CORNCOBOLOGY PTY LIMITED TERMS AND CONDITIONS OF TRADE
In this document: “ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended; “Agreement” means the agreement for the provision of goods or services by Corncobology to the Client on these Terms upon the Client’s acceptance of the Quotation. “Corncobology” means Corncobology Pty Ltd (ABN 30 606 359 442); “Client” means the person, jointly and severally if more than one, acquiring goods or services from Corncobology as named in the Quotation; “consumer” is as defined in the ACL and in determining if the Client is a consumer, the determination is made if Client is a consumer under the Agreement; “goods” means goods supplied by Corncobology to the Client; “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended; “Interest Rate” means the Cash Rate Target set by the Reserve Bank of Australia from time to time plus 2% per annum. “PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended; “Quotation” means the Corncobology’ quotation attached to or forming part of these Terms. “services” means services supplied by Corncobology to the Client; and “Terms” means these Terms and Conditions of Trade.
2. Basis of Agreement
2.1 Unless otherwise agreed by Corncobology in writing, the Quotation is valid for a period of only 30 days.
2.2 The Terms may include additional terms in the Quotation, which are not inconsistent with the Terms.
2.3 The Client must provide Corncobology with its specific requirements, if any, in relation to the goods and services.
3.1 Prices quoted for the supply of goods and services include GST and any other taxes or duties imposed on or in relation to the goods and services.
3.2 If the Client requests any variation to the Agreement, Corncobology may increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by Corncobology in relation to goods or services, Corncobology may vary its price to take account of any such change, by notifying the Client.
4.1 Unless otherwise agreed in writing: (a) Subject to 4.1(b), full payment for the goods or services must be made within 30 days of the date of Corncobology’ invoice. (b) Corncobology reserves the right to require payment in full on delivery of the goods or completion of the services.
4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.3 Payment terms may be revoked or amended at Corncobology’ sole discretion immediately upon giving the Client written notice.
4.4 The time for payment is of the essence.
5. Payment Default
5.1 If the Client defaults in payment by the due date of any amount payable to Corncobology, then all money which would become payable by the Client to Corncobology at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Client, and Corncobology may, without prejudice to any of its other accrued or contingent right : (a) charge the Client interest on any sum due at the Interest Rate for the period from the due date until the date of payment in full; (b) charge the Client for, and the Client must indemnify Corncobology from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods; (c) cease or suspend supply of any further goods or services to the Client; (d) by written notice to the Client, terminate any uncompleted contract with the Client.
5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at Corncobology option: (a) where the Client is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or (b) where the Client is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Client.
6. Passing of Property
6.1 Until Corncobology receives full payment in cleared funds for all goods and services supplied by it to the Client, as well as all other amounts owing to Corncobology by the Client: (a) title and property in all goods remain vested in Corncobology and do not pass to the Client; (b) the Client must hold the goods as fiduciary bailee and agent for Corncobology; (c) the Client must keep the goods separate from its goods and maintain Corncobology’ labelling and packaging; (d) the Client must hold the proceeds of sale of the goods on trust for Corncobology in a separate account with a bank to whom the Client has not given security however failure to do so will not affect the Client’s obligation as trustee; (e) in addition to its rights under the PPSA, Corncobology may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Corncobology, and for this purpose the Client irrevocably licences Corncobology to enter such premises and also indemnifies Corncobology from and against all costs, claims, demands or actions by any party arising from such action.
7. Personal Property Securities Act
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA: (a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA; (b) these Terms are a security agreement and Corncobology has a Purchase Money Security Interest in all present and future goods supplied by Corncobology to the Client and the proceeds of the goods; (c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Client at any particular time; and (d) the Client must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Corncobology on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from Corncobology’ premises and not at any later time.
7.4 Where permitted by the PPSA, the Client waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 Corncobology and the Client agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Client agrees that: (a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Client or which place obligations on Corncobology will apply only to the extent that they are mandatory or Corncobology agrees to their application in writing; and (b) where Corncobology has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Client must immediately upon Corncobology’ request: (a) do all things and execute all documents necessary to give effect to the security interest created under the Agreement; and (b) procure from any person considered by Corncobology to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Corncobology may at any time require.
7.8 Corncobology may allocate amounts received from the Client in any manner Corncobology determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Corncobology.
7.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
8. Risk and Insurance
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Client immediately on the goods being delivered to the Client or taken from Corncobology’ premises.
8.2 The goods are sold to the Client on the basis that the Client has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
8.3 The Client assumes all risk and liability for loss, damage or injury to persons or to property of the Client, or third parties arising out of the use, installation or possession of any of the goods sold by Corncobology, unless recoverable from Corncobology on the failure of any statutory guarantee under the ACL.
9. Performance of Agreement
9.1 Any period or date for delivery of goods or provision of services stated by Corncobology is an estimate only and not a contractual commitment.
9.2 Corncobology will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Client or any third party for failure to meet any estimated date.
9.3 If Corncobology cannot complete the services by any estimated date, it will complete the services within a reasonable time.
10.1 Subject to clause 10.6, Corncobology will arrange for the delivery of the goods to the Client.
10.2 The Client is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Client to the point of delivery.
10.3 Corncobology may make part delivery of goods or provision of services and Corncobology may invoice the Client for the goods or services provided.
10.4 The Client indemnifies Corncobology against any loss or damage suffered by Corncobology, its sub-contractors or employees as a result of delivery, except where the Client is a consumer and Corncobology has not used due care and skill.
10.5 If delivery is attempted and is unable to be completed the Client is deemed to have taken delivery of the goods. The Client is liable for storage charges payable monthly on demand.
10.6 If agreed that the Client will collect the goods: (a) the Client must collect the goods with 7 days of being advised they are ready; (b) if the Client does not collect the goods within this time, the Client is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
11.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
11.2 If the Client is a consumer nothing in these Terms restricts, limits or modifies the Client’s rights or remedies against Corncobology for failure of a statutory guarantee under the ACL.
11.3 If the Client on-supplies the goods to a consumer and: (a) the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Corncobology’ liability to the Client; (b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Corncobology’ liability to the Client; howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Client or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement Corncobology is not liable to the Client in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Client or any third party.
11.5 Corncobology is not liable for any indirect or consequential losses or expenses suffered by the Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
11.6 The Client acknowledges that: (a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Corncobology in relation to the goods or services or their use or application. (b) it has not made known, either expressly or by implication, to Corncobology any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Client.
11.7 It is the responsibility of the customer to inspect the goods and satisfy itself as to the condition, quality, suitability and fitness of the goods for the purpose prior to the use of the said goods. The customer unconditionally and irrevocably agrees that it does not rely on the skill or judgement of Corncobology in relation to the suitability of any goods for a particular purpose. Any advice, recommendation, information or assistance provided Corncobology is provided without any liability to Corncobology whatsoever.
11.8 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
12.1 If Corncobology is unable to deliver or provide the goods or services, then it may cancel the Client’s order (even if it has been accepted) by written notice to the Client.
12.2 No purported cancellation or suspension of an order or any part of it by the Client is binding on Corncobology once the order has been accepted.
13. Shortages and Exchanges
13.1 Subject to clause 13.2 and 13.4, Corncobology will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Client notifies Corncobology with full details and description within 10 days of delivery otherwise the Client is deemed to have accepted the goods.
13.2 When any shortages, claim for damaged goods or noncompliance with the Agreement specifications is accepted by Corncobology, Corncobology may, at its option, replace the goods, or refund the price of the goods.
13.3 Subject to clause 13.4, Corncobology will not under any circumstances accept goods for return that: (a) have been specifically produced, imported or acquired to fulfil the Agreement; (b) are discontinued goods or no longer stocked by Corncobology; (c) have been altered in any way; (d) have been used; or (e) are not in their original condition and packaging.
13.4 If the Client is a consumer, nothing in this clause 13 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
14. Force Majeure
14.1 Corncobology is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Corncobology may suspend or terminate the Agreement by written notice to the Client.
15.1 The laws of New South Wales from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
15.2 Corncobology’ failure to enforce any of these Terms shall not be construed as a waiver of any of Corncobology’ rights.
15.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
15.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
15.5 The Client must comply with the Australian Privacy Principles in connection with any personal information supplied to it in connection with the Agreement.