Terms and Conditions of Sale
In these Terms and Conditions of Sale:
- “You” or “Your” means the person or company whose name and address is set out in a credit application made to us;
- “Goods” means any goods supplied by us to you;
- “Us”, “We” or “Our” means Mountain Goat Beer Pty Ltd (ABN 46 078 742 524) of 80 North Street, Richmond, Victoria and includes our employees and authorised agents; and
- “Terms and Conditions” means these terms and conditions of sale as amended from time to time or as otherwise agreed.
ORDERS & ACKNOWLEDGEMENT
A quotation by Us (or price list) does not constitute an offer and We reserve the right to withdraw or revise it prior to acceptance of Your order.
By ordering the Goods You acknowledge and agree that:
- upon acceptance by Us the order is bound by these Terms and Conditions (Supply Contract); and
- the Terms and Conditions will apply to the exclusion of any other terms unless We expressly agree otherwise.
We reserve the right to accept or reject in our absolute discretion any orders. We may receive for any reason, including, without limitation, the rejection of Your application for credit, You failing to pay for other Goods that you have ordered, the unavailability of Goods, an error in the price or the description of Goods, or an error in the order placed by You.
Once a Supply Contract is formed between You and Us, the terms and conditions of that Supply Contract can only be amended or varied by written agreement between You and Us. However, We may vary these Terms and Conditions by giving You 7 days written notice specifying the variation to the terms and conditions of sale. Such notice may be given by mail, fax or email.
We may change the specifications or ingredients of any Goods from time to time and We are not required to notify You of such a change.
PRICING AND PAYMENT
All sales are made at the current price at the time of delivery, including Goods placed on back order which may be subject to price variations between order and delivery.
All prices in Our price list is exclusive of GST. In addition to the price payable for the Goods, You must pay Us, on demand, the GST payable in respect of the supply of those Goods. For the purposes of these Terms and Conditions of Sale, “GST” has the same meaning as that word is given in the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
You must pay Us within the period set out in Our invoice. All money is due to Us without deduction, set-off, withholding or counterclaim.
If an amount is payable by You to Us, we are entitled to set-off that amount against any amount payable by Us to You.
You will be responsible for all costs associated with delivery of the Goods. You must provide reasonable and proper access to the location specified for delivery. In all cases We are entitled, at our discretion, to choose the method of transport for the Goods and to subcontract delivery.
Where a delivery date is specified, We will endeavour to deliver the Goods on the due date. We may unilaterally delay or suspend any delivery or deliver the Goods ordered by instalments (in which case each instalment is considered a separate Supply Contract) or cancel any agreement for sale without any liability whatsoever. You agree not to reject delivery of any Goods due to a delay in their delivery or if delivered in instalments.
You must notify Us of any shortages in orders within 3 days of delivery, otherwise You will be deemed to have accepted the order.
If a dispute arises (including as to the quality of the Goods), You must accept and pay for the Goods and settle any claim with the Us at a later date. Despite this clause, if You reject the Goods then We may sell such Goods without prejudice to any claim or other rights or remedies We may have against You.
PROPERTY AND RISK
Property in the Goods will remain with the Us and will not pass to You until we have received payment in full for the Goods and for all sums owing on all of your other accounts with Us or under any contract made with Us. While the Goods remain Our property, You agree:
- to hold the Goods as fiduciary bailee for Us;
- the Goods will be readily identifiable as Our property; and
- You will not dispose of the Goods except in the ordinary course of Your business.
Risk to the Goods passes to You on delivery to You or Your nominated person or place of delivery.
If You fail to pay for any Goods within the period of credit extended by Us:
- We may recover possession of all Goods (in which property has remained with the Us); and
- if required, You will assign to the Us any of Your rights to any outstanding money relating to Your re-supply of the Goods.
Goods are supplied on condition that You have a current liquor licence which permits the purchase and acceptance of the Goods to the premises directed. You must notify Us if Your liquor licence is suspended or cancelled or supply of the Goods will not comply with Your licence. You agree to provide proof of Your licence on request. We may fail to supply Goods where you do not provide proof or We have reason to believe that supply will not comply with Your licence.
You must notify Us of any defects in the Goods within 7 days of delivery. If you fail to notify Us, then to the fullest extent permitted by law, the Goods must be treated as having been accepted by You, and You must pay for the Goods and, to the fullest extent permitted by law, We will be discharged from any liability in respect of the Goods being wrong or defective or short delivered.
To the extent permitted by law, Our sole liability under a Supply Contract, including for a breach of any actual or implied condition or warranty, will be limited to, at Our election:
- replacement of the Goods or the supply of equivalent goods; or
- the payment of the cost of replacing the Goods or of purchasing or acquiring equivalent goods.
We will not be liable for:
- any consequential loss or damage arising from a Supply Contract including any advice, recommendation, information, service or recall in relation to that Supply Contract;
- any loss, expense, claim or damage arising out of the unavailability of Goods or any delay or failure in delivery of the Goods for any reason.
You acknowledge that You do not rely, and it is unreasonable for you to rely, on our skill or judgment as to whether the Goods supplied are reasonably fit for any purpose for which You are acquiring them.
Nothing in these Terms and Conditions operates to limit or exclude liability that cannot by law be limited or excluded.
You will be in default of a Supply Contract if You:
- fail to make any payment in accordance with these Terms and Conditions;
- fail to comply with any of these Terms and Conditions;
- being an individual, commit any act of bankruptcy, die or become mentally or physically incapable of managing Your affairs;
- being a corporation, pass a resolution for winding up or liquidation;
- enter into any composition or arrangement with creditors or if a receiver including a provisional receiver, or receiver and manager, trustee or administrator is appointed for any property or assets;
- becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up;
- cease or threaten to cease carrying on a business.
Where You are in default, We may do one or more of the following:
- suspend or terminate any Supply Contract;
- require the payment of cash before or on delivery of any further Goods;
- charge default interest on all overdue payments, at the rate of 15% per annum, calculated daily, from the due date for payment until paid in full;
- suspend any further deliveries and immediately recover possession of any Goods held by You;
- require that all money owed, regardless of the due date, be due and payable;
- issue proceedings against You; and
- appoint a receiver, manager or administrator under the Corporations Act 2001.
PERSONAL PROPERTY SECURITIES ACT
In this clause:
- “Financing Statement” has the meaning given to it by the PPSA;
- “Financing Change Statement” has the meaning given to it by the PPSA;
- “PPSA” means the Personal Property Securities Act 2009 (Cth);
- “PMSI” means a Purchase Money Security Interest within the meaning of the PPSA;
- “Security Agreement” means the security agreement under the PPSA created between You and Us by these Terms and Conditions;
- “Security Interest” has the meaning given to it by the PPSA and includes the PMSI created by these terms and conditions.
You acknowledge and agree that these Terms and Conditions:
- constitute a Security Agreement for the purposes of the PPSA; and
- create a Security Interest in:
(i) all Goods previously supplied by Us to You (if any);
(ii) all Goods that will be supplied in the future by Us to You; and
(iii) the proceeds of sale of the goods referred to in i and ii.
You agree to:
- promptly sign any further documents and provide any further information which We may reasonably require to register the Security Interest or other document required under the PPSA;
- pay all costs, expenses and other charges associated with the registration;
- not register anything in respect of the interest without Our prior written consent;
- immediately advise Us of any material change in Your business practices of selling goods which would result in a change in the nature of proceeds derived from such sales;
- notify Us of any changes to Your name or other details (including address and telephone number);
- allow Us to register a Security Interest over any Security Interest that You may acquire in goods disposed of to third parties so far as the law allows; and
- not allow Security Interests to be created or registered over the Goods in priority to the Security Interest held by the Us.
You agree to waive any right to receive:
- any Financing Statement;
- any notices dealing with the Goods and default as far as the law allows;
- a verification statement in accordance with section 157 of the PPSA.
In the event of a product recall over Goods You have acquired from Us, You shall give Us such assistance as We reasonably require in relation to that recall.
You may not assign or otherwise deal with a Supply Contract without our consent which We may give or withhold at our absolute discretion. We may assign or otherwise deal with a Supply Contract without Your consent.
All Supply Contracts will be deemed to be made in the State of Victoria and You agree to submit to the jurisdiction of an appropriate court in that State.
The provisions of these Terms and Conditions will be separate and severable from each other to the extent that if any provision or provisions are considered to be inoperative then the remaining provision or provisions will be binding on and enforceable by the parties.