1. DEFINITIONS: In this document insolvent means insolvent or insolvent under administration (each as defined in the Corporations Law), in receivership, in receivership and management, in liquidation, in provisional liquidation, administration, wound up, subject to any arrangement, assignment or composition or protected from any creditors under any statute or dissolved (other than to carry out a reconstruction while solvent). payable in relation to an amount means an amount which is currently payable or will or may be payable in the future. person includes firm, partnership, committee, and incorporated and unincorporated bodies. we, us or our means Willunga Hundred Pty Ltd (ACN 052 865 120) of 180 Greenhill Road, Parkside, South Australia, 5063, Liquor & Production Sales Licence (57618032) trading as Willunga 100 and its successors and assigns. customer means the person or persons named on the front of this document or any related invoice as the customer and if there are more than one, means each of them separately and every two or more of them jointly. goods means all products and services supplied by us to the customer under any contract or arrangement between us and the customer. document means the credit application document comprising the schedule, these trade terms, the guarantee and the privacy statement. The singular includes the plural and vice versa. A reference to anything includes the whole or each part of it.
2. GENERAL: These terms and conditions shall prevail over any terms of the customer unless the contrary is expressly agreed by us in writing signed by an authorised manager or solicitor acting for us.
3. PRICE: All prices given by us are effective as at the date on which the price is given and are subject to alteration without notice to the customer. Unless otherwise specified, all prices are inclusive of any delivery costs (including freight, loading and insurance) and government charges which, if applicable, will be for the customer’s account. We shall charge fees for performance of services including, without limitation, a management fee to administer transit insurance, an account management fee following a default by the customer or administration fee following dishonour of a cheque. Details of fees are available upon request.
4. PAYMENT: Unless otherwise stipulated in the payment terms of our invoice, all monies in connection with goods acquired by the customer in any month are payable on the last business day in the immediately following month. Payment is to be made to the place for payment provided in our tax invoice. We may charge interest at our discretion on any monies on any account whatsoever that are overdue, calculated at the corporate overdraft reference rate offered by the Commonwealth Bank of Australia as at the first business day of each month. Any costs, fees (including cheque dishonour fees) and expenses including any legal or debt collection agency costs incurred by us in connection with any overdue amount shall be recoverable as a debt immediately due to us by the customer and in the case of legal costs on a full indemnity solicitor-client basis. The customer shall not set off or rely on any equitable right of set off with respect to any amount payable to us. We may in our discretion deduct from, set-off against and/or otherwise reduce or deem satisfied any obligation it may have to the customer to the extent of any obligation that the customer may have to us (whether present or future, certain or contingent, ascertained or sounding only in damages) on any account whatsoever.
5. DEFAULT: The customer shall be in default if any money is not received when due or there are reasonable grounds for us to form the opinion that the customer is insolvent or will not perform its obligations on any account whatsoever. In that event the customer shall be taken to have requested and we shall automatically suspend further trade. In the event of default we may also, at our discretion, withhold any delivery, enter any premises and seize any goods that are reasonably believed to be our property and sell them to pay any money payable or damages and/or by written notice terminate any or all contracts with the customer. 6. CHANGE IN PARTICULARS: The customer agrees that it must promptly notify us of any sale of its business, cessation of trade, the vacation of premises of the business or commencement of business at new premises. The customer must also advise of any change to its address or contact phone numbers. If the customer is a company then it must notify us of any change in control of the customer. Upon any notification of change of ownership of the business or a change of control of the customer either the customer or us may terminate this document by notice in writing to the other but without prejudice to the customer’s obligation to pay to us all monies payable.
7. CLAIMS: It is the responsibility of the customer to verify goods received are in all respects in accordance with the customer’s order and suitable for intended use. Any claim for incorrect supply of goods must be notified by the customer to us within 7 days of receipt of the goods. Within 14 days thereafter full particulars and substantiation of the claim must be made by the customer in writing to us. Any claim which the customer does not notify or substantiate within such time
8. IMPLIED TERMS: All conditions and warranties are hereby expressly excluded to the full extent permitted by law. Any condition or warranty that cannot be lawfully excluded is limited to, at our option, the replacement or rectification of the goods or supply of equivalent goods or the cost of replacing or rectifying the goods or of acquiring equivalent goods.
9. INDIRECT LOSS: So far as the law permits we shall not be liable in any way whatsoever for any loss of profit or indirect or consequential loss including but not limited to any such loss because of delay, defect, fault, failure, negligence or any act, matter or thing done or not done by us.
10. DELIVERY: Any time or date stated by us for availability of goods is an estimate only and the customer shall not be relieved of any obligation to accept or pay for the goods by reason of any delay. If we determine that we are or may be unable to supply within a reasonable time or at all the contract may be cancelled by us and in that event the customer shall have no claim against us whatsoever. We may deliver the goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the customer to cancel any other instalment.
11. PROPERTY IN THE GOODS: Ownership of goods in each delivery passes to the customer only when all of the goods in that delivery are paid for in full and when all of the goods in all other deliveries are paid for in full. Until then all legal and beneficial title to the goods shall remain with us, the customer holds the goods as our fiduciary, bailee and agent and the goods must be kept separate and readily identifiable as our goods. If any goods belonging to us are sold or otherwise disposed of then the customer shall hold the proceeds on trust for us. The customer acknowledges that we shall have a security interest which attaches over any goods that the customer has not paid for in full. The customer consents to the registration and perfection of the interest set out in this clause 11 for the purposes of the Personal Property Securities Act 2009 ("PPSA").
12. RISK: Unless otherwise agreed in writing, risk in the goods shall pass to the customer upon delivery of the goods to the customer or its agent or to a carrier commissioned by the customer.
13. PERFORMANCE & REPRESENTATIONS: The customer acknowledges there have been no representations or conduct giving rise to any understanding other than have been expressly recorded in writing. The customer agrees that it is not reasonable for it to (and it will not) rely on any representation or conduct that is not acknowledged in writing.
14. WAIVER: Any waiver by us under this document must be in writing and signed by us. No failure, delay or the like by us shall affect our legal rights under this document. 1
5. CERTIFICATES: A certificate of our General Manager, Credit Manager or any other of our employees fulfilling a like function shall in all Courts be admissible and be accepted as prima-facie evidence of any debt owed to us and/or any fact circumstance or thing stated therein that is relevant to any rights with respect to the customer.
16. MISCELLANEOUS: This document is subject to the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that place. The rights and obligations of the parties will not merge on completion of any transaction under these terms and conditions. We may amend these terms and conditions by written notice to you.
17. PPSA: The customer agrees:
(a) that this agreement is a security agreement for the purposes of the PPSA;
(b) to do such things as we may require from time to time to ensure that any security interest of ours is perfected under the PPSA for whatever period that we determine in our sole discretion;
(c) that it will reimburse and indemnify us for all expenses incurred by us in enforcing our security interest;
(d) that any property purchased by the customer in utilising the credit facility is commercial property for the purposes of the PPSA;
(e) we may refuse to deliver any property until such time as we are satisfied that we have a perfected security interest in relation to that property;
(f) nothing in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA and Part 4.3 (other than Division 6 of Part 4.3) of the PPSA shall apply to this agreement, or the security under this agreement and to the extent permitted by the PPSA, the customer waives its rights in respect of this agreement, or the security under this agreement, to receive any notice or statement under the following sections of the PPSA:
b. 118 (notice of decision to enforce security interest under land law);
d. 123 (notice of seizure of collateral);
e. 130 (notice of disposal of collateral);
f. 132(3)(d) (statement of account following a disposal showing the amounts paid to other secured parties);
g. 132(4) (statement of account if there is no disposal);
h. 135 (notice of retention of collateral);
i. 157 (notice in relation to registration events);
j. all sections in Part 4.3 (other than those in Division 6 of Part 4.3);
(g) no party may disclose information of the kind referred to in section 275(1) of the PPSA (except where required under section 275(7) of the PPSA) and the parties agree not to authorise the disclosure of such information at any time; and
(h) that we may search the PPSA register for security interests granted by the customer.