Terms & Conditions
Winegrowers of Ara (“Ara”)
Terms and Conditions of Sale
- By accepting delivery of any of the goods or the provision of any services from us, you agree to be bound by these Terms and Conditions of Sale. Unless we agree in writing otherwise, these Terms and Conditions of Sale prevail over the terms of any order, even if the terms of any order provide otherwise.
- We may accept any order for the supply of goods or services in whole or in part, or decline any order. Orders must be in writing, and delivered to us at the addresses, or via the facsimile numbers or email addresses, we specify from time to time. Orders given to representatives or offices are received subject to acceptance at Ara’s Head Office. We will use reasonable endeavors to supply the orders placed, but will not be liable for any failure to do so (whether or not we have previously accepted an order to supply such goods or services). We will also have no liability to you in respect of those goods and services that we are unable to supply.
Risk in any goods passes on delivery. Ara will, however, retain property in the goods until either
- payment of the purchase price for the goods and for all other goods supplied by Ara to the purchaser is received in full, or
- the goods are sold pursuant to clause 9. If payment is overdue in whole or part, we may (without prejudice to any of our other rights) recover or recall the goods and may (either ourselves or using agents) enter upon your premises where the goods are stored for that purpose. Until property in goods has passed to you, you must, as bailee of the goods, keep the goods stored separately and in a manner which enables them to be identified and cross-referenced to particular invoices
- Any date quoted or agreed by Ara for delivery of goods is an estimate only and time shall not be of the essence of the contract. We will use reasonable endeavours to have goods delivered on the date agreed, but shall be under no liability whatsoever should delivery not be made on such date.
- Prices listed in the Price List are exclusive of carriage, GST and Wine Equalisation Tax (WET) and (subject to any specific agreement with the purchaser) are subject to change without notice. Goods will be invoiced at the price current at the delivery date. If GST is imposed on any supply of goods or services made under or in accordance with these Terms and Conditions of Sale, you must pay to us the GST included in the purchase price of the goods or services supplied, subject to our issuing a valid tax invoice in respect of the supply. If an adjustment event arises in respect of a taxable supply, the amount payable under clause 6 will be recalculated to reflect the adjustment event and a payment will be made by the seller or purchaser as the case requires.
- Payments for goods and services supplied by Ara shall be made by electronic funds transfer (or other payment method approved in writing by Ara), in accordance with the terms of any credit facility made available to you by us (if applicable) or within the time provided in any invoice or statement (or if no time is specified, on demand). No responsibility is accepted for lost remittances. A statement signed on our behalf by an authorised representative in respect of goods or services ordered or supplied or in respect of any amount owing by you, shall In the absence of manifest error be conclusive evidence of such matters. We reserve the right to withdraw credit facilities if circumstances arise which oblige us to do so.
- All implied conditions and warranties on the part of Ara in relation to any goods or services to be supplied pursuant to these terms are excluded to the maximum extent permitted by law;
- In respect of any liability which cannot be excluded, our obligation is limited, at our option, to the replacement, repair or resupply of the goods or services, or a refund of the cost of the goods or services; and
Subject to any rights you are given by legislation that cannot be excluded:
- Ara is not liable to the purchaser (or to anyone claiming through the purchaser) for any loss, liability, damage, expense or cost whatsoever, and including without limitation indirect or consequential loss or damage, loss of profits or business opportunity, or damage to property, arising out of the supply of or the failure to supply the goods or services;
- no claims in respect of any goods or services we supply shall be recognised unless notified to us in writing within seven days of delivery of the goods or the supply of the services. Damaged goods must be retained for inspection. Unless we are required to do so by law, we will not accept the return or exchange of goods by the purchaser without our prior written consent (which consent may be given or withheld in our absolute discretion). Credit will only be allowed if these procedures are complied with.
- We do not operate a “SALE OR RETURN POLICY” and will therefore not accept responsibility for any stocks of goods you continue to hold except as required by legislation.
- Unless we notify you otherwise, you are authorised to sell the goods we supply pursuant to any bona fide transaction in the normal course of your business and you assign the proceeds of such sale to us absolutely and not by way of security. The proceeds of sale of any such goods are to be held by you on trust for us separate from any other fund or monies. The relationship between Ara and purchaser shall be fiduciary and the Ara shall have the right to trace and claim the proceeds of any disposition whatsoever of such goods. For the avoidance of doubt, you acknowledge that the sale of the goods by an administrator or receiver shall not be a sale in the ordinary course of your business.
Without limiting anything else in this Agreement, you acknowledge that:
- these terms create a security interest in all of the goods supplied to you in favour of Ara, to secure the payment by you to Ara for those goods and all other goods supplied to you;
- these terms will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order (or its equivalent, whatever called) from you; and
- the security interest shall continue until Ara gives you a final release.
- you fail to pay any amount due to Ara as and when due and payable or otherwise fail to comply with your obligations under these Terms and Conditions of Sale;
- a receiver, receiver and manager, liquidator, provisional liquidator or official manager, administrator, controller or trustee in bankruptcy is appointed over all or any of your assets or a scheme of arrangement is proposed or approved; or
- a petition is presented for your winding up or bankruptcy;
- suspend delivery of any order of goods previously accepted;
- revoke any credit facility made available to you and/or demand payment of the whole of the your debt to us then outstanding, in which case that debt will be payable immediately;
- take possession of all goods property in which has not passed to you (and for that purpose you authorise us and our agents to enter any premises where the goods may be situated and to take possession of them) and neither we nor our agents will be liable for any costs, damages, expenses or any other losses suffered by you (or anyone claiming through you) as a result of us retaking possession of the goods; and/or
- with or without taking possession of the goods, sell the goods by public auction or by private treaty by retail or wholesale for cash or on terms and generally as Ara thinks fit and apply the proceeds actually received by Ara after defraying expenses of sale and enforcement towards reduction of your debt.
- If payment for any goods or services is not made by the purchaser by the due date in accordance with clause 6, then Ara may charge interest on the amount due computed from the due date until payment is made at the default rate specified by Ara from time to time, or if Ara has not specified a rate, at a rate of 15% per annum.
- In addition to any other amounts recoverable from you as a result of your breach of these Terms and Conditions of Sale, Ara will be entitled to recover, and you will pay on demand, the costs and expenses of our legal advisers, mercantile agents and other agents acting on our behalf in respect of any recovery or attempted recovery of your debt to us or possession of the goods, and the amount so payable will be included in your debt to us.
- Unless otherwise agreed, goods we supply to you may only be resold by you in Australia.
- The laws of New Zealand shall apply exclusively to our supply of goods and services to you under these Terms and Conditions of Sale.
- No failure or delay in exercising any of our rights under these Terms and Conditions of Sale shall operate as a waiver of such right.
- We reserve the right to amend these Terms and Conditions of Sale from time to time, by giving one month’s notice of any changes. Such amended Terms and Conditions of Sale shall supersede all Terms and Conditions of Sale previously issued.
In these Terms and Conditions of Sale, unless the contrary intention appears:
- “Ara” or “we” means Winegrowers of Ara Limited or any related entity which supplies any goods or services to you in its own right or as agent for a third party (whether or not the fact of agency is disclosed to you), and “us” or “our” has a corresponding meaning;
- “goods” means any and all goods or items supplied by Ara to the purchaser;
- “Price List” means Ara’s price list in respect of its goods and services as notified to the purchaser from time to time;
- “purchase price” means the price (including (if applicable) GST, Wine Equalisation Tax (WET) and also includes any other applicable taxes, levies, duties or charges in respect of goods or services we supply to you) stated in an invoice or any statement of account in respect of goods or services or, if no such price is stated, the price applicable to the goods or services in the Price List on the date of delivery. For the avoidance of doubt, the purchase price will include any increase in the amount of GST, WET, taxes, levies, duties and/or charges between the date of order and the date of delivery;
- “purchaser” or “you” means the person, firm or company placing an order with Ara for the supply of goods or services, and “your” has a corresponding meaning;
- “your debt” means any moneys which you may owe to us in respect of the supply of goods or services or on any other account or for any other reason whatsoever
- Words and expressions which are not defined in this document but which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 have that same meaning.