1. These terms and conditions (“Terms”) apply to and form part of all purchase orders issued by Kingston Estate Wines Pty Ltd (“KEW”) for the purchase of goods and services. The parties agree that these Terms and the purchase order will form a binding contract for the supply of the applicable goods and/or services (“Contract”).
2. The parties agree that these Terms will prevail over any terms and conditions issued by the Supplier to the extent of any inconsistency.
3. The essential provisions which must be complied with by the supplier of the goods and/or services (“the Supplier”) are set out in this clause. If the Supplier does not comply with an essential provision, the Supplier will be in default of its obligations to KEW. The essential provisions of the purchase order are:
(a) An order is deemed to be accepted by the Supplier unless KEW is advised in writing to the contrary within seven days of the date shown on the purchase order. A contract binding on the Supplier will be formed upon the earlier of the Supplier’s acceptance of the purchase order or the performance (or part performance) of the purchase order by the Supplier.
(b) All prices quoted in the purchase order shall include all taxes, charges, delivery and GST, and shall not be increased, unless agreed in writing by KEW.
(c) The Supplier warrants that the goods supplied by the Supplier shall:
i. be of acceptable quality within the meaning of, and as required by, the Australian Consumer Law;
ii. be fit in every way for the purpose for which they are intended;
iii. if purchased after the review of a sample, comply in all respects with the sample and shall not incorporate any modification or variation without express written approval from KEW;
iv. be of a good and proper standard of workmanship; and
v. be manufactured using only the best quality materials or ingredients.
(d) The goods and/or services supplied by the Supplier shall comply with all applicable Federal and State laws and regulations relating to the product standards and safety for the goods and/or services.
(e) The Supplier must comply with the timing, method and quantity requirements for the delivery of the goods and/or supply of services as set out in the purchase order.
(f) The goods supplied by the Supplier shall be suitably packed and prepared for shipment so as to secure the goods against damage, enable the lowest transport and insurance rates to be obtained, and otherwise comply with the carrier’s requirements.
(g) The goods and/or services must pass KEW’s quality control inspection and the Supplier agrees to allow KEW’s inspectors access to the Supplier’s premises for the purposes of quality control inspection. KEW will inspect the goods and/or services upon delivery and notify the Supplier of the results of that inspection. For the avoidance of doubt, KEW taking possession of goods will not constitute acceptance of the goods, even if KEW signs a delivery docket or similar document that specifies as such.
(h) Title to the goods passes to KEW upon delivery to KEW. Risk in the goods remains with the Supplier until such time as KEW takes delivery of and has accepted the goods. Until risk passes to KEW, the Supplier must hold insurance over the goods for the full replacement value of the goods, and any insurance specified on the purchase order.
4. If a breach of any essential provision occurs, the Supplier will be in default of this Contract and KEW can take the steps described in clause 5.
5. If the Supplier is in default of this Contract, KEW may at its absolute discretion:
(a) Where the goods delivered are found to be defective (including in design, function, material or workmanship), KEW shall have the right to notify the Supplier and either:-
i. carry out necessary repairs to the goods to correct such defect; or
ii. return the goods to the Supplier for a full credit, repair or replacement.
The costs of KEW exercising either of these options shall be at the Supplier’s expense.
(b) If the goods and/or services are not delivered within the time specified (if any) in the purchase order, the order is automatically cancelled. KEW may however, at its discretion, renew the purchase order in writing.
(c) If the goods and/or services supplied pursuant to the purchase order are not of the standard required by KEW in the essential provisions, KEW shall, be entitled to:
i. cancel the balance of the order and any other orders not yet supplied; and
ii. be paid compensation by the Supplier for any costs and losses involved, including the credit, replacement, repair and freight of the goods.
(d) Call on the indemnity provided by the Supplier to KEW under clause 5.
(e) Exercise its right to obtain damages and any other remedies available at law.
6. The Seller indemnifies KEW and keeps KEW indemnified from and against any claim, demand, cause of action, damage, loss, consequential loss, cost, expense (including legal expense on a solicitor client basis) made against or suffered by KEW arising directly or indirectly out of or in connection with or as a result of:
(a) the goods and/or services supplied or to be supplied under a purchase order;
(b) a breach of the warranties provided in clause c;
(c) any actual or threatened infringement of a third party’s intellectual property rights relating to the goods or services; and
(d) KEW breaching contracts or arrangements it has entered into in reliance upon the acceptance of the Contract by the Supplier where the Supplier, for whatever reason, fails to comply with the purchase order.
7. The parties agree that any limitation or exclusion of the Supplier’s liability contained in any terms or conditions issued by the Supplier is specifically excluded and will be of no effect.
8. The Contract may be cancelled by KEW if the Supplier at any time:
(a) commits a breach of any of the terms or conditions (either express or implied) in relation to the sale of the goods or supply of the services in any way and fails to remedy that breach (if, in KEW’s reasonable opinion, it is capable of remedy) within 14 days after receiving notice from KEW to do so; or
(b) is, in the reasonable opinion of KEW, unable to comply with the Contract.
9. Either party may terminate this Contract by written notice to the other party if:
(a) a receiver, official receiver, liquidator, provisional liquidator, official manager, agent, receiver and manager or similar officer is appointed or application is made to a court for the appointment of such a person to the other party;
(b) the other party enters into or resolves to enter into a scheme of arrangement or composition with or assignment for the benefit of its creditors or it proposes a reorganization, moratorium or other administration involving its creditors or resolves to wind itself up or otherwise dissolve itself or give notice of intention so to resolve;
(c) the other party is presumed to be insolvent within the meaning of the Corporations Act 2001;
(d) without the prior written consent of the party, ceases to carry on its business or threatens to do so; or,
(e) the business of the other party is sold or otherwise comes under the control of any person other than the other party or is purported to be sold, mortgaged or otherwise alienated or encumbered.
10. In the event that a purchase order is terminated prior to delivery of the goods, KEW is not required to pay any amount to the Supplier.
11. If a purchase order is terminated after delivery of some or all of the goods, KEW may in its absolute discretion:
(a) retain part or all of the goods that have been delivered, in which case it must pay the Supplier for those goods in accordance with the purchase order; or
(b) return part or all of the goods to the Supplier, in which case the Supplier must refund any amounts paid by KEW for those goods.
12. All prices quoted in the purchase order for any taxable supply must include any Goods and Services Tax (GST) payable. Notwithstanding any other conflicting provisions, KEW is not obliged to pay for any taxable supply made by the Supplier unless and until KEW receives a GST tax invoice or adjustment notice for that supply.
13. This contract is not assignable by the Supplier without the written consent of KEW.
14. No variation of the purchase order shall be binding on KEW unless made in writing and signed by a duly authorized officer of KEW.
15. The Seller and KEW agree that they shall comply with all the provisions of the Privacy Act 1988 and that they will comply with the Australian Privacy Principles contained in the Privacy Act 1988.
16. The applicable law for the interpretation and enforcement of this purchase order is that of the State of South Australia and the Supplier hereby agrees to submit to the exclusive jurisdiction of the courts of South Australia and any courts of appeal from them.