1. Application – The Contract for sale by Red Island of the Products to Customer only arises on issue of the Invoice by Red Island and these terms and conditions apply exclusively (in the absence of a written contract signed by both parties) to the exclusion of:
(a) all prior representations, understandings and arrangements between Red Island and Customer;
(b) any terms endorsed or delivered with or referred to by any order or other document delivered by Customer to Red Island including Customer’s purchase order for the Products; or
(c) all or any of Customer’s terms of trade even if Red Island has been provided with or made aware of those terms.
2. Price – Customer agrees to pay the price for the Products as specified in the Invoice. All prices are exclusive of Tax unless stated otherwise in the Invoice.
3. Payments – All payments are to be made (in cleared funds, without deduction or set off) by no later than the date specified for payment in the Invoice, or if no date is specified, subject to clause 4 within 30 days of the invoice date (“Payment Due Date“). Without prejudice to any other remedy, Customer agrees to pay interest of 12% per annum for payments not received by the Payment Due Date. Interest will accrue daily and be calculated on the basis of a 365 day year.
4. Credit Rating – Upon request from Red Island Customer must provide, or consent to Red Island obtaining from applicable sources, sufficient financial and credit rating information to enable to Red Island to satisfy itself (at its discretion) as to Customer’s credit worthiness and Customer agrees to provide any information reasonably requested by Red Island to give effect to this clause.
5. Taxes – All taxes, duties or fees (including Goods and Services Tax) (“Tax“) assessed by any tax authority on or in respect of the Invoice amount and/or the supply of the Products are payable by Customer.
6. Delivery – Red Island will endeavor to deliver Products in accordance with the time specified in the Invoice or, if no time is specified or otherwise agreed, within a reasonable time.
7. Delay – Red Island is not liable for any loss or cost incurred by Customer due to delay in delivery of the Products.
8. Cancellation – Customer is not permitted to cancel, terminate or modify the order for Products, except with Red Island’s prior written consent.
9. Risk and Title – Risk in respect of the Products passes to Customer at the time the Products leave Red Island’s premises. Title (legal and equitable) to the Products passes to Customer on payment in full to Red Island (without set off) for all Products that have been delivered to Customer. Until title passes to Customer pursuant to this clause 9 Customer:
(a) holds the Products as Red Island’s bailee in a fiduciary capacity;
(b) must only sell the Products in its ordinary course of business;
(c) must store the Products separately from other stock and ensure that the Products are identified as Red Island’s property;
(d) must not allow any third party to obtain a security interest in the Products;
(e) must return the Products to Red Island immediately on written request from Red Island;
(f) holds any book debt and proceeds of sale of the Products and rights against Customer’s buyers from such sales on trust for Red Island, and must record and store all such proceeds or debts in a separate account or ledger;
(g) if Customer has not made full payment to Red Island (without set off) for all Products by the Payment Due Date, or if Red Island considers (acting reasonably) that Customer is unable to pay the Invoice, Customer grants to Red Island (and its authorised representatives) access at any time to any premises where the Products are stored, and authorizes Red Island to repossess any Products without the need for notice. Red Island shall not be liable for any damage caused in gaining such access or repossession; and
(h) agrees that Red Island may keep or resell any Products repossessed pursuant to clause 9(g).
10. Set-Off – Red Island may set-off any amount due to Customer against any amount due to Red Island from Customer.
11. Use and Disposal – Customer represents and warrants to Red Island that Customer will hold, use and/or dispose of the Products in accordance with all applicable laws, rules and regulations, including any applicable liquor licensing laws and regulations.
12. Jurisdiction – The Contract is governed by the laws of Victoria and Customer submits to the exclusive jurisdiction of the courts of that State.
13. Intellectual Property – Each party acknowledges that it does not acquire any rights (by use, grant or otherwise) in relation to the other party’s Intellectual Property (including any Intellectual Property created during the performance of this Contract) which remains owned solely by that party. For the avoidance of doubt, Red Island’s Intellectual Property includes any trade mark Red Island owns or is licensed by a third party to use.
14. Limitations of Liability – To the extent permitted by law and notwithstanding anything else in this Contract, Red Island’s total aggregate liability to Customer under or in relation to the Contract on any other grounds whatsoever whether in contract, tort, (including negligence) or under statute, common law or in equity or otherwise (“Cause of Action“) will not exceed an amount equal to the total amount paid by Customer under the Contract to Red Island.
To the extent permitted by law Red Island’s liability for a breach of Statutory Rights is excluded but to the extent that such liability cannot be excluded, is limited to one or more of the following, as determined by Red Island: (in the case of goods) the replacement or repair of the goods, supply of equivalent goods or the payment of the cost of replacing or repairing the goods or supplying equivalent goods; and (in the case of services) supply of the services again or the payment of the cost of supplying the services again.
Neither party will be liable to the other for indirect, incidental, special or consequential loss or damage or for loss of revenue, profits, goodwill, opportunity or data or interruption of business or cost of capital (“Consequential Loss”) or for claims from third parties for Consequential Loss regardless of the Cause of Action and even if a party has been advised of the likelihood of such loss or damage.
15. Customer Indemnification – Customer agrees to indemnify Red Island, its affiliates and their respective directors, officers, employees and agents in respect of all costs (including debt recovery and legal costs (on a solicitor and own client basis)) and losses incurred or likely to be incurred in respect of any third-party claim arising directly or indirectly from:
(a) the manufacture, promotion, marketing, distribution or sale of, or use of or exposure to, the Products;
(b) the negligence or wilful misconduct of Customer;
(c) the breach of the Contract (including non-payment) by Customer; or
(d) the use by Red Island of any Intellectual Property provided by Customer to Red Island.
16. Force Majeure – Neither party will be liable for any failure to perform or for delay in performance resulting from a Force Majeure Event. If the Force Majeure Event continues to apply for 90 days, both parties shall meet to discuss and negotiate in good faith what modifications to the Contract should result from such cause.
17. Relationship – Subject to clause 9(a) the relationship of the parties is that of independent contractors and not of joint venturers, co-partners, employer/employee or principal/agent.
18. Dispute Resolution – If a dispute arises between the parties in connection with the Contract, the respective senior executives of Red Island and Customer shall first attempt to resolve the dispute. If such executives cannot resolve the dispute, either party may refer the dispute to a mediator for resolution. The parties must agree on the mediator or, failing agreement, a mediator may be appointed by the President (or equivalent) of the Institute of Mediators and Arbitrators, Australia.
19. Definitions
Contract means the binding legal relationship referred to in clause 1;
Customer means the party identified as such on the Invoice;
Force Majeure Event means any event, occurrence or circumstance reasonably beyond a party’s reasonable control, including without limitation acts of God, fires, floods or weather, strikes or lockouts, factory shutdowns, embargoes, wars, hostilities or riots, or shortages in transportation, that affects that party’s ability to perform its obligations under the Contract;
Intellectual Property means any rights in or to any patent, copyright, registered design or other design right, utility, registered or unregistered trade mark (including any right in trade set up or area), brand name or trade name or any other right of a propriety nature in or to the results of intellectual activity in the intellectual, commercial or scientific fields, whether registered or not including all associated rights;
Invoice means the invoice describing the amount payable for the Products to be supplied by Red Island to Customer to which these terms and conditions are attached;
Products means the products to be supplied under the Contract, as specified in the Invoice;
Red Island means Red Island Pty Ltd ABN 68 105 576 707; and
Statutory Rights means all and any terms implied into this Contract or otherwise conferred on Customer by statute or law including, but not limited to, the Trade Practices Act 1974 (Cth).
