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.
- Orders: All orders for goods must be made using the standard-format order form provided by the Company from time to time. The Customer's first order must be for a minimum order value of $350 (excl. GST, delivery and any other costs). A Customer's second and subsequent orders must be for a minimum order value of $250 (excl. GST, delivery and any other costs). The Company reserves the right to accept or reject any order in whole or in part for any reason, including without limitation the unavailability of any goods. The Company will not be liable to the Customer or any other party for rejecting any order. In the event the Customer requests a change to its order after packing has occurred, the Customer will be charged a $50 re-packing fee. Backorders will only be accepted and processed when agreed in writing by the Company and the Customer.
- Cancellation & Return: The Customer cannot cancel an order for goods, nor delay delivery or collection (as the case may be) once the Company has accepted an order without the Company's consent (which may be granted or withheld in its discretion). If the Company agrees to cancel an order prior to dispatch, the Customer must pay to the Company a cancellation fee equal to ten percent (10%) of the value of the order so cancelled and any other delivery costs incurred by the Company up to the time the order was cancelled. If the Company agrees to the Customer returning goods which have already been dispatched or delivered by the Company, the Customer must return the goods to the Company at its own cost and the Company will only accept the return of such goods on the condition that the Customer pay to Company a cancellation fee equal to twenty-five percent (25%) of the value of the order so cancelled. All goods returned under this clause must be unopened, in re-saleable condition and in their original condition and packaging.
- Payment: Unless otherwise agreed, payment for goods supplied must be made in Australian dollars (AUD$) prior to dispatch of the goods. If the Company has agreed to provide a credit account to the Customer and the Customer is not in default in respect of such credit account, payment for goods must be made not more than 30 days from the date of the invoice issued by the Company for such goods, unless otherwise agreed in writing by the Company. All amounts payable to the Company under this Contract must be paid in full by their due date for payment without deduction or set-off. Payment is not made until received in full in cleared funds by the Company. The Company may set-off any monies owed by it to the Customer against any monies owing by the Customer to the Company.
- Price: All prices quoted are in Australian dollars (AUD$), exclusive of GST, duty, tariffs and delivery charges which, when applicable, will be payable (or, if paid by the Company, reimbursed on demand to the Company) by the Customer. Prices quoted shall be subject to variation at the election of the Company at any time without notice. The Customer must pay any GST, duty, tariffs and delivery charges applicable to the sale of the goods at the same time as payment for the goods is made. The Company reserves the right to charge an additional 1.5% on any amount which the Customer pays for using credit card.
- Interest: Interest on overdue accounts shall be charged at a rate that is 3% above the Company's prevailing bank overdraft rate. Interest accrues from day to day, from the day the relevant invoice was issued by the Company up to and including the day the relevant invoice is paid in full. Any amount of interest, together with the outstanding purchase price is payable by the Customer on demand and, further, the Customer expressly undertakes to pay all such interest.
- Collection Expenses: Should it be considered necessary by the Company to incur legal and/or other expenses, including any such expenses with any debt collection agency, in obtaining or attempting to obtain payment of any amount due by the Customer, the Customer shall be liable for such expenses. The Customer further acknowledges that those expenses may be calculated on a commission basis at a percentage rate of up to 25% of the amount owing and expressly agrees to pay those expenses irrespective of the amount of work actually performed by the agency. Amounts received by the Company may be applied first against interest, charges and expenses and then to the overdue account.
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.
- Risk: Unless otherwise agreed in writing, the risk in the goods purchased shall pass to the Customer upon the date of acceptance of any order by the Company. If any of the goods are damaged or destroyed prior to the title in them passing to the Customer, the Company is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the goods.
- Rejection: The Customer must give the Company written notice within 2 business days of receipt of the goods of any non-conformity to the description of the goods (other than promotional goods), otherwise the Customer will be deemed to have accepted the delivered goods. The Customer waives any right to reject or revoke acceptance after such time. The Company may at its discretion give the Customer a credit for any shortages or damaged goods, which in the opinion of the Company have not been damaged as a result of an insurable occurrence in relation to the Customer or an act or omission on the part of the Customer, or its officers, agents, employees or subcontractors. The Customer must follow the directions of the Company with respect to the isolation or other treatment of non-conforming goods.
- Retention of Title:
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:
- may, subject to clause 3, take possession of the Goods and hold them as trustee and agent for the Company; and
- must ensure that the Goods are insured and stored or identified so that they are readily distinguishable from other goods held by the Customer or other persons.
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:
- the Customer may sell the Goods, but only as trustee and agent for the Company (save that the Customer must not represent to any third parties that it is acting as agent of the Company and the Company will not be bound by any contracts with third parties to which the Customer is a party);
- title in all the Goods supplied by the Company to the Customer shall remain vested in the Company and shall not pass to the Customer;
- the Goods must be stored in such a manner as to be clearly identifiable as the property of the Company until title has passed to the Customer; and
- if any of the Goods are sold or otherwise converted into proceeds, the Customer will hold the proceeds on trust for the Company and the Customer grants a security interest in favour of the Company over all present and after-acquired accounts obtained by the Customer upon disposal of the Goods.
10.3 If the Customer fails to comply with any of these Terms and Conditions then:
- upon request by the Company the Customer must return any Goods on which there are outstanding Amounts Owing;
- the Company may enter the premises at which those Goods are stored, and seize possession of them; and
- the Company may retain, sell or otherwise dispose of those Goods.
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:
- a reference to Goods means the original goods supplied as described in each invoice and also includes proceeds and commingled property when the context permits;
- paid means receipt of cash or cleared funds by the Company in full satisfaction of the Amounts Owing;
- the following words have the respective meanings given to them in the PPSA: account, commingled, proceeds, register, registration, security interest and verification statement.
- Credit Account: Supply and/or credit facilities may be suspended or withdrawn by the Company, in its absolute discretion, at any time without notice. The Customer agrees to pay on demand all sums owing in connection with a credit facility provided by the Company in the event that such credit facility is suspended or withdrawn. Liability for accounts held in more than one name is joint and several.
- Warranty: To the maximum extent permitted by law the Company excludes all warranties and liability (whether express or implied) in relation to the goods supplied, including without limitation, warranties relating to fitness for purpose, condition, suitability, title, quality, design, safety defects or conformity of the goods . To the extent that the Company cannot exclude liability under law, including without limitation as a result of a breach of any conditions or warranties implied by the Competition and Consumer Act 2010 (Cth) (other than sections 51 to 53 (inclusive)) or the Fair Trading Act 1987 (SA), the Company's liability shall be limited to the maximum extent permitted by law (at the Company‟s election) to the resupply of the goods, repair of the goods, refund of the purchase price or payment of the cost of repair of the goods.
- Release: To the maximum extent permitted by law, the Customer releases and discharges the Company from all liability whether in contract, tort or otherwise, for any loss, damage (including consequential loss or damage), expense of any kind arising directly or indirectly out of the supply of the goods.
- Force Majeure: The Company shall not be liable for any failure or delay to supply the goods due to a cause beyond its control including but not limited to acts of God, strikes, lock-outs or other industrial disturbances, fire, flood, explosion, civil riot, government interference and the like.
- Jurisdiction: This Contract shall be governed by and construed in accordance with the laws of the state of South Australia and, where applicable, the Commonwealth of Australia, and the Customer submits to the non-exclusive jurisdiction of the courts of South Australia.
- Ownership: This Contract is made in respect of the owners and/or directors of the Customer as at the date of application. The Customer agrees to notify the Company in writing within seven (7) days of any change whatsoever in ownership structure and further indemnifies the Company against any loss or damage that may result from the Customer‟s failure to notify the Company of any such change. If there is a change in ownership of the Customer which the Company in its discretion deems to be material, the Company may suspend or withdraw all credit facilities and require that the Customer submit a new Credit Application.
- Trusts: In the event that the Customer enters into this Contract as trustee of a trust (whether or not such trust is disclosed to the Company) (Trust), it will be liable to the Company in respect of this Contract both in its own right and as trustee of such Trust. In addition, the Customer warrants that it is empowered to enter into this Contract under the terms of the instrument creating the Trust and to perform its obligations as contemplated by this Contract.
- Waiver: The Company may only waive a breach of the Contract in writing signed by the Company and any such waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches only).
- General: These Terms and Conditions supersede all previous Terms and Conditions and are subject to change by the Company from time to time without notice.