A. Kingston Estate Wines (Sales) Pty Ltd ABN 95 167 546 769 of Sturt Highway, Kingston-On-Murray, South Australia 5331 (“Kingston Estate Wines”); and
B. The person or entity specified in Item 2 of the Schedule (“Customer”)
1. Definitions and Interpretation
1.1. In this Agreement, the following words have the following meanings unless the context requires otherwise:
“Delivery Location” means the location to which Kingston Estate Wines will deliver the Products, as specified in Item 6 of the Schedule.
“Delivery Schedule” means the dates on which Kingston Estate Wines will deliver the specified quantities of Products to the Customer at the Delivery Location, as specified in Item 3 of the Schedule.
“GST” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 as amended (in respect of the supply of Products made in Australia).
“Insolvency Event” means, in respect of a party:
· the party is insolvent, insolvent under administration, or states that it is unable to pay its debts when they become due and payable;
· the party is placed in or under any form of external administration including if the party or its property is subject to the appointment of an administrator, a controller, receiver or receiver and manager, a liquidator or an official manager;
· the party is made subject to any compromise or arrangement with any of its creditors or members or scheme for its reconstruction or amalgamation, otherwise than as a result of voluntary corporate reconstruction;
· the party is wound up or dissolved, or an order or resolution is made to wind up or dissolve the party;
· the party is or applies to be protected from any of its creditors under any applicable legislation; or
· the party ceases or threatens to cease conducting its business in the normal manner; or
· anything similar to any of the events listed above happen to the party under the law of any applicable jurisdiction.
“Payment Terms” means the terms upon which the Customer must pay for the Products purchased under this Agreement, as specified in Item 5 of the Schedule.
“PPSA” means the Personal Property Securities Act 2009.
“Price” means the price per litre for the Products as specified in Item 3 of the Schedule.
“Product” means the bulk juice and/or bulk wine specified in Item 3 of the Schedule.
“Specifications” means Kingston Estate Wines’ specifications for the Products, as set out Item 9 of the Schedule and as described in clause 16.4.
1.2. Words denoting the singular include the plural and vice versa.
1.3. A reference to a party is a reference to a party to this Agreement and includes that party’s executors, administrators, successors and permitted assigns.
1.4. The Schedules and Annexures form part of this Agreement.
1.5. A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or substitution for, and any subordinate legislation under, that legislation or legislative provision.
1.6. Including and similar expressions are not and must not be treated as words of limitation.
1.7. This Agreement supersedes all previous oral or written representations, undertakings and agreements relating to the supply of Products.
1.8. Where a party comprises two or more persons, each are bound jointly and severally.
2. Sale of Bulk Wine
2.1 The parties agree that Kingston Estate Wines will sell, and the Customer will purchase, the Products on the terms and conditions of this Agreement.
2.2 The terms and conditions in this Agreement shall bind the parties upon execution of this Agreement by both parties and continue until all the obligations of the parties in this Agreement have been fully discharged, or unless otherwise terminated by the terms of this Agreement.
2.3 Notwithstanding clause 2.2, if the Customer does not sign and return these Standard Terms and Conditions within 10 business days of receipt from Kingston Estate Wines or if the Customer places an order for, or accepts, Products, the Customer will be deemed to have agreed to be bound by these Standard Terms and Conditions.
2.4 The parties agree that no terms or conditions sought to be imposed by the Customer (including any that are incorporated into a tender, offer, counteroffer, order or proposal made by the Customer) will apply unless expressly agreed in writing by Kingston Estate Wines.
3.1 Customer shall purchase the Products from Kingston Estate Wines for the Price.
3.2 Unless otherwise stipulated in writing, the Price will exclude delivery, any special Customer specific labelling requirements, inspection or delivery requirements, any additional transportation costs imposed by law and incurred by Kingston Estate Wines, and any export duties and taxes, all of which the Customer will be liable for.
3.3 Free on Board pricing is for full container loads of Product sourced from their country of origin unless specifically agreed otherwise in advance with Kingston Estate Wines.
4.1 Unless otherwise stated, the amounts payable by the Customer to Kingston Estate Wines for, or in connection with, any supply under this Agreement do not include any GST, and the Customer must pay Kingston Estate Wines (at the same time and in the same manner as the payments under this Agreement) an additional amount on account of GST equal to the invoiced amount multiplied by the prevailing GST rate.
4.2 The Customer must pay all other taxes, duties and other government charges payable or assessed in connection with this Agreement (excluding taxes assessed on Kingston Estate Wines’ income).
4.3 Where any party is required to reimburse or indemnify any other party for any cost or expense, that first party must, subject to the other party providing a valid GST invoice, reimburse or indemnify the other party for the full amount of the cost or expense, including any GST on that amount, except to the extent that the other party is entitled to a credit or repayment for that GST from any tax authority.
5.1 Kingston Estate Wines will issue an invoice to the Customer for the Price of Products delivered. The invoice will be issued after the Products have been delivered to the Delivery Location or at such other time as agreed by Kingston Estate Wines and the Customer.
5.2 Invoices may be sent to the Customer by email.
5.3 The Customer must pay all invoiced amounts in accordance with the Payment Terms, and in the currency specified in Item 4 of the Schedule.
5.4 If payment is not made when due then Kingston Estate Wines may, without prejudice to its other rights, charge interest until payment is made in full. Such interest shall be calculated at a rate of 5% above the then prime rate which is charged by Kingston Estate Wines’ principal bankers on overdrawn current accounts from time to time or the maximum amount permitted by law (whichever is lower), calculated daily and compounded monthly in arrears. The prime rate, in the case of a dispute as to the rate payable, shall be the rate certified by any manager of any branch of Kingston Estate Wines’ principal bankers whose authority and appointment need not be proven.
5.5 Any costs, fees (including cheque dishonour fees) and expenses including any legal or debt collection agency costs incurred by Kingston Estate Wines in connection with any overdue amount shall be recoverable as a debt immediately due to Kingston Estate Wines by the Customer and in the case of legal costs on a full indemnity solicitor-client basis.
5.6 The Customer shall not set off or rely on any equitable right of set off with respect to any amount payable to Kingston Estate Wines. Kingston Estate Wines may, in its discretion, deduct from, set-off against and/or otherwise reduce or deem satisfied any obligation it may have to the Customer to the extent of any obligation that the Customer may have to Kingston Estate Wines (whether present or future, certain or contingent, ascertained or sounding only in damages) on any account whatsoever.
5.7 If payment is to be made by instalments, the failure of the Customer to pay any instalment in due time shall entitle Kingston Estate Wines to treat such failure as a repudiation of the whole Agreement by the Customer and to recover damages for breach of the Agreement, and the full balance outstanding on any account between Kingston Estate Wines and the Customer shall become immediately payable to Kingston Estate Wines.
5.8 Kingston Estate Wines reserves the right to defer without penalty delivery of any Products which have been ordered by the Customer for so long as any amounts remain overdue for payment.
5.9 Kingston Estate Wines reserves the right at any time at its discretion to demand security, or a suitable guarantee, or to vary the terms or method of payment before continuing with or delivering Products.
5.10 In the absence of fraud, the Customer shall not be entitled to dispute any invoice issued by Kingston Estate Wines unless the Customer has given notice to Kingston Estate Wines of such dispute within one month of the date of invoice.
6.1 This clause 6 will apply only if Kingston Estate Wines has agreed to supply the Products to the Customer on credit terms.
6.2 Kingston Estate Wines may at any time and for any reason vary or withdraw any credit facility assigned to the Customer.
6.3 Kingston Estate Wines may at any time review any credit facility assigned to the Customer, in which case the Customer must promptly provide all information reasonably requested by Kingston Estate Wines in relation to that review.
6.4 The Customer charges in favour of Kingston Estate Wines all its estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer to Kingston Estate Wines and consents to the lodging by Kingston Estate Wines of a caveat or caveats which note its interest in or over any such land or other caveatable property.
7. Freight, Delivery and Insurance
7.1 Kingston Estate Wines will determine and record all volumes dispatched by flow-meter or weight of the flexitank divided by density 20/20. If the Customer records all unloading volumes by Product type and provides this information to Kingston Estate Wines for all Products, then, if the parties have agreed for the Customer to reserve wine to be supplied by Kingston Estate Wines, at the end of the wine reservation actual shipped volumes can be reviewed. As the volume of Product recovered by the Customer on unloading is influenced by the procedures and equipment available to the Customer, Kingston Estate Wines will not consider claims for volume shortfall on unloading that cannot be corroborated by evidence of Gross and Tare Container Weight data pre and post unloading respectively.
7.2 Kingston Estate Wines will deliver the Products to the Delivery Location and in accordance with the Delivery Schedule, subject to this Agreement.
7.3 Kingston Estate Wines shall deliver the Products, at its cost, Free on Board (Incoterms 2010). Delivery will occur when Kingston Estate Wines or its carrier hands over the container(s) to the Customer or its carrier at the Delivery Location.
7.4 Prior to delivery, the Products must be stored by Kingston Estate Wines in accordance with accepted industry practice.
7.5 Although Kingston Estate Wines will use all reasonable efforts to meet delivery dates specified in the Delivery Schedule, any and all delivery dates specified in the Delivery Schedule are estimates only and Kingston Estate Wines shall not be liable to the Customer for any loss or damage, whether direct, indirect or consequential if it is delayed or prevented, in whole or in part, from delivering the Products on the delivery dates specified in the Delivery Schedule nor shall any delay entitle the Customer to terminate or rescind the Agreement unless such delay exceeds 180 days.
7.6 If Kingston Estate Wines determines that it will not, or may not, be able to supply the Products within a reasonable time or at all, this Agreement may be terminated by Kingston Estate Wines without any liability whatsoever to the Customer, in which case Kingston Estate Wines will refund any amounts already paid by the Customer for those Products.
7.7 If the Customer refuses or fails to take delivery of the Products on the delivery dates specified in the Delivery Schedule, Kingston Estate Wines will be entitled at its discretion to store the Products at the risk of the Customer and the Customer shall, in addition to the Price, pay all costs and expenses of such storage and any additional costs of carriage incurred.
7.8 The Customer must effect all insurance of Products for the full insurable value of the Products at the time that risk passes to the Customer.
7.9 The Customer is solely responsible for the collection of all Products from the agreed point of delivery.
7.10 The Customer may make claims for loss or damage to the Products sustained while in transit only against the carrier.
8. Wine Draw-downs
8.1 This clause 8 will apply only where the parties have agreed for the Customer to reserve wine to be supplied by Kingston Estate Wines on the terms of this Agreement.
8.2 Drawdown periods for annual supply programs are as follows:
8.2.1 Whites 1st July Yr 0 – 30th June Yr 1
8.2.2 Rose 1st August Yr 0 – 31st July Yr1
8.2.3 Reds 1st September Yr 0 – 31st August Yr1
8.3 The Customer is to supply Kingston Estate Wines with an indicative quarterly draw-down schedule one month prior to the start of each quarter (eg. for White wines: 1st June for July quarter, 1st September for October quarter, 1st December for January quarter, and 1st March for April quarter).
8.4 Annual program reservations are to be drawn-down in four equal quarterly instalments, unless otherwise agreed by Kingston Estate Wines. If, at the end of each quarter the Customer has not drawn-down the full quarterly reservation Kingston Estate Wines may reduce the total reservation volume by the unused quarterly volume. Kingston Estate Wines will advise the Customer in writing if there is any such change to the total reservation volume and re-confirm the remaining reservation. The remaining volume in the last quarter must be drawn by June 30th for Whites/Roses and August 31st for Reds.
8.5 Where a reservation is made for less than a full year’s supply, the reservation is to be drawn-down by the Customer equally over the remaining quarters and the entire volume is to be drawn by June 30th for Whites/Roses and August 31st for Reds, unless otherwise agreed.
8.6 The Customer must draw-down the total volume of wine detailed. Wine not drawn-down by the end of the last quarter may be invoiced to the Customer for payment along with a storage fee of AU$0.015/L per month or part thereof until the wine is dispatched in full.
8.7 In consultation with the Buyer, Kingston Estate Wines reserves the right to supply the subsequent vintage of wine pending drawdown timing. This will be supplied at the same terms and conditions as the original vintage.
8.8 Kingston Estate Wines will over-blend a Product on reservation if deemed necessary to maintain its condition during the full term of its draw-down. Before an over-blend is undertaken, Kingston Estate Wines will advise the Customer and provide indicative samples for approval. Kingston Estate Wines will endeavour to closely match the original wine technical specifications.
9. Bulk Containers
9.1 Containers with flexi-bladders fitted are to be provided by the Customer (including acquisition, mounting and fitment) for collection by Kingston Estate Wines in Adelaide.
9.2 Kingston Estate Wines will only fill food grade flexi-bladders which have been tested and approved by Kingston Estate Wines. Kingston Estate Wines will advise the Customer if, in Kingston Estate Wines’ opinion, the flexi-bladder has not been correctly mounted or the container is not in a clean and sound condition. Kingston Estate Wines is not obliged to use unacceptable flexi-bladders or containers to store or transport wine, and will not be responsible for any associated delay, failure to deliver or other costs.
9.3 Kingston Estate Wines will filter the wine as it is transferred into the flexitank using 0.45 micron absolute filter media. The flexitank will be filled to a minimum of 24,000 litres and Kingston Estate Wines will invoice based on the nominal fill of 24,000L.
9.4 ISO/steel tanks may be provided by the Customer; however, these will incur a surcharge of AU$0.03 per litre. This charge relates to extra cellar and freight costs incurred. Kingston Estate Wines will invoice the Customer based on the calibrated volume of the ISO/steel tank filled.
9.5 Containers are to be available for collection by Kingston Estate Wines at least 5 business days prior to the sea freight vessel’s cut-off date. In the event that flexitanks are not available within this timeframe, the shipment will be deferred to the next available sea freight vessel departure. In the event that flexitanks need to be filled and returned to the wharf within 5 business days, a AU$400.00 fee (per container) will be invoiced to the Customer. This charge relates to the extra costs incurred in collecting and/or returning containers without a backload.
9.6 All wine must be received into an unloading tank at the destination within 10 weeks of the sea vessel sailing date from Australia. Kingston Estate Wines will bear no responsibility or liability in relation to wines that exhibit re-fermentation characteristics where the fault is not identified until unloading and where the transit time to unloading exceeds 10 weeks from vessel sailing date in Australia.
10. Freight Forwarder
10.1 The Customer is to advise Kingston Estate Wines of their freight forwarder at the time of order placement.
10.2 Unless otherwise agreed, containers are to be shipped directly ex Port Adelaide (to avoid possible damage to containers when railed to Port Melbourne).
10.3 Confirmed orders and shipping cannot be changed by the freight forwarder or Customer within 20 business days of the sailing date, unless agreed by Kingston Estate Wines in writing.
10.4 In recognition of Kingston Estate Wines’ regional location, the Customer shall ensure minimum detention free days on shipping of 14 days from the container release to Kingston Estate Wines’ freight company until the booked vessel cut-off. The Supplier will not accept detention charges resulting from containers supplied unless the Supplier has had possession of the container for at least 14 days and been responsible for the delay in container return.
10.5 If contemplated by the applicable Incoterms, Kingston Estate Wines will select the freight forwarder and wine container.
11. Purchase Orders
11.1 Orders are to be placed a minimum of 4 weeks prior to winery dispatch date (winery dispatch date is approximately five days prior to a vessel’s estimated time of delivery) for approved new wine blends, and 3 weeks prior to winery dispatch for subsequent wine dispatches.
11.2 The minimum dispatch volume (for annual reservations >500,000 litres) is 48,000 litres (two containers) per dispatch.
11.3 Where the same Product is ordered and being dispatched in two consecutive weeks the total volume on order will be prepared and shipped together as one dispatch.
12. Export Documentation
12.1 A full set of original documents (commercial invoice, packing list and container VI1 – if required) will be sent to the Customer by courier within 10 business days of bill of lading.
12.2 Kingston Estate Wines will provide all Australian wine industry standard wine analysis and export approval documents. If the Customer requires additional analysis or documents not (in the opinion of Kingston Estate Wines) common to the sale of bulk wine, these will incur an additional fee which will be detailed by Kingston Estate Wines.
13.1 Unless otherwise agreed in writing or determined under the Incoterms that KEW agrees apply to a delivery of Products, risk in the Products shall pass to the Customer upon delivery of the Products to the Delivery Location.
14. Title/Ownership in the Products
14.1 The Products subject to these Terms remain the property of Kingston Estate Wines until the Customer pays Kingston Estate Wines in full all monies owed to Kingston Estate Wines on any account. Until that time the Customer holds all Products as bailee of Kingston Estate Wines, must store all Products separately so that the Products can be identified as Kingston Estate Wines’, and Kingston Estate Wines shall be entitled to demand the return of the Products and may enter (or have its representatives enter) any premises occupied by the Customer in order to search for and remove the Products without liability to the Customer (and the Customer indemnifies Kingston Estate Wines against damage to property or personal injury which occurs as result of Kingston Estate Wines (or its representatives) entering the Customer’s premises). If the Customer alters the Product, then that altered Product becomes the supplied Products for the purpose of these Terms.
14.2 The Customer must not allow any person (other than Kingston Estate Wines) to have or acquire any security interest in the Products provided under these Terms. If the Customer sells or otherwise deals with the Products before title has passed to it, it must hold the proceeds on trust for Kingston Estate Wines.
15. Security Interest: Products sold in New Zealand
15.1 The provisions contained in this clause 15 apply only in relation to Products supplied or located in New Zealand.
15.2 The Customer grants and Kingston Estate Wines may register on the Personal Property Securities Register, a security interest in all and any Products supplied under this Agreement, including but not limited to all wine and all other present or after-acquired property.
15.3 The Customer warrants that all purchases under this Agreement are for commercial purposes only and, accordingly, the provisions of the National Credit Code will not apply.
15.4 The Customer and Kingston Estate Wines 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, Kingston Estate Wines. The Customer waives its right to receive a copy of any financing statement or any financing change statement (as defined in the PPSA) registered by Kingston Estate Wines in respect of the security interest created by these terms and conditions.
15.5 The Customer agrees to (and irrevocably appoints Kingston Estate Wines as its attorney to) execute any documents, provide all relevant information and co-operate fully with Kingston Estate Wines to ensure that Kingston Estate Wines has a perfected security interest in the relevant personal property and, if applicable, a Purchase Money Security Interest (PMSI).
15.6 The Customer agrees to notify Kingston Estate Wines 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 at least 7 days prior to any such change taking effect.
15.7 The Customer agrees that, until all monies owing to Kingston Estate Wines are paid in full, it shall not sell or grant any other security interest in the Products.
15.8 The Customer agrees to reimburse Kingston Estate Wines for all costs and/or expenses incurred or payable by Kingston Estate Wines in relation to registering, maintaining or releasing any financing statement or any other document in respect of any security interest under this Agreement.
15.9 The parties agree that they are not required to disclose any information of the kind referred to in section 275(1) of the PPSA.
15.10 If there is any inconsistency between Kingston Estate Wines’ rights under this clause and Chapter 4 of the PPSA, this clause prevails.
15.11 For the purpose of this clause 15, and unless otherwise defined in this Agreement, words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of, the PPSA.
16. Specifications & Warranties
16.1 The Products will materially comply with approved:
16.1.2 taste profiles; and
16.1.3 quality levels,
within approved wine specification tolerances.
16.2 Except as set out in the Specifications, Kingston Estate Wines makes no representations and provides no warranties as to the quality or content of the Products. Additional information about the composition of the Products or otherwise concerning the Products may be provided at the time of delivery but this will not form part of the Specifications.
16.3 Kingston Estate Wines may provide the Customer with an indicative sample for approval. In this case Kingston Estate Wines will store a hold-back sample for reference.
16.4 On acceptance of the indicative sample the Product will be blended and a final sample will be provided to the Customer for re-tasting, analysis and acceptance, if required. This Product sample will form the basis of the Specification. If no feedback is received from the Customer within 10 business days after the sample is delivered to the Customer, Kingston Estate Wines will proceed with supply on the basis that the sample was accepted by the Customer.
16.5 At the request of the Customer and in any 2 month dispatch period, Kingston Estate Wines will provide up to 2 pre-shipment Product samples taken at the time of loading. If additional pre-shipment samples are required, Kingston Estate Wines may invoice the Customer at cost for the additional samples plus delivery freight and duty (if applicable).
16.6 All Product samples will be provided in 750ml bottles under screwcap. Pre-shipment samples must be retained by the Customer for comparison with the shipment supplied.
16.7 Products may be rejected by the Customer only on the basis that they:
16.7.1 do not materially comply with the Specifications and this Agreement, or are otherwise defective, due to circumstances arising before risk passed to the Customer under this Agreement or due to Kingston Estate Wines’ fault; or
16.7.2 were damaged before risk passed to the Customer under this Agreement.
Any dispute concerning clause 16.7.1 will be finally determined exclusively by reference to the sample of the Products retained by Kingston Estate Wines for that purpose.
16.8 The Customer must inspect all Products on delivery and reject any Products within 3 business days of receipt, and within 14 of such rejection provide full particulars and substantiation in writing of the rejection to Kingston Estate Wines. If the Customer does not do so then the Products will be deemed accepted.
16.9 If a Product is validly rejected by the Customer, then all unshipped Product will be retained by Kingston Estate Wines, the Customer will not be invoiced for it and neither party will have any further rights against or obligations to the other party with respect to that Product. The Customer acknowledges that Kingston Estate Wines is not obliged to replace or to pay compensation in respect of any rejected and unshipped Product.
16.10 The Customer shall notify Kingston Estate Wines of any failure to deliver Products. Unless notified as not delivered within 3 business days of expected delivery Product shall be deemed to have been delivered and accepted. Kingston Estate Wines shall not be liable for Products which are lost unless they are notified to it in accordance with this clause and risk in the Product had not passed to the Customer at time of loss.
16.11 Rejected Products must be, at Kingston Estate Wines’ sole election, either returned to Kingston Estate Wines or disposed of as directed by Kingston Estate Wines (and the Customer must not deal with those Products otherwise than as directed by Kingston Estate Wines).
17.1 Nothing in this Agreement operates to exclude, limit or modify the application of any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would be unlawful, contravene that statute or cause any part of this clause to be void.
17.2 No party will be liable for any indirect, special, incidental, economic or consequential loss or damage, or any loss of revenue, income, profits, data, goodwill, business, opportunities or anticipated savings, arising out of, in relation to or in connection with this Agreement or the supply of or failure to supply any Products by us, including without limitation, lost profits or damage suffered as a result of claims by any third person.
17.3 Subject to the above and to the extent permitted by law, Kingston Estate Wines:
17.3.1 exclude all terms, conditions, warranties and guarantees implied or imposed by statute, law or other source external to this Agreement (including as to the description, merchantable quality or fitness for purpose of any Products);
17.3.2 except for liability expressly assumed under this Agreement (including under any indemnity), exclude all liability whatsoever, whether under statute, contract, for negligence or other tort, or otherwise, arising out of, in relation to or in connection with this Agreement, the Products or the use of the Products; and
17.3.3 limit any liability which cannot be excluded or limited under the other provisions of this clause to, at our option, in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again, or in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods or of acquiring equivalent goods or having the goods repaired.
17.4 Kingston Estate Wines will have no liability caused by any act or omission of any third-party service provider or contractor, or any other matter or circumstance beyond its reasonable control.
18. Producer Acknowledgement
18.1 The Customer must not use Kingston Estate Wines’ name, brand, trade marks, copyright materials or any other intellectual property (including where used on finished wine labelling or in any other materials or media) without the prior written consent of Kingston Estate Wines.
19.1 Both parties must keep confidential the terms of this Agreement as well as any information relating to the dealings, arrangements or affairs of the other party (except where that information is publicly known or where disclosure is required by law or for the sale of the Products).
20.1 Each party warrants that it has complied with its obligations under the Privacy Act 1988 in respect of any personal information of individuals disclosed by that party to the other party. The Customer will cooperate with Kingston Estate Wines as reasonably required to assist Kingston Estate Wines to meet its obligations under the Privacy Act in respect of personal information disclosed in connection with these Terms.
21.1 Should the Customer:
21.1.1 default in any payment and fail to remedy such default (including any interest payable under clause 5.4) within seven (7) days of Kingston Estate Wines so requiring;
21.1.2 commit any other breach of its obligations to Kingston Estate Wines under this Agreement or under any other agreement with Kingston Estate Wines and, if the breach is capable of remedy, fail to remedy such breach within 14 days of a written request to do so; or
21.1.3 undergo an Insolvency Event,
then Kingston Estate Wines may exercise any of the remedies in clause 21.2.
21.2 Upon the Customer being in default, Kingston Estate Wines may, by notice in writing to the Customer, and without prejudice to any other rights it has in law or in terms of this Agreement:
21.2.1 immediately suspend or cancel any uncompleted part of the Agreement or stop any Products in transit or require payment in advance or satisfactory security for further deliveries under this Agreement;
21.2.2 terminate this Agreement or claim specific performance for any obligation owed by the Customer to Kingston Estate Wines;
21.2.3 claim from the Customer the cost of any damage suffered by Kingston Estate Wines as a result of the default;
21.2.4 enter, without prior notice, any premises where Products owned by it may be, and to repossess and dispose of any Products owned by it so as to discharge any sums owed to it by the Customer under this Agreement or any other agreement and the Customer grants Kingston Estate Wines an irrevocable licence to enter the Customer’s premises for such purposes and indemnifies Kingston Estate Wines for any costs incurred in the course, or as a result, of entering its premises to repossess the Products;
21.2.5 require the Customer not to resell, use or part with possession of any Products owned by Kingston Estate Wines until the Customer has paid in full all sums owed by it to Kingston Estate Wines under this Agreement or any other agreement; and/or
21.2.6 withhold delivery of any undelivered Products.
21.3 Unless Kingston Estate Wines expressly elects otherwise, any agreement between it and the Customer for the supply of Products shall remain in existence notwithstanding any exercise by Kingston Estate Wines of its rights under this clause 21.
21.4 If Kingston Estate Wines terminates or purports to terminate this Agreement, then notwithstanding anything to the contrary in this Agreement, any amount outstanding shall be immediately due and payable by the Customer to Kingston Estate Wines.
22.1 A certificate signed by any director or manager (whose appointment, authority or qualification need not be proved) for the time being of Kingston Estate Wines shall be:
22.1.1 prima facie proof of the quantum of any outstanding amount; and
22.1.2 valid in any Court or forum of competent jurisdiction for the purpose of obtaining summary judgement or any other judgement against the Customer,
and the Customer acknowledges its indebtedness in respect of any amount so certified.
23. Force Majeure
23.1 Kingston Estate Wines shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the Products by Kingston Estate Wines being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of Kingston Estate Wines including, without limitation, circumstances affecting the provision of all or any part of the Products by Kingston Estate Wines’ usual source of supply or delivery or by Kingston Estate Wines’ normal route or means of delivery.
24.1 Any waiver by Kingston Estate Wines under this Agreement must be in writing and signed by Kingston Estate Wines. No failure, delay or the like by Kingston Estate Wines shall affect its legal rights under this Agreement.
25.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement remains otherwise in full force apart from such provision which will be deemed deleted.
26.1 The Customer acknowledges there have been no representations or conduct giving rise to any understanding other than have been expressly recorded in writing. The Customer agrees that it is not reasonable for it to (and it will not) rely on any representation or conduct that is not acknowledged in writing.
26.2 If requested by Kingston Estate Wines, the Customer shall give all reasonable assistance in locating and recovering any defective Products and preventing their sale to third parties, and in particular, shall comply with any product recall procedures adopted by Kingston Estate Wines and shall use all reasonable endeavours to ensure that its customers co-operate in a similar manner.
26.3 The Customer must not assign any of its rights or obligations under this Agreement to any third party without Kingston Estate Wines’ prior written consent (which consent cannot be reasonably withheld). Kingston Estate Wines may assign its rights and obligations under this Agreement solely by issuing written notice to the Customer.
26.4 The rights and obligations of the parties will not merge on completion of any transaction under these terms and conditions.
26.5 Any notices to be served under this Agreement shall be given in writing and delivered personally or sent by email, courier, registered post or facsimile to the addressee at its registered office, email address or facsimile number for the time being (as set out in the Schedule) or as subsequently notified by the addressee to the other in writing in accordance with this clause 26.5. Notices given in accordance with this clause 26.5 shall be treated as served: when delivered, if delivered personally; seven days after posting, if sent by pre-paid registered post; when sent to the specified email address, if sent by email; or at the time of transmission if sent by facsimile, provided that in the case of email or facsimile, there is (for facsimile) a transmission report or other record of electronic confirmation indicating successful transmission of the entire notice, or (for email) no automated response from an email server received by the sender indicating that transmission was unsuccessful.
27. Governing Law
27.1 This Agreement is subject to the laws of South Australia, Australia, and the parties submit to the exclusive jurisdiction of the Courts of that place and any Courts which have jurisdiction to hear appeals from any of those Courts. The parties agree that United Nations Convention on the International Sale of Goods is excluded from this Agreement in its entirety.