"site" means any part of this web site and any other web site operated by or on behalf of us;
"products" means any products promoted on this site including any products made available for purchase from this site;
"use" includes access or use or attempted access or use of any part of the site and includes (without limitation) access to and use of site content, download of any content from the site, completion and submission of any online form available at or through the site, submission of any email to an email address identified at or through the site, participation in any online forum or similar facility available at or through the site and purchasing or ordering any products made available through the site;
"we", "us" and "our" means Cocco Corporation Pty Ltd (ACN 007 885 190) as trustee for the ND Treliving Family Trust of 33c Ingoldby Road, McLaren Flat, South Australia, 5171 Australia and any related corporations and their respective officers, employees, agents and contractors including (without limitation) site hosts, operators and developers and contributors of site content; and
"you" and "your" means any person or other entity who or which seeks to access and use the site.
You must read and agree to these terms and conditions before making any other use of the site. If you do not agree to these terms and conditions, you must not use the site. By making any use of the site, you thereby accept and agree to be bound by these terms and conditions.
These terms and conditions apply to all use of the site including your use of sections of the site which are subject to additional specific conditions. Your use of any section of the site which is subject to specific conditions is subject to your prior acceptance of those specific conditions and you agree to be bound by those specific conditions with respect to your use of the relevant section(s) of the site even if you fail to review the specific conditions. Without limitation, if you use this site to purchase products, you thereby also agree to all specific conditions governing such purchase.
Unless otherwise stipulated by us, any sale of products from the site is subject to the following conditions:
Without limiting any other limitations and restrictions, you must only use products in accordance with any warnings and instructions provided with those products. You should not use any products if you have any concerns regarding the instructions or warnings. Your evaluation of the suitability of products for use and your decision to use products or to make products available to others for their use is entirely your responsibility.
The site contains information, advice, text and other materials that are provided for your convenience and enjoyment. Information may contain errors, omissions, inaccuracies or outdated information. We make no representation or warranties as to the completeness, accuracy, adequacy, currency or reliability of any information and shall not be liable for any lack of the foregoing. Descriptions of, or references to, products or publications within the site do not imply endorsement of that product or publication.
We do not attempt to exclude any conditions, warranties, rights or remedies which you may have pursuant to legislation to the extent that those rights and remedies can not be excluded by agreement ("non-excludable rights").
Subject to any non-excludable rights: (a) the site and its contents are provided on an "as is" basis; and (b) all express or implied conditions or warranties of any kind (including but not limited to any warranties of merchantability, fitness for a particular purpose, freedom from contamination by computer viruses, non-infringement of proprietary rights and the accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any content or other part of the site) are excluded.
If you find any errors or omissions, please report them to us.
Subject to any non-excludable rights: (a) your use of the site and products is entirely at your own risk; (b) you hereby release us from any claims you would otherwise have against us now or in future arising directly or indirectly from the site or your use of the site and products; and (c) in no event will we be liable for any damages whatsoever (including, without limitation, direct, indirect, punitive, special, consequential damages, lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of the site, or arising from your purchase or inability to purchase any products, or arising from your inability to participate in any promotion offered on the site whether based on contract, tort, statute, common law, equity or any other legal theory and whether or not advised of the possibility of such damages. Without limitation, this exclusion of liability applies to any loss or damage caused by any deficiency in site performance and any error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, or use of any material associated with the site or your attempted use of the site.
If you are entitled to make any claim against us as a result of non-excludable rights or on any other basis notwithstanding the provisions of these conditions, our liability to you for the aggregate of such claims (regardless of the basis on which you are entitled to claim from us) is limited to the provision of the information, products or services again or payment of the cost of providing the information, products or services again (at our election).
You must indemnify each of us and keep each of us indemnified against all claims, liabilities, expenses (including legal fees on a solicitor-client basis) or losses that may be made against or sustained by any of us arising from your breach of these conditions or otherwise howsoever from or in connection with your use of the site and products.
You must not email, post or submit any defamatory, offensive, illegal or inappropriate material or any material which infringes a third party's intellectual property rights or which contains a virus, worm, Trojan horse or other code that manifests contaminating or destructive properties. You must not attempt to modify or damage the site and must not use the site in connection with any mass distribution of email (spam) or denial of service attack. You must not impersonate any person or entity or enter a fictitious name or purport to be authorised to represent any entity if that entity has not authorised you to do so in connection with your use of the site. You must not cause or permit any other person to engage in any of these activities (eg. by providing them with access to your computer or by providing password information to them).
We are not liable for defamatory, offensive, illegal or inappropriate content available at the site or accessed from the site and the risk of injury from such content rests entirely with you.
The site may include content or references supplied by users or other third parties ("third party material"). We do not monitor and accept no liability for third party material. Any opinions, advice, statements, services, offers or other information contained in third party material, is the responsibility of the respective author(s), distributor(s) or providers of that third party material. We make no representation and give no endorsement of the accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any third party material or the identity, knowledge or qualifications of any provider of third party material. Your access to and reliance on third party material is entirely at your own risk.
References in third party material to any specific products, process, or service by trade name, trade mark, manufacturer, or otherwise, do not constitute or imply their sponsorship, endorsement or recommendation by us, and such references shall not be used for advertising or product endorsement purposes.
Any links to third party web sites from the site are provided solely as a convenience to you. We make no representation as to the intellectual property rights of any material available on the linked third party web sites. We do not review and monitor any linked third party web sites and we are not responsible for the contents, accuracy, adequacy, currency, suitability, completeness, legality, reliability or usefulness of any material on any third party web site and accept no responsibility for any broken or redirected links. The presence of such links should not be taken to imply any type of association, sponsorship, endorsement, monitoring, approval of, or responsibility for, the linked third party web site or its content. It is your responsibility to evaluate the content and usefulness of information obtained from other sites. Your access to and reliance on any third party web site is entirely at your own risk.
You acknowledge and agree that we may receive payments or other benefits in connection with links to third party sites or the inclusion of third party material in the site.
Other sites may only link to the site with our prior written permission. Any site that links to the site must link to the relevant home page. We may revoke or withdraw our consent to a link at any time in which case the link must be promptly removed. Any site that links to the site must not (a) replicate the site's content; (b) create a browser or border environment around the site's content; (c) imply any endorsement by us; (d) misrepresent its relationship with us; (e) present false information about our products and services; (f) use our name or logos without our prior written permission; or (g) contain content that could be construed as obscene, libelious, defamatory, pornographic or inappropriate for all ages; or (h) contain material that would violate any laws.
We cannot and do not guarantee or warrant that any files available for downloading through the site will be free of infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for virus detection, accuracy of data input and output and for maintaining an appropriate means for the reconstruction of any lost data.
We or third parties own and retain the copyright, trade marks and other intellectual property rights in the materials found at the site including without limitation web pages, documents, text, designs, graphics, audio and video. Unless otherwise expressly stipulated by us, you may only use the site for your personal use and may only print or make an electronic copy of information available on the site for that purpose. You must not sell or otherwise commercially exploit any information made available at the site. You must ensure that all copyright notices are retained in any material copied from the site. Subject to this limited right to use materials, you must not use, download, upload, copy, print, display, broadcast, perform, reproduce, publish, license, post, transmit or distribute any materials from the site in whole or in part without our prior written permission. If you breach any of these conditions, then (without limiting your other liabilities) your authorisation to use the site automatically terminates and you must immediately destroy any downloaded or printed materials.
By submitting any material to the site or to us in connection with your use of the site, you thereby assign all intellectual property rights in that material to us. You must not submit material to the site if a third party has any intellectual property rights in that material.
By accessing and using the site or by submitting information to us, you consent to our collection, use and disclosure of information in accordance with this privacy statement.
We may collect and retain personal and other information about you ("submitted information") when (a) you send us an email; (b) you complete and submit an online form; (c) you provide us with information; or (d) a third party submits information about you to us.
It is not practicable for electronically submitted information to be provided to us anonymously. However, where appropriate it may be possible for you to use traditional means of communication to provide information to us anonymously.
The submitted information which we retain and use may include your name, email and postal address, contact details and personal or other information. You consent to our use of submitted information for our internal purposes and to communicate with you regarding our products and services or the products and services of third parties or for any other reasonable purpose. You may elect not to receive such communications from us, either at the time you submit the information or at a later time. We may use submitted information to establish and use databases relating to your interests and preferences and we may use overseas service providers to store data including submitted information. To the extent necessary, you consent to our transfer of submitted information overseas for this purpose. We will not sell submitted information to third parties or intentionally disclose submitted information to third parties except to the extent that you have consented to such disclosure.
We will take reasonable steps to implement and maintain security precautions and endeavour to prevent unauthorised access to, disclosure or use of submitted information. However, we are unable to guarantee that unauthorised access to submitted information will not occur, either during transmission of that information or after we receive that information.
If we no longer require submitted information, we will take reasonable steps to permanently destroy or de-identify that information. You acknowledge that our back-up procedures may make it impractical to locate and destroy or de-identify copies of submitted information which are stored off-line or in a form which does not readily permit location and modification of data.
If you submit information to any other site accessed through a link from the site, the privacy principles applying to any information you submit to that site are outside our control. You should check the privacy policies of any other site before submitting information to that site.
We will take reasonable measures to ensure all personal information held about you is accurate, complete and up-to-date. We will correct any errors in the personal information which we collect about you upon receipt of written evidence from you which satisfies us that a correction is required.
We will provide you with access to your personal information on reasonable request and subject to your agreement to pay our access charges if (a) it is practicable for us to do so and we have no other reasonable grounds for refusing access, (b) the request is not frivolous or vexatious, (c) access will not have an unreasonable impact on the privacy of others, (d) the information does not relate to existing or anticipated legal proceedings (other than information accessible through the discovery process), (e) access will not reveal our intentions in relation to any negotiations with you, (f) access is not unlawful (g) denying access is not required or authorised by law, and (h) access will not prejudice any prevention, detection, investigation or prosecution of possible unlawful or improper activity.
When you visit the site, a range of information relating to your access and use of the site is recorded (collectively called "clickstream data"). We may examine clickstream data to determine the traffic through the server as well as access levels to specific pages. No attempt will be made to identify you personally or your browsing activities from clickstream data except if we or any authority suspect that unauthorised access or use of the site has occurred or may occur or be attempted. In these circumstances, we may gather, use and disclose more extensive information than indicated above regarding access or attempted access to the site for the purposes of prevention, detection, investigation or prosecution.
If you have any concerns or questions, please contact our Privacy Officer by email at email@example.com.
The site is administered by us from offices in South Australia. These conditions and your use of the site and any disputes between you and us shall be governed by and construed in accordance with the laws of the State of South Australia, without giving effect to any principles of conflicts of law. Any legal proceedings arising out of or in connection with the use of the site or products must be commenced in the appropriate court in the State of South Australia. You are solely responsible for ensuring that your use of the site is not prohibited and complies with your local laws.
If any provision of these conditions is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these conditions and shall not affect the validity and enforceability of any remaining provisions.
We may modify the content, nature or accessibility of the site or any parts of the site as and when we see fit. These conditions will continue to apply even if you cease to be permitted or able to use all or any parts of the site.
We may revise these conditions at any time by updating this web page. You are bound by such revisions and should therefore regularly revisit this page to review the then current conditions by which you are bound. Your continued use of the site after a revision of these conditions evidences your acceptance of that revision.
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.
1. 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 $50 re-packing fee. Backorders will only be accepted and processed when agreed in writing by the Company and the Customer.
2. Cancellation & Return: The Customer cannot cancel an order for goods, nor delay delivery or collection (as the case may be) once the Company has accepted an order without the Company's consent (which may be granted or withheld in its discretion). If the Company agrees to cancel an order prior to dispatch, the Customer must pay to the Company a cancellation fee equal to ten percent (10%) of the value of the order so cancelled and any other delivery costs incurred by the Company up to the time the order was cancelled. If the Company agrees to the Customer returning goods which have already been dispatched or delivered by the Company, the Customer must return the goods to the Company at its own cost and the Company will only accept the return of such goods on the condition that the Customer pay to Company a cancellation fee equal to twenty-five percent (25%) of the value of the order so cancelled. All goods returned under this clause must be unopened, in re-saleable condition and in their original condition and packaging.
3. Payment: Unless otherwise agreed, payment for goods supplied must be made in Australian dollars (AUD$) 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.
4. 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.
5. 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.
6. 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.
8. 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.
9. 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. 10. 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: a. may, subject to clause 3, take possession of the Goods and hold them as trustee and agent for the Company; and b. 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: a. 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); b. 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; c. 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 d. 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: a. upon request by the Company the Customer must return any Goods on which there are outstanding Amounts Owing; b. the Company may enter the premises at which those Goods are stored, and seize possession of them; and c. 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 clause10: a. 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; b. paid means receipt of cash or cleared funds by the Company in full satisfaction of the Amounts Owing; c. the following words have the respective meanings given to them in the PPSA: account, commingled, proceeds, register, registration, security interest and verification statement.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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). 19. 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.