The following terms and conditions apply to our customers who order goods through All Premium Wines our wholesale wine distribution business.
By submitting your order for goods on our website you agree to enter into a contract with ABN 53 301 250 883 trading as All Premium Wines and agree to be bound by the following terms and conditions:
By receiving delivery and/or supply of all or a portion of the goods ordered through the All Premium Wine, you shall be deemed to have accepted these terms and conditions and that they shall apply to the exclusion of all others. All goods are charged at the price ruling at the date of invoice and any GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999.
2.1 Subject to the volume or dollar amount of the order, payment is due on either seven (7), fourteen (14), or thirty (30) days from the date of issuing of tax invoice by All Premium Wines. All Premium Wines may charge liquidated damages at a rate equivalent to two percent (2%) per month if payment is not received by the due date.
2.2 All Premium Wines may revoke or withdraw any orders by you based on overdue accounts outstanding in connection with you.
2.3 Any payments received from you on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs, and then to principal.
2.4 You will be liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by All Premium Wines for enforcement of obligations and recovery of monies due from any order by you for wholesale wines.
3. Quotations and Pricing
3.1 If All Premium Wines has not specified the price to be charged to you at the time that you place your order, the price charged to you shall be the price ruling as at the date of delivery. You acknowledge that All Premium Wines’ prices are subject to alteration from time to time.
3.2 Unless otherwise specified by All Premium Wines, the prices exclude:
• Any statutory tax, including any GST, duty or impost levied in respect of the goods and which has not been allowed for by All Premium Wines in calculating the price.
• Costs and charges in relation to insurance, packing (other than the standard packing of All Premium Wines), crating, delivery (whether by road, rail, ship or air) and export of the goods.
• Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by you.
• The contract between All Premium Wines and you shall not be affected by any impositions or alterations of customs duties or by decisions of the Customs Department with regard to either classification or value of duty or landing charges occasioned thereby. Any such impositions shall be to your account.
4. Minimum Order
For an order of less than 24 bottles per invoice, All Premium Wines reserves the right either to not accept an order or to charge you a handling fee.
Any description of goods contained in an invoice is given solely for the purpose of identifying the specific goods ordered that are the subject of the invoice and does not render any sale of goods a sale by description.
Where applicable, you are deemed to accept that the goods correspond with any sample provided.
6. Delivery and Supply
6.1 Any times quoted for delivery and/or supply of goods ordered are estimates only and All Premium Wines shall not be liable for failure to deliver/supply, or for delay in delivery/supply. You shall not be relieved of any obligation to accept or pay for goods, by reason of any delay in delivery/supply or dispatch. All Premium Wines reserves the right to stop supply at any time if you fail to comply with these terms and conditions.
All Premium Wines may refuse to supply any order by you for goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of you.
6.2 You are deemed to accept delivery of the goods ordered where the goods are either delivered to your premises or when All Premium Wines notifies you that the goods are available for collection.
6.3 If you are unable or fail to accept delivery of the goods ordered, All Premium Wines may deliver the goods to a place of storage nominated by you and, failing such nomination, to a place determined by All Premium Wines . Such action shall be deemed to be delivery to you. You shall be liable for all cost, charge and expense incurred by All Premium Wines on account of storage, detention, double cartage/delivery or similar causes.
6.4 You agree that you will be obliged to and shall pay for the goods ordered on the due date notwithstanding that delivery is made after the agreed delivery date, and notwithstanding that the goods may not yet be delivered.
7.1 Until full payment has been made for all goods ordered, and any other sums in any way outstanding by you to All Premium Wines from time to time:
(a) All sums outstanding become immediately due and payable by you to All Premium Wines if you: make a default in paying any other sums due to All Premium Wines, become bankrupt, or commit any act of bankruptcy, compound with your creditors, have judgment entered against you in any court or, being a company, have a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these terms and conditions.
(b) The property in the goods ordered shall not pass to you and you shall hold the goods as bailee for All Premium Wines (returning the same to All Premium Wines on request). The goods shall nevertheless be at your risk from the time of delivery/supply and you must insure the goods from the time of delivery/supply.
(c) You are only authorised to sell the goods ordered (or any portion of them) to third parties as the fiduciary agent of All Premium Wines provided that there shall be no right to bind All Premium Wines to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by you for the goods ordered (or any portion of them) shall be held on trust for All Premium Wines pursuant to the fiduciary relationship.
(d) In the event that you incorporates or transforms the goods ordered (or any portion of them) into any other goods or products produced by you (or a third party), then you must hold a proportion of any payment (“relevant proportion”) received by you for such goods or products on trust for All Premium Wines. You expressly acknowledges that the relevant proportion shall be equal to the dollar value of the goods ordered incorporated or transformed and you further acknowledge that any part payment (not exceeding the relevant proportion) received by you for such goods or products is received as payment first of the relevant proportion.
(e) All Premium Wines is irrevocably authorised to enter any premises where the goods ordered are kept, and to use your name and to act on your behalf, if necessary, to recover possession of the goods ordered without liability for trespass or any resulting damage.
7.2 At all times, All Premium Wines retains the right of possession of any pallets used for delivery of the goods ordered and you agree to indemnify All premium Wines in respect of any pallets not returned to us in good order and condition (as determined by All Premium Wines) within seven (7) days of delivery of the goods ordered.
7.3 In addition to any lien to which All Premium Wines may, by statute or otherwise, be entitled, All Premium Wines shall in the event of you becoming insolvent, bankrupt or winding up, be entitled to a general lien over all property or goods belonging to you in our possession (although all or some of such property or goods may have been paid) for the unpaid price of any goods sold or delivered to you under this or any other contract.
All Premium Wines will ship by the least expensive route and carrier to all points. Should you chooses a route with a higher charge than the route of All Premium Wines choice for shipment, All Premium Wines will charge the difference to your account.
All Premium Wines is not responsible for any loss or damage to any goods ordered in transit caused by any event of any kind by any person.
9. Returns, Cancellations and Claims
9.1 You shall not return any goods to All Premium Wines without obtaining prior authorisation from All Premium Wines. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned goods. A list of the goods returned including product descriptions, quantity, date of return and your name and address must also be enclosed, and all freight charges must be paid by you. All goods must be returned in the original packaging and you shall be responsible for all damage incurred during return shipment. A credit note will be issued by All Premium Wines only after goods returned are either collected by All Premium Wines Wholesale Wines’ authorised representative or agent or returned to it by you as set out above. You shall not deduct the amount of any anticipated credit from any payment due to All Premium Wines but must await receipt of a credit note.
9.2 All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
9.3 If All Premium Wines accepts the return of any goods that have been ordered, All Premium Wines may charge you fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of you.
9.4 No cancellations or partial cancellation of an order by you shall be accepted by All Premium Wines unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by All Premium Wines, will indemnify All Premium Wines against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
9.5 All complaints, claims, or notification of lost goods, incomplete goods, goods damaged in transit or goods that do not comply with the your purchase order must be submitted by you to All Premium Wines in writing within seven (7) business days of the date of the invoice rendered for the supply of the goods, otherwise you shall be deemed to have accepted the goods and shall not refuse to pay for the goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with your purchase order.
10. Personal Property Security Interest
10.1 You grant All Premium Wines a Security Interest in the goods (supplied as Commercial Property, more particularly described as Other Goods) and their Proceeds to secure your obligation to pay the purchase price of the goods and any other obligations you owe to All Premium Wines under this contract (together the “Indebtedness”) and, where the goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by you, of which the goods form part, to the extent required to secure the Indebtedness.
10.2 As and when required by All Premium Wines you shall, at your own expense, provide all reasonable assistance and relevant information to enable All Premium Wines to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce All Premium Wines’ Security Interest in respect of the goods and their proceeds in accordance with the Personal Property Securities Act 2009 (“PPSA”).
10.3 All Premium Wines may at any time register a financing statement or financing change statement in respect of a Security Interest (including any Purchase Money Security Interest). You waive any right to receive notice in relation to any registration on the register of a Security Interest in respect of the goods.
10.4 You shall not change your name or details without first notifying All Premium Wines of the new name or details at least 7 days before the change takes effect.
10.5 You warrant that the goods are not purchased for personal, domestic or household purposes.
10.6 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by you on more than one invoice/order, any payments received from you shall be deemed to be made by you and applied by All Premium Wines in the following order (unless All Premium Wines otherwise determines):
(a) To any obligation owed by you to All premium Wines which is unsecured, in the order in which the obligations were incurred;
(b) To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
(c) To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
10.7 Until you have paid all money owing to All Premium Wines, you shall at all times ensure that:
(a) All goods, while in your possession, can be readily identified and distinguished, and/or
(b) All Proceeds (in whatever form) that you received from the sale of any of the goods are readily identifiable and traceable.
10.8 Where the goods are purchased by you and held as Inventory, nothing in this clause shall prevent you from selling or leasing and delivering the goods in the ordinary course of your business. Otherwise until you have paid all money owing to All Premium Wines you shall not sell or grant a Security Interest in the goods without All Premium Wines’ written consent.
10.9 The parties agree to contract out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on, All Premium Wines. Specifically, the following provisions of the PPSA will not apply and you will have no rights under them:
(a) Section 95 (to the extent that it requires the Secured Party to give notices to the Grantor);; section 96;; section 118 (to the extent that it allows a Secured Party to give notice to the Grantor);; section 121(4);; section 125;; section 130;; section 132(3)(d);; section 132(4);; section 135;; section 142;; section 143.
(b) Section 115(7) of the PPSA allows for the contracting out of provision of the PPS Act, the following provisions of the PPS Act will not apply and the Customer will not have any rights under them: section 127;; section 129(2),(3);; section 130(1);; section 132;; section 134(2);; section 135;; section 136(3), (4) and (5) and section 137.
10.10 Unless otherwise agreed and to the extent permitted by the PPSA, you and All Premium Wines agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. You waive any rights which you may have, or but for this clause you may have had under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
10.11 All Premium Wines are irrevocably authorised to enter any premises where the goods are kept, and to use your name and to act on your behalf, if necessary, to recover possession of the goods and seize the goods in accordance with the PPSA without liability for trespass or any resulting damage.
You must notify All Premium Wines in writing within seven (7) days of:
(a) Any alteration of your name or change of ownership of your business name.
(b) The issue of any legal proceedings against you.
(c) The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to you.
(d) You agree to be liable to All Premium Wines for all goods supplied to a new owner of your business until All Premium Wines has received notice of such change.
No warranties except those implied and that by law cannot be excluded are given by All Premium Wines in respect of goods supplied. Where it is lawful to do so, the liability of All Premium Wines for a breach of a condition or warranty is limited to the repair or replacement of the goods, the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring equivalent goods, as determined by All Premium Wines.
13. Force Majeure
All Premium Wines shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the goods impossible and All Premium Wines may elect to terminate the Agreement without any payment of compensation or damages to you.
You as beneficial owner and/or registered proprietor agree for All Premiums Wines to charge your estate and interest in any real property or land to secure payment of accounts rendered by All Premium Wines to you for the delivery and/or supply of the goods including interest payable on such accounts and costs (including legal costs on a full indemnity basis) incurred by All Premium Wines and including the costs to prepare and lodge a Caveat against the land and to remove the Caveat.
15. Guarantee and Indemnity
15.1 In consideration of All Premium Wines entering into this contract with you for the supply of goods, and where you are a corporate entity all directors of such corporate entity, hereinafter referred to as the Guarantor, unconditionally and irrevocably guarantees to All Premium Wines the due and punctual payment of all debts and monetary liabilities including without limitation sums of money, interest, costs, damages, charges and expenses which are, or which may become payable by
All Premium Wines on any account and in any capacity (“Guaranteed Monies”)
and, as a separate and independent obligation, agrees to indemnify and keep All Premium Wines indemnified from and against any claim, action, loss, damage, cost, expense, outgoing or payment suffered, paid or incurred by All Premium Wines Outer in relation to the non-payment or non-recovery of the Guaranteed Monies.
15.2 Each Guarantor jointly and severally acknowledges and agrees that this Guarantee and Indemnity (“the Guarantee”) is given upon and subject to the following conditions:
(a) In the event that you/customer failing to pay All Premium Wines any Guaranteed Monies the Guarantor will immediately pay such monies to All Premium Wines.
(b) In the event that you/customer failing to carry out or perform any of its obligations the Guarantor will immediately carry out and perform those obligations.
(c) The Guarantor shall be deemed to be jointly and severally liable with the you/customer (in lieu of being merely a surety for it) for the payment of the Guaranteed Monies and it shall not be necessary for All Premium Wines to make any claim or demand on or to take any action or proceedings against you/customer or make any demand against the Guarantor before commencing proceedings against the Guarantor to pay the Guaranteed Monies or to carry out and perform the obligations herein contained.
(d) No time or other indulgence whatsoever that may be granted by All Premium Wines to you/customer shall in any manner whatsoever affect a liability of the Guarantor hereunder and the liability of the Guarantor shall continue to remain in full force and effect until all monies owing to All Premium Wines have been paid and all obligations have been performed.
15.3 The Guarantor hereby charges their respective right, title and interest as beneficial owner and as trustee of every trust in all real estate which they or any of them now have or at any time hereafter may have to secure their obligations under this contract with All Premium Wines.
16. Governing Law
These terms and conditions are governed by the laws of Victoria, and any dispute in relation to these terms and conditions or your access or use of the website will be the exclusive jurisdiction of the Courts in Victoria.
17. Severance and Waiver
If any of these terms and conditions are unenforceable or held to be invalid, the offending provision/s will be removed from these terms and conditions and the amended term and conditions will remain in force. Any failure by All Premium Wines to act or enforce these terms and conditions immediately will not be considered a waiver to take any such action.