TERMS & CONDITIONS OF CREDIT AND SALE
The following Terms and Conditions of Credit & Sale “Terms and Conditions”) apply to any credit supplied by, and any contract for the supply of goods or services by, Cocco Corporation Pty Ltd ACN 007 885 190 in its capacity as trustee for N D Treliving Family Trust ABN 44 682 103 598 (“Company”) to the party named as the customer in the above Credit Application (“Customer”) annexed to these Terms and Conditions (“Contract”). Any other terms and conditions purported to be included by the Customer are hereby excluded. Each time the Customer places an order with the Company the Customer accepts these Terms and Conditions as governing the supply of the goods or services ordered. Amendments to or deviations from these Terms and Conditions must be agreed in writing by the Company.
7.1 The Company shall not be obliged to deliver any goods if the Customer fails to pay any amount which is due and payable. Unless otherwise agreed in writing, the Company will, at the Customer's cost, arrange delivery of the goods to a metropolitan destination of a capital city within Australia nominated by the Customer and the Customer must pay all freight and delivery charges in accordance with the payment terms set out above (that is, the price for goods is on an „ex-works' basis). In the event the Company agrees (on such terms it deems appropriate) to assist the Customer with arranging international delivery, this will be undertaken at the Customer's cost and risk in all things. The Customer must provide the Company with details of its agent/carrier and is responsible for providing all on-forwarding instructions. The Customer indemnifies and must keep indemnified the Company from and against any and all losses, costs, liabilities, claims and expenses (including legal costs on a solicitor and own-client basis) which the Company may suffer or incur in connection with the Company assisting the Customer with arranging international freight and delivery, except to the extent such loss is caused by the willful or grossly negligent acts of the Company.
7.2 The Company makes no warranty as to time of delivery or the availability of goods and the Customer acknowledges that the Company will not be held liable for any loss or damage (including consequential loss or damage) arising from delay in delivery or for non-delivery. Unless otherwise agreed in writing, the Company (or its freight agent) will unload the goods at the risk of the Customer. If the Customer is unable or unwilling to accept physical delivery of the goods when the goods are ready for delivery, the Company shall be entitled to charge a fee for any delay suffered, or to arrange for storage of the goods at the risk and cost of the Customer including all transportation, storage, re-stocking and other consequential costs. The Company may deliver goods in part with written notice to the Customer. If goods are delivered in part pursuant to such notice, the Customer must accept the part-delivery and pay the percentage of the purchase price represented by the goods delivered. The failure of the Company to deliver shall not entitle either party to treat the Contract as cancelled.
10.1 Ownership of each unit of the Goods will remain with the Company until all amounts owing by the Customer to the Company on any account whatsoever (including the purchase price for the Goods) (Amounts Owing) have been paid. Until the Amounts Owing have been paid, the Customer:
10.2 Until the Amounts Owing have been paid, the Customer has the right to move, sell and otherwise use the Goods in the ordinary course of its ordinary business, subject to the following:
10.3 If the Customer fails to comply with any of these Terms and Conditions then:
10.4 If Chapter 4 of the Personal Property Securities Act 2009 (Cth) (“PPSA”) would otherwise apply to the enforcement of a security interest arising in connection with these Terms and Conditions the Customer agrees the following provisions of the PPSA will not apply to the enforcement of these Terms and Conditions: section 95 (notice of removal of accession), to the extent that it requires the Company to give a notice to the Customer; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Customer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
10.5 Notices or documents required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA. The Customer consents to the Company effecting a registration on the PPSA register (in any manner the Company considers appropriate) in relation to any security interest contemplated by these Terms and Conditions and the Customer agrees to provide all assistance reasonably required to facilitate this. The Customer waives the right to receive notice of a verification statement in relation to any registration on the register.
10.6 In this clause 10: