TERMS & CONDITIONS OF DIRECTORS’ GUARANTEE & INDEMNITY:
- The person(s) who sign the credit terms as guarantor (Guarantor) unconditionally and irrevocably guarantees to S&W and/or SQUARE KEG performance by the Customer of the Obligations.
- The Guarantor unconditionally and irrevocably indemnifies S&W and/or SQUARE KEG from and against any and all actions, claims, demands, expenses and costs which may be made against or suffered or incurred by S&W and/or SQUARE KEG if any of the
Obligations are not or cannot be performed by or enforced against the Customer or against any Guarantor under clause 1 for any reason. This indemnity is a separate and distinct obligation and may not be restrictively interpreted because of the guarantee set out in clause 1. The Guarantor agrees that its liability under this clause is that of a principal debtor.
- If the Customer fails to perform any of the Obligations when due the Guarantor must immediately on demand from S&W and/or SQUARE KEG perform or cause the Customer to perform the Obligations.
- If there is more than one Guarantor described in Item 1 of the Schedule, a reference to the Guarantor means all or any one or more of them and the liability of the Guarantor under this Guarantee and Indemnity is joint and several.
- The Guarantor acknowledges that this Guarantee & Indemnity constitutes a continuing guarantee and indemnity in relation to all Obligations which are now or may from time to time in the future be unsatisfied.
- If any one or more provisions of this Guarantee and Indemnity are invalid or unenforceable (for whatever reason) the remaining provisions remain in full force and effect except to the extent of the invalidity or unenforceability, and the offending provisions are deemed to have been amended to the extent required to cure the invalidity or unenforceability.
- This Guarantee and Indemnity is enforceable against the Guarantor without S&W and/or SQUARE KEG having to first have recourse to any security it may have from the Customer.
- The expression “Obligations” where used in this Guarantee and Indemnity means all obligations and liabilities which the Customer now has or may have in the future to S&W and/or SQUARE KEG , or to a related body corporate of S&W and/or SQUARE KEG , under or in relation to any agreement, arrangement or understanding between those parties, including without limitation all obligations for the payment of moneys and the payment of interest on principal amounts. The Obligations also include payment of S&W and/or SQUARE KEG ’s costs and expenses of exercising or enforcing, or attempting to do so, any of its rights against the Customer, or against the Guarantor under this Guarantee and Indemnity.
- The Obligations extend to any change in the Customer’s obligations as a result of any amendment, supplement, renewal or replacement of any agreement or arrangement between S&W and/or SQUARE KEG and the Customer, or the occurrence of any other thing. This clause applies regardless of whether the Guarantor is aware of or has consented to, or is given notice of, any such amendment, supplement, renewal or replacement, or of the occurrence of any other thing, and irrespective of any rule of law or equity to the contrary.
- The Guarantor’s obligations and S&W and/or SQUARE KEG ’s rights under this Guarantee and Indemnity are not avoided, released, discharged or otherwise affected by S&W and/or SQUARE KEG making any variation or alteration in the terms of its supply arrangements with the Customer.
The following terms and conditions apply to the ongoing trading agreement and each invoice supplied with the goods.:
- The word “Customer” in these Terms means [the applicant for credit whose name and address is set out on the attached]. S&W in these terms means Stone & Wood Brewing Company Pty Ltd and / or Square Keg Pty Ltd, according to which (or both) of them supply goods to Customer.
- The prices charged by S&W as set out in S&W’s applicable price list may be altered without notice and any resulting increase shall be added to the purchase price. Unless otherwise stated, all prices are exclusive of goods and services tax (GST). In addition to any other amount payable by the Customer to S&W, the Customer must pay to S&W an amount equal to the GST payable by S&W in respect of any taxable supply by S&W to the Customer. Such price or prices for purchases from S&W are subject to any increase in GST, freight or insurance costs and any other applicable tax, levy or excise between the date of order and the date of delivery and any such amount shall be added to the purchase price and be payable by the Customer to S&W.
- Risk of loss or damage to the goods shall pass to the Customer upon delivery to the Customer or the Customer’s nominated
carrier. To the extent that S&W is found liable to the Customer for or in relation to supply of the goods, S&W’s liability is limited to replacement of the goods, or refund of the invoiced value of the relevant goods, at S&W’s option.
- Each supply shall be regarded as a separate contract and failure of any supply shall not affect the contract as to any other supply. The Customer must accept any late delivery.
- The goods may be consigned or shipped to the Customer in one or more parcels in one or more vehicles and at varying times. Anyone or more of such parcels may form part of a larger consignment.
- a) The Customer agrees that the legal title to and ownership of the goods is retained by S&W until and is only transferred to the customer upon payment by the Customer to S&W of all sums owing to S&W, whether under this or any other contract with S&W.
b) Where S&W has not been paid in full as set out in the previous paragraph and the goods are delivered to the Customer, then the Customer agrees to keep and store the goods in such a way that they are clearly the property of S&W and are able to be recognised as such.
c) The Customer and its legal assigns hereby irrevocably give S&W, its employees and agents leave and licence to enter on and into any premises occupied by the Customer without notice to search for and remove any of the goods supplied so long as any monies are owing by the Customer to S&W and the Customer agrees that S&W shall not be liable to the Customer or any person or company claiming through the Customer for such action taken by S&W.
- Unless S&W directs otherwise the Customer may dispose of any goods purchased from S&W to third parties by way of bona fide transactions in the normal course of its business and assigns the proceeds of such sale and supply to S&W absolutely and not by way of security. The proceeds of sale of any goods owned by S&W received by the Customer shall be deposited by the Customer on trust for S&W separate from any other fund or monies. The relationship of the Customer to S&W shall be fiduciary and S&W shall have the right to trace and claim the proceeds of any disposition whatsoever of such goods.
- The Customer must make any claim in relation to the goods, including in relation to breakages, within 72 hours of delivery, otherwise S&W may refuse the claim. S&W at its option may accept goods returned with freight pre-paid by the Customer if in the opinion of S&W the goods or any of them are out of condition and thereupon credit the purchase price thereof to the Customer. The goods returned must be in original packaging and purchase invoice number must be quoted. S&W reserves the right to apply earlier prices in cases where invoice numbers are not quoted.
- Subject to all relevant statutory provisions, the conditions herein contain the whole of the contract between the parties and all representations, conditions or warranties and agreements whether expressed or implied and whether statutory or otherwise not contained herein are hereby expressly excluded.
NOTE: This clause does not apply where the goods are not purchased:
(i) for the purpose of resupply, or
(ii) in the course of business.
- Payment terms are 7 days from invoice date, and may be varied from time to time by S&W at its discretion. Failure to comply with the approved payment terms may lead to a cessation of supplies and the forfeiting of allowances.
- All allowances and discounts, as set out in S&W’s trading terms, from time to time are applicable to the period in which the goods were purchased from S&W.
- The Customer shall give at least one month’s notice to S&W of any change in the trading entity, the name of its principals, trading name and/or licensee or its shareholders or directors, where the Customer is a company.
- The Customer shall pay interest to S&W at S&W’s current bank overdraft rate plus 3% applied daily to the Customer’s overdue debt.
- Pallets supplied with the goods are not sold and do not become the property of the Customer. Pallets shall be held by the Customer and kept in good order and condition for collection by S&W or its authorised agent. A pallet for pallet exchange is required or pallets are to be de-hired to the Customer where applicable. In the event of a non return or failure to de-hire, a fee equivalent to the hiring charge (inclusive of GST) may be invoiced to the Customer until such time as the pallets are redeemed and/or the pallet accounts are reconciled.
- The Customer must only dispense products supplied by S&W through taps that are marked with S&W’s trade marks, and must not dispense any third party’s products through such taps, and the Customer must not cover, deface or in any other way alter the representation of S&W’s trade marks.
- The Customer must ensure that it stores and dispenses the goods supplied by S&W according to S&W’s product care guidelines and industry best practice to maintain the quality of the goods, and the Customer must not sell or otherwise distribute to the public any such goods which are in any way out of condition.
- Release, waiver or acquiescence by S&W of any one or more of these Terms and Conditions of Sale may only be made in writing and signed on behalf of S&W, and shall not be deemed as a permanent variation or waiver of the same.
- S&W shall not be bound by any terms and conditions included in any purchase order placed by the Customer on S&W.