1. Sale
Goods supplied by the Supplier to the Customer are supplied in accordance with these Terms and Conditions which apply to the exclusion of all other conditions, including those submitted by the Customer.
2. Orders
2.1 Once an Order has been received by the Supplier, the Order cannot be cancelled or varied by the Customer without the Supplier’s consent in writing.
2.2 The Supplier reserves the right to reject, cancel or place on hold any Order in whole or in part, and will notify the Customer if that occurs.
3. Quotation
A Quote does not constitute an offer and the Supplier reserves the right to withdraw or revise any Quote at any time prior to the Supplier’s acceptance of the Customer’s Order.
4. Price
4.1 Unless otherwise agreed in writing by the parties, prices will be advised by the Supplier from time to time plus any GST payable by the Supplier and are subject to variation by the Supplier without notice.
4.2 Unless the Supplier expressly advises in writing, the price for any Goods does not include the costs of delivery of the Goods and all costs, charges or expenses incurred by the Supplier in relation to delivery are payable by the Customer.
4.3 Any GST payable by the Seller in respect of the supply of the Goods will be paid by the Customer to the Supplier. The Customer must supply the Supplier with its ABN prior to, or at the time of, placing an order with the Supplier.
4.4 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, but not limited to, alterations in taxation, changes in GST, increases in the cost of labour, materials or other costs of manufacture, increases in the cost of transport, packaging, insurance or storage, any change in delivery dates, quantities or specifications of the Goods which are requested by the Customer, or any delay caused by any instruction of the Customer, or failure of the Customer to give the Supplier adequate information or instructions).
5. Payment
The Customer must pay the Supplier the full amount of the Invoice in accordance with these Conditions and the terms of the Invoice or as otherwise notified to the Customer in writing in the Supplier’s sole discretion.
6. Default in Payment
6.1 If the Customer does not pay an Invoice in full by the due date for payment, then the Supplier may charge the Customer interest on the unpaid amount from the date payment was due until the payment is made in full by the Customer at the interest rate of 12% per annum. Interest will accrue on a daily basis and be payable on demand.
6.2 If the Customer defaults in payment or breaches any other provisions of these Conditions, then it will be liable for all costs and expenses incurred by the Seller in recovering any amounts outstanding or otherwise in relation to the breach and the Customer indemnifies and will indemnify the Seller for the costs, expenses or recovery.
7. Loyalty/Rebate
The Supplier may allow selected Customers to earn non-transferable loyalty points or rebates on terms and conditions which will be supplied at the Supplier’s discretion.
8. Delivery:
8.1 Delivery shall be made at the place notified by, or agreed with, the Customer.
8.2 Delivery occurs when the Goods are delivered to the premises nominated by the Customer or to its agent for delivery.
8.3 Where the nominated address for delivery is unattended the Supplier may leave the Goods at the premises at the Customer’s risk.
8.4 Any delivery times made known to the Customer are estimates only and the Supplier will not be liable for late delivery or non-delivery.
8.5 The Supplier may, at its option, deliver the Goods to the Customer in any number of instalments.
8.6 The Customer shall be liable for the delivery and other costs where it arranges or makes delivery of the Goods.
9. Title and Risk:
9.1 Notwithstanding any other provision in these terms, title to any Goods supplied shall not pass to the Customer until the Customer pays the Supplier the full price of all the Goods supplied. Until that time the Customer shall be bailee only.
9.2 Until title to the Goods vests in the Customer, the Customer shall keep the Goods separate from other goods and identify them as the property of the Supplier.
9.3 Risk passes on delivery of the Goods to the Customer or its agent and the Customer assumes the risk of loss and damage, from that time.
10. Loss or damage in delivery:
The Supplier is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit where the goods are being transported by the Customer or a carrier nominated by the Customer.
11. Acceptance:
11.1 Goods may only be rejected if they are damaged upon delivery, oversupplied or not the ordered goods.
11.2 Goods not rejected within five days of delivery shall be deemed accepted by the Customer.
11.3 Goods will not be accepted by the Supplier as having been rejected without prior agreement with the Supplier.
12. PPSA:
12.1 The Customer grants the Supplier a Purchase Money Security Interest (“Interest”) pursuant to the PPSA in all present and after acquired Goods and their proceeds to secure any amounts owing to the Supplier by the Customer in respect of the supply of Goods.
12.2 The Interest granted by the Customer extends to all rights available under the PPSA to a holder of an Interest, in particular:
i. the right to seize and recover possession of the Goods;
ii. if the Customer sells the Goods, the right to a security interest over the proceeds of sale; and
iii. if the Customer comingles the Goods with other goods or otherwise incorporates the Goods in manufactured goods, the right to security over the resulting comingled or manufactured Goods and the proceeds of sale thereof.
12.3 The Customer agrees to provide the Supplier all information required by the Supplier to allow it to perfect the Interest by registering a financing statement.
12.4 The Customer agrees to notify the Supplier of any changes to the Customer’s name or other details (including address and telephone number).
12.5 The Customer will not have the right to transfer any Goods provided by the Supplier to any potential purchaser or purchaser of the Customer’s business, unless the Goods are first paid for in full to the Supplier.
12.6 The Supplier reserves the right to dispose of Goods it has seized (“Recovered Goods”) upon an act of default by the Customer without notice to the Customer.
12.7 The Supplier reserves the right to retain the Recovered Goods upon an act of default by the Customer without notice to the Customer.
12.8 The Supplier reserves the right to elect whether or not to allow redemption of the Recovered Goods by the Customer prior to disposal by the Supplier upon the Customer:
i. paying the amounts required to discharge or perform its obligations under these Conditions, secured by the Supplier’s Interest; and
ii. reimbursement of any expense in relation to the enforcement of the Supplier’s Interest, including the Supplier’s legal costs on an indemnity basis, the payment of which is secured by the Supplier’s Interest.
12.9 The Customer agrees to waive any rights associated with section 143 of the PPSA so long as the sale of the Goods by the Customer to a third party has not occurred.
12.10 The Customer waives (and provides ongoing waiver) of the Customer’s right to receive a verification statement in respect of any financing statement and agrees to the extent permitted by law that:
i. where the Supplier has rights in addition to, or existing separately from those in Chapter 4 of the PPSA, those rights will continue to apply and in particular, will not be limited by Part 4.3 in Chapter 4 (seizure and disposal or detention of collateral); and
ii. the rights of the Customer as debtor under sections 130, 132, 135 and 137 shall not apply to these Conditions.
12.11 The Customer waives the right to receive any notices dealing with the Goods and default and consents to not receiving any notices, as far as the law allows.
12.12 The Customer agrees that the Customer will not allow security interests to be created or registered over the Goods in priority to the Interest held by the Supplier.
12.13 The Customer agrees to allow the Supplier to register a security interest over the security interest that the Customer may have over third parties so far as the law allows.
12.14 The Customer agrees that in the event of external administration of the Customer, the Customer will disclose the quantity/volume of the Supplier’s Goods which are manufactured/comingled/mixed goods or otherwise which may be work in progress as at the date of appointment of an external administrator.
12.15 For the purpose of the PPSA, “goods” means all Goods supplied to the Customer from time to time, provided that:
i. (but solely for the purpose of the PPSA) where the goods supplied are the Customer’s inventory, then all references to Goods in these Conditions shall in respect of those goods, be read as references to inventory for so long as they are held as inventory; and
ii. where the goods supplied are not, or are no longer held as, the Customer’s inventory, then all references to Goods in these Conditions shall, in respect of those goods mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent) prepared by the Supplier and relating to those goods, on the basis that each such order form, packing slip or invoice (or equivalent) is deemed to be assented to by the Customer, incorporated in, and form part of these Conditions; and
iii. unless the context requires otherwise, includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.
12.16 As far as the PPSA allows, property and ownership in the Goods will not pass to the Customer but will remain with the Supplier until the Customer pays the Supplier in full the Purchase Price for the Goods and all other amounts owing to the Supplier by the Customer.
12.17 Any risk in the Goods will pass at the time of delivery to the Customer and the Customer must insure the Goods.
12.18 In the event that the Customer defaults under these Conditions, the Seller may in accordance with section 123 of the PPSA seize the Goods and in accordance with section 125 retain or dispose of the Goods. Divisions 3 and 4 under Chapter 4 of the PPSA will provide the rights of the Supplier in respect of retaining or disposing of the Goods.
12.19 Insofar as the PPSA allows, the Customer acknowledges that if it mixes the Goods with other products or items or that the Goods are no longer separately identifiable, the Customer and Supplier will be the owners in common of the new product and thereafter each party will have a right to share in any proceeds of sale. The proceeds of sale will be divided between the Customer and Supplier in accordance with their own respective value of contributed product or ingredient.
12.20 The provisions of this clause apply notwithstanding any arrangement between the parties under which the Supplier grants the Customer credit.
13. Liability
13.1 The Supplier will not be liable for any claim, loss or expense sustained or incurred by any person arising in any way as a result of the unavailability of Goods, any delay in delivery of the Goods or any failure to deliver the Goods.
13.2 Subject to any condition, warranty or right implied by the Australian Consumer Law, or any other law, the Supplier gives no warranties regarding any Goods supplied and all other implied conditions, warranties and rights are excluded.
13.3 If rights are conferred upon the Customer or obligations are imposed upon the Supplier by the Australian Consumer Law which cannot be excluded, these Conditions shall be read subject to those rights or obligations.
13.4 To the extent permitted by the Australian Consumer Law, the Supplier’s liability for any breach of any implied condition, warranty or right in connection with the supply of Goods is limited to one or more of the following (at the election of the Supplier):
(i) replacement of the Goods or supply of equivalent goods;
(ii) payment of the cost of replacing the Goods or acquiring equivalent goods;
(iii) repair of the Goods;
(iv) payment of the cost of having the Goods repaired.
13.5 The Supplier will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The Customer acknowledges this express limitation of liability and agrees to limit any claim accordingly.
13.6 Any advice, recommendation, information or representation provided by the Supplier as to the quality of performance of the Goods or their suitability for a particular purpose or otherwise in relation to the Goods is given in good faith but without any liability or responsibility on the part of the Supplier. The Customer acknowledges that it has not relied upon or been induced by any representation of the Supplier.
13.7 To the extent permitted by the law:
i. it is the responsibility of the Customer to inspect the Goods and satisfy himself or herself as to the condition, quality, suitability and fitness of the Goods for the Customer’s purposes prior to the use or resale of the Goods;
ii. the Supplier shall be under no liability whatsoever for any defects in, or deterioration or failure of, the Goods or any part thereof (or any goods supplied with the Goods or any part thereof) whether due to design, workmanship or materials or to any cause whatsoever, unless the same is due to the negligence or willful default of the Supplier or its employees or agents. The Supplier shall be under no liability whatsoever from any failure of the Goods to correspond with any description.
13.8 The authority of the Customer to sell the Goods does not extend to the making of any warranties or conditions which exposes the Supplier to liability to another person and the Customer must ensure that, to the full extent permitted by law, all conditions, warranties, implied or imposed by law, are excluded and where such a condition cannot be excluded that the Supplier’s liability is limited to the full extent permitted by law.
14. Indemnity:
14.1 The Customer shall keep the Supplier indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice, to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Supplier or which the Supplier may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods unless such cost, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract by, or negligence of, the Supplier or a duly authorized employee or agent of the Supplier.
14.2 The Customer indemnifies on a continuing basis and on a full indemnity basis the Supplier from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the Customer in respect of the products to any person. This indemnity survives termination of this agreement by either party for any reason.
14.3 The Supplier indemnifies the Customer on a continuing basis on a full indemnity basis from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the Supplier to the Customer for or in respect of the products.
15. Privacy
The Customer consents to the Supplier collecting and using personal information of or relating to the Customer for the purpose of:
i. assessing the credit worthiness of the Customer;
ii. to the maximum extent permitted by law, assisting the Supplier in the exercise of its rights against the Customer, including the right to enforce payment of any amount payable by the Customer to the Supplier whether in relation to these Conditions or otherwise; and
iii. any other lawful purpose required by the Supplier,
and the Supplier may disclose that personal information and details of these Conditions to any person considered reasonably appropriate by the Supplier to achieve any such purpose, including disclosing such information to a credit reporting agency.
16. General:
16.1 The Customer agrees that the supply of Goods under these Conditions is governed by the laws of the State of Victoria, Australia and the Customer agrees to submit to the non-exclusive jurisdiction of the courts in Victoria.
16.2 The provisions of these Conditions will be separate and severable from each other to the extent that if any provision or provisions are considered to be inoperative then the remaining provision or provisions will be binding on and enforceable by the parties.
16.3 The failure of the Supplier to enforce any provisions of these Conditions or to exercise any rights expressed in these Conditions is not to be deemed to be a waiver of such provisions or rights and does not affect the right of the Supplier to enforce these Conditions.
16.4 In these Conditions:
“Conditions” means the terms and conditions of supply of Goods set out in this document and includes any special terms and conditions attached to this document;
“Contract” means any contract between the Supplier and the Customer for the purchase and sale of Goods;
“Customer” means the person who buys or has agreed to buy the Goods. “Customer” shall also mean “grantor” for the purposes of the Personal Property Securities Act 2009 (Cth)
“Goods” means all goods which are supplied or to be supplied to the Customer by the Supplier under any contract between them;
“GST” means any tax in the nature of a consumption tax, a goods and services tax, a value added tax or similar tax including, but not limited to, any tax arising under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated legislation;
“Invoice” means the Supplier’s invoice to the Customer for the supply of the Goods specified in the invoice;
“Order” means any order placed by the Customer with the Supplier, whether in writing or verbally, for the purchase of Goods and includes the Customer’s acceptance of a Quote.
“PPSA” means the Personal Properties Securities Act (Cth);
“Purchase Price” means the price for the Goods specified in the relevant Invoice;
“Quote” means a quotation provided by the Supplier to the Customer, whether in writing or verbally, for the supply of Goods to the Customer.
“Supplier” means Corona Manufacturing Pty Ltd, being the seller of the Goods.