1. In these terms and conditions:
“Henschke” means Henschke Cellars Pty Ltd trading as C A Henschke & Co, ABN 30 007 602 986, and its successors and assigns;
“Loss” suffered by any person means any claim, action, proceeding, loss, damage, cost, expense or liability whatsoever incurred or suffered by, or brought or made or recovered against, that person, no matter how arising (whether or not presently ascertained, immediate, future or contingent);
“Customer” means the person(s) or body(ies) corporate to whom these terms and conditions are directed and their successors and permitted assigns;
“Goods” means any goods or products from time to time supplied, or to be supplied, by Henschke to the Customer;
“Order” means an order for Goods placed with Henschke by the Customer;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“Perfected”, “Security Interest” and “Financing Statement” are as defined in the PPSA;
“Terms” means these terms and conditions.
2. These Terms shall not be interpreted against a party on the basis that such party prepared these Terms or any part of them.
3. These Terms shall be all of the operative terms and conditions of the sale of Goods by Henschke to the Customer from time to time, in the absence of a written agreement to the contrary.
4. Each word, phrase, sentence and clause of these Terms is severable.
5. These Terms shall prevail over any terms and conditions of the Customer in relation to the purchase of Goods.
6. Where 2 or more persons and/or bodies corporate comprise the Customer, the obligations on the part of the Customer in these Terms shall bind them both jointly and severally.
7. Where the Customer acts in the capacity of trustee of any trust, the obligations on the part of the Customer in these Terms bind the Customer in its own right as well as in its capacity as trustee.
8. Any failure to exercise, or delay in exercising, a right, including a right of indemnity, by Henschke shall not prejudice Henschke’s ability to exercise that right in the future.
9. The completion or termination of a transaction shall be without prejudice to Henschke’s accrued rights.
10. These Terms are governed by, and shall be construed in accordance with, the laws in force in South Australia and the Customer submits to the non-exclusive jurisdiction of the courts of that State in respect of all proceedings arising out of or in connection with these Terms.
11. Henschke may decline, in its absolute discretion, any Order in part or in whole.
12. An Order is accepted by Henschke when the Customer receives notification from Henschke that the Order has been accepted, or supply of the relevant Goods occurs, whichever occurs first.
13. Henschke shall use reasonable endeavours to ensure that the Goods, the subject of any Order, are supplied to the Customer on or before the date specified in the Order, but Henschke shall not be liable for any Loss incurred by the Customer in connection with any failure by Henschke to deliver or supply the Goods on or before that date.
14. Upon delivery of the Goods, the subject of any Order, to the Customer, at the place of delivery nominated in the Order, the Customer shall be deemed to have accepted the Goods.
15. Any Loss sustained by Henschke, as a result of or in connection with the Customer failing to accept delivery of any Goods, will be reimbursed in full by the Customer to Henschke.
16. Henschke reserves its rights at all times to suspend the supply of further Goods on credit or otherwise to the Customer, without being required to give reasons, and Henschke shall not be responsible in any way for any Loss suffered or incurred by the Customer in connection with any such suspension.
17. Henschke may make part deliveries of any Order, and a part delivery of any Order shall not invalidate the balance of an Order, or reduce the Customer’s liability to Henschke regarding the balance of an Order.
18. All prices for Goods are subject to change without notice.
19. The price for Goods shall be that prevailing at the date of receipt by Henschke of the Order for those Goods.
20. Unless otherwise agreed by Henschke, all prices for Goods are in Australian dollars, stipulated DDP the Customer’s nominated place of delivery and inclusive of the wine equalisation tax but exclusive of goods and services tax.
21. Title to Goods shall not pass to the Customer until Henschke has been paid in full by the Customer all moneys owing to Henschke for, or in relation to, those Goods, or any Goods the subject of any prior Order, and all monies owed by the Customer to Henschke on any other account whatsoever.
22. Until title to any Goods passes to the Customer, the Customer shall hold the Goods as bailee and fiduciary agent for Henschke and the Customer shall keep and store the Goods in such a way that the goods are clearly identifiable as the property of Henschke.
23. The Goods are at the entire risk of the Customer from the moment the Goods are delivered to the place of delivery nominated in the Order.
24. The Customer shall be entitled to sell the Goods, in respect of which title has not passed to it, as fiduciary agent of Henschke, in which case the proceeds of such sale shall be held in trust for Henschke and shall not be mingled with other moneys, but shall be paid into a separate fiduciary account, and the Customer shall not be entitled to transfer any moneys from that separate fiduciary account until payment to Henschke in full for those Goods, or any Goods the subject of any prior Order, and any other amount owed by the Customer to Henschke on any account whatsoever.
1. In these terms and conditions: