- These Terms and Conditions of Sale apply to a sale of Goods by each related body corporate (as defined in the Corporations Act 2001) of Coca-Cola Amatil Limited and to a sale of Goods by Coca-Cola Amatil (Aust) Pty Ltd as agent for and on behalf of Pacific Beverages Pty Ltd (ACN 121 046 348 121 046 348 ) (each a Supplier).
- If a Customer has entered into a Supply Agreement with the Supplier, these Terms and Conditions of Sale (together with the Credit Terms, if relevant) operate in addition to the terms of the Supply Agreement. Notwithstanding anything which is stated to the contrary in the Supply Agreement, the Supply Agreement is not the entire agreement between the Supplier and the Customer and, to the extent of any inconsistency between the Supply Agreement and the provisions of these Terms and Conditions of Sale (including the Credit Terms if relevant), these Terms and Conditions of Sale prevail.
- Any quotation given by the Supplier and any order made by the Customer and accepted by the Supplier, for the sale of any Goods, will be subject to these Terms and Conditions of Sale notwithstanding anything which may be stated to the contrary on a Customer's enquiry or order.
- The Customer's order for Goods shall be deemed to be an offer to buy the Goods and the Goods shall not be supplied until the order is accepted by or on behalf of the Supplier at which point a Contract for the sale of the Goods comes into existence (the Contract).
- The Customer acknowledges and agrees that time is not of the essence in relation to delivery and that it must accept and pay for the Goods even if they are delivered after a requested time. The Supplier is not liable for any loss or damage arising from late delivery.
- Unless otherwise agreed, the place of delivery is the Customer's place of business and due delivery shall be deemed to have been made to the Customer upon discharge of the Goods from the Supplier's transport at the Customer's place of business.
- The Supplier may deliver the Goods in instalments and the Customer must pay an amount for an instalment as notified by the Supplier in the Invoice. If the Supplier fails to deliver any instalment the Customer must still accept and pay for the balance of the Goods delivered. If the Customer fails to pay for any instalment the Supplier, in its absolute discretion, may refuse to deliver any further instalments until all amounts due are paid, or may terminate the Contract and recover damages.
- Risk in the Goods passes to the Customer at the time the Goods are delivered to the Customer.
- Subject to clause 10, the Customer must pay the Purchase Price of the Goods in advance of, or in cash on, delivery.
- If the Customer seeks and obtains a credit facility from the Supplier as a consequence of having completed a "Commercial Credit Account Application", and the Customer is entitled, in accordance with the Credit Terms, to the benefit of a Period of Credit, the Customer must pay the Purchase Price of the Goods within the Period of Credit. Payment by cheque or other bill of exchange is not made until the cheque or bill of exchange is honoured in full. If, by operation of clause 5 of the Credit Terms, a Contract is not entitled to the benefit of the Period of Credit and if, through inadvertence including because of a mistaken belief that the Period of Credit was available to the Customer, the Goods the subject of the Contract are delivered without the Purchase Price having been paid in advance of, or in cash on delivery, the Purchase Price must be paid immediately on demand made by the Supplier.
- If the Purchase Price is not paid in full when due, the Supplier may exercise its rights under clause 17 and, in addition, may charge the Customer a late payment fee on the unpaid amount for the period from its due date until it is paid. The fee will be calculated on a daily basis at a rate which is equal to 2% above Westpac's published 90 day bank bill swap rate.. The Customer must pay the fee to the Supplier on demand.
- (a)Title to the Goods does not pass from the Supplier to the Customer until the Customer pays in full the Purchase Price and all other monies payable or owing but not paid to the Supplier by the Customer on any account.
(b)Until title to the Goods passes to the Customer, the Customer must:
(i)hold the Goods as fiduciary and bailee for the Supplier;
(ii)store the Goods properly and separately and in accordance with a system whereby the Customer can readily identify the Goods as the Supplier's property; and
(iii)fully insure the Goods against loss or damage, ensuring that the Supplier's interest as owner is noted on the policy.
(c)Until the Customer pays in full the Purchase Price and all monies payable or owing but not paid to the Supplier by the Customer on any account, the Customer may only sell, or otherwise deal with the Goods:
(i)as a fiduciary (but not agent) of the Supplier; and
(ii)in the ordinary course of the Customer's business.
For that purpose the Supplier gives the Customer the right to pass title to the Goods to any person who buys the Goods from the Customer provided that where the Customer is paid for the Goods by the third party, the Customer must receive all proceeds from the sale in trust for the Supplier, must hold those proceeds on trust and in a separate account until the liability of the Supplier has been discharged and must account to the Supplier for the proceeds. Where the Customer has not been paid for the Goods by the third party, the Customer holds the debt owing to it by the third party in respect of the sale of the Goods upon trust for the Supplier and must assign that debt to the Supplier.
(d)If the Customer fails to pay in full the Purchase Price for the Goods or if another Event of Default (see clause 17 below) occurs in relation to the Customer, the Supplier may retake possession of the Goods title to which has not passed to the Customer. The Supplier, for that purpose, may enter any premises occupied by the Customer where those Goods are held and remove those Goods.
(e)If, at any time, the Supplier wishes or is required to take any further step to protect its interest in the Goods under this clause, for example by registering its interest, the Customer agrees to provide any assistance which may be required by the Supplier for that purpose.
(f)This clause survives the termination of the Contract.
- Subject to clause 14, all warranties, conditions and liabilities in relation to the quality or fitness of any Goods (other than any warranties, conditions or liabilities which by legislation cannot be excluded) which might, but for this clause, be implied into the Contract are hereby expressly excluded. Where legislation implies in a Contract any condition warranty or liability which cannot be excluded or modified then, to the extent permitted by law, the liability of the Supplier in respect of a breach of any such implied condition or warranty is limited, at the Supplier's option, to the replacement of the Goods or the supply of equivalent Goods or the payment of the costs of replacing those Goods or acquiring equivalent Goods. The Supplier is not liable for any loss or damage of any kind whatsoever including, without limitation, consequential or economic loss or loss of profits by reason of the negligence of the Supplier, its officers, employees or agents arising out of or in connection with the supply of the Goods.
- The Customer must inspect the Goods on or immediately after delivery. In the event that the Customer discovers that all or any portion of the Goods as delivered differs, in quantity or kind, from the description in the Invoice or are damaged (other than due to an act or omission of the Customer), the Customer must notify and make a claim against the Supplier within 48 hours of the delivery. In the event that the Customer does not make a claim in accordance with this clause, the Goods shall be deemed to be in conformity with the Contract and the Customer shall be deemed to have accepted them.
- The Supplier may suspend delivery or reduce the quantity of goods to be delivered if the Supplier is unable to deliver any or all of the Goods by reason of circumstances beyond its reasonable control, including, without limitation, strikes, blackouts, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials, act of God or any order or direction of any government, government authority or instrumentality. If the effects of any such force majeure event continue for more than one calendar month, the Supplier may, in its absolute discretion, terminate Contract. The Customer will have no claim against the Supplier for any damages, loss, costs or expenses arising from any delay or termination authorised by this clause.
- As security for the payment of the amount owing at any time by the Customer to the Supplier, the Customer hereby charges all legal and beneficial interest in any land and personal property held now or in the future by the Customer with the payment of that indebtedness and the Customer consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any Real Property.
- The Customer warrants that it:
(a)has and will continue to have any permit, government authorisation or licence required for it to carry on its business and, in particular and without limitation, if the Goods include alcoholic beverages, that it will continue to have the requisite retail liquor licence required under any relevant State and Territory laws.
(b)will handle and store the Goods at all times as directed by the Supplier or, in the absence of such direction, in accordance with prevailing industry standards for the particular Goods; and
(c)has product safety and product recall procedures in place which conform with the requirements of all relevant State and Territory laws.
- The Customer will be in default if any one or more of the following event (Events of Default) occur:
(a)the Customer is in liquidation or provisional liquidation or under administration, has a controller (as defined in the Corporations Act 2001) or any analogous person appointed to it or to any of its property, is taken under section 459F(1) of the Corporations Act 2001 to have failed to comply with a statutory demand, is unable to pay its debts or is insolvent, takes any step that could result in the Customer becoming an insolvent under administration as defined in section 9 of the Corporations Act 2001, enters into a compromise or arrangement with, or assignment for the benefit of, any its members or creditors or is affected by an analogous event;
(b)any permit or government authority or licence required to carry on the Customer's business is either cancelled or revoked;
(c)the Customer fails to perform in whole or in part any of its obligations under, or is in breach in whole or in part of any term of, the Contract; or
(d)the Customer breaches in whole or in part any term of the Credit Terms.
If there is an Event of Default, in addition to any other rights at law the Supplier may have, the Supplier may take one or more of the following actions:
(i)treat the Contract as repudiated and sue for any loss and damage in respect of the loss of the Contract;
(ii)repossess, in accordance with clause 12, any Goods in the Customer's possession in respect of which title has not yet passed to the Customer;
(iii)(if relevant) suspend or withdraw any credit facility provided by the Supplier to the Customer entirely, or exclude one or more Contracts from the benefit of the credit facility, or vary the Period of Credit for one or more Contracts, or vary the Credit Limit; or
(iv)require the immediate payment by the Customer of all monies owing by the Customer to the Supplier under any Contract or any account.
- Nothing in this Contract confers on the Customer any right to use any of the trade marks of the Supplier or of any other person who has granted the Supplier the right to use any trade marks. The Customer agrees at all times to respect the validity and ownership of such trade marks and the goodwill attached to those trade marks and not to do or omit to do any act or thing or allow any act or thing to occur or omit to occur which may put in issue the validity or ownership of those trade marks.
- No claim or right of the Supplier under this Contract shall be deemed to be waived or renounced in whole or in part unless confirmed in writing by the Supplier. The Supplier may vary these Terms and Conditions of Sale at any time. You should check the Supplier's website for any changes. The current Terms and Conditions of Sale will be held on that website and will form part of the Invoice.
- Any provision of the Contract which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the Contract enforceable unless this would materially change the intended effect of the Contract.
- The Contract is governed by and is to be construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales in respect of any dispute arising in respect of it.
- The Customer must pay the Supplier all costs and expenses incurred by the Supplier in seeking to enforce and in enforcing the Supplier's rights under the Contract, including any legal expenses (on a full indemnity basis), debt recovery agents' fees and commissions, process server fees, company and business search fees and any other investigation fees, charges and the internal administration costs of the Supplier.
- In addition to any GST paid in connection with the Purchase Price, the Customer must pay to the Supplier on demand any GST payable in relation to any other taxable supply which arises under or in connection with the Contract.
- In these Terms and Conditions of Sale:
"Contract" means a contract for the sale of Goods made between the Supplier and the Customer on the acceptance by the Supplier of an order for Goods made by the Customer.
"Credit Limit" has the same meaning as in the Credit Terms.
"Credit Terms" means the terms and conditions described as the "Credit Terms" in the Supplier's Commercial Credit Account Application which apply to the Customer if the Customer completes that application and is granted a credit facility by the Supplier.
"Customer" means any person who submits an order for Goods to the Supplier.
"Goods" means goods of a kind which the Supplier makes available for sale and may include bottled alcoholic and non-alcoholic beverages.
"Invoice" means the document provided by the Supplier to the Customer upon delivery of the Goods describing those Goods and the Purchase Price.
"Period of Credit" has the same meaning as in the Credit Terms.
"Purchase Price" means the price to be paid for the Goods calculated by reference to the Supplier's price list current at the time of delivery for the region in which the Customer's place of business is located and is the price stated as the Purchase Price in the Invoice. The Purchase Price includes, unless otherwise agreed or required by law, any GST or other impost on the sale of the Goods, delivery and packing for delivery and, for South Australia, the amount of container deposits.