Terms of Trading and Conditions of Payment
All goods (‘Goods’) purchased from Phoenix Beers Pty Ltd as trustee for Phoenix Beers Unit Trust trading as Phoenix Beers ABN 52824641743 and or Phoenix Beers Pty Ltd ACN 091204330 (either or both entities hereby being referred to as the “Company”) are sold subject to the following terms and conditions and these terms and conditions shall prevail to the exclusion of all other Terms and Conditions whether expressed or implied, except only for such terms as are implied by or under any Act of Parliament or by or under any regulation and cannot be excluded. It should be noted that Goods are also termed Collateral under this agreement.
1. Warranty: The information is provided by the Customer to the Company for the sole purpose of obtaining credit and is warranted to be true and correct at time of application.
2. Retention of title and Personal Property Securities Act 2009
2.1 The Customer acknowledges and agrees that these Terms and Conditions will constitute a security agreement as envisaged under section 20 of the Personal Property Securities Act 2009(‘PPSA’) and that such security interest will exist in all goods (and the proceeds of sale of any goods) which have been supplied by the Company to the Customer previously and further with respect to all future goods as may be supplied by the Company to the Customer (and the proceeds of any sale of such goods).
2.2 The Customer undertakes to execute all and any documents to enable the security interest granted by the Customer under these Terms and Conditions and the PPSA to be registered for the purpose of ensuring the Company’s security interest is enforceable, perfected under the PPSA to enable the Company to gain first priority for such security interest and exercise its rights with respect to such security interest.
2.3 Title to any Goods supplied by the Company (“Goods”) shall remain the sole and absolute property of the Company as legal and equitable owner until all money due to the Company has been paid to the Company notwithstanding that the Goods shall be at the Customer’s risk from the time of delivery of the Goods to the Customer.
2.4 The Customer grants and the Company may register on the Personal Property Securities Register, a security interest in all and any sale of Collateral under this agreement, including but not limited to intellectual property and all other present or after-acquired property.
2.5 The Customer undertakes to store the Goods in a manner which makes the Goods readily identifiable as the Company’s Goods, until delivery of the Goods to a third party.
2.6 The Customer warrants that all purchases under this agreement are for commercial purposes only and, accordingly, the provisions of the Consumer Credit Act will not apply.
2.7 The Customer may resell the Goods but only as fiduciary agent of the Company.
2.8 The Customer must keep an amount from the proceeds of sale which is equal to the debt owed to the Company and must immediately pay such amount to the Company upon request.
2.9 The Customer’s right to possession of the Goods ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, an administrator or a trustee to be appointed in respect of the Customer, its undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for winding up the Customer.
2.10 The Customer hereby irrevocably authorises the Company to take back goods in respect of which the full purchase price has not been received by the Company, without any notice, in the event that the Customer fails to make any payment when it is due. The Customer authorises the Company to enter onto any land on which the goods are left and remove the goods.
2.11 The Customer hereby releases and indemnifies the Company and any servant or agent of the Company from any claim whatsoever for any loss or damage caused by the Company or its servants or agents in enforcing the Company’s rights under this provision and any claims arising out of or in respect of the exercise or attempted exercise of such right which may be made against them. For the purpose of recovery of any goods which remain the property of the Company. The Company may (without being responsible for damage thereby caused) at any time and by its servants or agents with vehicles enter upon any premises where the Goods are stored or where they are reasonably thought to be stored and may resume possession of them and remove them from such premises.
2.12 The Customer and the Company agree to contract-out of the PPSA in accordance with section 115 of the PPSA to the extent that the section applies for the benefit of, and does not impose a burden on, the Company. The Customer waives its right to receive a copy of any Financing Statement or any Financing Change Statement registered by the Company in respect of the security interest created by these terms and conditions.
2.13 The Customer agrees to notify the Company of any change in the Customer’s structure or management including any sale or disposition of any part of the business of the Customer, any change in directorships, shareholders or management or change in partnership or trusteeship 7 days prior to any such change taking effect. The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other Security Interest in the Collateral.
2.14 These provisions apply notwithstanding any arrangement under which the Company provides credit to the Customer, and to the extent that there is any inconsistency, these provisions prevail.
3.RiskThe risk of loss or damage to the Goods passes to the Customer on the date and at the time that the Goods are delivered to the Customer or removed from storage for the purpose of pick up by the Customer or their agents.
4.Prices and time for payment
4.1 Prices quoted by the Company in relation to any order for Goods:
a) Apply to that order only and do not apply in any other circumstances;
b) Unless expressly confirmed to the contrary in writing by the Company, are exclusive of any goods and services tax.
The Company must receive full payment for Goods no later than 14 days from date of Invoice.
5. Claims by Customer
5.1 Any claim by the Customer for failure to deliver, short delivery, supply of incorrect goods, faulty goods, short code, out of code or pricing or calculation errors or breach of these Terms and Conditions must be made to the Company in writing within seven (7) days from the date of delivery of the goods to the Customer for which time is of the essence.
5.2 The Customer must:
a) Immediately upon becoming aware of circumstances giving rise to a claim under this clause, notify the Company in writing setting out full particulars of the claim;
b) Allow the Company, its employees and agents full and free access to the Goods in relation to which the claim is made and to the place where the Goods have been stored, applied or used for the purpose of conducting such tests as the Company may in its absolute discretion consider necessary to determine whether the claim is justified or not.
5.3 The total liability of the Company, its directors, members, employees, servants, subcontractors or agents is limited to one or more of the following at the option of the Company:
a) Replacement of the Goods’ supplied or supply of equivalent Goods’;
b) Payment of the cost of replacing the Goods’ or of acquiring equivalent Goods’;
c) Payment of the cost of having the Goods’ repaired;
and does not extend to consequential loss or damage.
5.4 The Customer hereby jointly and severally releases and indemnifies the Company, its directors, members, employees, subcontractors or agents from any such claims as contemplated herein.
6. Withdrawal of credit and cancellation by PBUT
6.1 The Company reserves the right to cancel this agreement or any order at the sole discretion of the Company without giving any reasons there for.
6.2 If the Company cancels this agreement as contemplated in clause 6.1 above, the Customer will have no claims against the Company, its directors and members of whatsoever nature arising out of such cancellation and the Customer hereby jointly and severally releases and indemnifies the Company, its directors and members against any such claims.
6.3 Credit facilities may be withdrawn by the Company in their absolute discretion and without notice in the event that these credit terms are breached.
7. Default and recovery fees
If the Customer defaults in any payment then the Company may:
7.1 Require payment be made forthwith of all amounts owing by the Customer to the Company, whether or not such amounts are then due;
7.2 Suspend further deliveries to the Customer until all amounts owing, including collection fees, interest and legal costs, have been paid;
7.3 Terminate any agreement to supply goods which have not been delivered;
7.4 In the event of any breach of these credit terms by the Customer, the Customer shall pay:
a) An account administration fee of $15.00 per invoice per calendar month for 2 months, after which an interest charge of 1.6% per month on the outstanding amount or $15.00 per invoice per calendar month, whichever is the higher amount, will be charged;
b) All fees and disbursements (including but not limited to collection fees, administration fees, interest and legal costs) that may be incurred by the Company for the purpose of collecting any monies due and owing to it pursuant to these credit terms.
8.1 Any delivery times notified to the Customer are estimates only and the Seller is not responsible for late or non-delivery.
8.2 If the Customer requests the Seller to postpone delivery of the Goods’ beyond the delivery date or dates specified in the order, the Seller may agree to do so if the Customer pays an additional fee for such postponement and for storage charges.
8.3 The Company shall not be liable for delay in delivery arising from any cause, including negligence on its part or failure by the Company to deliver all of the Goods’ ordered. The Customer shall be obliged to accept and pay for such goods as and when required under the terms of the invoice. In no event shall theCompany be responsible for any loss of profits, penalties, expenditure or damages incurred by the Customer arising out of any delay in delivery.
9. Privacy authority
9.1 For the purposes of assessing the credit-worthiness of the Customer from time to time and the collection of payments, the Customer authorises the Company, its employees and agents to make such enquiries as they deem necessary including, without limitation, making enquiries of and obtaining reports (as may be allowed by law) from persons nominated by the Customer as trade referees, the Customer’s creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies (“the information sources”).
9.2 The Customer consents to:
a) The information sources providing to the Company such information as is requested by the Company and permitted to be given by law;
b) The Company disclosing personal information or the contents of any credit report to a credit reporting agency for the purpose of that credit reporting agency creating or adding to any credit information file in relation to the Customer.
10. Cancellation by Customer
The Company shall be entitled to require that the Customer pay all costs, expenses and damages incurred by the Company as a consequence of the cancellation, variation or suspension of the order by the Customer.
The Customer shall not be entitled to use or disclose any Confidential Information disclosed to the Customer by the Company without the Company’s express written consent in writing having been first had and received.
These terms and conditions of sale may be assigned by the Company without the consent of the Customer and the Customer acknowledges and agrees to be bound to any assignee under these terms and conditions of sale.
13. Trustee Liable
The Trustees of any Trust agrees that the Trustees shall be liable in their personal capacity and as Trustee of such Trust to the Company under these terms and conditions of sale.
14. Intellectual Property
14.1 Save and except with the express written permission of the Company, the Customer may not identify any goods by reference to the name of the manufacturer if the manufacturer thereof is not the Company nor is the Customer authorised to use any registered trade mark of the Company without the Company’s express written consent.
14.2 The Customer is further only entitled to use any promotional material of the Company with the Company’s express written consent. Any promotional material must also be used in the manner which the Company has prescribed.
15. Governing Law
The applicable law governing these Terms and Conditions of sale shall be that of the State of Western Australia.