nocwholesale

PARTIES

Nip of Courage Pty Ltd ACN 162 896 193 for the Nip of Courage Trust trading as Nip of Courage Wholesale ("Supplier")
The Party "You" ("Customer)
The Party________________ ("Guarantor")

OPERATIVE PARTS:

Definitions

In this Agreement:

"Additional Charge" means:

fees charged for additional work performed at the Customers request or reasonably required as a result of the Customers conduct, calculated in accordance with the Supplier's current prices; and
expenses incurred by the Supplier, at the Customer's request or reasonable required as a result of Customer's conduct

"Agreement"means this Agreement and any Schedule or Annexure to it;
"Ancillary Agreement"means any agreement or deed entered into by the parties to this Agreement as a result of the provisions of this Agreement
"Annexure"means an annexure to this Agreement;
"Business" means the business providing the Goods of Australian craft distilleries as a wholesaler.
"Business Day" means a day on which the banks are open for business in New South Wales other than a Saturday, Sunday or public holiday in Sydney.
"Confidential Information" includes but is not limited to information relating to research and development, discoveries, improvements, processes, know-how, drawings, blueprints, specifications, samples, formulae, notes, patents, copyrights, trademarks, trade names, trade secrets, and patent, trademark and copyright applications, information relating to business plans, financial information, products, services, manufacturing processes and knowhow, technical information, sources of supply, strategic plans, advertising and marketing plans, customer lists, sales, profits, pricing methods, personnel and business relationships
"Goods"" means the goods agreed between the Supplier and Customer from time to time;
"Loss" means any damage, loss, cost, charge, expense or liability, however arising (including contractual, tortious, legal, equitable loss or loss pursuant to statute) and includes all Taxes and Duties;
"Order" means a purchase order for the Goods placed by the Customer in response to a Quote as varied in writing from time to time between the parties.
"Quote"means a written description of the Goods to be provided and an estimate of the Supplier's charges for the goods and an estimate of the time frame for the goods to be delivered;
"Relevant Jurisdiction" means New South Wales;

Interpretation

In this Agreement:

A reference to:

One gender includes the others
2 The singular includes the plural and the plural includes the singular;
A person or entity includes an individual, a firm, a body corporate, a trust, estate, partnership; an unincorporated association, Government Authority, authority or undertaking;
A person includes his or her legal personal representatives, administrators, successors, substitutes (including by way of novation) and permitted assigns;
Reference to a time is a reference to the time in the capital city of the Relevant Jurisdiction;
A day or a month means a calendar day or a calendar month;
Money (including "$", "AUD", or "dollars") is to Australian currency; and
Any thing (including any amount or any provision of this Agreement) is a reference to the whole and each part of it.

No party enters into this Agreement as agent for any other person;
The meaning of any general language is not restricted by any accompanying example;
The words "includes" and "including" and their derivatives are not words of limitation;
Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
Headings are for convenience only and do not form part of this Agreement or affect its interpretation; and
If an act must be done on a specified day which is not a Business Day, the act must be done instead on the next Business Day.

General

This Terms of Trade Agreement applies to all transactions between the Customer and the Supplier in relation to the provisions of the Goods. This includes all quotes, contracts and variations.
This Terms of Trade Agreement takes precedence over terms of trade in any document of the Customer or elsewhere.
The variation or waiver of a provision of these terms or a party's consent to departure from a provision by another party must be in writing.
The Supplier may amended any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.

Quotes and Purchases

The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 30 days from the date of issue.
Unless otherwise expressly agreed in writing, a Quote does not include delivery of the Goods.
The Customer is responsible for any transport or freight costs to deliver the Goods to the Customer.
Following provision of a quote to the Customer, the Supplier is not obliged to deliver the goods until the Customer places an Order
An indication in a Quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law (ACL), this estimate is not binding upon the Supplier.

Order

The Customer must place an Order with the Supplier in writing on the Supplier's standard Order form (unless otherwise agreed) for the amount of Goods it wishes to order.
An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods ordered and the Supplier's latest Quote. Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in an Additional Charge.
The Order must be signed by an authorised representative of the Customer and must specify the required date of delivery and delivery address.
Placement of the Order by the Customer signifies acceptance of the terms of this Terms of Trade Agreement and the prices outlined in the most recent Quote provided by the Supplier.
The Supplier may only refuse to provide the Goods in the following circumstances:

The Goods are unavailable for any reason;
Credit limits have not been agreed upon or have been exceeded; and
Payment for Goods previously provided to the Customer or any related corporation of the Customer or to any party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.

An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

Variations

The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
If the Customer wishes to vary its requirements after a Quote has been prepared by the Supplier or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods.
The Supplier has an automatic extension of time for the provision of the Goods equal to the delay caused by the variation

Invoice and Payment

The Supplier may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:

prior to delivery of the Goods, for an amount equal to the Quote and Additional Charges where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so;
at the end of each week before the Order is completed, the Supplier may issue one or more invoices or the whole of the amount of the Quote;
upon completion of the provision of the Goods or any time after such completion, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier's charge for the work performed in completing the Order and for any Additional Charges.

The Customer must pay an invoice issued by the Supplier within 14 days of a valid tax invoice being issued to them.
Unless previously agreed, the Supplier will arrange for delivery of the Goods upon payment in full of the invoice.
If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods until overdue amounts are paid in full.
The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999.

Additional Charges

The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods within the specified time frame (if any).
The imposition of Additional Charges may also occur as a result of:

cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;
photocopying, courier, packing or handling charges not included in the Quote;
Government or council taxes or charges not included in the Quote; or
additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer's Order additional to the quoted cost.

Acceptance of Goods

The Customer must within 7 days advise the Supplier in writing of any fault, failure, missing items or defect of the Goods. The Customer is deemed to have accepted that the Goods are not faulty and in accordance with the Order if they do not provide notice as provided for in this Clause 9.1.
If any of the Goods are found to be faulty, missing, damaged, or defective the Supplier will need to rectify or credit the Goods at their discretion. If the Goods are deemed faulty, failed or defective, the Supplier will be responsible for re-delivery of the Goods.
For the purposes of this clause 9 fault, failure, missing, damaged or defective Goods includes but is not limited to the following:

Damaged on arrival;
Contaminated;
Not legally compliant;
Poor packaging;
Leaky;
Underfilled;
Incorrect labelling; or
Incorrect outer cases.

Nothing in Clause 9.1 affects the Customer's right for any alleged failure of a guarantee under the Australian Consumer Law

Title and Risk

Risk in Goods passes to the Customer immediately upon delivery.
Property and title in Goods supplied to the Customer under these terms of trade do not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
Where Goods are supplied by the Supplier to the Customer without payment in full, the Customer:

is a bailee of the Goods until property in them passes to the Customer;
irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
must be able upon demand by the Supplier to separate and identify as belonging to the Supplier the Goods supplied by the Supplier from other goods which are held by the Customer;
must not allow any person to have or acquire any security interest in the Goods;
agrees that the Supplier may repossess the Goods if payment is not made within [number] days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods; and
the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this Clause 10.3.6. The Customer indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Customer's premises.

Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and provided by the Supplier in respect of those Goods, and:

the Customer makes a new object from the Goods, whether finished or not;
the Customer mixes the Goods with other goods; or
the Goods become part of other goods (New Goods),

the Customer agrees with the Supplier that the ownership of the New Goods immediately passes to the Supplier. The Customer will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier whether under these terms of trade or any other contract have been made. The Supplier may require the customer to store the New Goods in a manner that clearly shows the ownership of the Supplier.

For the avoidance of doubt, under Clause 10.4 the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
Despite Clause 10.3, the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:

where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for the Supplier in a separate account, until all amounts owned by the Customer to the Supplier have been paid; or
where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.

Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods provided by the Supplier in respect of those Goods, the Customer acknowledges that the Supplier has a right to register and perfect a personal property security interest.
if:

1 a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or the Supplier determines (based on legal advice) that this is the case; and
in the Supplier's opinion, the PPS Law:

does or will adversely affect the Supplier's security position or obligations; or
enables or would enable the Supplier's security position to be improved without adversely affecting the Customer,

the Supplier may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new terms and conditions) that in the Supplier's opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in Clause 10.8.2.1 or improve the security position as contemplated in Clause 10.8.2.2. The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this Clause 10.8 in the Supplier's opinion the Supplier's security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, the Supplier may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to the Supplier any money owed to the Supplier by the Customer immediately.

Risk and Delivery

The Customer shall be responsible for providing correct delivery details for the Goods
Risk in the Goods passes to the Customer on delivery of the Goods.
Any damage, breakage, loss, or theft while delivery of the Goods is in progress, and prior to a successful delivery of the Goods is the responsibility of the Supplier.

Suppliers Obligations and Warranties

The Supplier is responsible for:

ensuring that the Goods are delivered at the time and place nominated by the Customer in the Order.
ensuring that while the Goods are in transit for delivery and prior to delivery of the goods that the goods are adequately packaged to avoid damage.

The Supplier warrants:

that the goods are of merchantable quality, but does not warrant that the goods are fit for a particular purpose unless the warranty is in relation to title, defects or conformity of the goods.

Confidentiality

Each party must treat the existence of the terms of this Agreement and Confidential Information confidential.
Each party must treat any information received confidentially and must not disclose any information in any form to any other party unless:

the person who provides the information has first agreed in writing;
the law requires the disclosure or use; or
the information is available generally (but not if it is only because a person has contravened a confidentiality obligation (including under this clause)).

All obligations of a party under this Clause 13 survives the termination of this Agreement.

Termination

A party may terminate this Terms of Trade Agreement by giving the other party 14 days writing.

Agency and Assignment

The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.
The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.

Default by Customer

Each of the following occurrences constitutes an event of default:

the Customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
the Customer, being a natural person, commits an act of bankruptcy;
the Customer, being a corporation, is subject to:

a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer's property and undertaking;
the entering of a scheme of arrangement (other than for the purpose of restructuring); and
any assignment for the benefit of creditors;

the Customer purports to assign its rights under these terms of trade without the Supplier's prior written consent; or
the Customer ceases or threatens to cease conduct of its business in the normal manner.

Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:

terminate these terms of trade;
terminate any or all Orders and credit arrangements (if any) with the Customer;
refuse to deliver Goods or provide further services;
pursuant to Clause 10.3 repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.

In addition to any action permitted to be taken by the Supplier under Clause 16.2 on the occurrence of an event of default all invoices will become immediately due and payable.

Dispute Resolution

If a dispute arises between the Customer and the Supplier, the following procedure applies:

A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this Clause 17.
A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this Clause 17.
A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this Clause 17.

If a dispute is notified, the dispute must immediately be referred to the parties' respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 14 Business Days (or other period as agreed) and any negotiation between the parties must be held in the Relevant Jurisdiction.
Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into this Supplier agreement. This
Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under this Supplier Agreement.
The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

Exclusions and Limitation of Liability

The Customer expressly agrees that use of the Goods is at the Customer's risk. To the full extent allowed by law, the Supplier's liability for breach of any term implied into these terms of trade by any law is excluded.
All information, specifications and samples provided by the Supplier in relation to the Goods are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer's use of the Goods will not entitle the Customer to reject the Goods upon delivery or to make any claim in respect of them.
The Supplier gives no warranty in relation to the services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

any Goods supplied to the Customer;
any delay in supply of the Good; or
any failure to supply the Goods.

Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods, or otherwise arising out of the provision of Goods, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
The Customer acknowledges that the Goods are not for personal, domestic or household purposes.
The ACL may give to the Customer certain consumer guarantees, which cannot be restricted, limited or varied.

Guarantee and Indemnity

In consideration of the Supplier agreeing at any time to supply the goods to the Customer, the Guarantor irrevocably and unconditionally guarantees all payments of the Goods and Additional Charges and any other monies payable under this Terms of Trade Agreement and the due performance of the Customer's obligations under this Terms of Trade Agreement.
As a separate and independent obligation, the Guarantor indemnifies the Supplier against any Loss which may be suffered by reason of:

any liability of the Customer becoming unenforceable in whole in part for any reason;
any amount not being recoverable from the Customer for any reason; or
any payment made to the Supplier being void or voidable.

The Liability of the Guarantor to the Supplier will not be affected by:

any other guarantee or security or the release or variation of any other guarantee or security;
any arrangement with, or the Guarantor's release, or the release of any other person from any obligation to us;
any omission or delay by the Supplier;
any assignment of any rights under this Terms of Trade Agreements;
any other act, matter or circumstance of any nature.

The Guarantor warrants that it has had the opportunity to obtain legal advice in relation to the effect of this guarantee and indemnity contained in this Clause 19.
The Guarantor agrees that the Supplier may disclose information contained in the guarantee provided by this Clause 19 to a credit reporting agency and a credit provider and obtain a credit report containing personal information about the Guarantor/s to assess whether to accept the Guarantors for any credit limits prior to the supply of the Goods.
Where the Guarantor comprises more than one person, each such person is jointly and severally liable.

Indemnity

The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods, any Order or the subject matter of these terms of trade.
This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party or party legal costs for which the Supplier is liable in connection with any such claim or demand.
This provision remains in force after the termination of these Terms of Trade Agreement.

Force Majeure

If circumstances beyond the Supplier's control prevent or hinder its provision of the Goods, the Supplier is free from any obligation to provide the Goods while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
Circumstances beyond the Supplier's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

Notices

A notice must be:

In writing; and
Left at or posted by certified mail to the address or email address of the party to be notified, as varied by notice.

A notice is taken to have been given:

If posted, on the third day after posting; and
If sent by email, on the next business day after it is sent unless the sender is aware that the transmission is impaired.

The addresses, emails of the parties are set out in the Schedule to this Agreement

Entire Agreement

This Agreement (and any Ancillary Agreement entered into as a result of it) constitutes the entire agreement of the parties as to its subject matter.

Severability

If any provision of this Agreement is judged by a Court as invalid or unenforceable, such a provision is deemed deleted and does not affect the validity or enforceability of the remaining provisions.

Counterparts

This Agreement may be executed in any number of counterparts each of which when executed and delivered constitute an original of this Agreement, all counterparts together constitute the same agreement.
No counterpart is effective until each party has executed at least one counterpart.

Applicable Law

This Agreement will be governed by and construed and interpreted in accordance with the laws of the Relevant Jurisdiction.

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