TERMS AND CONDITIONS OF TRADE

These terms and conditions of trade (Terms) are the terms on which Stanleys Kiln Pty Ltd (ACN 625 024 875) (trading as Elanto Vineyard) (Elanto) will supply goods and services to the Customer (being the person named in an order or to whom Elanto otherwise agrees to supply goods and services) from time to time. By ordering or purchasing, or continuing to order or purchase, goods and/or services from Elanto, the Customer agrees to be bound by these Terms.

1.               PAYMENT TERMS

1.1            Payment to Elanto shall be made in full at the time of the Customer’s order unless the Customer completes and Elanto approves an Application for Credit, in which case full payment for all invoices shall be made thirty (30) days after the end of the calendar month in which the relevant invoice is issued.

1.2            The Customer agrees to pay GST (and all other applicable taxes) on all taxable supplies upon Elanto issuing a tax invoice.

2.               OVERDUE ACCOUNTS

2.1            If the Customer fails to make payment by the due date or Elanto, in its absolute discretion, determines that the creditworthiness of the Customer is unsatisfactory, all amounts owed by the Customer to Elanto will be become immediately due and payable on demand and Elanto may require payment of those amounts in full prior to delivery of the relevant goods.

2.2            If the Customer fails to make payment by the due date or breaches any term of the relevant contract, Elanto may, without limiting any other right or remedy it may have, do any one or more of the following:

(a)             charge interest on all overdue payments at ten (10) percent per annum from the first day such payments become overdue until Elanto receives payment of all such payments (including interest);

(b)             suspend all further delivery of goods to the Customer under any contract;

(c)             suspend further performance of any other contract with the Customer;

(d)             enter the property of the Customer to repossess the goods in respect of which the Customer has failed to make payment or other goods previously supplied by Elanto of equivalent value; and

(e)             cancel or reduce any credit limit or facility granted to the Customer.

2.3            Any costs incurred by Elanto in collecting or attempting to collect overdue payments (including fees payable to a collection agency) must be paid by the Customer to Elanto on demand.

3.               RETENTION OF TITLE

3.1            Property in goods sold by Elanto will not pass to the Customer until payment in full of the relevant invoice inclusive of any GST.

3.2            The above clause is subject to the following conditions:

(a)             the Customer, for the purposes of preserving Elanto’s interests, will on receipt of its goods ensure such goods are kept separate from that stock fully paid (“other stock”) where the Customer has clear property or title in the goods;

(b)             such demarcation of stock shall continue until Elanto’s stock has been fully paid for by the Customer;

(c)             all unpaid stock will not only be kept separate by the Customer from the “other stock”, but also sufficiently identified to enable Elanto to readily repossess same should the Customer fail to make payment by the due date; and

(d)             in the event Elanto’s goods are ordered and delivered to the Customer’s premises and then subsequently mixed with the “other stock”, the Customer will forfeit ownership in the “other stock” and title will revert back to Elanto for such stock until full payment is received by Elanto.

4.               RISK AND CLAIMS

4.1            If delivery of goods is arranged by Elanto on behalf of the Customer, risk in the goods will pass to the Customer upon delivery of the goods to the Customer.

4.2            If the Customer collects or otherwise arranges for collection of the goods from Elanto, risk in the goods passes to the Customer upon collection.

4.3            The Customer indemnifies Elanto against any loss or damage to the goods however caused occurring after the risk in the goods have passed to the Customer.

4.4            In order to recognise a claim for damage or loss during transport by Elanto’s carriers, Elanto must be notified of any such damage or loss at the time of delivery. Claims of any nature will not be accepted unless made within 24 hours of delivery. Replacements and credits are at Elanto’s absolute discretion.

4.5            Faulty wine or wine which is not in the condition Elanto intended at six months after invoice date (to be determined at its sole discretion) will not be replaced as storage and handling conditions are beyond Elanto’s control once shipped. Wine will not be replaced if the Customer’s account is outside or beyond these Terms.

5.               PRICES

5.1            Prices for goods and services may be altered without notice. Wholesale prices exclude Wine Equalisation Tax (“WET”). The landed unit cost price per bottle includes the cost of all goods and services and WET (but excludes GST). All wines and services are subject to GST and WET on wine only.

5.2            Delivery, handling and finance services costs will be added to the Customer’s account when and if such costs are incurred by Elanto on behalf of the Customer. These costs will be subject of a separate but optional contract, fees for which are shown in in the composite invoice price. These services will be taken to apply unless the Customer advises to the contrary.

6.               CHANGE OF BUSINESS OWNERSHIP

6.1            The Customer agrees to notify Elanto in writing of any change to ownership of the Customer or any other change to the Customer’s details within 7 days of such change, and indemnifies Elanto against any loss or damage incurred by it as a result of the Customer’s failure to notify Elanto of any change.

7.               ACCEPTANCE OF TERMS AND CONDITIONS OF TRADE

7.1            The acceptance of goods delivered by Elanto to the Customer will be conclusive evidence of the applicability of these Terms in any transaction between Elanto and the Customer.

8.               AUSTRALIAN CONSUMER LAW

8.1            Under the Australian Consumer Law, certain consumer guarantees may apply in respect of the goods and services supplied by Elanto. Nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of any applicable provision of the ACL, any liability of Elanto for failing to comply with such provisions or the Customer’s right to make a claim in respect of the consumer guarantees or any other provision of the ACL.

9.               TERMINATION

9.1            Without limiting its other rights under these Terms, Elanto may terminate any contract, effective immediately, upon providing written notice to the Customer, if:

(a)             the Customer fails to pay an amount due to Elanto by the due date;

(b)             the Customer is subject to an insolvency event, including:

(i)          in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets; or

(ii)         in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or

(iii)        the occurrence of any event that has substantially the same effect to any of the above events; or

(c)             the Customer breaches any term of the relevant Contract (including these Terms).

9.2            On termination of a contract, the Customer must, if requested in writing by Elanto, at the Customer’s cost and within 10 business days of the date of termination, return to Elanto all goods subject of the contract (other than goods already paid for).

9.3            Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available at law or in equity.

10.            APPROVALS AND PROOF OF AGE

10.1         The Customer warrants that it will obtain and maintain all approvals necessary for the purchase of and dealings with the goods.

10.2         The Customer acknowledges and agrees that to order, purchase and accept delivery of the goods, they or their representatives must be of legal alcohol drinking/purchasing age in Australia, being eighteen (18) years of age. Elanto reserves the right to cancel any order and issue a refund should the Customer be unable to provide satisfactory proof of identification and age.

11.            GENERAL PROVISIONS

11.1         Elanto may, to the extent permitted by law, vary these Terms from time to time (including by displaying the updated terms on its website) and the variation will become effective when Elanto notifies the Customer of the variation.

11.2         No failure to exercise or delay in exercising any right under these Terms or any contract constitutes a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.

11.3         If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.

11.4         If there is any conflict or inconsistency between documents governing the relationship between the parties, the prevailing order or precedence to the extent of the inconsistency will be:

(a)             the prices and quantity of goods set out in the quote (if any);

(b)             these Terms;

(c)             the Credit Application; and

(d)             any additional terms or conditions contained in the quote (if any).

11.5         These Terms are governed by the laws of the State of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the Federal Court of Australia.