Aussie Wine Group Pty Ltd – General Terms and Conditions of Supply

  1. Terms and conditions
    1. Any goods or services provided by Aussie Wine Group Pty Ltd (AWG) to the buyer (Buyer) as specified in the relevant purchase order, order form, invoice, or other similar document (Order) are subject to the following terms and conditions. No terms and conditions provided by, contained in, or deemed to be incorporated by any document of the Buyer will apply to, override or amend in any way, these terms and conditions or any contract for goods or services unless agreed to in writing by AWG.
    2. Any changes or amendments to these terms and conditions must be agreed in writing. No other terms and conditions will apply, even if not explicitly rejected in any individual case.
    3. The terms of:
      1. the relevant Order (including any special terms and conditions set out in the Order);
      2. AWG’s written acceptance of the Order; and
      3. these terms and conditions;
        constitute a separate binding contract between the parties incorporating these terms and conditions, and are together referred to as a Contract.
    4. To the extent of any inconsistency between the terms of:
      1. the relevant Order;
      2. AWG’s written acceptance of the Order; and
      3. these terms and conditions,
        the documents will take precedence in the order set out above.
  1. Orders
    • The Buyer must submit an Order in the form reasonably required by AWG.
    • No Order will be binding on the parties and no Contract formed until such time as AWG has accepted the Order in writing.
    • Any changes to the goods and/or services the subject of Contract, including regarding their supply, manufacture, design, specification and/or version must be agreed in writing between the parties before AWG is required to implement such changes, in particular with regard to cost increases and delivery dates.
    • The Contract may not be cancelled by the Buyer without the express written consent of AWG.
  1. Manufacture and supply
    • Subject to the terms of the Contract, AWG agrees to manufacture and supply the goods and/or services as specified in the Contract.
    • As soon as reasonably practicable after agreeing the terms of the Contract, if requested by AWG, the Buyer must provide AWG with any equipment or materials or other items as agreed in the Contract to be provided by the Buyer (if any).
    • The Buyer must provide AWG with all assistance, documents and information as reasonably necessary for AWG to manufacture and supply the goods and/or services, as requested from time to time by the Buyer. If the Buyer provides any information or documentation, AWG is not required to check for any errors, omissions, inconsistencies, ambiguities or discrepancies and will not be liable to the Buyer to the extent that a breach of the Contract is as a result of such errors, omissions, inconsistencies, ambiguities or discrepancies.
  1. Quality
    • The goods or services supplied by AWG under the Contract must comply with any agreed specifications as specified in the Contract (or if not specified, as otherwise provided by AWG) (Specifications).
    • Modifications to the Specifications require the prior written consent of both parties.
  1. Warranty Period and Defects
    1. The Buyer must notify AWG promptly, and in any event within 12 months from the date of supply of the goods or services (or any other agreed period as set out in the Contract) (Warranty Period), in writing of any defects in any goods or services supplied by AWG (Defects) with sufficient details for AWG to understand the nature and effect of the Defect (Defects Notice).
    2. The Buyer must provide AWG with prompt access to the goods and/or the area in which the services have been supplied in order to make an assessment of the matters notified to AWG by the Buyer in the Defects Notice.
    3. Subject to clauses 4 and 13, in the event that, during the Warranty Period, goods supplied and/or services performed under the Contract contain any Defects, AWG may, at AWG’s election:
      1. as to goods, request that the goods be returned, and AWG must either refund the amount paid for the goods or repair or replace the goods; or
      2. as to services, AWG may render the services again or refund the amount paid by the Buyer for the services.
    4. To the extent permitted by law:
      1. AWG is not liable to the Buyer in respect of any Defects that are notified to AWG outside of the Warranty Period; and
      2. AWG’s obligations under clause 3(a) only apply to Defects in relation to the unit structure or frame work, or hydraulic parts of the relevant goods, and AWG has no liability for any Defects in other parts of the goods (including in any consumable parts or items (including belts, sprockets, and destemmer fingers), or any Defects caused by fair wear and tear.
  1. Delivery dates and periods
    1. Any delivery dates or periods specified in the Contract are indicative only and AWG will use its reasonable endeavors to meet those dates. AWG will not be liable to the Buyer if the delivery is delayed, provided AWG has complied with its obligations under this clause. Delayed delivery will not confer any right of cancellation, or refusal of delivery or payment, by the Buyer.
    2. Any costs for the delivery of the goods and the responsibility for those costs will be specified in the Contract, and if not specified, are the responsibility of the Buyer.
  1. Risk in the goods and acceptance/rejection
    1. The risk in the goods will pass to the Buyer on the earlier of delivery to the Buyer, its agent or nominee, or to a carrier designated by the Buyer when the carrier takes possession of the goods (as applicable).
    2. Within 7 days of delivery, the Buyer must notify AWG that the Buyer either:
      1. accepts the goods and/or services; or
      2. rejects the goods and/or services due to non-compliance with the Specifications.
    3. If the Buyer rejects the goods and/or services under clause 7.2(a), the Buyer must provide to AWG in that notice specific details as to the reason for such rejection. The parties must then determine (acting reasonably) the most appropriate course of action to address the issues raised by the Buyer. Risk in the goods remains with the Buyer while the Buyer is in control and/or possession of the goods notwithstanding the existence of any Defects. If the Buyer does not notify AWG in writing of its rejection within 7 days of delivery, the Buyer is deemed to have accepted the goods and/or services.
  1. Title to the goods
    1. Legal and beneficial ownership in the goods will be retained by AWG until payment for the goods has been received in full.
    2. The Buyer must insure the goods for their full replacement value against loss, fire, theft or otherwise, until title in the goods passes to the Buyer and such insurance must note the interest of AWG in the goods.
    3. If any of the goods are lost, damaged or destroyed following delivery but prior to title passing to the Buyer, AWG is entitled to receive and the Buyer must ensure that AWG does receive, the proceeds from any insurance policy relating to the goods.
    4. The Buyer grants AWG, its employees and agents an unrestricted right and licence to enter any premises owned, occupied or used by the Buyer to identify and remove any goods in which AWG retains an ownership interest in accordance with the Contract without being liable to the Buyer in any way or any person claiming through the Buyer. AWG shall have the right to sell or otherwise dispose of any such goods removed and shall not be liable to Buyer for any loss occasioned by any sale or disposal.
  1. Payment
    1. Subject to clause 2, payment for any goods or services must be made in accordance with the agreed payment terms set out in the Contract.
    2. If no payment terms are set out in the Contract, payment must be made by the Buyer to AWG within 14 days of the date of the relevant invoice provided by AWG, and AWG may issue invoices at the following stages:
      1. if the Contract includes the supply of goods:
        1. at the time the Order is accepted by AWG, for 50% of the total fees payable by the Buyer to AWG under the Contract, plus GST (and AWG may not commence any supply of the goods or services until such invoice is paid in full); and
        2. at the time when the goods are available for delivery, for the balance of the total fees payable by the Buyer to AWG under the Contract, plus GST (and AWG may elect not to dispatch any goods until such invoice is paid in full);
      2. if the Contract is for services only, at the time the Order is accepted by AWG, for 100% of the total fees payable by the Buyer to AWG under the Contract, plus GST (and AWG may elect not to commence performance of the services until such invoice is paid in full).
    3. To the extent that the supply of goods or services under the Contract is subject to the payment of any applicable goods and services tax (GST), AWG will be entitled to increase the price payable by the amount of the applicable GST. The Buyer must pay the increased purchase price and AWG will issue a tax invoice in accordance with the New Tax System (Goods and Services Tax) Act 1999 (Cth). Unless otherwise specified, amounts stated in this Contract are exclusive of GST.
    4. In the event that the Buyer does not make any payment by the relevant due date, the Buyer must pay AWG default interest accruing on a daily basis at the rate of 10% per annum on the amounts outstanding from the due date up to and including the date of payment, and AWG may suspend supply of any further goods or services to the Buyer until the date of payment.
    5. AWG is entitled to set off any amounts due from it to the Buyer from any amounts due to AWG from the Buyer under or in connection with any Contract.
  1. Personal Properties Securities Act 2009 (Cth) (PPSA)
    1. The Buyer grants to AWG a security interest in any goods supplied by AWG under a Contract (Goods) as security for all indebtedness of the Buyer to AWG under or in connection with the Contract.
    2. In the event of a default by the Buyer under the Contract, in addition to any other rights of AWG under the Contract, AWG may exercise any or all of its security enforcement rights under the PPSA in respect of the Goods.
    3. The Buyer agrees, to the extent permitted by law:
      1. to promptly give AWG all assistance and information (including signing documents) that AWG requests or requires to ensure AWG has a perfected security interest in the Goods (and the proceeds thereof);
      2. that AWG may register a financing statement on the Personal Properties Securities Register against the Buyer in respect of the Goods;
      3. that notices or documents required or permitted to be given to AWG under the PPSA may be given in accordance with the PPSA;
      4. not to change its name, address for service, contact details or any other of its data used to register a financial statement without first notifying AWG at least 14 days before doing so;
      5. that it waives its rights to any verification statement (or notice of a verification statement) in respect of any financing statement or financing change statement relating to any security interest created under the Contract; and
      6. AWG and the Buyer contract out of the Buyer’s rights and the Buyer waives its rights under section 95 of the PPSA.
    4. The Buyer must not at any time register a financing statement against AWG under the PPSA in relation to personal property supplied, or to be supplied, by the Buyer to AWG in connection with the Contract or otherwise
    5. Notwithstanding any provision of the Contract, AWG is entitled to apply any payment received by or on behalf of the Buyer towards payment for any of the Goods.
    6. Subject to the provisions of the PPSA the parties agree not to disclose any information under section 275(1) of the PPSA in relation to the Contract to any person.
    7. A word or expression in this clause 10 which is defined in the PPSA has the same meaning in this clause unless the context otherwise requires.
  1. Force majeure
    1. AWG will not be liable to the Buyer for any failure or delay to perform any obligation or supply any goods or services under the Contract, where such failure or delay is as a result of an event or circumstance which is beyond the control of AWG, including epidemics or pandemics, inclement weather, natural disaster, industrial disputes, public disturbance, action by governmental authorities, lockouts, transport delays, fire, act of God, breakdown of plant, shortage of supplies of materials or labour, failure or delay by subcontractors or suppliers, or any accidents of any kind (Force Majeure Event).
    2. So far as it is reasonable and practicable to do so and in good faith the parties will adjust their obligations to the changed conditions in the context of the relevant Force Majeure Event.
  1. Confidentiality
    1. The Buyer undertakes to AWG to keep all information disclosed by AWG under or in connection with the Contract or the goods and services (including the Specifications, any AWG IP (as that term is defined in clause 15), drawings, patterns, templates, samples, business secrets, and all commercial and technical information of AWG, not in the public domain (otherwise than as a consequence of a breach of these terms and conditions)) (Confidential Information) confidential unless and to the extent the Buyer is required to disclose the Confidential Information by law
  1. Liability
    1. To the extent that the Buyer acquires any of the goods or the services as a Consumer (as that term is defined under the Australian Consumer Law set out in the Competition and Consumer Act 2010 (Cth)), the Buyer may have certain rights and remedies that cannot be excluded, restricted or modified by these terms and conditions (Non-Excludable Obligations).
    2. Unless otherwise stated in the Contract and except in relation to Non-Excludable Obligations, to the extent permitted by law, all conditions warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom or general law that impose any obligation or liability on AWG under or in connection with the Contract are expressly excluded under these terms and conditions.
    3. To the extent permitted by law, AWG’s liability to the Buyer for any liability, loss, harm, damage, claim, action, proceeding, cost or expense (including legal fees) (Loss) incurred or suffered by the Buyer arising directly or indirectly under or in connection with the Contract or the performance or non-performance of the Contract, and whether arising under contract, equity, any indemnity, statute, in tort (for negligence or otherwise) or on any other basis, is limited as follows:
      1. AWG will have no liability whatsoever to the Buyer for any Loss in the nature of special, indirect or consequential loss or damage (including economic loss, loss of contract, loss of anticipated or actual profit or revenue, loss of reputation, loss of opportunity, loss of production, production stoppage or loss of data);
      2. the maximum aggregate of AWG’s liability to the Buyer under or connection with the Contract is limited to an amount not exceeding the amount paid by the Buyer to AWG under the Contract;
      3. any liability of AWG is reduced proportionately to the extent that any breach of Contract, negligence, or act or omission, of the Buyer or its personnel caused or contributed to the Loss; and
      4. AWG will have no liability if the Loss arises due to or in connection with:
        1. Loss or damage caused by the Buyer, its personnel, or any third party;
        2. any non-compliance by the Buyer or its personnel with any operating, maintenance or installation instructions, directions, or manuals provided by AWG;
        3. any unsuitable, improper, incorrect or negligent use by the Buyer or its personnel or any third party;
        4. normal wear and tear of the goods;
        5. modification, alteration, variation, addition or removal of any part, repair, servicing or maintenance of the goods by the Buyer, its personnel, or any third party, without the prior written consent of AWG; or
        6. use of the goods in conjunction with any plant, equipment, machinery, vehicle, harvester, or other item which AWG has not stated in writing is compatible with the goods.
    4. To the extent clause 13.3 is not permitted by law in relation to any a Non-Excludable Obligation, to the extent permitted by law AWG’s liability to the Buyer arising directly or indirectly under or in connection with a Non-Excludable Obligation or the performance or non-performance of a Non-Excludable Obligation and whether arising under contract, equity, any indemnity, statute, in tort (for negligence or otherwise) or on any other basis, is limited to the rights and remedies of the Buyer as set out in clause 5.
  1. Indemnity
    The Buyer indemnifies AWG and keeps AWG, its officers employees and agents indemnified against any Loss that AWG suffers or incurs as a result, whether directly or indirectly, of any breach of the Contract by the Buyer, any negligent act or omission of the Buyer or its personnel, or any Loss arising due to any of the events or circumstances referred to in clause 13.3(d)(1) to 13.3(d)(5) (inclusive).
  1. AWG IP rights
    1. The Buyer acknowledges that AWG owns all intellectual property rights under or in connection with the design, manufacture and supply of the goods and/or services (including all current and future intellectual property rights of any kind in any jurisdiction anywhere in the world (whether registered, unregistered or otherwise) including copyright, moral rights, patents, trade marks, circuit layout rights, designs, plant breeders rights, geographical identification rights, drawings, engineering data or other technical or proprietary information provided by the Buyer to AWG (including the Specifications), and all other rights arising from intellectual activity and rights to apply for registration of the above (AWG IP). AWG grants the Buyer a royalty free non-exclusive non transferable licence (without a right to sublicense) to use the AWG IP solely to the extent necessary for the Buyer to use and operate the goods for their ordinarily acquired purpose. The Buyer must not use any AWG IP for any other purpose without the prior written consent of AWG. The Buyer must return all such AWG IP to AWG on request.
    2. Any intellectual property rights in any discovery, invention, process or improvement in procedure created, made, written, discovered, or brought into existence by a party in connection with the performance of the Contract or the manufacture or provision of the goods and/or services will be the sole property of AWG.
    3. The Buyer must not use any trade marks, logos or any other signs or marks relating to AWG without the express written consent of AWG including on the goods, or on any labelling or packaging.
    4. The Buyer agrees to indemnify AWG and keep AWG, its officers employees and agents indemnified against Loss incurred or suffered by AWG arising from or in connection with any claim of infringement by the Buyer or its personnel of AWG’s IP.
  1. Termination
    1. AWG may terminate the Contract if the Buyer:
      1. breaches a term of the Contract which is incapable of being remedied in the opinion of AWG (acting reasonably);
      2. breaches a term of the Contract which is capable of being remedied in the opinion of AWG (acting reasonably) but which the Buyer does not remedy to AWG’s satisfaction within 14 days of being notified of the breach by AWG;
      3. fails or refuses to take delivery of the goods;
      4. ceases to carry on its business or threatens to cease to carry on its business
      5. ceases to be able to pay its debts as and when they become due and payable;
      6. is the subject of any steps taken by a mortgagee to take possession of or dispose of the whole or part of the Buyer’s assets operations or business;
      7. is the subject of any steps taken to enter into any arrangement with the Buyer’s creditors; or
      8. is the subject of any steps taken to appoint a receiver, receiver and manager, liquidator or provisional liquidator, an administrator or like person of the whole or part of the Buyer’s assets operations or business.
    2. On termination of the Contract for any reason, AWG may offer to sell any goods which have been manufactured but not supplied to the Buyer. If AWG makes an offer but the Buyer elects not to accept such an offer or AWG decides not to make an offer, AWG may sell the goods without any restriction.
  1. Assignment and sub-contracting
    1. The Buyer must not assign any of its rights title or interest in the Contract to any party, except with AWG’s prior written consent.
    2. AWG may subcontract any part of the supply of goods or services under the Contract to a third party, provided AWG remains liable to the Buyer for any defaults of the sub-contractor.
  1. Dispute Resolution
    1. In the event of a dispute under or in connection with the Contract the parties must negotiate in good faith to settle the dispute between them.
    2. In the event that the parties cannot settle the dispute in accordance with clause 1, within 21 days of the dispute having been notified to the other party, either party may refer the dispute to the president of the Resolution Institute (SA chapter) for mediation. The place of the mediation shall be in Adelaide, Australia.
    3. If the dispute is not resolved by the mediation within 60 days from the date of the mediation (or by a mutually agreed timeframe by both parties), either party may commence litigation in connection with the dispute.
  1. General conditions
    1. AWG manufactures and supplies the goods and the services as an independent contractor and nothing in the Contract will be construed to characterise AWG as an agent or representative of the Buyer or constitute a partnership or other fiduciary relationship between the parties.
    2. The Contract contains the entire agreement between the parties with regard to the manufacture and supply of the goods and/or services the subject of the Contract.
    3. Should any of the provisions of the Contract become void, invalid or enforceable the validity of the remaining parts of these conditions shall not be affected and shall continue in full force and effect.
    4. The Contract is governed by the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of South Australia.
    5. The failure of either party at any time to require performance of a provision of the Contract will in no way affect the right to require such performance at any time thereafter, nor will the failure of either party to exercise a right or remedy for a breach of any provision of the Contract prevent a party from asserting that right or remedy at any time thereafter.
    6. Any indemnity, payment obligation, exclusion or limitation of liability, or provision that by its nature is intended to survive termination or expiry which is contained in the Contract is independent and survives termination or expiry of the Contract.
    1. Interpretation
      In these terms and conditions, unless the context requires otherwise:

      1. the singular includes its plural and vice versa, and words denoting any gender include all genders;
      2. where a word or phrase is defined, its other grammatical forms have a corresponding meaning, and headings are for convenience only and do not affect interpretation;
      3. a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity, and a reference to a party to these terms and conditions includes its successors and permitted assigns;
      4. a reference to a particular day or time is to that day or time in Adelaide and reference to dollars or $ is to Australian currency;
      5. a reference to any agreement (including these terms and conditions) or document is to the agreement or document as amended, supplemented, novated or replaced from time to time, and a reference to a clause, paragraph, schedule or annexure is to a clause, paragraph, schedule or annexure in or to these terms and conditions, and a reference to these terms and conditions includes any schedules and annexures to these terms and conditions;
      6. a reference to legislation (including subordinate legislation) or a provision of it is to that legislation or provision as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
      7. words such as including or for example do not limit the meaning of the words preceding them;
      8. an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally;
      9. nothing in these terms and conditions is to be interpreted against a party solely on the ground that the party or its advisers drafted it; and
      10. if the day on or by which a party must do something under this agreement is not a business day, the party must do it on or by the next business day.