STRICTLY NET 30 DAYS FROM INVOICE DATE (REFER GENERAL TERMS AND CONDITIONS FOLLOWING)
I/We make this application on behalf of “The Applicant” for credit account with Frucor Beverages (Australia) Pty Ltd (“Frucor”).
I/We have read the application form and the general terms and conditions of sale which is attached hereto and upon due consideration of its contents, acknowledge that such terms and conditions apply to all contracts entered into between “The Applicant” and “Frucor” unless varied in writing by both the Applicant and Frucor.
The information contained in this Application that I/We have supplied is true and accurate in all respects.
“The Applicant” has authorised the provision of the information contained herein, the making of this application and agrees to the terms specified herein.
“The Applicant” will advise “Frucor” by registered mail or fax immediately upon any material change to the information contained in this application.
The supply of credit or granting of any rights and sale and distribution of goods by “Frucor” to “the Applicant” following upon consideration of this application is at the absolute discretion of “Frucor” and may (as regards future supply of credit or ongoing rights of distribution) be cancelled or varied by “Frucor” at its absolute discretion, at any time, whether or not “The Applicant” has been complying with the general terms and conditions of sale.
Acknowledgement that Frucor can collect, use, store and disclose my/our personal information to Credit Agencies
I/We acknowledge that “Frucor” can collect, use, store and disclose information about my/our personal credit information including the disclosure of such information to a credit-reporting agency, including but not limited to for the purposes of:
• assessing an application by me/us for credit;
• verifying my/our identity;
• deriving scores, ratings, summaries and evaluations relating to my/our credit worthiness.
. This personal credit information which may be collected, used, stored and disclosed may include:
• My/Our full name(s) and details contained in this application. Including any known aliases, sex and date(s) of birth;
• A maximum of my/our respective three addresses consisting of the last known address and two immediately preceding addresses;
• The name of my/our respective current or last known employer(s)
• My/Our drivers license number(s)
• The fact that I/We have applied to Frucor for credit and the amount (where applicable)
• Details of cheques drawn by me/us for $100 or more which have been dishonored
• The credit provided to me/us by Frucor has been paid or otherwise discharged
Agreement that Frucor may seek Credit Reports to assess the Application
• I/We agree that the Application constitutes an application for commercial credit;
• If Frucor considers it relevant to assessing my/our Application for commercial credit, I/We agree to Frucor obtaining from a credit reporting agency a credit report containing personal credit information about me/us in relation to commercial credit provided by Frucor
Agreement that Frucor may exchange my/our personal credit information with other credit providers
• I/We agree to Frucor obtaining personal credit information about me/us from other credit providers whose names I/We may have provided for Frucor or that may be named in a credit report, for the purpose of assessing my/our Application for commercial credit, made to Frucor.
• I/We understand that this information may be used for the following purposes;
o To assess all application/s by me/us for commercial credit;
o To notify other credit providers of a default by me/us;
o To exchange information with other credit providers as to the status of the credit given by me/us by Frucor as a result of the application where I/We am in default with other providers; or to assess my credit worthiness.
General Terms and Conditions of Sale
1. All quotations made by Frucor Beverages (Australia) Pty Ltd. (“Frucor”) are made on the condition that the following provisions (and any other terms notified in writing by Frucor from time to time) shall apply to all orders given by the Customer to and accepted by Frucor, unless they are expressly excluded or varied in the quotation or otherwise in writing signed by Frucor. A quotation is not an offer by Frucor to sell and may be withdrawn or varied without notice to the Customer, who is merely invited to make an offer to buy goods from Frucor on these terms.
2. Making an order or accepting goods shall indicate the customer’s acceptance of these terms. Orders are not binding on Frucor until accepted by Frucor in writing. Orders accepted by Frucor may, subject to the following, only be cancelled in whole or in part by the Customer with Frucor’s written consent. Frucor reserves the right the charge for any expenditure incurred relating to the order, up to the time the cancellation is accepted. All orders will be executed at prices ruling at the time of dispatch. Frucor reserves the right to withhold supply of goods at any time.
3. References to amounts owing to Frucor for goods and services, and payment in respect thereof, include all Government taxes and imposts in respect of such goods and/or services levied from time to time, including but not limited to Goods and Services Tax (as that term is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
4. Payment terms are strictly “C.O.D.” (cash on delivery) unless otherwise agreed in writing between the customer and Frucor. If terms have been otherwise agreed (“the due date”) and Frucor does not receive payment by the due date, then the customer shall pay Frucor:
a) Interest, computed from the ‘due date’ until payment, at the rate of 3% per annum above the Westpac Bank reference lending rate for overdraft facilities (calculated on a daily basis) on the unpaid portion of any amount due to Frucor.
b) The costs and expenses (including collection agency costs and/or legal costs on a solicitor/client basis) incurred by Frucor in obtaining payment of any amount not paid by the due date.
5. Returnable packaging materials (e.g. crates, pallets, and otobins) remain the property of Frucor unless paid for, returned or replaced in kind and may be invoiced separately by Frucor to the Customer after such goods have not been returned or replaced.
6. Subject to any rights or remedies which arise under the Competition and Consumer Act 2010 (Cth) or any other Federal, State or Territory laws which may not be excluded, where any right or remedy may be excluded or limited, Frucor hereby excludes all such rights or remedies and limits its liability under such rights or remedies which are not capable of exclusion to the maximum extent permitted by law. Subject to foregoing:
a) Frucor will not recognise claims which are not received within 72 hours of the time of delivery of any goods to or at the direction of the Customer;
b) As every care is used in the packaging of goods, no responsibility is taken for any loss or damage which occurs in transit;
c) To the maximum extent permitted by law, no warranty, condition, undertaking or loan, express or implied, statutory or otherwise as to the condition, quality, performance, merchantability or fitness for purpose of the goods is given or assumed and all such warranties, conditions, undertakings and terms are hereby excluded. Nothing in this clause is, or is intended to exclude the operation of any applicable consumer guarantees under the Competition and Consumer Act 2010 (Cth).
d) Frucor and its agents, employees and contractors shall not be liable for loss of profits or contracts or loss of use or for any indirect economic or consequential loss whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever;
e) Every effort will be made to make deliveries on time. Failure to do so due to circumstances outside of Frucor’s reasonable control including, but not limited to, strikes, lockouts, raw material storages, accidents or breakdowns of plant machinery, does not constitute a breach of contract;
f) Frucor will accept no claim for shortages unless endorsed on the delivery docket and invoice at the time of delivery. Frucor will not accept an endorsement “Subject to Check”. It is the responsibility of the Customer to check cartons at the time of delivery.
7. The customer shall indemnify and keep indemnified and hold Frucor harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Frucor and from and against all actions, proceedings, claims or demands made against Frucor arising as a result of:
a) The customer’s failure:
(i) to ensure that any safety markings on the goods are adequately displayed;
(ii) to comply with any legislation as to the labeling or marking of foods;
(iii) to take any other reasonable precautions either to bring to the attention of any potential users of the goods any dangers associated with the goods, or to detect any matters in relation to which Frucor may become liable, including, without limitation, liability, under the Competition and Consumer Act 2010 (Cth): or
(iv) otherwise to comply with any laws, rules, standards or regulations applicable in relation to the goods or the use of the goods;
b) any other negligence or other breach of duty by the customer; or
c) any compliance or adherence by Frucor with any instructions of the customer in relation to the goods or their manner of preparation
a) Risk in the goods shall pass at the time of delivery by Frucor either at the place of unloading if transport is effected by Frucor, or its agent, or at the place of loading at Frucor’s premises if transport is effected by the customer or its agent.
b) Notwithstanding the delivery of the goods to the customer, title to all goods supplied by Frucor shall remain with Frucor until payment in full of all monies owing buy the Customer to Frucor on any account. Prior to such payment in full, the customer shall hold all goods supplied by Frucor as bailee and fiduciary for Frucor. If the goods are sold or disposed of by the customer prior to such a payment in full, any amount received by the customer shall be set aside and held in trust by the customer for Frucor, pending payment in full.
c) If any payment by the customer to Frucor is overdue, in whole or in part, or the customer is otherwise in default under any contract with Frucor, or the customer shall become insolvent or suffer some form of external administration appointment, all sums then owing by the customer to Frucor shall become immediately due and payable and Frucor may (without prejudice to any of its other rights) recover and resell the goods and may, for the purpose, enter upon the customer’s premises by its servants or agents. Frucor is irrevocably authorised to effect such entry, and to use the name of the customer and to act on behalf of the customer, if necessary, to recover possession of the goods.
d) Frucor shall insure the goods until delivery. The customer shall effect and maintain adequate insurance against loss or damage to the goods between the time of delivery and passing of title in a full and proper amount. If the proceeds of such insurance are received prior to payment in full for the goods, such proceeds shall be held by the customer as trustee for Frucor and shall at the opinion of Frucor, be applied in or towards such payment, but otherwise Frucor shall be entitled to make claim under that insurance for the loss of its goods (as the case may be).
9. The customer acknowledges and agrees that:
(a) Frucor’s interest in the goods is a Security Interest for the purposes of the Personal Property Securities Act 2009 (Cth) (“Act”);
(b) Frucor has given value for the Security Interest and Frucor’s Security Interest in the goods is effective and attaches to the goods immediately upon the customer taking delivery of the goods;
(c) Frucor may take all steps as Frucor considers necessary to perfect, record, register, amend or remove the registration of Frucor’s Security Interest on the Personal Property Securities Register;
(d) the customer must, at its own cost, do anything which Frucor considers reasonably necessary to:
(i) ensure that Frucor’s Security Interest in the goods attaches to the goods, is enforceable, perfected and otherwise effective and has the priority required by Frucor;
(ii) enable Frucor to exercise or enforce any of its rights in relation to its Security Interest in the goods, and the proceeds of those goods, or to perform any of its obligations under the Act; and
(iii) enable Frucor to prepare, register or renew a financing statement on the Personal Property Securities Register.
(e) the customer must not:
(i) create any Security Interest in the goods, or any property which constitutes “personal property” under the Act and becomes an accession to the goods, without the prior written consent of Frucor;
(ii) change its name without first giving Frucor 14 days’ notice of the new name or relocate its principal place of business outside Australia or change its place of registration or incorporation.
(f) To the extent permitted under the Act, Frucor need not give any notice, including without limitation a notice of the receipt of a verification statement, to the customer under the Act.
(g) Neither Frucor nor the customer shall disclose information of the kind mentioned in section 275 (1) of the Act and the Purchaser will not authorise, and will ensure that no other party authorises, the disclosure of such information.