Terms & Conditions of Trade
All wholesale goods supplied by and any services provided by Kollaras & Co Pty Ltd trading as Wholesale Beverage Company are on the following General Terms and Conditions of Trade unless otherwise expressly agreed to in writing between Kollaras & Co Pty Ltd trading as Wholesale Beverage Company and the Customer.
In these Terms and Conditions of Trade ("Agreement") the following words have the following definitions:
"Wholesale Beverage Company" means Wholesale Beverage Company of 9 Durgadin Drive, Albion Park Rail NSW 2529.
"Business Day" means any day in which banks in the capital city of the state of New South Wales are open.
"Collateral" has the same meaning as set out in the PPSA;
"Contract" means the agreement formed when the Customer completes the Application for Credit Account and includes the Application for Credit Account, these Standard Terms and Conditions, and the Deed of Personal Guarantee and Indemnity;
"Credit Information" means financial and other documents that Wholesale Beverage Company may request from the Customer pursuant to this Contract;
"Customer" means a person, corporation, firm, trust or body who acquires Goods and Services from Wholesale Beverage Company under this Contract;
"Customer Matter" means a request from the Customer;
"Delivery" means the loading of the Goods upon a transport vehicle at Wholesale Beverage Company's nominated distribution centre.
"Demand" means an account, bill, invoice or other notice in writing of amounts due and payable by the Customer to Wholesale Beverage Company;
"Goods and Services" means any Goods for sale, and or services offered, by Wholesale Beverage Company to Customers which are listed in price books or price lists available from Wholesale Beverage Company (subject to availability);
"Grantor" means the Customer and has the same meaning as set out in the PPSA;
"GST" means the goods and services tax levied on any supply made to the Customer by Wholesale Beverage Company under the A New Tax System (a Goods and Services Tax) Act 1999 as amended from time to time, or any similar tax resulting in an increase
in the tax payable on the supply of goods by Wholesale Beverage Company to the Customer (including supply of any Charge Through Items).
"Guarantor" is the Person described in the Guarantee and Indemnity (as required);
"Invoice" means an invoice issued by Wholesale Beverage Company and requiring payment for Goods and Services provided pursuant to the Contract.
"Wholesale Beverage Company" means Kollaras & Co Pty Ltd ACN 001 919 884 of 9 Durgadin Drive, Albion Park Rail NSW 2529.
"Parties" means Wholesale Beverage Company, the Customer and the Guarantor(s).
"Person" includes a natural person, company, firm, partnership, incorporated association, trust and any other legal entity;
"PPSA" means Personal Property Securities Act 2009 (Cth);
"PPSR" means Personal Property and Securities Register;
"Secured Party" means Wholesale Beverage Company, and means the same as set out in the PPSA;
"Secured Property" means the Goods and Services described in the Invoice, and has the same meaning as set out in the PPSA;
"Security Agreement" means this agreement, as varied from time to time by signed written agreement between the parties;
"Supplier Property" means Goods that the Customer has not paid for as required under this Contract whereby Wholesale Beverage Company retains title to the Goods;
"Suppliers" means a vendor of goods to Wholesale Beverage Company.
a) The Parties agree to be bound by this Contract from the date of first order of Goods or Services by the Customer, or on the date of approval by Wholesale Beverage Company of the Customer's Application for Credit Account, whichever is the earlier, regardless of whether these Terms and Conditions have been signed by the Customer.
b) The Guarantor hereby guarantees all the Customer's obligations pursuant to this Contract, and any variation agreed to by the Parties.
c) All obligations owed by the Parties pursuant to this Contract, or at law, including by the Guarantor, are owed jointly and severally.
d) The Customer and the Guarantor acknowledge that this Contract contains important and legally binding obligations, and warrant that they have obtained independent legal advice, or have chosen not to do so, prior to entering into the Contract.
e) These terms and conditions (which cannot be waived or varied except with the express agreement in writing of Wholesale Beverage Company) form part of every supply of Goods and Services by Wholesale Beverage Company to the Customer and shall prevail over all conditions of the Customer's order form and/or any previous terms and conditions agreed to by the parties to the extent of any inconsistencies.
3. DELIVERY OF GOODS AND SERVICES
a) Wholesale Beverage Company agrees to provide the Goods and Services to the Customer, subject to availability.
b) The Customer agrees to pay for the Goods and Services in accordance with the payment terms outlined on the Invoice.
c) The Customer understands that delivery dates and times are an estimate only and that Wholesale Beverage Company does not warrant delivery on that date.
d) Wholesale Beverage Company will make all reasonable efforts to deliver the Goods and Services on time or in a timely manner.
e) Wholesale Beverage Company is not liable for any delay in the delivery of the Goods and Services caused by any factor outside of Wholesale Beverage Company's control.
a) The Customer acknowledges that when ordering Goods and Services, the Customer agrees to pay the price, from time to time set out in Wholesale Beverage Company's published price book / list for the Goods and Services so ordered. If a price is not stated to be inclusive of GST the Customer agrees to pay that price exclusive of GST.
b) The Customer acknowledges and agrees that the applicable price list may be altered without notice by Wholesale Beverage Company to the Customer and any resulting increase in the price of Goods and Services to the order shall be included in the purchase price.
c) If the Customer directs Wholesale Beverage Company to arrange for delivery of the Goods and Services from Wholesale Beverage Company's nominated distribution centre to an address nominated by the Customer, the Customer shall be liable for any freight and insurance levied on the delivery of the Goods and Services ordered.
5. PAYMENT AND COLLECTION
a) The Customer agrees: i) To pay the total amount shown on the Invoice in accordance with the payment terms nominated on the invoice, Including any fee that may be charged by Wholesale Beverage Company for payments made by credit card; ii) To pay all GST and other statutory charges or taxes imposed or levied upon the supply of Goods and Services by Wholesale Beverage Company to the Customer; iii) To pay all transportation, freight, delivery, insurance and associated costs of delivery of the Goods and Services from Wholesale Beverage Company's nominated distribution centre to the Customer. If Wholesale Beverage Company, at its discretion, pays any such costs, then the Customer agrees to reimburse Wholesale Beverage Company immediately upon demand the full amount of such costs. The delivery charges are as negotiated between Wholesale Beverage Company, and the carriers and are subject to change;
iv) That Wholesale Beverage Company may debit to the Customer's credit card, utilising the authorisation in the credit application all or any payments due to Wholesale Beverage Company by the Customer where payment has not otherwise been made by the Customer. v) That if payment of any outstanding debt is made before Wholesale Beverage Company obtains judgment against the Customer in a New South Wales Court, Wholesale Beverage Company shall be entitled to charge interest to the Customer at the New South Wales Court Pre- Judgment interest rate, as prescribed from time to time, from the day after payment is due until the date that payment is made. vi) That if payment of any outstanding debt is made after Wholesale Beverage Company obtains judgment against the Customer in a New South Wales Court, Wholesale Beverage Company shall be entitled to charge interest to the Customer at the New South Wales Court Pre- Judgment interest rate, as prescribed from time to time, from the day after payment is due until the date of judgment, and at the Post- Judgment interest rate, as prescribed from time to time, from the date of judgment to the date of payment of the debt by the Customer. vii) That Wholesale Beverage Company may charge late fees on any outstanding debt owing to Wholesale Beverage Company by the Customer. viii) If Wholesale Beverage Company issues the Customer with a letter of demand, requesting payment of any outstanding Invoices, the Customer must make payment of outstanding amount irrespective of any alleged set-off being claimed by the Customer. ix) To indemnify Wholesale Beverage Company for all costs including legal costs, losses, charges, damages and expenses incurred by Wholesale Beverage Company for any reason in consequence of or relating to the supply of Goods to the Customer, including but not limited to: aa) Any action taken by Wholesale Beverage Company against the Customer for breach of these terms and conditions; bb) Any action taken by Wholesale Beverage Company against the Customer for non-payment or late payment of Invoices; cc) Any action taken by Wholesale Beverage Company against the Customer by reason of any person purporting to place orders with Wholesale Beverage Company on behalf of the Customer without authority to do so; and dd) For any additional costs incurred by Wholesale Beverage Company as a result of having to reclaim possession of the Goods from the Customer as a result of non-payment For clarity purposes, "costs, losses, charges, damages and expenses" includes but is not limited to legal fees, credit control fees, court costs and interest owing. x) To indemnify Wholesale Beverage Company for any liability whether in contract, tort or otherwise from any cause, whether occasioned by negligence or otherwise, for any injury, damage or loss, including special, indirect or consequential damage or loss whether to persons or property, arising out of the agreement to supply goods, or the goods, including any defects in the goods, anything connected with the goods, late delivery or non-delivery of the goods or unavailability of the goods or any other work related to the goods.
a) The Customer agrees: i) To inspect the Goods and Services immediately upon delivery;
ii) That any claim by the Customer in relation to allegedly defective or missing Goods are required to be made within seven (7) days of the Customer receiving the Goods and Services;
iii) That Wholesale Beverage Company shall not be required to consider any queries, disputes or claims by the Customer regarding allegedly defective or missing Goods, which are notified to Wholesale Beverage Company more than seven (7) days after the delivery of the Goods to the Customer.
7. CREDIT CHECK
a) This Clause applies to Contracts with a value greater than $1,000.00 per annum.
b) If Wholesale Beverage Company requests, the Customer and Guarantor must supply Credit Information, sufficient to enable Wholesale Beverage Company to check the credit rating of the Customer and Guarantor.
c) On provision of the Credit Information, the Customer and Guarantor consents to Wholesale Beverage Company obtaining a credit report from a credit reporting agency, or credit references from financial institutions, as appropriate, and as the circumstances require.
d) Wholesale Beverage Company will in the normal course of business undertake individual public record enquiries and individual bureau enquiries (commercial).
e) The Customer and Guarantor accept that a breach of this Contract may result in the submission of a report that would affect the Customer's and Guarantor's credit rating and/ or credit references.
8. RETENTION OF TITLE AND CARE OF GOODS
a) The Customer agrees that risk in the Goods and Services shall remain with Wholesale Beverage Company only to the point of loading of the Goods and Services upon a transport vehicle at Wholesale Beverage Company's nominated distribution centre and, from then on the Goods and Services are deemed to be delivered and all risk of damage, loss or deterioration of the goods from any cause whatsoever shall pass on to the Customer.
b) Wholesale Beverage Company is not liable for any damage, loss or deterioration to the Goods and Services in transit.
c) The Customer will insure the Goods for the full value of the Goods under a comprehensive policy of insurance, in the names of Wholesale Beverage Company and the Customer, from the time of loading of the goods at Wholesale Beverage Company's nominated distribution centre against:
i) Fire; ii) Accident; iii) Malicious damage; iv) Theft; and v) Such other risks as Wholesale Beverage Company may from time to time require.
d) The Customer is to pay all premiums payable in respect of such policy and produce a certificate of currency of the policy to Wholesale Beverage Company within seven (7) days of request by Wholesale Beverage Company.
e) If the Customer receives the proceeds of any insurance claim in respect of Goods in which Wholesale Beverage Company has title, such proceeds shall be held in trust for Wholesale Beverage Company and the Customer must account to Wholesale Beverage Company for the amount due to Wholesale Beverage Company immediately without the need for demand from Wholesale Beverage Company.
f) )If the Customer fails to effect insurance on the Goods, Wholesale Beverage Company may refuse to deliver the Goods or, at its discretion, may insure the Goods for delivery and the cost of such insurance shall be added to the Customer's account.
g) Wholesale Beverage Company retains title of the Goods until the Goods are fully paid for (the Supplier Property).
h) The Customer agrees to indemnify Wholesale Beverage Company in relation to any damage or loss to the Supplier Property until it is fully paid for.
i) When the Customer is in possession of Supplier Property which has not been fully paid for, and which has a value greater than $1,000.00 the Customer must insure the Supplier Property, and must provide Wholesale Beverage Company with evidence of this insurance if requested.
j) In the event of damage to Supplier Property, the Customer agrees to indemnify Wholesale Beverage Company immediately, and irrespective of whether or not the Customer's insurance policy responds to a claim.
9. PERSONAL, PROPERTY AND SECURITY ACT
a) The Parties acknowledge and agree that this Contract is a Security Agreement for the purposes of the PPSA.
b) The Parties acknowledge and agree that when Wholesale Beverage Company provides the Customer with Goods, and those Goods are not fully paid for by the Customer, those Goods are Secured Property, and the Grantor grants the Secured Party a Security Interest within the meaning of section 12 of the PPSA.
c) The Parties acknowledge and agree that the Secured Property becomes the Collateral, and that the Security Interest attaches to the Collateral for the purposes of section 19 of the PPSA.
d) The Parties acknowledge and agree that when Wholesale Beverage Company leases goods to the Customer, this Contract is a PPS Lease within the meaning of section 13 of the PPSA, and the Customer agrees that when the Customer enters into possession of the Secured Property, a Security Interest attaches to the Secured Property, and the Secured Property is the Collateral within the meaning of section 19 of the PPSA.
e) A Security Interest created by operation of clause 9.b is a Purchase Money Security Interest ("PMSI") within the meaning of section 14 of the PPSA.
f) The Customer irrevocably authorises Kollaras Trading Company to register its Security Interest on the Personal Properties & Securities Register ("PPSR"), and shall indemnify Wholesale Beverage Company for the costs of registration. The Customer recognized that Wholesale Beverage Company is not required to register a new Security Interest on the PPSR each time that Goods are supplied to the Customer. For the avoidance of doubt, the Customer acknowledges that Wholesale Beverage Company may (but is not obliged to) register one Security Interest on the PPSR at the commencement of this Contract to cover all future Goods which are supplied to the Customer.
g) The Customer agrees to act in a manner consistent with and/or refrain from acting in a manner inconsistent with Wholesale Beverage Company's rights to perfect and protect its Security Interest.
h) The Customer agrees to provide Wholesale Beverage Company with ten days written notice of a change, or proposed change, in the Customer's business details, including, but not limited to, changes of business names, registered business address/trading address, and the location of the Secured Property.
i) The Customer acknowledges and agrees that Wholesale Beverage Company will have the power to seize, retain, or dispose of the Collateral, in accordance with Chapter 4 of the PPSA, however the customer agrees
(i) To waive its rights it would otherwise have under the PPSA to receive notices under sections 95 (intention to remove accession), 118 (enforcement under land law), 121(4) (enforcement action against liquid assets), 130 (disposal of Goods), 132(2) (statement of account following disposal), 132(4) (statement of account if not disposal of Goods), 135 (proposal to retain Goods) of the PPSA;
(ii) to waive its rights it would otherwise have under the PPSA as a grantor and/or debtor under 137(2) (to object to proposal of the Company to retain Goods), 142 (to redeem Goods) and 143 (reinstate security agreement) of the PPSA; and
(iii) to waive its rights it would otherwise have under the PPSA to receive a verification statement under section 157(1) and 157(3) of the PPSA; and
(iv) that sections 96, 125, 129, 132(3)(d) of the PPSA do not apply."
a) The Customer warrants that: i) It has all necessary power and authority to accept these terms and conditions; and ii) That it will not breach any agreement with a third party by ordering any Goods or by entering into this Contract; and iii) That any person ordering goods on behalf of the Customer from time to time is authorised by the Customer to do so; and iv) It holds all necessary licences and permits required to purchase Goods from Wholesale Beverage Company, including but not limited to any applicable Liquor Liences; and v) It will supply any particulars relating to such licences and permits immediately upon request by Wholesale Beverage Company.
11. LIMITATION OF LIABILITY
a) All express and implied terms, conditions and warranties on the part of Wholesale Beverage Company which might otherwise apply to or arise out of the sale of the Goods by Wholesale Beverage Company to the Customer are excluded, except to the extent that any law does not permit them to be excluded.
b) To the maximum extent permitted by law, the Customer accepts that Wholesale Beverage Company is not liable for direct, indirect or consequential loss to the Customer or a third party, in relation to: i) The delivery or non-delivery of the Goods; ii) The operation or failure of the Goods; or iii) Any services provided.
c) In the event that Wholesale Beverage Company is found liable for any loss, the Customer accepts that the maximum liability of Wholesale Beverage Company will be limited to an amount equal to the cost of the Goods and Services, or an amount equal to the amount that Wholesale Beverage Company is indemnified by its insurer.
12. DISPOSAL OF BUSINESS
a) The Contract is not assignable by the Customer, and the Customer shall promptly notify Wholesale Beverage Company in writing of: i) Its intention to sell transfer or assign its business (including the stock in trade of the business) at least fourteen (14) days prior to the date of completion of the sale, whereupon Wholesale Beverage Company may request the purchaser, transferee or assignee to enter into an agreement to supply goods under its then current terms and conditions; ii) Any application for the appointment of a trustee in bankruptcy, receiver or liquidator or official manager of the Customer's company or business of the Customer; and iii) Any circumstances likely to lead to the appointment of a trustee in bankruptcy, receiver, administrator, liquidator, or official manager of the Customer's company or the business of the Customer.
b) In circumstances described in this clause, the Customer shall at the request of Wholesale Beverage Company: i) Separate all of the Goods supplied hereunder but not paid for or, part paid for, from all other stock of the Customer; and ii) Shall advise the purchaser, receiver, administrator, liquidator, or official manager, as the case may be, that the Goods so separated is not the Customer's property but the property of Kollaras Trading Company; and iii) Shall do all things necessary and procure that all things be done to give Wholesale Beverage Company access and deliver to Wholesale Beverage Company or cause to be delivered to Wholesale Beverage Company all such Goods.
a) The Customer agrees that if it trades with Wholesale Beverage Company in its capacity as trustee of any trust (whether or not known by Wholesale Beverage Company) then Wholesale Beverage Company shall be indemnified for any loss against the assets of that trust, which assets from time to time shall be charged by the trustee in favour of Wholesale Beverage Company, to secure Wholesale Beverage Company under this Contract.
b) The assets of the trust shall be held on constructive trust for Wholesale Beverage Company until such time as Wholesale Beverage Company recovers all monies owing to it by the Customer pursuant to this Contract.
a) The Customer is in default of this Contract if it: i) Breaches any of these terms and conditions and fails to remedy that breach; or ii) Fails to pay to Wholesale Beverage Company any moneys due to Wholesale Beverage Company by the due date for payment; or iii) A trustee in bankruptcy, receiver, manager, liquidator, provisional liquidator, administrator or official manager is appointed over all or any part of the assets or undertaking of the Customer; or iv) Enters into or proposes to enter into a scheme of arrangement, or a petition is presented to declare the Customer bankrupt, wind up the Customer or the Customer is insolvent.
b) If the Customer is in default under this Contract, Wholesale Beverage Company may: i) Demand payment of all money owing by the Customer to Wholesale Beverage Company (in which case the
c) The Customer's authority to deal in any way with the Goods ceases upon the occurrence of any of the matters set out in this clause.
d) Any failure by Wholesale Beverage Company to exercise any right accruing to Wholesale Beverage Company pursuant hereto or otherwise shall not constitute a waiver by Wholesale Beverage Company of that right.
a) The Customer shall treat all information disclosed to it by Wholesale Beverage Company as confidential and shall not use such information other than in accordance with the directions from time to time given by Wholesale Beverage Company either pursuant hereto or otherwise.
b) The Customer acknowledges that it has no proprietary right or interest in any information or system disclosed to it by Wholesale Beverage Company.
c) This provision does not apply to information which was in the public domain prior to its disclosure by Wholesale Beverage Company or which after such disclosure, enters the public domain through no act or omission by the Customer, or to information which the Customer is required to disclose by law or the rules of any stock exchange.
a) Any notice given under these terms and conditions, shall be given in writing and delivered, mailed, faxed or transmitted by electronic mail to the respective parties at their designated address.
b) The Customer's designated address is deemed to be the address set out in the Customer's Application for Credit Account or the Customer's registered office. Either party may change its designated address by prior notice in writing to the other.
a) This Contract may be terminated by Wholesale Beverage Company providing 14 days written notice.
b) In the event that Wholesale Beverage Company cannot deliver the Goods for any reason, Wholesale Beverage Company may terminate this Contract by written notice, effective immediately.
c) Wholesale Beverage Company may terminate this Contract immediately if the Customer breaches this Contract, including if the Customer fails to pay a demand when due.
d) On termination, the Customer is liable to pay all amounts, costs and expenses incurred by Wholesale Beverage Company up until termination, and agrees to indemnify Wholesale Beverage Company in respect of all future losses, including legal costs.
e) Termination does not affect the retention of title of Supplier Property.
f) Upon termination, the Customer irrevocably consents to Kollaras Trading Company entering upon the property to repossess any goods subject to retention of the title or part retention of title.
g) Termination does not affect the responsibilities and obligations of the Guarantor.
a)GST - Where a price quoted does not state whether it is GST inclusive or exclusive, the Customer agrees that it is GST exclusive, and that GST must be added to the final price.
b) SEVERABILITY - Any clause, or part thereof, of this Contract that is illegal or unenforceable will be severed from this Contract, and the remaining provisions of this Contract continue in force.
c) GOVERNING LAWS - This Contract is governed by the law of New South Wales, Australia, and the Parties agree to accept the non-exclusive jurisdiction of the Courts of New South Wales in relation to all matters arising under this Contract.
e) NON-CANCELLATION OF ORDERS BY CUSTOMER - The Customer may not cancel orders. If the Customer attempts to cancel an order, or refuses to accept delivery, Wholesale Beverage Company in addition to all of its other remedies is entitled, upon advising the Customer that the Goods are available for delivery, to recover from the Customer the full Invoiced cost/price together with any freight and delivery costs incurred by Wholesale Beverage Company. All other rights which Wholesale Beverage Company may have against the Customer are reserved.
f) CANCELLATION OF ORDERS AND SUSPENSION OF FURTHER SUPPLY BY KOLLARAS TRADING COMPANY - Wholesale Beverage Company may elect to cancel any order (wholly or partially), at its discretion at any time prior to the delivery of the Goods, in which case Wholesale Beverage Company shall be under no obligation in respect of the order for the Goods. Wholesale Beverage Company reserves the right at all times to suspend the supply of Goods to the Customer without having to give reasons for its action to the Customer or the Customer's agent and without liability for breach of any contract.
g) ACCEPTANCE OF ORDERS AND DELIVERY OF GOODS - Each order of Goods by the Customer shall constitute an offer to purchase Goods from Wholesale Beverage Company. Each offer shall be accepted by Wholesale Beverage Company upon delivery of the Goods. Subject to availability Wholesale Beverage Company will use reasonable efforts to have Goods available for delivery within one full business day of an order and not exceeding five full business days. Wholesale Beverage Company will however, not be liable for any delays. Wholesale Beverage Company will notify the Customer of any delays or expected delays beyond five business days and if the Customer does not raise any objection in writing to the delay within one business day of being so notified then the Customer must accept delivery.
h) CREDITS AND COMMISSIONS - Wholesale Beverage Company may receive payments, discounts, credits or other forms of financial accommodation from Suppliers which Customers acknowledge is the property of Wholesale Beverage Company and which Wholesale Beverage Company is entitled to retain. The Customer acknowledges that Wholesale Beverage Company is only prepared to contract with the Customer on the basis that any payments, discounts, credits or other forms of financial accommodation referred to in this clause are kept confidential to Wholesale Beverage Company and are not disclosed to the Customer and the Customer warrants that it shall not require such disclosure.
i) CHANGE IN REGISTRATION - The Customer must notify and provide full details to Wholesale Beverage Company no later than 28 days prior to any proposed changes of ownership, registered particulars, alteration, addition to the shareholding or directorship as to a company Customer. The Customer shall continue to be liable for any Goods supplied by Wholesale Beverage Company after such change, alteration or addition unless Wholesale Beverage Company shall have approved the changes in writing. Wholesale Beverage Company shall be at liberty to immediately terminate the Contract with the Customer to supply Goods, at its discretion, if it does not approve of the changes notified by the Customer to Wholesale Beverage Company.
j) ACCOUNT ENQUIRIES - All enquiries relating to a Customer's Statement of Account should be made to the office of Wholesale Beverage Company between the hours of 9.00am and 5.00pm, Monday to Friday.