Trading Terms and Condition
1.1 “Buyer” means any purchaser of Goods from the Seller.
1.2 “Contract” means any agreement entered into between the Buyer and the Seller for the supply of Goods by the Seller to the Buyer.
1.3 “Event of Default” has the meaning given in clause 11.1.
1.4 “Guarantor” means any person (or persons) who is a guarantor under clause 22 of these Terms or any other person or entity who guarantees the payment by the Buyer of all outstanding amounts in relation to Goods.
1.5 “Goods” means Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services) under any Contract.
1.6 “Intellectual Property Rights” means any and all rights, titles, and interests, whether registered or unregistered, arising under patent, copyright, trade secret, trademark, or any other similar laws or regulations, and all related goodwill and moral rights, including but not limited to patents, trademarks, trade names, service marks, logos, copyrights, trade secrets, know-how, and all other intellectual property rights recognised in any jurisdiction.
1.7 “Seller” means Coerco Pty Ltd (ACN 145 356 565)
1.8 “Services” means any services supplied by the Seller to the Buyer and includes any advice or recommendations under any Contract.
1.9 “Price” means the price of the Goods determined under clause 3.1 of these Terms.
1.10 “Terms” means these Terms & Conditions of Trade.
2. Terms and Acceptance
2.1 Unless otherwise expressly agreed in writing, these Terms will apply to all Contracts.
2.2 The Buyer’s acceptance of any proposal or quote of the Seller to provide Goods to the Buyer constitutes acceptance by the Buyer of these Terms.
2.3 Where more than one Buyer has entered into a Contract, the Buyers shall be jointly and severally liable for all obligations of the Buyer under a Contract.
2.4 The Buyer undertakes to give the Seller not less than fourteen (14) days’ prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, facsimile number, or business).
3. Price and Payment
3.1 The Price shall be:
(a) the Seller’s quoted price notified to the Buyer (subject to clause 3.2) which shall be deemed to be agreed by the Buyer unless the Buyer notifies the Seller in writing within thirty (30) days of receipt of a quoted price that the Buyer does not agree to it;
(b) if no price has been quoted, the price as indicated on any invoice issued to the Buyer by the Seller; or
(c) any price otherwise agreed in writing between the Buyer and the Seller.
(a) it is reasonably necessary to vary any plan of scheduled works or specifications in relation to Goods for any reason; or
(b) if the Buyer requests any variation to any plan of scheduled works or specifications to the Goods, the Seller may increase or decrease the Price by written notice to the Buyer by an amount determined by the Seller acting reasonably.
3.3 If the Price is varied by the Seller in accordance with clause 3.2, the varied price will become the Price and is payable in accordance with these Terms.
3.4 At the Seller’s sole discretion, the Seller may require the Buyer to pay a deposit before the Seller commences any work in relation to the Goods. The amount of any deposit may be all or part of the Price at the Seller’s discretion. The Seller may stipulate the time for payment of any deposit in its discretion. The deposit will be applied in reduction of the Price when payment is due with any surplus returned to the Buyer.
3.5 Unless otherwise agreed in writing, time for payment for the Goods will be stated on an invoice, quotation or any other order forms provided to the Buyer by the Seller. If the payment terms require payment before delivery, the Seller may withhold delivery of the Goods (or part thereof) until such time as the Buyer has paid for them. If no time is stipulated by the Seller then payment shall be on delivery of the Goods.
3.6 The Buyer must make all payments to the Seller free from all deductions and offsets. Each payment must be made in immediately available funds by such method as is notified to the Buyer by the Seller including electronic transfer of funds to any bank account nominated by the Seller.
3.7 The Price is exclusive of GST and other taxes, duties or charges which may be applicable, except to the extent that such taxes, duties or charges are expressly included in any Contract or written quotation or proposal given by the Seller to the Buyer.
4. Delivery of Goods/Services
4.1 Delivery of the Goods shall be made to the address of the Buyer last notified by the Buyer to the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods. If the Buyer has not made those necessary arrangements, delivery of the Goods may be made to the Buyer by delivery to the Seller’s address in which case the Buyer will be responsible for the subsequent transport of the Goods to any other location and all associated costs.
4.2 If the Buyer requests delivery of the Goods to any intermediary carrier or premises either named by the Buyer or reasonably determined at the discretion of the Seller, that delivery is deemed to be delivery of the Goods to the Buyer.
4.3 The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatsoever) and shall be due on the date for payment of the Price. The Seller may require the Buyer to pay the Seller the amount of any such costs before the Seller incurs them or that the Buyer pay the amount directly.
4.4 The Seller may deliver the Goods in parts or separate instalments (in accordance with any agreed delivery schedule). Unless otherwise agreed in writing, the Buyer must pay for each part or instalment of the Goods delivered to the Buyer on a pro rata basis in amounts determined by the Seller acting reasonably.
4.5 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer.
4.6 The failure of the Seller to deliver Goods by a time required under any Contract shall not entitle the Buyer to treat a Contract as repudiated.
4.7 The Seller shall not be liable for any loss or damage whatsoever of the Buyer including special, direct or consequential loss or damage caused or contributed to by any failure or delay by the Seller to deliver the Goods (or any of them) promptly, by any agreed delivery schedule or at all.
4.8 The Buyer shall be liable for all costs associated with storage of Goods between any agreed delivery time and the actual delivery time where the delays are not caused by the Seller.
4.9 Unless otherwise agreed in writing, one (1) hour will be allowed for offloading and (if applicable) installation of the Goods upon delivery. At the discretion of the Seller acting reasonably, the Seller may require the Buyer to pay for all associated costs for any extended or delayed offloading or installation of the Goods beyond the one (1) hour permitted by this clause 4.9.
5.1 All risk in the Goods passes to the Buyer on delivery to the Buyer.
5.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under the Contract. The production of these Terms by the Seller to any insurance provider is sufficient evidence of the Seller’s rights to receive the insurance proceeds.
6. Defect / Returns
6.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to adhere to any description or quote for the Goods. If the Buyer provides a notice under this clause 6.1, the Seller is entitled to inspect the Goods within a reasonable time following service of the notice. If the Buyer does not provide any Seller and its agents and employees from: notice in accordance with this clause 6.1, the Goods shall be deemed delivered free from any defect or damage and otherwise delivered in accordance with these Terms and any Contract.
6.2 Where the Seller has agreed in writing that the Buyer is entitled to reject any Goods, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 6.1;
(b) the Goods are returned at the Buyer’s cost within seven (7) days of the date on which the Seller agreed that the Goods could be rejected;
(c) the Seller will not be liable for Goods which have not been stored, transported or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
6.3 The Seller may (in its discretion) accept the Goods for credit but may charge a handling fee of 20% of the value of the returned Goods plus any freight and other costs.
7.1 To the full extent permitted by law, the Buyer acknowledges and agrees that the Seller has not, and does not, give any warranty or representation whatsoever as to the condition or quality of the Goods (including latent defects), their suitability or fitness for any purpose or its correspondence to any description or sample.
7.2 To the extent permitted by law, the Buyer disclaims any right to rescind, or cancel the Contract or to sue for damages or to claim restitution arising out of any representation made by the Seller or any of its servants or agents in relation to the Goods.
8. Australian Consumer Law (Non-excludable Terms)
8.1 If the Goods are of a kind such as to attract to any Contract the operation of the Competition and Consumer Act 2010 (Cth) including the Australian Consumer Law, certain conditions and warranties will be implied into the Contract and rights conferred upon the Buyer with respect to the Goods which cannot be excluded (Non-Excludable Terms).
8.2 If there are any Non-Excludable Terms in the Contract or these Terms, this clause 8 will apply to them.
8.3 The Buyer agrees that with respect to any Non-Excludable Terms, the Seller’s liability is, where permitted, limited to replacement (or the cost of replacement) of the Goods, the supply (or cost of supply) of equivalent Goods or the repair (or the cost of repair) of the Goods.
9. Liability and Indemnity
9.1 To the extent permitted by law, in no event is the Seller liable for any loss or damage which the Buyer may suffer arising from, or caused or contributed to by, the negligence of the Seller or its employees or agents. Nor will the Seller be liable for special, direct or consequential loss or damage as a result of a breach by it of a Contract, including loss of profits or revenue.
9.2 Without limiting the effect of clause 9.1, the Seller’s liability under a Contract will never exceed the Price under that Contract.
9.3 The Buyer assumes liability for, and indemnifies and will keep indemnified, the Seller and its agents and employees from and against any and all injuries, actions, proceedings, claims, demands, liabilities, losses, damages, costs, penalties and all expenses legal or otherwise (including court costs and legal fees reasonably incurred) and of whatsoever kind and nature (including claims based upon strict liability in tort):
(a) arising out of or alleged to arise out of the delivery, selection, purchase, acceptance or rejection, ownership, possession, use, repair, maintenance, storage, or operation of the Goods, and by whomsoever used or operated (except where used by the Seller or any person on behalf of the Seller); or
(b) incurred by the Seller in respect of any loss of the Goods by distress, execution or other legal process of the Goods.
9.4 The Buyer agrees to use, operate and possess the Goods at its own risk. The Buyer agrees that the Seller will have no responsibility or liability for any loss or damage to any property of the Buyer. To the full extent permitted by law, the Buyer releases and discharge the Seller and its agents and employees from:
(a) all claims and demands on the Seller; and
(b) any loss or damage whatsoever and whenever caused to the Buyer or the Buyer’s agents or employees whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial loss or otherwise,
(c) arising directly or indirectly from or incidental to a breakdown of, or defect in, the Goods or any accident to or involving the Goods or their use, operation, repair, maintenance or storage (whether occasioned by the negligence of the Seller or otherwise) or which may otherwise be suffered or sustained in, upon or near the Goods.
9.5 The indemnities and assumptions of liability contained in this clause 9 will continue in full force and effect even though the Contract to which the Goods relates has been termiated whether by expiration of time or otherwise.
10. Intellectual Property
10.1 All Intellectual Property Rights in any Goods, work, product or deliverables created in connection with any Contract shall remain the exclusive property of the Seller.
10.2 The Buyer agrees not to challenge, contest, or infringe upon any such rights of the Seller, or assist any third party in doing so. The Seller grants the Buyer a non-exclusive, non-transferable license to use any such work, product or deliverables solely for the purposes of the use of the Goods supplied under a Contract. The Buyer acknowledges and agrees that any use of the Seller’s Intellectual Property Rights beyond the scope of a Contract requires the prior written consent of the Seller.
11. Default & Consequences of Default
11.1 Each of the following events is an Event of Default:
(a) If the Buyer fails to pay any money payable under a Contract on the due date for payment;
(b) If the Buyer fails to perform or observe any of the provisions of any Contract to be performed or observed by the Buyer (other than a failure contemplated by clause 11.1(a)) and (if capable of remedy) such default continues for more than 5 Business Days (or such longer period as the Seller in its absolute discretion permits) after notice from the Seller requiring the Buyer to remedy the same;
(c) If the Seller ascertains that the Buyer may have made any false, inaccurate or misleading statement having a material effect in relation to the making of a Contract;
(d) If any application for the bankruptcy, liquidation or external administration of the Buyer is presented and the Buyer cannot within 10 Business Days reasonably satisfy the Seller that the application is frivolous or vexations; or
(e) If the Buyer suspends payment of its debts generally.
11.2 If an Event of Default occurs, the Seller may without limitation to its rights generally and at its option:
(a) enforce performance by proceeding by appropriate court action, either at law or in equity, enforce performance by the Buyer of the applicable terms and provisions of any Contract or recover damages for the breach concerned; or
(b) terminate any Contract to which the Event of Default relates;
(c) cancel all or any part on any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
11.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation under a Contract (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under any Contract. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause 11.3.
12. Interest and administration fees
12.1 Without limiting the effect of clause 11:
(a) the Seller may charge interest on any amounts owing under a Contract which remain unpaid. Interest shall accrue daily on all unpaid amounts from the date when payment was due until payment is made in full at a rate of 2.5% per month (compounding per calendar month).
(b) If any account remains unpaid at the end of the second month after supply of the Goods an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to any interest payable under clause 12.1(a).
13. Enforcement costs and expenses
13.1 The Buyer must on demand reimburse the Seller for all costs, charges, expenses, fees, disbursements (including all legal costs on a solicitor and own client basis) paid or incurred by the Seller of or incidental to:
(a) any breach, default or repudiation of a Contract by the Buyer (including the fees of all professional consultants properly incurred by the Seller in consequence of, or in connection with, any such breach, default or repudiation); and
(b) the exercise or attempted exercise of any right, power, privilege, authority or remedy of the Seller under or by virtue of a Contract, including all amounts incurred in enforcing a Contract generally.
14.1 Title and property in the Goods shall not pass until the Seller receives payment in full for the Goods in cleared funds.
14.2 Until such time as the Seller has received payment in full for the Goods:
(a) the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller;
(b) the Buyer shall hold any proceeds from sale or disposal of the Goods on trust for the Seller;
(c) the Buyer must not agree, attempt, offer or purport to sell assign, sublet, lend, pledge, mortgage, let on hire, grant a security interest in, allow any lien or other encumbrance to arise in, or otherwise part with or attempt to part with the personal possession of or otherwise deal with, the Goods or any part of the Goods.
15. Security and Charge
15.1 Each of the Buyer and any Guarantor hereby charge all their presently owned and future acquired real property and agree immediately upon being required by the Seller to enter into a mortgage to secure any sum due under a Contract and further agrees and permits the supplier to register an absolute caveat over any land owned by the Buyer and/or the Guarantor to secure any sum due under a Contract at any time from the Buyer to the Seller.
15.2 Each of the Buyer and the Guarantor will do all such things and provide all such documents as reasonably directed by the Seller to enable the Seller to obtain the full benefit of the securities granted in these provisions.
15.3 Each of the Buyer and any Guarantor consent to the Seller perfecting any security interest which arises by the operation of the Personal Property Securities Act 2009 (“PPSA”), and agrees to do anything reasonably required by the Seller to enable it to do so. Each of the Seller and the Guarantor contracts out of each provision of the PPSA that it is permitted to contract out of under s115(1) of the PPSA.
15.4 Each of the Buyer and any Guarantor waive their rights to receive all notices under the PPSA that are permitted to be waived under the PPSA. At the request of the Seller, the Buyer will procure and register a security interest under the PPSA against the Buyer’s clients in respect of any Goods sold to that client that is subject to a retention of title by the Seller.
15.5 Each of the Buyer and any Guarantor irrevocably appoint the Seller as its attorney to do all such things as are necessary on behalf of the Buyer and the Guarantor to give effect to the securities granted
in this clause.
16.1 The Seller may cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer.
16.2 The Buyer may request to cancel delivery of the Goods, and the Seller may in its absolute discretion accept that cancellation subject to payment of any costs, expenses, work in progress or any unpaid amounts up to the time of cancellation.
17. Privacy Act 1988
17.1 The Buyer and/or the Guarantor/s agree that the Seller may obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to any credit provided by the Seller.
17.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about the Buyer and Guarantor/s with those credit providers named in an application for credit or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
17.3 The Buyer agrees that Personal Information (as defined under the Privacy Act) provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of the Goods;
(b) marketing of Goods by the Seller, it agents or distributors in relation to the Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Goods;
(d) processing of any payment instructions, direct debit facilities and /or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods.
17.4 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and / or
(b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
18. Unpaid Seller’s Rights to Dispose of Goods
18.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) all or part of the Price remains unpaid by the Buyer, and
(c) the Seller has made demand in writing of the Buyer for payment, then, the Seller may dispose of or sell of the Goods, retain any monies obtained therefrom, and may claim from the Buyer any loss or costs to the Seller arising from such disposal or sale.
19. Repossession of Goods
19.1 If an Event of Default occurs, the Seller may retake possession of the Goods. For that purpose the Seller and its employees and agents may, without notice, liability or legal process, enter upon or into the premises of the Buyer and may break open any gate, door or fastening and detach or dismantle the Goodsfrom any part of the premises to which the Goods have been affixed.
20. Buyer’s Responsibilities
20.1 It is the sole responsibility of the Buyer to obtain any Council or Government approvals and/or comply with any relevant Australian Standards that are required for the installation or use of the Goods by the Buyer or any third party.
20.2 Any fees or costs applicable under this clause 20 will be the sole responsibility of the Buyer.
21. Lien & Stoppage in Transit
21.1 Where the Buyer is in default of payment, the Seller shall have:
(a) a lien on the Goods; and
(b) a right of stopping the Goods in transit.
22. Director Guarantee
22.1 Where the Buyer is a corporation, each of the directors agrees to be a Guarantor in consideration of the Seller entering into a Contract with the Seller.
22.2 Each Guarantor jointly and severally guarantees the payment by the Buyer of all outstanding amounts in relation to Goods sold or hired by the Seller.
22.3 Each director who signs any Contract by doing so signifies their individual agreement to this guarantee.
23.1 The remedies provided in these Terms in favour of the Seller arising pursuant to an Event of Default or after a repudiation of the Contract by the Buyer will not be deemed to be exclusive but will be cumulative and in addition to all other remedies in its favour existing at law, in equity or in bankruptcy.
23.2 None of the terms or conditions of, nor any act, matter or thing done under or by virtue of, or in connection with, these Terms will operate as a merger of any of the rights and remedies of the Seller in or under a Contract or otherwise. All such rights and remedies of the Seller will continue in full force and effect.
23.3 Unless application is mandatory by law, no statute, ordinance, proclamation, order, regulation or moratorium present or future will apply to these Terms so as to abrogate, impair, diminish, fetter, delay or otherwise prejudicially affect any rights, powers, remedies or discretions given or accruing to the Seller under this Agreement.
24.4 The Seller may at any time assign, charge or otherwise deal with its right, title and interest pursuant to a Contract to the extent permissible by law. The Buyer must not assign or charge a Contract or any of its rights or obligations under a Contract without the prior written consent of the Seller.
23.5 A statement in writing signed by a director, secretary, or officer of the Seller whose title includes the word “manager” stating the amount due or owing by the Buyer to the Seller, the identity of the Goods, or any other act, matter or thing arising under a Contract as at any date or dates set out in that statement will be prima facie evidence of the facts so stated.
23.6 If any provision of these Terms or a Contract is or at any time becomes void or unenforceable the remaining provisions will continue in full force and effect.
23.7 No failure or delay on the part of the Seller to exercise any power or right under a Contract will operate as a waiver of that power or right. Nor will any single or partial exercise of any power or right under a Contract preclude any other or further exercise of that power or right.
23.8 These Terms and any Contract will be construed in accordance with the law of the state of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts of that state or territory and any courts which may hear appeals from there.
23.9 If there is any inconsistency between these Terms and the terms of any Contract, these Terms will prevail to the extent of the inconsistency.
23.10 The variation of waiver of a provision of a Contract or a departure from a provision by another party is ineffective unless in writing signed by the parties.
23.11 The provisions contained in these Terms and any Contract:
(a) exclusively and completely state the rights of the Buyer and
(b) the Seller with respect to the Good; and
(c) supersede all negotiations and prior agreements, whether written or oral, in respect of the provision of Goods by the Seller to the Buyer.
23.12 If circumstances beyond the Seller’s control prevent or hinder its provision of the Good, the Seller is free from any obligation to provide the Goods while those circumstances continue. The Seller may elect to terminate a Contract or keep the Contract on foot until such circumstances have ceased. Circumstances beyond the Seller’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions or computers or other information technologies.