TOORAK WINERY PTY LTD
A.B.N. 18 003 644 835
279 TOORAK ROAD
LEETON NSW 2705, AUSTRALIA
Tel: +61 2 6953 2333
Fax: +61 2 6953 4454
TERMS AND CONDITIONS OF SALE & SECURITY AGREEMENT
This Commercial Credit Application & Security Agreement (‘Credit Application’) constitutes a security agreement pursuant to the Personal Property Security Act (PPSA). The Seller reserves the right to refuse credit, suspend or withdraw credit facilities at any time without explanation or notice.
In consideration of the Seller providing the facilities of a commercial credit trading account (and not for private use or purpose) the Customer agrees to be bound by and adhere to the Terms and Conditions of Sale & Security Agreement (the receipt of a copy of which is hereby acknowledged) and the
Customer fully understands that those terms and conditions include:
(a) retention of title provisions;
(b) the right to require immediate payment of any amount owing, notwithstanding any previous indulgences;
(c) rights to recover interest, and collection and other expenses, in default of payment;
(d) terms limiting the liability of the Seller for damages, and giving the Seller the right to nominate the Court in which any legal proceedings may be instituted and prosecuted; and
(e) the grant of a security in all and any sale of Goods under this agreement which the Seller may register on the Personal Property Securities Register.
‘Seller’ means Toorak Winery Pty Ltd ABN 18 003 644 835 (‘Toorak Winery’), or any agents or employees thereof.
‘Customer’ means the customer identified in the Credit Application, any person acting on behalf of and with the authority of the Customer, or any person purchasing goods or services from Toorak Winery.
‘Contract’ means all contracts entered into between Toorak Winery and the Customer.
‘Collateral’ and/or ‘Goods’ means goods and/or services supplied by the Seller to the Customer or ordered by the Customer but not yet supplied and includes goods described in this contract and on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which the Seller may intend to register a security interest.
‘Price’ means either:
(a) the cost of Goods as specifically agreed between the Seller and the Customer; or
(b) in the absence of any prior agreement, as set by the Seller and shall be subject to change from time to time without notice.
Any instructions received by the Seller from the Customer for the supply or Goods shall constitute acceptance of the terms and conditions contained herein.
3.1 These terms and conditions, including credit limits set by the Seller are effective from the date of acceptance by the Customer and may be amended or superseded from time to time, by notice given by the Seller by any means.
3.2 The Terms and Conditions of Sale and Security Agreement shall apply in relation to all sales of Goods by the Seller to the Customer and to all orders placed with the Seller.
3.3 No person acting or purporting to act on the Seller’s behalf has the authority to make any promise, representation or undertaking or to add to or change in any way these Terms and Conditions of Sale & Security Agreement except expressly in writing.
3.4 These terms and conditions are in addition to and in no way are intended to limit, vary or exclude any rights conferred by the conditions and warranties implied by the Competition and Consumer Act 2010 or by any similar legislation of a State or Territory of Australia which prohibits such limitation, variation or exclusion.
3.5 Prices are subject to change without notice.
3.6 The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.
3.7 Unless or except specifically excluded herein, the Seller and the Customer retain any and all rights and remedies available to them in any prior or pre-existing agreement.
3.8 The Customer’s rights or obligations under these Terms and Conditions of Sale & Security Agreement are not assignable or transferrable.
3.9 Clerical errors are subject to correction and do not bind the Seller.
3.10 If any term or condition of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
3.11 The Customer acknowledges and agrees that these Terms and Conditions of Sale & Security Agreement take precedence over any terms and conditions which may be contained in any document provided by the Customer.
3.12 The Customer hereby charges in favour of the Seller all its estate and interest in any lands and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer and consents to the lodging by the Seller of a caveat or caveats which note its interest in or over any such land or other caveatable property.
3.13 Where the Customer acts in the capacity of trustee of any trust, the obligations on the part of the Customer in these Term and Conditions of Sale & Security Agreement bind the Customer in its own right as well as in its capacity of trustee of any trust, the obligations on the part of the Customer in these Terms and Conditions of Sale & Security agreement will not be abrogated.
3.14 Any failure to exercise, or delay in exercising, a right, including a right of indemnity, by the Seller shall not prejudice the Seller’s ability to exercise that right in future.
3.15 The completion or termination of a transaction shall be without prejudice to the Seller’s accrued rights.
4. Collection and Use of Information
4.1 The Customer authorises the Seller to obtain any information concerning the Customer's affairs that the Seller deems necessary.
4.2 The Customer authorises any reputable credit agency and any other person to provide the Seller with any information which the Seller regards as relevant to the Customer's credit activities and credit worthiness.
4.3 The Customer authorises the Seller to provide to any credit reporting agency and any other person any information about the Customer's credit activities and credit worthiness.
4.4 The Seller may utilise any information by the Customer for the purpose of marketing its Goods.
4.5 To the extent required under the Privacy Amendment (Enhancing Privacy Protection) Act 2012 the Customer is entitled to have access to and to request correction of personal information concerning the Customer which has been collected by the Seller.
5.1 The Customer must pay the price for Goods indicated on the invoice (or other similar document) which is provided by the Seller for those Goods. The Seller can alter prices without notice and prices charged may be different from the time of order.
5.2 The price shall be increased by the amount of any GST and other applicable taxes and duties if such taxes are not expressly included in the price. The Customer is bound by the price from the time that the Seller accepts the Customer's order. An order is not binding on the Seller until it is accepted by the Seller.
5.3 The Customer shall pay deposits, delivery and freight charges as set out in the invoice or the Seller's price list from time to time.
6.1 Payment for Goods shall be made by the Customer in full within 30 days following the date of the invoice unless otherwise agreed in writing by the Seller.
6.2 Payment must be made without deduction or set off in cash, direct credit or by credit card as stipulated in the Customer’s Credit Application.
6.3 Interest will be charged on overdue amounts at the bank overdraft rate plus 3% per annum until all overdue amounts are paid in full.
6.4 In the event that payment is not made in full by the due date, then without prejudice to any other rights or remedies available to the Seller under this agreement, the Seller may withhold deliveries or cancel undelivered orders or part of such orders and retain as liquidated damages any monies paid by the Customer.
6.5 Legal and/or collection agency costs of recovery of any overdue amounts shall be recoverable by the Seller as a debt due by the Customer.
6.6 The Customer shall be liable for, and expressly undertakes to pay all fees (including an Administration Fee in an amount to be set from time to time by the Seller) for all costs incurred as a result of any cheque or any electronic banking transaction being dishonoured for whatever reason.
6.7 Any Legal action taken for enforcement of recovery of monies may be taken out under the jurisdiction of a court as nominated by the Seller.
7. Delivery and Risk
7.1 Where the Seller agrees to transport the Goods to a specified place, the Seller will deliver, or arrange delivery of, the Goods to that place. The Seller will pay for all transportation costs. Orders that have special requirements or fall outside of the order cut-off times, will incur a surcharge.
7.2 All palletised deliveries will be subject to an immediate pallet exchange with the Customer.
7.3 Risk shall pass to the Customer on delivery of the Goods not withstanding that property shall remain with the Seller until those goods are paid for.
7.4 Insurance against all risks whatsoever shall be maintained by the Customer from the time of delivery with the Seller interest noted on the insurance policy until the Goods passes to the Customer.
7.5 The Seller shall not be liable for any loss, damage or deterioration, including consequential loss or damage, arising from delay in delivery or failure to deliver Goods, either whole or in part.
7.6 The Customer shall inspect the Goods upon delivery and will, within 48 hours, notify the Seller of any defects, short delivery or any failure to fulfil any order.
7.7 In the event that Goods are damaged or partially lost during transit the Customer must, within 14 days of delivery of the Goods, provide the Seller with written notice giving reasonable particulars of any alleged loss or damage.
7.8 The Customer will, within a reasonable time following delivery and upon the request of the Seller, grant the Seller access to the Goods in order to inspect for any alleged defects.
7.9 The Customer acknowledges and agrees that no claim whatsoever shall be accepted by the Seller (or any of its agents) for any loss or damage to Goods which occurred during the transit of Goods but where written notice is not provided to the Seller within the specified time. Should the Customer fail to notify the Seller within the specified period then the Goods shall be deemed to be in compliance with the order and free from any defect whatsoever.
8. Property in Goods
8.1 The legal and equitable title to and property in Goods will not pass to the Customer until payment in full has been made by the Customer to the Seller for all Goods delivered to the Customer by the Seller.
Until payment has been made in full and property passes in accordance with 8.1:
8.2 The Customer shall hold all Goods as bailee and as fiduciary of the Seller and shall securely store same separately from the Customers other goods so as to clearly identify the Goods as the Seller’s.
8.3 The Customer is authorised to sell the Goods but shall hold the book debt and the proceeds of sale on trust for the Seller and shall account to the Seller for any overdue amount from the proceeds thereof, and the customer, acknowledges that the Seller may collect the book debt arising from such sale as the Seller remains the beneficial owner of the book debt at all times.
8.4 The Customer’s right to possession of the Goods shall cease if the Customer:
8.4.1 fails to make payments of any outstanding amount due to the Seller;
8.4.2 commits an act of bankruptcy or is declared insolvent or the Customer does or omits to do anything which entitles the Customer or any person to appoint an external administrator pursuant to any Part of Chapter 5 of the Corporation Law; or
8.4.3 enters into some arrangement or assignment for the benefit of creditors;
The Seller shall be entitled to require the Customer to return all unpaid Goods failing which the Seller is irrevocably authorised to enter the Customer’s premises to repossess the Goods without notice.
9. Personal Property Securities Act 2009 (PPSA)
9.1 Where a Commercial Credit Account has been approved, the Customer grants that the Seller may register, on the Personal Property Security Register, a security interest in all and any sale of Goods under this agreement including all present and after-acquired property.
9.2 The Customer warrants that all purchases under this agreement are for commercial purposes only and accordingly the Consumer Credit Act will not apply.
9.3 The Customer and the Seller agree to contract-out of the PPSA in accordance with section 115 to the extent that the section applies for the benefit of, and does not impose a burden on, the Seller. The Customer waives its right to receive a copy of any Financing Statement or any Financing Charge Statement registered by the Seller in respect of the security interest crated by these Terms and Conditions of Sale & Security Agreement.
9.4 The Customer agrees to execute any documents, provide all relevant information and co-operate fully with the Seller to ensure that the Seller has a perfect security interest in the personal property charged and, if applicable, a Purchase Money Security Interest (PMSI).
9.5 The Customer waives its right to receive notice of a verification statement in relation to a registration by the Seller on the register.
9.6 If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with these terms, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of these terms:
9.6.1 section 95: Notice of removal of accession – to the extent that it requires the Seller to give notice to the Customer;
9.6.2 section 96: When a person with an interest in the whole may retain an accession;
9.6.3 section 121(4): Enforcement of liquid assets – notice to grantor;
9.6.4 section 125: Obligation not dispose of or retain collateral;
9.6.5 section 130: Notice of disposal to the extent that it requires the Seller to give notice to the Customer;
9.6.6 section 132(3)(d): Contents of statement of account after disposal;
9.6.7 section 132(4): Statement of account if no disposal;
9.6.8 section 134(1): Retention of collateral;
9.6.9 section 135: Notice of retention;
9.6.10 section 142: Redemption of collateral; and
9.6.11 section 143: Reinstatement of security agreement.
9.7 The Seller agrees with the Customer not to disclose information of the kind mentioned in section 275(1) of the PPSA except in circumstances required by section 275(b)-(e).
9.8 The Customer agrees that, until all monies owing to the Seller are paid in full, it shall not sell or grant any other security interest in the Collateral.
9.9 The Customer agrees not to register a financing change statement in respect of the security interest without the Seller's prior written consent.
9.10 The Customer agrees that the Seller may, at its absolute discretion, apply any amounts received from the Customer towards amounts owing to the Seller in such order as the Seller may determine. Notices or documents required or permitted to be given to the Seller for the purposes of the PPSA must be given in accordance with the PPSA. If the Seller receives any notice in relation to the Customer under section 64 of the PPSA, all outstanding amounts may, at the Seller’s discretion, become immediately due and payable.
9.11 The Customer agrees to reimburse the Seller, upon demand, for all costs and/or expenses incurred or payable by the Seller in relation to registering or maintaining any financing statement, releasing in whole or in part the Seller’s security interest or any other document in respect of any security interest.
9.12 In these terms the following words have the respective meanings given to them in the PPSA: commingled, financing statement, financing change statement, perfected, proceeds, register, registration, security interest and verification statement.
10.1 Except as otherwise provided by statute the Seller shall not be liable for:
10.1.1 Any loss or damage of any kind whatsoever whether suffered or incurred by the Customer or another person whether such loss or damage arises directly or indirectly from Goods or advice provided by the Seller to the Customer. Without limiting this clause the Seller shall not be liable for any consequential loss or damage of any kind whatsoever including but without limitation to any financial loss; and
10.1.2 Except as provided in this Contract the Seller shall not be liable in contract, or in to, or otherwise from any loss, damage, or injury beyond the value of the Goods provided by the Seller to the Customer.
10.2 The Customer agrees that the Seller shall not be liable for any:
10.2.1 Representation, promise or undertaking regarding the fitness or otherwise of Goods supplied by the Company unless it is made in writing or implied by law.
10.2.2 Failure by the Customer to store or maintain the Goods in accordance with any advice, recommendation, specification, information, assistance or service provided by the Seller in relation to Goods sold.
11. Default of the Customer
If the Customer makes a default in any payment, commits any act of bankruptcy, has liens placed on a project or assets frozen or restrained, or becomes subject to any form of external administration or an application for any form of external administration is made, the Seller may at its option withhold further deliveries or cancel the Contract without prejudice to its rights thereunder. Where such default occurs this shall not in any way prejudice the right of the Seller to recover any amounts due for Goods previously supplied.
No order may be cancelled by the Customer without the written consent of the Seller, irrespective of whether or not the Seller has advised the Customer of its acceptance of that order.
13. Returned Goods
Stock items only may be returned for credit within 30 days from date of delivery if they are in prime condition, and will be subject to a handling fee of 15%. The invoice showing the number and delivery date must be provided upon return. Goods will not be accepted for credit after 30 days from date of delivery. If specially manufactured to the Customer’s requirements, Goods may not be returned for credit.
If at any time the Seller does not enforce any of these terms and conditions or grants the Customer time or other indulgences, the Seller shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
Where any provision of these terms and conditions of sale is rendered void, unenforceable, or otherwise ineffective by operation of law, that provision will be considered to be severed by these terms and conditions and such severance shall not affect the validity, enforceability and effectiveness of any other provision in these terms and conditions.
16. Governing Law / Jurisdiction
Any Legal action taken for enforcement of recovery of monies may be taken out under the jurisdiction of a court as nominated by the Seller. The Customer submits to the non exclusive jurisdiction of court of the nominated State in respect of all legal proceedings arising out of or in connection with these terms.