General Condititions
APPLICATION
1. Union Beverages provides contract bottling and beverage canning services upon request (“Services”). The Services may include the supply of packaging or other components.
2. These General Conditions form the basis on which Union Beverages provides Services to the Customer. Each provision of Services by Union Beverages is effected pursuant to these General Conditions and they will apply irrespective of any prior dealings or agreed terms. Any invoice or other document evidencing or describing any Services is incorporated into and forms part of these General Conditions. Any variation to the General Conditions must be in writing and signed by a director of Union Beverages.
3. These General Conditions will be deemed to have been accepted by the Customer upon the earlier of:
a. Written acceptance of these General Conditions; or
b. The Customer issuing an order for the Services to Union Beverages.
DEFINITIONS
4. In these General Conditions:
Customer means the person or entity engaging Union Beverages for the provision of the Services;
Force Majeure Event is any occurrence beyond the affected Party’s reasonable control which it could not reasonably anticipate or prevent;
Insolvency Event means where proceedings are commenced to wind up the Customer, it is placed under official management or into liquidation or has a receiver and/or manager appointed in respect of any of its assets or becomes insolvent, commits any act of bankruptcy or becomes subject to any other analogous event;
Parties or Each Party refers to both Union Beverages and the Customer;
Union Beverages means Union Beverages Pty Ltd (ACN 628 997 964); and
Premises means 30-32 Kilkenny Court, Dandenong South VIC 3175, Australia (or any location where Union Beverages operates from).
SUPPLY OF GOODS
5. Union Beverages may provide a quote for the Services which is valid for 30 days, details the scope and price for the Services, and is based on supply starting within those 30 days (the “Quote”).
6. The Customer may formally accept the Quote verbally or in writing, or by instructing Union Beverages to proceed with the supply of the Goods (the “Order”).
7. Where supply does not start within 30 days of the date of the Quote, Union Beverages may revisit the price set out in the Quote and advise the Customer accordingly.
8. Union Beverages will not be bound to accept any change for the Services including any change as to scope or quantity or other particulars of an Order where it has commenced production.
9. For the avoidance of doubt, Union Beverages will have full control over working time, methods, and decision making in relation to the Order.
10. Any time stated in the Quote for supply of Services is an estimate only and Union Beverages will not be liable for any delay in supply of Services.
11. Unless otherwise stated in the Quote, any goods provided as part of the Services will be supplied by Union Beverages within the tolerances in regard to quantity, weight, dimension and chemical composition as specified in the relevant Order or, if not specified, as consistent with usual industry practice.
12. In the case of packaging or other components supplied by Union Beverages but not of Union Beverages’ manufacture, it shall give the Customer, and use its best endeavours to enforce at the cost of and for the benefit of the Customer, such warranties and guarantees as Union Beverages has obtained from its suppliers.
13. Where Union Beverages is required to place a special order for any packaging or other components with a minimum order quantity, Union Beverages reserves the right to ask the Customer to increase the quantity Services under order and the Customer will not unreasonably refuse such request. The price for additional quantities will be at the same rates as provided in the Quote.
14. Where Union Beverages utilises the Customer’s goods or materials, the onus is on the Customer to ensure that such goods or materials are suitable for their intended use, are fit for purpose and comply with any applicable laws, regulations or standards.
15. For the avoidance of doubt, Union Beverages gives no warranty that goods or materials supplied by the Customer (or on behalf of the Customer) are suitable for their intended use, and will not be liable for any failings associated with a lack of quality, suitability for purpose or compliance with applicable laws, regulations or standards, in respect of such goods or materials.
16. Notwithstanding any other provision of these General Conditions, Union Beverages may refuse to supply Services to the Customer for any reason.
PAYMENT
17. Invoicing and payment terms are dependent on the following:
a. Credit account – where the Customer has a credit account with Union Beverages, invoices are ordinarily raised following completion of the Order and the Customer will pay the invoice in accordance with the terms set out in the invoice. Where there is no credit account, Union Beverages will invoice and require payment prior to the commencement of the Order;
b. Export orders – notwithstanding the above, payment of export orders must be received in full prior to dispatch, as follows:
i. For Customers with a credit account - 50% upfront and 50% upon completion of the Order; and
ii. For Customers without a credit account – full payment prior to commencement of the Order; and
c. Deposit – notwithstanding anything to the contrary, Union Beverages may require an upfront deposit to be paid for the Order.
18. Unless otherwise indicated, all prices for Services are exclusive of delivery charges, GST or any other tax, charge or government levy. The Customer is liable for all excise, sales, GST or any other tax, charge or government impost (domestic or foreign) upon the Services oods or any part of the Services, or upon the manufacture, use sale or delivery of the Services in addition to the price.
19. Where the Services are subject to GST, the Customer must pay GST at the same time as payment for the Services is made.
20. Union Beverages reserves the right to charge interest on any overdue amounts from the date it became due to the date payment is received at the rate of 12% compounded daily. All payments made by the Customer will first be applied to the accrued interest.
21. Union Beverages may set-off any amount owed by the Customer to Union Beverages against any amount of money owed, or may become owing, from Union Beverages to the Customer.
22. The Customer cannot withhold payment or make any deductions from any amount owing by the Customer to Union Beverages without Union Beverages’ prior consent.
23. If an Insolvency Event happens to the Customer, Union Beverages may at its option exercise any of the following (in addition to any other rights it may have under these General Conditions or at law):
a. suspend or terminate any current or future Orders for the Customer;
b. require immediate payment of all moneys due and to become due to Union Beverages by the Customer; and
c. issue an invoice for, and demand immediate payment of, any Orders placed by the Customer where the Services are not yet complete.
24. All costs incurred by Union Beverages relating to any action taken by it to recover monies due from the Customer (including without limitation, legal or debt collection or other costs) shall be payable by the Customer on demand.
DELIVERY
25. Upon completion of the Order, the Customer must promptly pick up or arrange collection of the finished stock (the “Goods”) from the Premises.
26. Where the Goods remain with Union Beverages for greater than 7 days from the date of completion of the Order, Union Beverages reserves the right to charge a warehousing fee of $10 per pallet per week (plus GST).
SPECIFICATIONS
27. It is the Customer’s responsibility when placing the Order to ensure the Services requested meet the Customer’s requirements and produced stock (the “Goods”) are suitable and sufficient for the Customer’s purpose.
28. The Parties agree that Union Beverages will supply the Services and Goods in accordance with the specifications provided by the Customer and relies on those specifications. Union Beverages bears no responsibility to ensure the Services or Goods comply with any laws or regulations relating to packaging, taxation and alcohol requirements, including but not limited to the Wine Australia Act 2013 and accompanying Regulations, the Food Standards Code, the National Measurement Act, the A New Tax System (Wine Equalisation Tax) Act 1999 and applicable national and international tax laws, and the Customer indemnifies and releases Union Beverages from any losses, costs, damages, expenses, claims, demands, actions, suits or proceedings which relate to compliance with any such laws, rules or regulations.
29. The Customer agrees that it does not rely on the skill or judgement of Union Beverages in relation to the suitability of any of the Goods for a particular purpose.
INSPECTION AND ACCEPTANCE OF GOODS
30. The Customer must inspect the Goods on pick up or collection and immediately notify Union Beverages if it:
a. identifies any shortages in quantity and must inform Union Beverages providing details of the short supply; or
b. identifies any defect in the product.
31. Where the Goods supplied by Union Beverages are found to be defective, Union Beverages’ liability to the Customer (whether arising under statute, contract, tort (including negligence), equity or otherwise) for any defect in the Goods, or the supply of the Goods, is limited to replacing the Goods in full together with covering costs of removing and replacing the Goods.
32. For the avoidance of doubt, Union Beverages accepts no liability for any damage or defect caused to the Goods which occurs or arises after the Goods have left the Premises. This includes situations where:
a. the Customer did not correctly store the Goods based on the requirements of the product;
b. the Customer did not follow Union Beverages’ oral or written instructions relating to the storage or use of the Goods; or
c. the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by the Customer, its employees, agents or third parties.
33. Goods are not damaged or defective by reason only of the presence of minor defects which do not have any affect on the operation or intended use of the Goods.
34. No defect or claim in respect of Goods entitles the Customer to reject delivery of other Goods which are not subject to any defect or claim.
35. Union Beverages do not provide refunds for the return of Goods however may accept the return of stock items at its discretion (which will incur a restocking charge).
RISK AND TITLE
36. It is the expectation of Union Beverages that the Customer insure the Goods (for their full insurable value) from the date of completion of the Goods.
37. Risk of any loss, damage or deterioration of or to the Goods passes to the Customer on pick up or collection of the Goods from the Premises. Under no circumstances will Union Beverages be responsible for the Goods once they have left the Premises.
38. Notwithstanding the location of the Goods, title will only pass to the Customer upon Union Beverages receiving full payment for the Services.
39. The Customer agrees that:
a. the Customer must not allow any person to have or acquire any security interest in the Goods; and
b. the Customer must not remove, deface or destroy any identifying plate, mark or number on the Goods.
40. Without limiting the generality of any charge or security interest which may be enforced by Union Beverages over the Goods, the Customer agrees, on request by Union Beverages, to execute any documents and do all things reasonably required by Union Beverages to perfect the charge or security interest. The Customer appoints Union Beverages to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer indemnifies Union Beverages on an indemnity basis against all costs and expenses incurred by Union Beverages in connection with the preparation and registration of any such steps needed to perfect the security.
LIEN
41. The Customer acknowledges that Union Beverages has a lien over all Goods in the Customer’s possession which it has not yet made full payment to Union Beverages for.
42. Until payment in full has been received by Union Beverages, the Customer must:
a. hold the Goods on a fiduciary basis as Union Beverages’ bailee; and
b. store the Goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods.
43. Union Beverages are irrevocably entitled at any time to inspect, recover or retake possession of the Goods and the Customer agrees that Union Beverages may do so without incurring liability to the Customer or any third party. Any costs incurred by Union Beverages to recover or retake possession shall be borne by the Customer.
TERMINATION
44. Orders for any Services cannot be cancelled without prior approval by Union Beverages.
45. In the event Union Beverages accepts any cancellation, Union Beverages will be entitled to charge a reasonable fee for any work done on behalf of the Customer to the date of cancellation.
46. Union Beverages can terminate an Order immediately by notice to the Customer:
a. if the Customer defaults in its obligations relating to the Services;
b. if Union Beverages reasonably believes that the Customer would be unable to pay any debts when they fall due; or
c. at Union Beverages’ sole discretion.
47. The termination rights in clause 46 are without prejudice to any other rights (including damages) that Union Beverages may have as a result of any default, breach or termination
LIABILITY
48. Union Beverages acknowledges that consumer legislation contains certain guarantees for the supply of goods or services that cannot be excluded, restricted or modified by these Conditions. Nothing in these Conditions is intended to exclude or restrict the application of such laws.
49. Union Beverages shall not be responsible for the consequence of any representation made or technical advice given by its employees, agents or sub-contractors in connection with the design, specifications and use of the Goods, and the Customer agrees that all such advice is accepted by the Customer entirely at the Customer’s risk.
50. Union Beverages is not liable to the Customer or anyone else in connection with the Services or Goods or with these General Conditions (including any changes to the General Conditions), including without limitation for:
a. any losses, costs, damages, expenses, claims, demands, actions, suits or proceedings (including without limitation for damage to the Goods or injury to any person) arising from:
i. the loading, unloading or delivery of the Goods;
ii. a failure to deliver, or delay in delivering, the Goods; or
iii. the removal of defective Goods or the replacement of Goods;
b. any direct, indirect or consequential loss or damage, any loss of actual or anticipated savings, opportunity, revenue, profit or goodwill, or other economic loss; and
c. any claim, action or proceeding by a third party against the Customer (or any loss, damages or liability incurred or suffered by the Customer as a result of any such claim, action or proceeding); and
d. the Customer indemnifies Union Beverages from and against all losses, damages, costs and expenses suffered or incurred by Union Beverages, and all claims, demands, suits, actions or proceedings made or brought against Union Beverages, arising out of:
i. Union Beverages’ use of or reliance on any materials, design, drawing or specification provided to Union Beverages by the Customer (including any allegation or claim that any such use or reliance by Union Beverages infringes the intellectual property rights of any person);
ii. any loss or damage caused by or during the processing of materials supplied to Union Beverages by the Customer; or
iii. any loss or damage caused by any tool or equipment, or the use of any tool or equipment, hired out by Union Beverages to the Customer.
FORCE MAJEURE
51. Except as relating to payment, neither Party shall be liable for any failure or delay in performing their respective obligations where such failure or delay results from a Force Majeure Event.
52. Where Union Beverages is affected by a Force Majeure Event, it will notify the Customer and its obligations under these General Conditions are suspended to the extent to which they are affected by the relevant Force Majeure Event, for as long as the Force Majeure Event continues.
53. Each Party agrees to make a good faith effort to perform any obligations notwithstanding any Force Majeure Event.
OTHER TERMS
54. Union Beverages may, at its absolute discretion, engage a third party to perform some or all of its obligations under these General Conditions. Where this occurs, Union Beverages will pay the third party for its services and the Customer will remain responsible to pay Union Beverages’ invoices for the Services.
55. Union Beverages agrees that it will not disclose, divulge, reveal, report or use, for any purpose, except as required by law or Court Order, any confidential information of the Customer which it has obtained to perform the Services.
56. All notices under these General Conditions must be addressed to the most recent address or email notified to the other party from time to time.
57. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting these General Conditions.
58. These General Conditions will be governed by and construed in accordance with the laws of the State of Victoria.
59. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria, Australia.
60. If any provisions of these General Conditions are held to be invalid or enforceable, those invalid or enforceable parts shall be severed from the remainder of these General Conditions, which will remain valid and enforceable.
61. No waiver by Union Beverages of any breach of these General Conditions by the Customer shall be considered as a waiver of any subsequent breach of the same or other provisions.
62. It is agreed that there is no representation, warranty, collateral agreement or condition affecting these General Conditions except as expressly provided herein.