Schedule D: Conditions of Sale

Australia, New Zealand and Asia

1. All Orders subject to these Conditions. By accepting delivery of any of the goods or the provision of any services by TWE, the purchaser agrees to be bound by these Conditions of Sale. The seller may accept any order for the supply of goods or services in whole or in part, or decline any order. Where the seller delivers only part of an order, these Conditions of Sale apply to the goods or services delivered. The seller shall be under no liability to the purchaser in respect of those goods and services that it is unable to supply to the purchaser (whether or not it has previously accepted an order to supply such goods or services).

2. These conditions prevail. Unless otherwise agreed in writing by the seller, these Conditions of Sale prevail over the terms of any order, even if the terms of any order provide otherwise.

3. Price. The prices charged by the seller as set out in the seller’s applicable price list may be altered without notice and any resulting increase shall be added to the purchase price. Such price or prices quoted for purchases from the seller are subject to any increase in the amount of excise duty, VAT, freight or insurance between the date of order and date of delivery and any such amount shall be added to the purchase price and be payable by the purchaser to the seller.

4. Payment. The purchaser will pay the seller by cash, cheque, electronic funds transfer (or other payment method approved in writing by the seller), the purchase price of the goods or services described by TWE within the time provided in any invoice or statement (or if no time is specified, on demand by the seller).

5. VAT/GST. If any value added tax (VAT) or goods and services tax (GST) is imposed on the supplier in respect of any supply made under or in accordance with these Conditions of Sale, the purchaser must pay to the seller an additional amount equal to the VAT payable on or for the taxable supply, subject to the purchaser receiving (if required by law) a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with these Conditions of Sale.

6. Failure to pay. If:

(i) the purchaser fails to pay the purchaser’s debt to the seller as and when due and payable or otherwise fails to comply with its obligations under these Conditions of Sale;

(ii) a receiver, receiver and manager, liquidator, provisional liquidator or official manager, administrator, controller or trustee in bankruptcy is appointed over all or any of the assets of the purchaser or a scheme of arrangement is proposed or approved in respect to the purchaser; or

(iii) a petition is presented for the winding up or bankruptcy of the purchaser; then the seller may at its option exercise all or any of the following rights (notwithstanding any prior failure to exercise such rights):

(A) demand payment of the whole of the purchaser’s debt then outstanding, and the purchaser agrees to pay the same immediately;

(B) take possession of all goods title to which has not passed to the purchaser (and for that purpose the purchaser authorises the seller to enter any premises where the goods may be situated and to take possession of them); and/or

(C) with or without taking possession of the goods, sell the goods by public auction or by private treaty by retail or wholesale for cash or on terms and generally as the seller thinks fit and apply the proceeds actually received by the seller after defraying expenses of sale and enforcement towards reduction of the purchaser’s debt.

7. Interest. If payment is not made by the purchaser by the due date in accordance with clause 6, then the purchaser must pay to the seller interest on the purchaser’s debt computed from the due date until payment is made at such reasonable rates as the seller shall from time to time stipulate.

8. Default costs. The purchaser will pay on demand to the seller the seller’s costs and expenses of legal advisers, mercantile agents and other agents acting on the seller’s behalf in respect of any recovery or attempted recovery of the purchaser’s debt.

9. Title in goods. The purchaser agrees that the legal title to and ownership of the goods is retained by the seller until and is only transferred to the purchaser upon payment by the purchaser to the seller of all sums owing to the seller, whether under this or any other contract with the seller.

10. Risk in goods. Notwithstanding any other provisions of the contract, risk in the goods shall pass to the purchaser when the goods are delivered to the purchaser.

11. Delivery. Delivery shall be deemed to have occurred upon the seller delivering the goods to the purchaser’s premises. In the event of FOB/FOR contracts, delivery shall occur when the goods are placed on the truck, carriage or other vessel at the departure point. In addition to the foregoing, whenever the contract specifies that the goods will be delivered FOB the following conditions shall also apply:

(a) Premiums paid for insurance, if any, against war risk shall be added to the purchase price and be payable by the purchaser.

(b) The seller will at its own expense deliver the goods to the carrier for carriage to ship wharf or shipping agents at port of shipment but the purchaser will assume all risks in the goods at the point of despatch.

(c) Goods will be invoiced at the point of despatch and FOB credit terms will apply.

(d) The purchaser assumes responsibility for payment to terms notwithstanding the geographical location of the goods at the due date.

(e) Weight quantity and/or number specified are intended as approximate only and the seller shall be permitted a margin of up to 10% more or less.

(f) Tender to purchaser of the seller’s order on the vessel or the vessel’s agent or bond, warehouse keeper or carrier shall be equivalent to the seller’s tender of a policy of marine insurance.

(g) Insurance may be FPA or WPA (with or without war risk) and for such amount as the seller considers appropriate in the circumstances and may be effected under the seller’s open policy. A certificate of insurance or other extract or document notifying the existence of an insurance policy covering the goods shall be sufficient in lieu of a policy of insurance.

(h) Ship’s Bill of Lading shall be prima facie evidence of the facts stated therein.

(i) The contract shall be governed by and construed according to the law for the time being in the relevant exporting country.

12. No liability for delay. The seller shall not be responsible or accept any liability for delay or non-delivery of the goods and if in any circumstances late delivery is tendered by the seller, the purchaser shall accept and pay for the goods when tendered. Each delivery shall be regarded as a separate contract and failure of any delivery shall not affect the contract as to any other delivery.

13. Expenses. If the purchaser fails to take delivery the seller reserves the right to charge expenses incurred as a result of such failure.

14. Inspection. All goods must be examined at the time of delivery and any obvious loss or damage noted on any delivery documents signed by the purchaser. The seller accepts no liability for loss of or damage to goods in transit unless the purchaser:

(a) Retains for inspection all packaging materials relative to damaged goods

(b) Endorses any delivery documents with details of any obvious loss or damage, and

(c) Notifies the seller and any independent carrier in writing of any claim for loss or damage before the expiry of three days after delivery

(d) Notifies the seller of non-delivery within two working days of the due date of delivery.

15. Storage of goods. If payment in full for the goods has not been received by the seller, the purchaser shall hold the goods on a fiduciary basis only and as bailee for the seller and the purchaser shall at its own expense keep the goods properly and safely stored by reference to the particular contract separately from any other goods held by the purchaser and in good condition and marked in such way that they are clearly identifiable the property of the seller.

16. Seller’s liability. The purchaser agrees that:

(a) all implied conditions and warranties on the part of the seller in relation to any goods or services to be supplied by the seller hereunder are excluded to the maximum extent permitted by law;

(b) in respect of any liability which the seller cannot exclude, the seller’s liability is limited, at its option, to the replacement, repair or resupply of the goods or services, or a refund of the cost of the goods or services; and

(c) subject to any non-excludable rights conferred on the purchaser by legislation, no claims in respect of any goods or services supplied by the seller shall be recognised by the seller unless made in writing and notified by the purchaser to the seller within 7 days of delivery of the goods or the supply of the services to the purchaser. Unless the seller is required to do so by law, no goods may be returned or exchanged by the purchaser without the seller’s prior written consent (which consent may be exercised at the seller’s absolute discretion with or without conditions).

17. Authority to deal with goods. Unless the seller directs otherwise, the purchaser may dispose of any goods purchased from the seller to third parties by way of bona fide transactions in the normal course of its business and by such sale and supply assigns the proceeds to the seller absolutely and not by way of security. The purchaser acknowledges that the sale of the goods by an administrator or receiver shall not be a sale in the ordinary course of the purchaser’s business.

18. Fiduciary relationship. The proceeds of sale of any goods owned by the seller received by the purchaser shall be held by the purchaser on trust for the seller and forthwith on receipt therefore the purchaser shall pay the same to the seller. The relationship of the purchaser to the seller shall be fiduciary and the seller shall have the right to trace and claim the proceeds of any disposition whatsoever of such goods.

19. Pallets. Pallets supplied with the goods are not sold and do not become the property of the purchaser. Pallets shall be held by the purchaser and kept in good order and condition for collection by the seller or its authorised agents. A pallet for pallet exchange is required or pallets are to be de-hired to the purchaser where applicable. In the event of a non return or failure to de-hire, a fee equivalent to the hiring charge may be invoiced to the purchaser until such time as the pallets are redeemed and/or the pallet accounts are reconciled.

20. Consignment parcels. The goods may be consigned or shipped to the purchaser in one or more parcels in one or more vehicles or ship’s holds and at varying times. Any one or more of such parcels may from part of a larger consignment.

21. Compliance. All goods purchased from the seller for:

(a) Resale must be sold by the purchaser only in the condition as sold or prescribed by the seller and in particular, all labels, capsules, corks, stoppers and packaging must remain intact and not be tampered with, altered or obliterated in any way.

(b) Consumption on licensed premises shall be sold from or in the container and in the condition as sold or prescribed by the seller, but this sub-clause shall not prevent or restrict the decanting and sale by the open carafe or wine purchased in bottle from the seller.

22. Time of essence. Stipulations as to time in any contract for the sale of products shall be of the essence of the contract.

23. Evidence. In the absence of manifest error, a statement signed by an authorised representative of the seller in respect of goods or services ordered or supplied or in respect of any amount owing by the purchaser, shall be conclusive evidence of such matters.

24. Severability. If a provision or term of the contract is or may be void or unenforceable, then such provision or term to the extent of such invalidity or unenforceability is hereby agreed to be severable and the seller and the purchaser agree that the severance of such term or provision shall not affect the continued operation of all the other provisions of the contract.

25. Waiver and amendment. No failure or delay in exercising any right of the seller under these Conditions of Sale shall operate as a waiver of such right. The seller reserves the right to amend these Conditions of Sale from time to time. Such amended Conditions of Sale shall supersede all Conditions of Sale previously issued by the seller.

26. Notice of change of details. The purchaser shall give one months notice to the seller of any change in the trading entity, the name of its principals, trading name and/or licensee.

27. Governing law. The contract shall be governed by and construed according to the law for the time being applicable in the relevant country of the seller.

28. Definitions. In these Conditions of Sale, unless the contrary intention appears:

(a) “goods” means any and all goods or items supplied by the seller to the purchaser;

(b) “purchaser” means the person, firm or company placing an order with the seller for the supply of goods or services;

(c) “purchaser’s debt” means any moneys which the purchaser may owe to the seller in respect of the supply of goods or services or on any other account or for any other reason whatsoever;

(d) “purchaser’s premises” means the purchaser’s usual place of business or place nominated by the purchaser to be the place where goods are consigned from the seller to the purchaser;

(e) “purchase price” means the price stated in this invoice or any statement of account in respect of goods or services or, if no such price is stated therein, the seller’s normal selling price applicable to the goods or services as notified by the seller to the purchaser from time to time;

(f) “seller” means the entity described or indicated as the seller (or on any document attached or relevant to these Conditions of Sale) and which supplies any goods or services to the purchaser in its own right or as agent for a third party (whether or not the fact of agency is disclosed to the purchaser); and

(g) “seller’s premises” means the place from where goods are consigned by the seller to the purchaser.

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