General Terms and Conditions of Sale (Goods)
These terms and conditions of sale (Terms) apply to Coca-Cola Amatil (Aust) Pty Ltd (ABN 68 076 594 119) and/or Feral Brewing Company Pty Ltd (ABN 26 097 759 263) (Amatil).
2. Supply of Goods
(a) The Customer's order for Goods is an offer by the Customer to Amatil, which Amatil may accept or reject, in its absolute discretion. A quotation by Amatil is not an offer.
(1) quotation by Amatil;
(2) response by Amatil to a Customer enquiry; or
(3) order made by a Customer and accepted by Amatil,
is not effective unless made in writing, and will be subject to these Terms.
(c) The Customer is responsible for correctly entering all information required to place an order for the Goods. If Amatil accepts the Customer's order for Goods, Amatil will sell, and the Customer will acquire and pay for, the Goods in accordance with these Terms, current at the date the order was placed by the Customer. The price for the Goods is calculated at the time of payment. There may be variations to the price between the time of placing an order and the time of payment. Any changes to pricing will be in accordance with Amatil's price list.
(d) For the avoidance of doubt, if Amatil has entered into a separate written agreement with the Customer for sale of the Goods:
(1) unless that other agreement specifies otherwise, these Terms apply in addition to the terms of that other agreement; and
(2) the terms of that other agreement prevail over these Terms to the extent of any inconsistency.
3. Delivery of Goods
(a) Amatil will take reasonable steps to deliver the Goods by the Delivery Date to the Delivery Point. If Amatil is unable to do so, we will work with you to minimise the impact to your business.
(b) Amatil may deliver the Goods in instalments.
(c) Delivery occurs when the Goods are unloaded from Amatil's transport at the Delivery Point.
(d) If the Customer has not paid for delivered instalments in accordance with these Terms, Amatil may refuse to deliver any further instalments. .
4.Ownership will pass on payment and risk will pass on delivery
(a) Ownership of the Goods will pass to the Customer once the Customer has paid Amatil the Purchase Price and any other monies that may be payable to Amatil, in accordance with these Terms.
(b) Risk in the Goods will pass to the Customer on delivery.
(c) Until ownership passes to the Customer.
(1) the Customer must:
(A) hold the Goods as fiduciary and bailee for Amatil;
(B) only sell or otherwise deal with the Goods as fiduciary (but not agent) of Amatil and in the ordinary course of the Customer's business; and
(C) hold any debts owing from sales under clause 4(c)(1)(B) for Amatil and assign such debts to Amatil.
(2) Amatil may retake possession of the Goods if an Event of Default by the Customer occurs and may, for that purpose, enter any premises occupied by the Customer where those Goods are held and remove those Goods.
(d) For the purposes of the Customer selling the Goods under clause 4(c)(1)(B), and subject to the Customer fulfilling its obligations under clause 4(c)(1)(C), Amatil gives the Customer the right to pass ownership of the Goods to any person who acquires the Goods from the Customer.
(e) If, at any time, Amatil wishes, or is required to, take any further step to protect its interest in the Goods under this clause 4, for example by registering its interest, the Customer agrees to provide any assistance which may be required by Amatil for that purpose.
(a) Subject to clause 5(g), the Customer must pay Amatil the Purchase Price for the Goods in advance of, or in cash on, delivery.
(b) If the Goods are delivered in instalments the Customer must pay the amount for the instalment specified in the Invoice.
(c) Payment of the Purchase Price and other monies payable by the Customer to Amatil under these Terms must be without deduction, withholding, set-off or counterclaim.
(d) Payment by cheque is not made until the cheque is honoured in full.
(e) If for reasons of practicality Amatil does not, or is unable to, collect payment in advance of or on delivery, or if Amatil otherwise agrees not to demand payment of the Purchase Price at the time it becomes payable, then, unless Amatil agrees otherwise in writing, the Purchase Price must be paid immediately on demand made by Amatil and in any case within 2 Business Days of when the Purchase Price became payable.
(f) If the Customer fails to pay the Purchase Price in full as required by this clause 5, Amatil may, in addition to any other rights it may have at law:
(1) require the Customer to pay a Late Payment Fee on any unpaid amount; and/or
(2) exercise its rights under clauses 12 and 4(c)(2).
(g) If the Customer has entered into an agreement with Amatil for a credit facility, the terms of that agreement prevail over this clause 5.
6. Goods and Services Tax
(a) Terms defined in the GST Law have the same meaning in this clause 6 unless the context otherwise requires.
(b) Unless expressly provided otherwise, all amounts and other consideration payable under or in connection with these Terms (including the Purchase Price) are exclusive of GST.
(c) If GST is payable on a taxable supply made by Amatil to the Customer, Amatil may recover from the Customer the amount of that GST (GST Amount) in addition to any consideration otherwise payable or provided for the supply.
(d) The Customer must make payment of the GST Amount to Amatil at the same time and in the same manner as it provides the consideration, or any part of it, for the relevant supply subject to the Customer receiving a tax invoice on or before the due date for payment.
(e) If there is an adjustment event in relation to a supply which results in the amount of GST on a supply being different from the GST Amount, Amatil must issue an adjustment note to the Customer, and
(1) may recover from the Customer, by giving 7 days written notice, the amount by which the GST on the supply exceeds the GST Amount; or
(2) must refund to the Customer, within 7 days of becoming aware of the adjustment event, the amount by which the GST Amount exceeds the amount of GST on the supply.
(f) If a party is entitled to be reimbursed or indemnified under these Terms for an amount, the amount reimbursed or indemnified is reduced by the amount of GST for which the party has an entitlement to claim an input tax credit. It is to be assumed that there is an entitlement to a full input tax credit on an acquisition associated with the reimbursement or indemnity, unless the party to be reimbursed or indemnified demonstrates otherwise before the date the payment is to be made.
(a) Amatil warrants that the Goods will, on the date of delivery, comply with all applicable laws including the Australian Consumer Law.
(b) The Customer warrants that:
(1) it will maintain all Approvals required under these Terms;
(2) if the Goods include alcohol, it has and will maintain a liquor licence (unless exempted by law) which permits the purchase and acceptance of alcohol at the Delivery Point;
(3) it will handle and store the Goods at all times as directed by Amatil or in accordance with industry standards in the absence of such direction; and
(4) it has product safety and product recall procedures in place which conform with the requirements of all applicable laws.
8. Customer rights and obligations regarding Defective Goods
(a) The Customer must inspect the Goods on or immediately after delivery.
(b) If the Customer becomes aware that any Goods are Defective as at the time the Goods are delivered, the Customer may make a claim against Amatil within 7 days of delivery.
(c) To the maximum extent permitted by law, the Customer is deemed to have accepted the Goods if it does not make a claim against Amatil in accordance with clause 8(b).
9. If there is a Force Majeure Event
(a) If Amatil is, or is likely to be, affected in delivering all or any of the Goods under these Terms by a Force Majeure Event and promptly gives the Customer notice of that fact, then Amatil may:
(1) suspend delivery for so long as the Force Majeure Event continues; or
(2) reduce the quantity of the Goods to be delivered.
(b) If the Force Majeure Event continues for more than one calendar month and an order for Goods made under these Terms remains undelivered, either party may cancel that order.
(c) The Customer will have no claim against Amatil for any Loss suffered as a result of any delay or cancellation of orders under this clause 9.
10. Amatil's liability
To the maximum extent permitted by law:
(a) Amatil's liability for any Loss arising from any Defect, or non-compliance with a condition or warranty, in the Goods is:
(1) excluded; or
(2) if it cannot be excluded, limited to, at Amatil's election, acting reasonably:
(A) replacement of the Goods;
(B) supply of equivalent goods; or
(C) payment of the cost of replacing the Goods or aquiring equivalent goods;
(b) Amatil will not be liable to the Customer, whether under contract, tort, statute or in equity, arising out of or in connection with these Terms for any Consequential Loss; and
(c) Amatil is not liable to the Customer for any Loss to the extent caused or contributed to by the act or omission of the Customer or the Customer's Personnel.
11. Customer indemnifies Amatil
(a) The Customer indemnifies the Indemnified Parties against, and must pay the Indemnified Parties on demand, the amount of any Loss which the Indemnified Parties suffer or incur arising out of or in connection with third party claims in relation to the Goods and arising out of a breach by the Customer of these Terms.
(b) The liability of the Customer to indemnify the Indemnified Parties will be reduced proportionally to the extent that a negligent act or omission of the Indemnified Parties contributed to the Loss.
12. If there is an Event or Default
(a) In these Terms, Event of Default means the Customer: (a) fails to pay any amount that is due and payable by it under these Terms; (b) commits a breach of these Terms which is capable of remedy but does not remedy the breach within 10 Business Days of notice by Amatil; (c) commits a material breach of these Terms which is not capable of remedy; (d) becomes, threatens to become or is in jeopardy of becoming Insolvent; (e) does anything that materially damages, or is likely to materially damage, the reputation, brand or goodwill of Amatil or its Related Entities; (f) or any Customer Personnel endangers Amatil Personnel by engaging in conduct that would reasonably be considered as aggressive or threatening; or (g) creates or permits to exist any security interest over any of the Goods, unless Amatil is the secured party or the security interest is created by a security over all present and after acquired property of the Customer in circumstances where Amatil will have the first priority security interest over the Goods.
(b) If an Event of Default occurs, Amatil may, in addition to any other rights it may have at law and under clause 4(c)(2):
1.cancel any orders for Goods under these Terms which remain undelivered;
2.require the Customer to immediately pay all monies payable under these Terms;
3.enforce its security interest in any Collateral by exercising all or any of its rights under clause 4(e) and this clause 12. To the extent the law permits:
(A) for the purposes of sections 115 (1) and 115 (7) of the PPSA:
(aa) Amatil need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
(bb)sections 142 and 143 are excluded;
(B) for the purposes of section 115(7) of the PPSA, Amatil need not comply with sections 132 and 137(3); and
(C) if the PPSA is amended after the date of this document to permit the Customer and Amatil to agree to exclude other provisions of the PPSA, Amatil may notify the Customer that it need not comply with any of those provisions as notified by Amatil to the Customer; and/or
4. withdraw any credit facility provided by Amatil to the Customer, vary the Period of Credit, or vary the Credit Limit.
13.The Customer's right to cancel orders
(a) The Customer may cancel any orders for Goods made under these Terms if Amatil:
(1) commits a breach of these Terms which is capable of remedy but does not remedy the breach within 10 Business Days of notice by the Customer;
(2) commits a material breach of these Terms which is not capable of remedy; or
(3) becomes, threatens to become or is in jeopardy of becoming Insolvent,
so long as the Customer does so prior to those Goods being delivered.
a) This clause 14 applies if Amatil places equipment for the merchandising, dispensing or refrigeration of Amatil’s Goods (Equipment) at the Customer’s premises, unless the parties have entered into a separate agreement in respect of the Equipment.
(b) The Customer agrees that:
(1) the placement of Equipment under these Terms is a bailment and title to the Equipment remains with Amatil at all times;
(2) risk passes to the Customer upon delivery;
(3) Amatil may, at any time, take any further step to protect its interest in the Equipment, including by registering its interest under the PPSA, and the Customer agrees to provide any assistance which may be required by Amatil for that purpose;
(4) unless otherwise agreed with Amatil, the Equipment is only for use in relation to the merchandising, sale, dispensing or refrigeration of Amatil’s Goods;
(5) it will ensure that no person other than Amatil’s Personnel install, repair, remove or relocate the Equipment;
(6) it must do all things reasonably necessary to protect Amatil’s ownership of the Equipment and must not do anything which might adversely affect Amatil’s ownership in the Equipment. It must not part with possession or control of the Equipment at any time, or attempt to sell it;
(7) it is responsible for any power, water, or drainage supply as reasonably required for the Equipment to operate at the Customer’s premises;
(8) it shall not modify or alter the Equipment in any way or remove any asset plates, trade marks or other markings;
(9) it must use the Equipment safely and in accordance with all applicable laws;
(10) it must clean and take reasonable care of the Equipment and protect it against theft, vandalism or unauthorised interference;
(11) it must, as soon as reasonably practicable, inform Amatil of any damage, defect, interference, fault, or breakdown in performance of the Equipment;
(12) it must insure the Equipment for full value against loss, damage, destruction, theft, accident or malicious damage, of any kind and however caused;
(13) it must maintain public liability insurance with a limit of no less than $5,000,000 per occurrence;
(14) it must give Amatil access to the Equipment upon reasonable notice, including to install, maintain, repair, or remove the Equipment; and
(15) it must give Amatil at least 30 days’ prior written notice if the Customer changes ownership, changes or vacates the premises at which the Equipment is installed, or sells or otherwise disposes of its business, so that Amatil may remove the Equipment.
c) This clause 14 applies at all times while any Equipment placed by Amatil is at the Customer’s premises.
d) Amatil may remove the Equipment in accordance with clause 14(b)(15) above or at any time by giving the Customer 14 days’ written notice.
e) The Customer may request removal of the Equipment by giving Amatil 28 days’ written notice.
f) The Customer must cooperate with Amatil during removal of Equipment, and must not prevent or block such removal in any way.
g) Nothing in these Terms obliges Amatil to place any Equipment at the Customer’s premises.
15. Personal Property Securities Act
(a) If a term used in this clause 15 or elsewhere in these Terms has a particular meaning in the PPSA, it has the same meaning in these Terms.
(b) The Customer acknowledges that Amatil may register one or more financing statements in relation to any security interest provided for by these Terms. If permitted by the PPSA, the Customer waives its right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.
(c)The Customer must:
(1) do or cause to be done anything that Amatil reasonably considers necessary or desirable to perfect and protect any security interest Amatil may have under these Terms;
(2) provide Amatil with all information Amatil requires in order to ensure that any registration of any security interest that may be granted in favour of Amatil under these Terms is, and remains, fully effective and with the priority that Amatil requires.
(d) The Customer undertakes, if it disposes of any Collateral, that it will receive proceeds at least equal to the market value of the Collateral, and that it will not allow any other security interest to exist over those proceeds if that security interest could rank ahead of Amatil's security interest. If such a security interest does arise despite the previous sentence, the Customer must ensure that it receives cash proceeds for the security interest at least equal to the market value of the proceeds, and must immediately pay those proceeds to Amatil in reduction of the amount owing.
(a) Amatil will ensure that all of its dealings with Personal Information in connection with these Terms comply with applicable Privacy Laws.
(c) Amatil will use personal information about you which you or others have provided at any time in order to manage Amatil’s relationship with you. You agree to receive communications from Amatil (including by email and SMS) in connection with the supply of Goods or services and operation of your account and, unless you opt out (which you can do via the myCCA preference centre or by calling 13 COKE), also any other communications from Amatil, including business updates, reminders, surveys and marketing.
(a)The Customer will not assign its rights under these Terms without Amatil's prior consent.
(b) If any part of these Terms is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Terms.
(c) If an amount is payable by the Customer to Amatil, Amatil is entitled to set off that amount against any amount payable by Amatil to the Customer.
(d) Clauses 4 (Ownership will pass on payment and risk will pass on delivery), 6 (Goods and Services Tax), 10 (Amatil's liability), 11 (Customer indemnifies Amatil), 15 (Personal Property Securities Act) and this clause 17 (General) survive the cancellation of orders under these Terms.
(e) Subject to clauses 2(d) and 5(g), these Terms constitute the entire agreement between Amatil and the Customer in relation to their subject matter. Any terms printed on the Customer's invoice or other documentation do not apply unless agreed to in writing by Amatil.
(f) These Terms are governed by and construed in accordance with the law of New South Wales and the parties submit to the jurisdiction of the Courts of New South Wales. The United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) is excluded.
(g) Amatil may subcontract its obligations without the Customer's prior consent.
(h) No claim or right of Amatil under these Terms shall be deemed to be waived or renounced in whole or in part unless confirmed in writing by Amatil.
(i) The Customer will assist Amatil as reasonably required in the event of a product recall over Goods the Customer has acquired from Amatil.
(j) Amatil and the Customer are independent contractors and not employees, partners or joint venturers.
The following definitions apply in these Terms:
Approval means any permit, consent, authorisation, registration, filing, lodgement, notarisation, certificate, endorsement, permission, licence (including process licences), approval, authority or exemption by, or with, an Authority and including any condition or requirement imposed under any of the foregoing.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Authority means any government department, local government, governmental or statutory authority, or other party which has a right under a law to impose a requirement or whose consent is required in relation to these Terms.
Business Day means any day other than a Saturday, Sunday or a public holiday in New South Wales.
Collateral means the Goods, any proceeds of the Goods, and any product or mass that the Goods may be or become part of.
Consequential Loss means any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity, or cost of finance.
Corporations Act means the Corporations Act 2001 (Cth).
Credit Limit means the amount of credit set out in the terms of the relevant agreement for a credit facility between Amatil and the Customer (if any).
Customer means any person who submits an order for Goods to Amatil.
Defect means an aspect of the Goods that is Defective.
Defective, in relation to the Goods, means that they: (a) do not comply with the requirements of these Terms; or (b) have an error, defect, fault, omission or malfunction.
Delivery Date means the date provided by Amatil to the Customer on which Amatil predicts it will deliver the goods.
Delivery Point means the Customer's place of business or an otherwise agreed location for delivery.
Equipment is defined in clause 14.
Force Majeure Event means an event which is beyond the reasonable control of, and without the fault or negligence of Amatil and/or its Personnel, and which results in Amatil being unable to observe or perform on time an obligation under these Terms, but specifically excludes: (a) lack of available shipping or transport; (b) failures of Personnel, suppliers, subcontractors, public utilities or carriers; (c) any industrial action or labour disturbance; or (d) any event or circumstances which would have been avoided or substantially mitigated by normal planning and prudent business management or the relevant party exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced party engaged in the same type of undertaking under the same or similar circumstances.
Goods means the goods of any kind which Amatil makes available for sale and may include bottled alcoholic and non-alcoholic beverages.
GST is defined in the GST Law.
GST Amount is defined in clause 6(c).
GST Law is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Indemnified Parties means Amatil, its Personnel and any Related Entities of Amatil and each of their respective Personnel.
Insolvent means, with respect to a party, that: (a) it is (or states that it is) insolvent (as defined in the Corporations Act); (b) it has a controller (as defined in the Corporations Act) appointed to any part of its property; (c) it is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property; (d) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction or amalgamation while solvent); (e) an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of the circumstances detailed in any of paragraphs (a), (b), (c) or (d) above; (f) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand; (g) it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which the other party to these Terms reasonably deduces it is so subject); or (h) it is otherwise unable to pay its debts when they fall due.
Invoice means the document provided by Amatil to the Customer upon delivery of the Goods describing those Goods and the Purchase Price.
Late Payment Fee means an amount calculated on a daily basis at a rate equal to 5% plus the Reserve Bank of Australia cash rate as at that day, for the period from delivery of the Goods until the Purchase Price is paid and compounded daily.
Loss means any loss, damage, liability or obligation, tax, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense on a full indemnity basis) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Period of Credit means the number of days within which, from the date of delivery of Goods, the Customer is to pay for the Goods, as set out in the terms of the relevant agreement for a credit facility between Amatil and the Customer (if any).
Personal Information is defined in the Privacy Laws.
Personnel means officers, employees, agents, contractors and consultants engaged by each party (but does not include the other party) and, in the case of the Customer, includes its subcontractors and any employee of those subcontractors.
PPSA means the Personal Property Securities Act 2009 (Cth).
Privacy Laws means: (a) the Privacy Act 1988 (Cth); (b) any legislation (to the extent that such legislation applies to Amatil or the Customer or any other recipient of Personal Information) from time to time in force in any: (i) Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); or (ii) non-Australian jurisdiction (to the extent that Amatil, the Customer or any Personal Information is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and (c) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments having the force of law, made or issued thereunder, as amended from time to time.
Purchase Price means the price to be paid for the Goods calculated by reference to Amatil's price list current at the time of delivery for the region in which the Customer's place of business is located and is the price stated as the Purchase Price in the Invoice. The Purchase Price includes, unless otherwise agreed or required by law, delivery and packing for delivery and, for any State or Territory which has a container deposit scheme in place, the amount of container deposits.
Related Entity means each person that is a subsidiary, holding company or related body corporate of a party.
Warning for alcoholic Goods
Under the liquor laws of all Australian States and Territories it is an offence to supply alcohol to a person under the age of 18 years and for a person under the age of 18 years to purchase or receive liquor. Severe penalties apply for breach. This site will only accept orders for liquor from holders of a current liquor licence issued in any State or Territory. NSW Licence No. LIQW880010306. LIQUOR ACT 2007 (NSW). IT IS AGAINST THE LAW TO SELL OR SUPPLY ALCOHOL TO, OR TO OBTAIN ALCOHOL ON BEHALF OF, A PERSON UNDER THE AGE OF 18 YEARS. NT Permit No. 80082155; QLD Licence No. 131704. VIC Licence No. 33760861; SA Direct Sales Licence No. 51401974; SA Direct Sales Licence No. 51401974. Tasmania Licence No. 66471. WARNING: Under the Liquor Licensing Act 1990 (Tas) it is an offence: for liquor to be delivered to a person under the age of 18 years (Penalty: Fine not exceeding 20 penalty units); for a person under the age of 18 years to purchase liquor (Penalty: Fine not exceeding 10 penalty units). WA Licensee: Coca-Cola Amatil (Aust) Pty Ltd, Wholesaler’s Licence 616019173, Level 1, 19 Miles Road, Kewdale WA, Tel: 132653. WARNING: Under the Liquor Control Act 1988 (WA), it is an offence: to sell or supply liquor to a person under the age of 18 years on licensed or regulated premises; or for a person under the age of 18 years to purchase, or attempt to purchase, liquor on licensed or regulated premises.