Australia Cash Rate from time to time plus 5%;
9.4 we may require you to pay our reasonable legal fees and collection costs incurred in relation to the Default; and
9.5 we may apply any payments we receive or recover from you against outstanding amounts owed by you in any order and proportion we decide.
10.1 Taxable Supply: This provision applies if a party makes a taxable supply (within the meaning of the GST Act) in connection with a Contract for consideration unless such consideration is expressly provided to be “GST inclusive”. The consideration payable by a party represents the value of the taxable supply. The party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the consideration is otherwise payable, a further amount calculated by multiplying:
10.1.1 the consideration; by
10.1.2 the prevailing GST rate at the time.
10.2 Input Tax Credit: If a payment to a party under a Contract is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled on the acquisition of the supply for which that loss, cost or expense is incurred. The party is assumed to be entitled to full input tax credits unless it demonstrates that its entitlement is otherwise prior to the date on which payment must be made by the other party.
10.3 Tax Invoice: A party’s right to payment under this provision is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
11. Security Interest:
11.1 Security Agreement: These Terms constitute a security agreement for the purposes of the PPSA.
11.2 Security Interest: You acknowledge and agree that until title to the Products passes to you in accordance with these Terms, our interest in the Products is a ‘security interest’ and a ‘purchase money security interest’ for the purposes of the PPSA.
11.3 Registration of Security Interest: You consent to us registering our security interest in the Products on the PPSR and agree to promptly do anything required by law or us to ensure that any security interests that we have arising out of or in connection with these Terms or any Contract are perfected under the PPSA and have priority over all other security interests in the Products.
11.4 Waived Rights: You waive your right under section 157 of the PPSA to receive notice of any verification of the registration of any security interest arising under these Terms or any Contract.
11.5 Default: If you default in the performance of any obligation owed to us under a Contract or any other agreement for us to supply Products to you, we may enforce our security interest in any Products by exercising all or any of our rights under the Contract or the PPSA. To the maximum extent permitted by law, we agree with you that the following provisions of the PPSA do not apply to the enforcement by us of our security interest in the Products: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143. You waive your rights to receive any notice that is required by the PPSA or any other law and any time period above the prescribed minimum (if any) that must otherwise lapse under the PPSA or any other law before a secured party or receiver exercises a right of power.
11.6 Non-Disclosure: We both agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 275(7)(b)-(e) of the PPSA.
12. Non-Exclusivity: Nothing in this Contract prevents us from supplying Products to any third party, including any competitor of yours.
13. Intellectual Property: For the avoidance of doubt, all Intellectual Property owned or otherwise used by Australian Distilling Co always remains the property of Australian Distilling Co.
15. Liability: To the maximum extent permitted by law (including the ACL):
15.1 we make no warranty or representation other than those expressly stated in these Terms and exclude and disclaim all other express, implied and statutory warranties and conditions howsoever made, implied or arising;
15.2 our liability to you for Claims will be limited at our option to replacement of the Products or the supply of equivalent products; repair of the Products; payment of the cost of replacing the Products or of acquiring equivalent products;
15.3 notwithstanding any other provision of these Terms or a Contract, our maximum aggregate liability to you for all Claims is limited to the total amount paid by you for the Products in the 6 month period before your first Claim against us; and
15.4 Australia Distilling Co, its directors, employees, agents, contractors and related bodies corporate will not be liable to you for, and you waive all Claims for, any punitive, exemplary, indirect, special, economic, consequential or incidental loss or damages (whether arising in contract, tort (including negligence, equity or under statute), including for:
15.4.1 lost production, income, opportunity or goodwill;
15.4.2 increased operating or financing costs; and
15.4.3 Claims made against you by others.
16. Warranty: You warrant that all Products we supply to you will only be used, stored, handled, modified and maintained strictly in accordance with any instructions we provide and in accordance with good trade practices, due care and in strict compliance with all relevant laws, regulations, rules, codes, standards, guides, instructions, directions and specifications.
17. Indemnity: To the maximum extent permitted by law, you indemnify us from and against all Claims (including reasonable legal costs and disbursements) incurred or sustained as a result of, or arising out of, or directly or indirectly relating to:
17.1 any breach by you of a Contract;
17.2 any breach of any warranty given by you pursuant to a Contract; or
17.3 your misconduct or negligent acts or omissions.
18. Suspension and Termination: We reserve the right to suspend and/or terminate a Contract if:
18.1 you are in Default;
18.2 any Products (the subject of an accepted Order) are discontinued; or
18.3 we are prevented by law from delivering the Products to you in accordance with the Contract.
19.1 Entire Agreement: Each Contract records the entire agreement between the parties in relation to the supply of the Products under that Contract.
19.2 No Waiver: Failure by us to insist upon the strict performance of any term of a Contract will not be deemed to be a waiver of rights that we may have and will not be deemed a waiver of any subsequent breach of any term or condition.
19.3 Severance: If any provision of a Contract is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from the Contract and will not affect the validity and enforceability of any remaining provisions.
19.4 Notice: Notice must be in writing. All notice from you to us must be given by electronic mail to [email protected]. Notice from us to you can be given personally, by pre-paid mail to your last notified address or by electronic mail to your last notified email address. If receipt of notice is not acknowledged by the recipient, notice is deemed to be received:
19.4.1 for pre-paid mail, six days after posting; and
19.4.2 if sent by electronic mail, on the day the message is showing on the sender’s electronic mail system as having been properly transferred or transmitted.
19.5 Governing Law: Each Contract is governed by the laws of South Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia and the South Australia division of the Federal Court of Australia and the courts of appeal from them. No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
19.6 Construction: Headings do not affect interpretation; singular includes plural and plural includes singular; reference to a person includes a body corporate, partnership, association and any other entity; a reference to a party is to a party bound by these Terms, and includes the party’s successors and permitted assigns and substitutes; reference to two or more people means each of them individually and all of them jointly; a provision must not be construed against a party only because that party prepared it; and the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, introduced by words such as “including”) or precede them or are included elsewhere in these Terms.
20. Interpretation: In this Contract:
ACL means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Claim includes any claim, cost, damage, debt, expense, tax, loss, liability, tax, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind arising under or in connection with a Contract or otherwise in relation to the Products;
Contract has the meaning given in clause 3.4;
Default has the meaning given in clause 9;
Distress Event in relation to a person means:
a) the person becomes a ‘Chapter 5 body corporate’ or an ‘insolvent under administration’ (as those terms are defined in the Corporations Act 2001 (Cth)); and/or
b) the person is unable to pay their debts when due and payable;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated legislation and regulations;
Intellectual Property means all intellectual property rights including, domain names, trade marks, trade mark applications, services marks, logos, business names, insignia, designs, systems, copyrights, confidential information, trade secrets, know-how, inventions, innovations, patents, petty patents (or any of them), applications for any of the foregoing and other rights and property of a like nature whether registered or unregistered, but does not include moral rights;
Invoice Amount has the meaning given to that term in clause 5;
Order has the meaning given in clause 3;
PPSA means the Personal Property Securities Act 2009 (Cth);
PPSR means the Personal Property Securities Register constituted under the PPSA;
Products has the meaning given in clause 1; and
Terms has the meaning given in clause 1.