CCA Terms and Conditions of Sale
1. 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) (each a Supplier).
2. 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. The Supply Agreement is not the entire agreement between the Supplier and the Customer. To avoid any doubt, 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.
3. Any quotation given by the Supplier, response by the Supplier to a Customer enquiry, or any order made by the Customer and accepted by the Supplier, for the sale of any Goods, are of no effect unless they are made in writing, and will be subject to these Terms and Conditions of Sale.
4. 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).
5. The Customer acknowledges that Goods may not be delivered by a requested time. The Supplier will endeavour to notify the Customer of any delay as soon as practicable, and the Customer agrees that it must accept and pay for the Goods even if they are delivered after a requested time .
6. 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.
7. 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 that have been delivered. If the Customer fails to pay for any delivered instalment, the Supplier, may refuse to deliver any further instalments until all amounts due are paid.
8. Risk in the Goods passes to the Customer at the time the Goods are delivered to the Customer.
9. Subject to clause 10, the Customer must pay the Purchase Price of the Goods in advance of, or in cash on delivery.
10. 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 is not made until the cheque 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.
11. If the Purchase Price is not paid in full after it falls due, the Supplier may exercise its rights under clause 19 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 late payment 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.
12. 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 on any account under this Agreement but not paid to the Supplier by the Customer.
13. (a) Until title to the Goods passes to the Customer, the Customer must:
(i) hold the Goods as fiduciary and bailee for the Supplier; and
(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.
(b) 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 under this Agreement, 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 a 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.
(c) If the Customer fails to pay in full the Purchase Price for the Goods after payment is due or if another Event of Default (see clause 19 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.
(d) 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.
(e) This clause survives the termination of the Contract.
14. 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 indirect loss or damage of any kind whatsoever including, without limitation, consequential or economic loss or loss of profits arising out of or in connection with the supply of the Goods.
15. 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.
16. The Supplier may, upon notifying the Customer, 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, by agreement with the Customer, terminate a 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.
17. 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; and
(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.
18. The Customer agrees that it will be in default if any one or more of the following events (Events of Default) occur:
(a) the Customer:
i. is in liquidation or provisional liquidation or under administration;
ii. has a controller (as defined in the Corporations Act 2001) or any analogous person appointed to it or to any of its property;
iii. is taken under section 459F(1) of the Corporations Act 2001 to have failed to comply with a statutory demand;
iv. 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;
v. enters into a compromise or arrangement with, or assignment for the benefit of, any of 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 material obligation under, or is in breach in whole or in part of any material term of, the Contract; or
(d) the Customer breaches in whole or in part any material term of the Credit Terms.
19. If there is an Event of Default, and where the Event of Default is capable of being remedied, and the Customer fails to remedy the Event of Default to the reasonable satisfaction of the Supplier within 10 business days of being requested in writing by the Supplier to do so, in addition to any other rights at law the Supplier may have, the Supplier may take one or more of the following actions:
(a) treat the Contract as repudiated and sue for any loss and damage in respect of the loss of the Contract;
(b) enforce its security interest in any Collateral by exercising all or any of its rights under clause 13(d) and this clause 19 (including repossessing, in accordance with clause 13, any Goods in the Customer's possession in respect of which title has not yet passed to the Customer). To the extent the law permits:
(i) for the purposes of sections 115(1) and 115(7) of the PPS Act:
(A) the Supplier need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
(B) sections 142 and 143 are excluded; and
(ii) for the purposes of section 115(7) of the PPS Act, the Supplier need not comply with sections 132 and 137(3).
(c) (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
(d) require the immediate payment by the Customer of all monies owing by the Customer to the Supplier under any Contract or any account.
20. Application of the PPS Act
(a) If a term used in this clause or elsewhere in this Agreement has a particular meaning in the PPS Act, it has the same meaning in this Agreement.
(b) The Customer acknowledges that the Supplier may register a financing statement in relation to its security interest. The Customer waives its right under s 157 of the PPS Act to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.
(c) The Customer undertakes, if it disposes of any Collateral, that it will receive proceeds at least equal to the market value of the Collateral, and that it will not allow any other security interest to exist over those proceeds if that security interest could rank ahead of the Supplier's security interest. If such a security interest does arise despite the previous sentence, the Customer must ensure that it receives cash proceeds for the security interest at least equal to the market value of the proceeds, and must immediately pay those proceeds to the Supplier in reduction of the amount owing.
(d) The Supplier can apply amounts it receives from the Customer, including under clause 20(c), towards amounts owing to it in such order as the Supplier chooses.
21. 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.
22. 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 the Terms and Conditions of Sale from time to time by giving 30 days' written notice to the Customer and notifying the Customer of any changes on the Supplier's website. If the variation is material, and the Customer objects to the variation the Customer may, within 14 days of receipt of the variation notice, terminate this Agreement by giving 14 days written notice to CCA. All current Terms and Conditions of Sale will be held on the Supplier's website.
23. 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.
24. 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.
25. The Customer must pay the Supplier all reasonable 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.
26. 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.
a) GST means the same as in the GST Law;
b) GST Law means the same as "GST law" means in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
c) Terms defined in the GST Law have the same meaning in clauses concerning GST.
e) If GST is payable on a taxable supply made by a party under this agreement (“the Supplier”) to another party (“the Recipient”), the Supplier may recover from the Recipient of the supply the amount of that GST in addition to any consideration otherwise provided for. The Supplier will provide to the recipient a tax invoice for both monetary and non-monetary consideration.
f) The Recipient must make the payment of the GST amount referred to in clause 26 at the same time and in the same manner as it provides the consideration for the relevant supply subject to the Recipient receiving a valid tax invoice before the due date for payment.
g) The Supplier must issue an adjustment note to the Recipient as soon as it becomes aware of an adjustment event relating to the supply and must refund to the Recipient any overpayment of GST.
h) Consideration includes non-monetary consideration, in respect of which the parties must agree on a market value, acting reasonably.
i) If a party is entitled to be reimbursed and indemnified under this agreement, the amount reimbursed or indemnified is reduced by the amount of GST for which there is an entitlement to claim an Input Tax Credit on an acquisition associated with the reimbursement or indemnity. The reduction is to be made before any GST payable is calculated. It is to be assumed that there is an entitlement to a full Input Tax Credit on an acquisition associated with the reimbursement or indemnity unless the party to be reimbursed or indemnified demonstrates otherwise before the date the reimbursement or indemnity is required to be made.
28. 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.
"Collateral" means the Goods, any proceeds of the Goods, and any product or mass that the Goods may be or become part of.
"Commercial Credit Account Application" means the Commercial Credit Account Application entered into between the Customer and Supplier from time to time.
"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.
"Personal Property" has the meaning given to that term in the PPS Act.
"PPS Act" means the Personal Property Securities Act 2009 (Cth).
"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.
"Supply Agreement" means the Supply Agreement entered into between the Customer and the Supplier from time to time.
Privacy Statement and Consent
29. The Supplier collects your information in order to determine whether to supply Goods to you or whether to supply, or in connection with the supply of, credit. In ordering Goods from the Supplier or as part of your involvement with an application for credit (including through applying to be a Guarantor), you agree that the Supplier may:
(a) obtain information about you from, and provide information about you to, credit reporting agencies, other credit providers and any referees you may nominate in order to assess your credit or Goods application, or whether to accept you as a guarantor (this information may include anything about your credit worthiness, history, standing or capacity); and
(b) use the personal information about you which you or others have provided at any time to the Supplier in order to manage the Supplier's relationship with you (which includes managing the credit facility and/or Guarantee and Indemnity where applicable) and, where required, to comply with legislative and regulatory requirements. You agree to receive email and SMS communications from the Supplier in connection with the supply of Goods or credit, including information concerning Supplier's goods and services, the position of a credit account, registration emails, welcome emails, password re-set emails, order and payment confirmations, pricing related information, surveys and marketing;
(c) as appropriate, disclose that information to the Customer, to the Supplier's related bodies corporate, any guarantor or prospective guarantor of the Customer's liabilities to the Supplier, regulatory and law enforcement bodies, debt collection agencies, any organisation proposing to fund the acquisition of, or acquire, any interest in any obligation the Customer may owe the Supplier, and to any person to the extent necessary, in the Supplier's view, to carry out any instruction the Customer gives to the Supplier or to enforce any rights of the Supplier against the Customer.
30. You acknowledge that, subject to the provisions of the Privacy Act 1988, you may seek to access, correct or complain about the handling of the information which the Supplier holds about you at any time by writing to the Privacy Officer, Coca-Cola Amatil (Aust) Pty Ltd, L14, 40 Mount Street, North Sydney, NSW, 2060.
Terms and Conditions: *Promotional Prices are exclusive of zonal charges. Prices for SA and NT include CDL. Prices exclude GST.
Warning: Under the liquor laws of all Australian States and Territories it is an offence to supply alcohol to a person under the age of 18 years and for a person under the age of 18 years to purchase or receive liquor. Severe penalties apply for breach. This site will only accept orders for liquor from holders of a current liquor licence issued in any State or Territory. NSW Licence No. LIQW880010306. Liquor act 2007. It is against the law to sell or supply alcohol to, or to obtain alcohol on behalf of, a person under the age of 18 years. NT Permit No. 80082155; QLD Licence No. 131704. VIC Licence No. 33760861; SA Direct Sales Licence No. 51401974; SA Wholesale Liquor Merchant Licence No. 50305248. Tasmania Licence No. 66471. WA Licensee: Coca-Cola Amatil (Aust) Pty Ltd Wholesaler’s Licence -616019173 Level 1, 19 Miles Road. Kewdale WA Tel: 132653. Warning - Under the Liquor Control Act 1988, it is an offence: to sell or supply liquor to a person under the age of 18 years on licensed or regulated premises; or for a person under the age of 18 years to purchase, or attempt to purchase, liquor on licensed or regulated premises.
80082155; QLD Licence No. 131704. VIC Licence No. 33760861; SA Direct Sales Licence No. 51401974; SA Wholesale Liquor Merchant Licence No. 50305248. Tasmania Licence No. 66471. WA Licensee: Coca-Cola Amatil (Aust) Pty Ltd Wholesaler’s Licence -616019173 Level 1, 19 Miles Road. Kewdale WA Tel: 132653. Warning - Under the Liquor Control Act 1988, it is an offence: to sell or supply liquor to a person under the age of 18 years on licensed or regulated premises; or for a person under the age of 18 years to purchase, or attempt to purchase, liquor on licensed or regulated premises.