TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND/OR SERVICES TO
AUSTRALIAN DISTILLING CO PTY LTD
(ABN 21 621 832 826)
1. (Introduction) These Terms apply to every supply of Products and/or Services by a Contractor (you, your) to Australian Distilling Co Pty Ltd (ABN 21 621 832 826) (South Australian liquor licence number: 51409809) (Australian Distilling Co, we, us or our) and will be incorporated by reference, deemed part of, and govern all Contracts and Purchase Orders placed by us and accepted by you (in accordance with these Terms).
2. (Amendment) We reserve the right to review and amend these Terms at any time by publishing such amended Terms on our website (www.australiandistillingco.com.au). We will notify you if amended Terms have been published on our website. Any amendments to these Terms will apply to Purchase Orders we make after the date we notify you. By continuing to accept Purchase Orders on and from that date you agree to the Terms, as amended.
3. (Other terms) The parties acknowledge that these terms operate to the exclusion of all other terms and conditions proposed or notified by the Contractor, irrespective of whether the Contractor’s terms and conditions were proposed or notified prior to or after the relevant Products and/or Services were supplied. Each Purchase Order submitted by us and Contract formed incorporates, and is subject to, these Terms notwithstanding anything to the contrary in any of your documentation.
4. (Purchase Order) Australian Distilling Co will order the Products and/or Services by submitting a Purchase Order. The Contractor is responsible for ensuring the accuracy of the details of each Purchase Order.
5. (Contract formation) A separate contract (Contract) between you and us, for the sale by you and the purchase by us of the relevant Products and/or Services is entered into when you accept or are deemed to have accepted a Purchase Order under these Terms. Each such Contract is comprised of these Terms and the relevant accepted Purchase Order. In the event of any inconsistency between these Terms and the terms of an accepted Purchase Order, the Purchase Order will prevail to the extent of the inconsistency.
6. (Authority and acceptance) Australian Distilling Co will not be bound by any Purchase Order unless it is issued by or on behalf of Australian Distilling Co. When Australian Distilling Co issues a Purchase Order, the Contractor must promptly either accept or reject that Purchase Order by notice to us. The supply of Products and/or Services by the Contractor also constitutes deemed acceptance by the Contractor of the Purchase Order relating to those Products and/or Services and these Terms. We may withdraw a Purchase Order at any time before you notify us of its acceptance.
7. (Variation to supply) Australian Distilling Co may, acting reasonably, vary a Purchase Order at any time prior to delivery under clause 10 (Delivery) by written notice of five (5) Business Days to the Contractor.
8. (Supply of Products and/or Services) The Contractor must ensure that:
8.1 all Products are: new; of merchantable quality; made of good materials; free from defects and contamination; not derived from any genetically modified organism; and compliant with all relevant codes and standards;
8.2 in the case of perishable Products:
8.2.1 all perishable Products must be marked with appropriate use-by dates and lot/batch codes; and
8.2.2 the Contractor must maintain records of the Products that enables both the Contractor and us to trace the source of each Product or the batch from which the Products were prepared;
8.3 all Products are fit for the purpose for:
8.3.1 which the products of the same kind are commonly supplied;
8.3.2 any purpose which Australian Distilling Co makes known to the Contractor; and
8.3.3 are accompanied by any necessary instructions, technical documents, operating and service manuals and applicable warranties;
8.4 it performs the Services in a timely manner, safely and with all necessary skill, care and diligence to the reasonable satisfaction of Australian Distilling Co;
8.5 it performs its obligations in accordance with:
8.5.1 these Terms, the relevant Purchase Order and all reasonable requests of Australian Distilling Co;
8.5.2 all applicable laws, rules, regulations and industry and safety standards; and
8.5.3 all policies and procedures of Australian Distilling Co from time to time, including but not limited to safety, health and environment policies and any site-specific policies and procedures;
8.6 all necessary permits and approvals are obtained to undertake all duties and obligations under these Terms, prior to the commencement of works subject of the Purchase Order;
8.7 it provides all necessary equipment, materials and labour that may be required to supply the Products and/or Services; and
8.8 the Products are delivered in the quantity, at the time and to the site or delivery point:
8.8.1 specified by Australian Distilling Co in the Purchase Order; or
8.8.2 in accordance with any instructions notified by Australian Distilling Co,
and the Contractor must ensure that the Products are protected against all damage and deterioration during transportation.
9. (Title and risk) Subject to clause 17 (Inspection and acceptance of Products), the Products remain at the Contractor’s risk until title passes to Australian Distilling Co. Title to and risk in the Products passes to Australian Distilling Co when Australian Distilling Co has taken delivery of the Products at the site or delivery point specified or notified by Australian Distilling Co in the Purchase Order or as otherwise notified. The Contractor warrants to Australian Distilling Co and undertakes that immediately prior to delivery of the Products, the Products:
9.1 are owned by the Contractor; and
9.2 are free from any Encumbrance which may affect the Contractor obtaining clear and unimpeded title to the Products.
10. (Delivery) The Contractor must supply the Products and/or Services to the delivery address and on or before the delivery date specified in the Purchase Order. If Australian Distilling Co specifies, in respect of a Purchase Order for Products, that it will pick-up the Products from the Contractor, then the Contractor must make available the Products for collection at the time and place nominated by Australian Distilling Co in the Purchase Order or as otherwise notified.
11. (Delays in delivery) If Australian Distilling Co does not receive the Products and/or Services in accordance with clause 10 (Delivery), including without limitation as a result of events of force majeure or otherwise, the Contractor must promptly notify Australian Distilling Co in writing of the anticipated extent and duration of its inability to supply. Notwithstanding any other provision of these Terms, if you fail to deliver the Products and/or Services by the delivery date specified, we may immediately cancel the Purchase Order or any part thereof without prejudice to any other rights, remedies or powers available to us and we may return any part deliveries to you at your cost. You will be liable for and agree to keep us harmless from and indemnify us against any loss, damage, injury, penalties, costs and expenses arising directly or indirectly from any delay in supply.
12. (Failure to accept delivery) If Australian Distilling Co cannot take delivery of the Products and/or Services and provides the Contractor notice of this then, on and from that time, the Contractor is responsible for the storage, package and handling of those Products until such time that Australian Distilling Co is able to take delivery of the Products and/or Services.
13. (Contractor’s personnel) The Contractor must ensure that the Contractor’s personnel engaged in the supply of the Products and/or Services are competent and professional, with appropriate qualification and experience and perform their duties with care, skill and diligence. If Australian Distilling Co gives notice to the Contractor that a member of the Contractor’s personnel is unacceptable to Australian Distilling Co (acting reasonably), the Contractor must take immediate steps to remove the person and provide an alternative person who is acceptable to Australian Distilling Co and consistent with these Terms.
14. (Contractor’s equipment) The Contractor must ensure that all equipment used in providing the Products and/or Services is fit for the purpose for which it is intended and complies with all relevant laws and industry and safety standards.
15. (Reporting) The Contractor must keep accurate records relating to the provision of the Products and/or Services and it must make such records available for inspection or verification by Australian Distilling Co on the reasonable request of Australian Distilling Co.
16. (Access and testing) You will provide us access to your premises at all reasonable times to allow us to undertake an inspection of the premises and take samples of the Products for independent testing. You will also promptly deliver to us any samples of Products we request. In the event that any testing we conduct discloses that the Products do not meet requirements of these Terms, we may at our election reject the Products.
17. (Inspection and acceptance of Products) Australian Distilling Co will not be deemed to have accepted the Products until it has had a reasonable time to inspect the Products. If, on inspection, Australian Distilling Co finds that any Products are defective in design, performance or workmanship or because they do not meet Australian Distilling Co’s specifications, Australian Distilling Co may reject those Products by either:
17.1 returning them to the Contractor; or
17.2 notifying the Contractor that it must promptly collect the Products from Australian Distilling Co,
at the Contractor’s cost. At Australian Distilling Co’s option and request, the Contractor must refund to Australian Distilling Co any payments made by Australian Distilling Co in respect of any defective Products that Australian Distilling Co rejects, or replace free of change any defective Products that Australian Distilling Co rejects. For the avoidance of doubt, no payment of any Price or any part thereof shall constitute a waiver of any rights or claims, which we may have arising out of or connected with any inspection.
18. (Invoicing and payment of Price):
18.1 Australian Distilling Co will pay the Contractor the Price for the supply of the Products and/or Services within thirty (30) days of the end of the month which Australian Distilling Co receives a valid tax invoice for the Products and/or Services, subject to the satisfactory performance of the Contractor’s obligations under:
18.1.1 the Purchase Order;
18.1.2 these Terms; and
18.1.3 acceptance of the Products and/or Services by Australian Distilling Co, including under clause 17 (Inspection and acceptance of Products).
18.2 The Price is the only amount we will pay for the Products and/or Services and is inclusive of:
18.2.1 all costs, taxes, fees, levies, charges and duties (including GST) and expenses; and
18.2.2 delivery, packaging and transport,
unless otherwise stated in the Purchase Order.
18.3 The Price will not vary except with the prior written approval of Australian Distilling Co. For the avoidance of doubt, acceptance of Products and/or Services by Australian Distilling Co after the Contractor has notified Australian Distilling Co of a proposed price variation is not of itself acceptance or approval by Australian Distilling Co of that price variation.
18.4 Upon termination by Australian Distilling Co (in accordance with these Terms), the Contractor will be paid any amount owing by Australian Distilling Co outstanding at the date of termination and:
18.4.1 that payment will constitute a final payment by Australian Distilling Co to the Contractor in respect of the relevant Contract; and
18.4.2 the Contractor will not be able to recover any subsequent amounts from Australian Distilling Co in connection with the supply contemplated by the relevant Contract and these Terms.
19. (Set off) Australian Distilling Co may deduct from any amounts due to the Contractor any amounts due from the Contractor to Australian Distilling Co.
20. (Product recall procedures) The Contractor agrees to be responsible for and coordinate (at its cost) all recalls of or associated with the Products and shall maintain a product recall procedure in respect of the Products in accordance with law and relevant industry and safety standards.
21. (Sub-contracting) The Contractor must not sub-contract any part of the supply of Products and/or Services without Australian Distilling Co’s written consent.
22. (Confidentiality) The Contractor must not, and must ensure that its employees, agents and sub-contractors do not, without the prior written approval of Australian Distilling Co, at any time use, disclose or give to any person any Confidential Information. This clause 22 (Confidentiality) does not apply to Confidential Information that the Contractor proves is in the public domain other than as a result of a breach of these Terms or is required to be disclosed by any applicable law or the listing rules of any applicable stock exchange.
23. (Intellectual property) The Contractor assigns to Australian Distilling Co all Intellectual Property Rights that may be created in the course of, or in connection with, the provision of the Services, effective immediately on the creation of any such Intellectual Property Rights. The Contractor must do all things necessary to ensure that Australian Distilling Co obtains all Intellectual Property Rights from any personnel of the Contractor. The Contractor agrees that in the course of or in connection with providing the Services, it will not do any act or thing which may infringe any Intellectual Property Rights of Australian Distilling Co, its Associated Entities or any third party.
24. (Insurance) The Contractor must, before commencing supply of the Products and/or Services, effect and maintain all insurances which could ordinarily be maintained by a prudent supplier of the Products and/or Services.
25. (Indemnity) Without limiting Australian Distilling Co’s other rights and remedies, the Contractor will indemnify and keep indemnified Australian Distilling Co, its agents, sub-contractors and Associated Entities and any employees of any of them from and against any loss, damage, expense (including lawyers’ fees and expenses on an indemnity basis) Claim, demand or liability made or incurred as a result of or in connection with:
25.1 the Contractor’s negligent act or omission or an act or omission of its employees, agents or sub-contractors;
25.2 personal injury, death or property loss or damage suffered by any person arising out of or in connection with the Products and/or Services provided by Australian Distilling Co;
25.3 any infringement or alleged infringement of Intellectual Property Rights arising out of Australian Distilling Co’s use of Products and/or Services;
25.4 any fraud, dishonesty, misrepresentation or wilful default by you in connection with or in relation to the supply of the Products and/or Services; or
25.5 the Contractor’s breach of any Contract and/or these Terms (without a prior written waiver from Australian Distilling Co).
26. (Termination for convenience) Australian Distilling Co may terminate a Contract and/or these Terms at any time by written notice of five (5) Business Days to the Contractor.
27. (Termination for cause) If:
27.1 the Contractor is in breach of its obligations under a Contract and/or the Terms; and
27.1.1 by written notice to the Contractor, Australian Distilling Co requires remedy of the default within 5 Business Days or any longer period the Lender allows (Remedy Period); and
27.1.2 the contractor is still in breach at the end of that Remedy Period;
27.2 a Distress Event occurs in respect of the Contractor; or
27.3 a representation, warranty or statement made or deemed to be made by the Contractor is untrue or misleading,
then we may immediately by notice terminate the Contract and/or these Terms by notice in writing to the Contractor.
28. (No waiver) Failure by Australian Distilling Co to insist upon the strict performance of these Terms and/or a Purchase Order will not be deemed to be a waiver of rights that Australian Distilling Co may have and will not be deemed a waiver of any subsequent breach of these Terms or a relevant Purchase Order.
29. (Warranties) The Contractor represents and warrants to Australian Distilling Co:
29.1 if it is a body corporate, it is duly incorporated and validly exists under the laws of its jurisdiction of incorporation;
29.2 it has full legal power and capacity to enter into this document and to carry out the transactions that this document contemplates;
29.3 it has taken all corporate action that is necessary or desirable to authorise its entry into this document and its carrying out the transactions that this document contemplates;
29.4 this document constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms (excepts to the extent limited by equitable principles and laws affecting creditors’ rights generally); and
29.5 it is not affected by a Distress Event.
30.1 Notices under these Terms 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 sending it by pre-paid mail to your last notified address or by email to your last notified email address.
30.2 Notice is deemed to be received by the addressee:
30.2.1 when left at the addressee’s address;
30.2.2 if sent by express post, on the sixth (6th) Business Day after posting; and
30.2.3 if sent by email, at the time and on the day shown in a sending machine’s transmission report which indicates that the whole email was sent to the addressee’s email address last notified (or if the day shown is not a Business Day or the time shown is after 5pm at the addressee’s location, at 9am on the next Business Day at the addressee’s location).
31. (Acknowledgement) The parties acknowledge that these Terms are subject to, do not purport to exclude, restrict or modify and do not have the effect of excluding, restricting or modifying, any laws which cannot be excluded, restricted or modified, and these Terms will be read and applied accordingly.
32. (Severance) Any provision of, or application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
33. (Actions) Each party must do all things necessary to carry out these Terms, each Contract and each Purchase Order, including executing documents and ensuring its employees and agents perform their obligations.
34. (Assignment) You may not assign (or otherwise dispose of) or sub-contract any of your rights and obligations in respect of a Contract or these Terms.
35. (Relationship) Nothing in these Terms or a Contract evidences any employment relationship, partnership, joint venture or agency.
36. (Severance) A provision in these Terms must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed.
37. (Governing law) These Terms are governed by the laws of South Australia. The parties submit to the non-exclusive jurisdiction of the courts of South Australia and the South Australian 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.
38. (Interpretation) In these Terms: 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; a reference to two or more people means 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;
39. (Entire agreement) These Terms and the relevant Purchase Order constitute the entire agreement between the parties for the supply of Products and/or Services to Australian Distilling Co and supersede all previous agreements, proposals, representations, correspondence and discussions in connection with the Products and/or Services.
Unless otherwise specified, in these Terms:
Associated Entity has the meaning given in the Corporations Act;
Business Day means any day except a Saturday or a Sunday or other public holiday or bank holiday in South Australia;
Claim means any claim, cost, damages, debt, expense, tax, liability, loss, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind;
Confidential Information means all information (including without limitation, trade secrets, recipes, ingredients, know how, formulations, samples, processes, supplier details, product development, operating procedures and technical information) relating to Australian Distilling Co and its Associated Entities, in any form or media whatsoever, that is provided or otherwise made available (directly or indirectly) to the Contractor or the Contractor’s employees in connection with the Products and/or Services at any time before, on or after the date of the Purchase Order but does not include information which at the time of disclosure was or is in the public domain, except through disclosure by breach of these Terms or other obligation of confidentiality;
Contract has the meaning given to that Term in clause 5 (Contract formation);
Contractor means the person from which Australian Distilling Co obtains Products and/or Services as described in the Purchase Order;
Corporations Act means the Corporations Act 2001 (Cth);
Distress Event means the happening of any of the following events in relation to a person:
(a) where the person is a body corporate:
(i) the body corporate becomes a Chapter 5 body corporate under the Corporations Act;
(ii) a controller, administrator, receiver, provisional liquidator, trustee for creditors in bankruptcy or analogous person is appointed to the body corporate or any of the body corporate’s property;
(iii) any steps are taken (including, without limitation, the making or passing of an application, order or resolution) with respect to the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (unless those steps are stayed, withdrawn or dismissed within 15 Business Days);
(iv) the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act;
(v) the body corporate is or becomes, or its directors state that it is, or has become, unable to pay its debts as and when they become due and payable;
(vi) the body corporate is presumed to be insolvent under the Corporations Act;
(vii) any steps are taken to deregister the body corporate under the Corporations Act (except where the steps taken are reversed or abandoned within 10 Business Days); or
(viii) the body corporate ceases or threatens to cease to carry on its business or any major part of its business;
(b) where the person is a natural person:
(i) the person authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors;
(ii) a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets;
(iii) the person commits an act of bankruptcy;
(iv) the person has a bankruptcy notice issued against them;
(v) a receiver or trustee for creditors or in bankruptcy is appointed to any of the person’s property;
(vi) the person becomes an “insolvent under administration” within the meaning of the Corporations Act;
(vii) the person dies, is imprisoned or becomes incapable of managing his or her own affairs; or
(viii) anything analogous to having a substantially similar effect to any of the above events;
Encumbrance means any mortgage, pledge, lien, hypothecation, charge or other form of Security Interest or interest in the nature of a Security Interest (and encumber has a corresponding meaning);
GST has the same meaning as it does in the GST Act;
GST Act means the A New Tax System (Products and Services Tax) Act 1999 (Cth) and associated legislation and regulations;
Intellectual Property Rights means;
(a) patents, trade marks, service marks, rights in design, trade names and copyright (including future copyright), in each case whether registered or not;
(b) any applications for registration of any of the rights referred to in paragraph (a);
(c) rights under licences and consents in relation to any of the rights referred to in paragraph (a);
(d) all forms of protection of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world.
Price in respect of a Contract, means the amount specified in the Purchase Order;
Purchase Order means any request for Products and/or Services (whether in electronic, written or other form) issued by Australian Distilling Co to the Contractor;
Products means the products to be provided by the Contractor to Australian Distilling Co as described in the Purchase Order;
Security Interest means:
(a) any security interest under the Personal Property Securities Act 2009 (Cth), mortgage, charge, pledge, lien, retention of title arrangement, set-off arrangement or other arrangement having the same or equivalent commercial effect as a grant of security; or
(b) any agreement to create or give rise to any interest or arrangement of the type referred to in paragraph (a);
Services means the services to be performed by the Contractor, as set out in the Purchase Order, and any services necessarily incidental to them;
Tax Invoice means an invoice that meets the relevant criteria of the GST Act; and
Terms means the terms and conditions set out above, as amended from time to time.