These terms and conditions are not applicable for sale of product inside of Australia.
Please refer to details above for terms and conditions relevant to domestic orders.
1) SALE
1.1. The Buyer named in the Order Confirmation agrees to buy, and Beach Road Wines Pty Ltd (Beach Road) agrees to sell, the product identified in the Order Confirmation(Goods).
1.2. Subject to Clauses 2 and 9.1, the terms of the contract between the Buyer and Beach Road are contained exclusively in these terms and conditions and the Order Confirmation (Contract).
2) REPRESENTATIONS BY BEACH ROAD
Other than as expressly provided for in these terms and conditions or in the Order Confirmation, Beach Road does not make any other representation or give any other warranty to the Buyer as to the quality, variety, performance, characteristics, specification or fitness for purpose or description of the Goods, and any and all other representations or warranties, statutory or otherwise, are specifically excluded (or excluded to the extent permitted by any compulsorily applicable law).
3) DOCUMENTS
3.1. The Buyer must immediately on the request of Beach Road provide all instructions, information and assistance necessary to allow Beach Road to perform its obligations under this Contract, including the preparation and presentation of documents required to enable the export of the Goods, in accordance with this Contract.
3.2. The Buyer must immediately reimburse Beach Road on presentation of an invoice for any costs or expenses incurred by Beach Road arising from, or in connection with, any amendment, replacement or variation to the documents referred to in Clause 3.1 (whether requested by the Buyer or caused or contributed to by any act or omission of the Buyer).
4) BEACH ROAD WINES’ OBLIGATIONS REGARDING SHIPMENT
4.1. Beach Road must contract on the usual terms for the carriage of goods in the nature of the Goods, from an Australian port to a safe and reliable discharge port within the country or administrative region identified in the Order Confirmation (Discharge Port). Beach Road is entitled to select whichever Australian port it considers appropriate as the port of loading.
4.2. Beach Road does not guarantee the arrival time of the Goods at the Discharge Port. Although Beach Road will endeavour to comply with any requested delivery date appearing in the Order Confirmation, it will not be liable to the Buyer in the event that the Goods are delivered after the requested delivery date.
4.3. If the Buyer fails to have the necessary documents required to take lawful possession of the Goods when the Goods are ready for collection at the Discharge Port, Beach Road will not be liable for any costs payable to secure release of the Goods (including, but not limited to, detention/demurrage charges).
5) LICENCES AND PERMITS
5.1. Subject to this Clause 5, all export licenses shall be for the account and responsibility of Beach Road Wines.
5.2. All import licenses, permits and/or duties and/or taxes, if any, present or future, to be for the Buyer’s account and responsibility. Any and all costs, consequences, delays, detentions etc. related to the Buyer’s failure to obtain necessary import licenses, labelling permits, quarantine approvals etc., is for the Buyer’s account and risk.
5.3. Any change in the present structure in import duties or levies or taxes of whatsoever nature imposed by any government, quasi-government or private entity in the importing country, or reactions to such changes by the exporting country’s relevant government or quasi-government authorities (collectively Changes) shall be solely for the Buyer’s account and responsibility and the Buyer shall not be entitled to argue that any such Changes constitute an event of force majeure.
5.4. No losses sustained by the Buyer as a consequence of any Changes may be claimed by the Buyer as against Beach Road in contract, tort or otherwise. The Buyer shall be liable for, and shall indemnify Beach Road in respect of, any losses, costs or expenses incurred by Beach Road whatsoever, as a result of any such Changes, or arising from the Buyer not supplying Beach Road within the time limit herein with all necessary import licenses / import permits and all other required information and/or documentation, being fully compliant with the requirements as communicated by either the importing or exporting government, or any quasi-government authority or same.
6) RISK AND INSURANCE
6.1. The Goods will be shipped strictly on FOB terms (Incoterms 2010) (FOB terms) unless another Incoterm is identified in the Order Confirmation.
6.2. Beach Road must insure the Goods, but only to the extent required on FOB terms (regardless of whether FOB terms, some variation of FOB terms, or some other Incoterm is applicable).
6.3. Notwithstanding when payment of the Contract Price may be due to be paid, or is paid, to Beach Road under this Contract, or when title in the Goods is intended to pass to the Buyer under this Contract, the Buyer acknowledges that under this Contract it shall bear:
(a) all risks of loss of or damage to the Goods from the time the Goods are delivered on board the carrying vessel at the port of shipment; and
(b) any liability for any general average contribution for any event of general average which occurs during the period that the Buyer was on risk under this Contract, and shall indemnify and hold harmless Beach Road in the event that a claim for any general average contribution is commenced against Beach Road.
6.4. The Buyer shall take out insurance with reputable underwriters to insure the Goods for the period of time it is on risk as per clause 6.3 above. The Buyer must produce evidence of such insurance cover at Beach Road’ request.
6.5. The Buyer warrants that such insurance will be at least in accordance with the Institute Cargo Clauses “A” produced by the Institute of London Underwriters for 110% of the CFR value of the Goods.
7) PAYMENT
7.1. Payment is to be made by the Buyer to Beach Road wines before the wines will be shipped.
7.2. All payments made under this Contract must be by electronic transfer, in AUD and to Beach Roads’ nominated Bank. All banking charges in the Buyer’s country of incorporation or the country of the Discharge Port are for the Buyer’s account.
8) RETENTION OF TITLE
8.1. Ownership, property, and title in the Goods shall remain with Beach Road Wines until the Buyer has paid all monies owing to Beach Road for the Goods.
8.2. The Buyer shall keep the Goods separate and clearly identifiable as property of Beach Road until property in the Goods has passed to the Buyer.
8.3. Beach Road may demand in writing that the Buyer return the Goods or any part of them at any time until property in the Goods has passed to the Buyer.
8.4. If the Buyer sells the Goods (or something incorporating those Goods) in contravention of this clause, the proceeds of sale shall be the property of Beach Road and the Buyer shall hold such proceeds on trust for and on behalf of Beach Road.
9) LIABILITY
9.1. Nothing in this clause or in any other part of the Contract operates to exclude, restrict or modify the application of any implied condition or warranty, the exercise of any right or remedy (including a right to indemnity), or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, the exclusion, restriction or modification of which would contravene that statute or cause any term of this Contract to be void (“Non-excludable Obligation“).
9.2. Except in relation to Non-excludable Obligations and as otherwise set out in this Contract, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statue, custom, or the general law that impose any liability or obligation on Beach Road are expressly excluded under this Contract.
9.3. Except in relation to Non-excludable Obligations, Beach Road’ liability to the Buyer arising directly or indirectly under or in connection with this Contract, or the performance or non-performance of this Contract and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(a) Beach Road shall not be liable for any lost profits or indirect, special, incidental, consequential or punitive damages (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data) for any claim arising out of or in connection with this agreement, regardless of the type of claim and whether or not Beach Road has notice of possible damage; and
(b) if Beach Road breaches any provision of this Contract, Beach Road’ sole and maximum liability shall be limited to AU$500.
9.4. The Buyer may only bring an action under this Contract provided such action is brought within 9 months of the delivery of an Order Confirmation signed for and on behalf of the Buyer to Beach Road unless it is a claim for indemnity in relation to a third party claim, in which case such action must be brought within 6 months of the delivery of an Order Confirmation signed for and on behalf of the Buyer to Beach Road.
10) INDEMNITY
The Buyer shall indemnify Beach Road in full for any loss, cost, expense or penalties suffered or incurred by Beach Road (Losses) arising directly or indirectly as a result of, or in connection with, any act or omission of the Buyer under this Contract. The Buyer must pay Beach Road in full for such Losses upon presentation of a claim for such Losses, without any deduction, withholding, counter-claim or set-off.
11) FORCE MAJEURE
11.1. The Buyer acknowledges that any failure to obtain necessary import permits, change of import policies or taxes shall not qualify as an event of ‘force majeure’ and any losses, costs or expenses arising from any such failures shall be for the Buyer’s liability and account.
11.2. The parties agree that nothing in this Contract:
(a) allows the Buyer to declare force majeure if the loading of the Goods has commenced;
(b) excuses the Buyer from its obligation to pay any sums due under this Contract including, without limitation, the Contract Price, demurrage and any sums accrued due or payable prior to termination of this Contract; and
(c) obliges Beach Road to fulfil their obligation to deliver the Goods by sourcing comparable goods from an alternative supplier.
12) PRODUCT RECALLS
In the event of a recall of any of the Goods, whether voluntary or as required by a governmental authority, the Buyer must immediately cease distribution of the affected Goods upon notice thereof and otherwise cooperate with Beach Road in all respects relating to such recall. The Buyer must also maintain and make available to Beach Road such records pertaining to its distribution of the Goods as reasonably required by Beach Road from time to time so as to facilitate Beach Road’ ability to effect a recall of affected Goods or otherwise identify consumers who may have such Goods.
13) INTELLECTUAL PROPERTY
All intellectual property rights in the Goods are owned by Beach Road. Nothing in this Contract is intended to transfer, assign or grant any intellectual property rights in the Goods.
14) OTHER CONDITIONS
14.1. Banking Expenses: All collection charges and banking expenses (if any) incurred by the Buyers to be for the Buyers account. Any payment effected by telegraphic transfer in accordance with this Contract must be without any costs to Beach Road.
14.2. Discharge Costs: All discharge costs, including port dues, taxes, custom fees, licenses, etc., on the cargo are for Buyer’s account.
Assignment: The Buyer shall have no right to assign, transfer or otherwise dispose of any of its rights or obligations under this Contract without the express written consent of Beach Road (which consent may be given, given on conditions, or withheld, in Beach Road’ sole discretion).
14.4. Waiver: No waiver by either party of any right, power or remedy or of any provision of this Contract shall be effective unless and to the extent that it is expressly made and reduced to writing.
14.5. Amendment: No amendment of any provision of this Contract shall be effective unless the amendment is reduced to writing and signed by both parties.
15) SANCTIONS, ANTI-CORRUPTION LAWS AND IMPORT/EXPORT RESTRICTIONS
15.1. The parties warrant, represent and undertake to each other, that they will comply with all applicable laws, rules and regulations including without limitation Sanctions, anti-corruption, anti-money laundering and tax laws in performing this Contract.
16) GOVERNING LAW
16.1. This Contract is governed by the laws of South Australia.
17) ARBITRATION
Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one arbitrator. The language of the arbitration shall be English.
18) INTERPRETATION
18.1. All defined terms in these terms and conditions have the same meaning as in the relevant Order Confirmation.
18.2. In the event of any inconsistency between these terms and conditions and the relevant Order Confirmation, the former will prevail.
