Burst foods pty ltd (ACN 619 846 114) trading as cobs fine foods
Terms and conditions of trade
1. Definitions In these Terms: ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended; Agreement means any agreement for the provision of goods or services by Cobs Fine Foods to the Customer; Cobs Fine Foods means Burst Foods Pty Ltd ACN 619 846 114 trading as Cobs Fine Foods; consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement; Customer means the person, jointly and severally if more than one, acquiring goods or services from Cobs Fine Foods; goods means goods supplied by Cobs Fine Foods to the Customer; 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; PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended; services means services supplied by Cobs Fine Foods to the Customer; and Terms means these Terms and Conditions of Trade.
2. Basis of Agreement
2.1 Unless otherwise agreed by Cobs Fine Foods in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 Any quotation provided by Cobs Fine Foods to the Customer for the proposed supply of goods or services is: (a) valid for 30 days; (b) an invitation to treat only; and (c) only valid if in writing.
2.3 The Terms may include additional terms in Cobs Fine Foods’ quotation, which are not inconsistent with the Terms.
2.4 An Agreement is accepted by Cobs Fine Foods when Cobs Fine Foods accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods or services.
2.5 Cobs Fine Foods may refuse to accept any offer.
2.6 The Customer must provide Cobs Fine Foods with its specific requirements, if any, in relation to the goods.
2.7 Cobs Fine Foods may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to quotes or orders placed after the notice date.
2.8 Cobs Fine Foods may terminate an Agreement with a Customer immediately upon providing written notice to the Customer.
3.1 Prices quoted for the supply of goods include GST and any other taxes or duties imposed on or in relation to the goods.
3.2 If the Customer requests any variation to the Agreement, Cobs Fine Foods may increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by Cobs Fine Foods in relation to goods or services, Cobs Fine Foods may vary its price to take account of any such change, by notifying the Customer.
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 Cobs Fine Foods’ invoice. (b) Cobs Fine Foods 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 Cobs Fine Foods’ sole discretion immediately upon giving the Customer written notice.
4.4 The time for payment is of the essence.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to Cobs Fine Foods, then all money which would become payable by the Customer to Cobs Fine Foods at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Cobs Fine Foods may, without prejudice to any of its other accrued or contingent rights: (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full; (b) charge the Customer for, and the Customer must indemnify Cobs Fine Foods 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 Customer; (d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at Cobs Fine Foods’ option: (a) where the Customer 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 Customer 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 Customer.
6. Passing of Property
6.1 Until Cobs Fine Foods receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to Cobs Fine Foods by the Customer: (a) title and property in all goods remain vested in Cobs Fine Foods and do not pass to the Customer; (b) the Customer must hold the goods as fiduciary bailee and agent for Cobs Fine Foods; (c) the Customer must keep the goods separate from its goods and maintain Cobs Fine Foods’ labelling and packaging; (d) the Customer must hold the proceeds of sale of the goods on trust for Cobs Fine Foods in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation as trustee; (e) in addition to its rights under the PPSA, Cobs Fine Foods 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 Cobs Fine Foods, and for this purpose the Customer irrevocably licences Cobs Fine Foods to enter such premises and also indemnifies Cobs Fine Foods 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 Cobs Fine Foods has a Purchase Money Security Interest in all present and future goods supplied by Cobs Fine Foods to the Customer 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 Customer at any particular time; and (d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by Cobs Fine Foods 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 Cobs Fine Foods’ premises and not at any later time.
7.4 Where permitted by the PPSA, the Customer 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 Cobs Fine Foods and the Customer 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 Customer agrees that: (a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Cobs Fine Foods will apply only to the extent that they are mandatory or Cobs Fine Foods agrees to their application in writing; and (b) where Cobs Fine Foods has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Customer must immediately upon Cobs Fine Foods’ request: (a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and (b) procure from any person considered by Cobs Fine Foods to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Cobs Fine Foods may at any time require.
7.8 Cobs Fine Foods may allocate amounts received from the Customer in any manner Cobs Fine Foods determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Cobs Fine Foods.
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 Customer immediately on the goods being delivered to the Customer or taken from Cobs Fine Foods’ premises.
8.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
8.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by Cobs Fine Foods, unless recoverable from Cobs Fine Foods 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 Cobs Fine Foods is an estimate only and not a contractual commitment.
9.2 Cobs Fine Foods 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 Customer or any third party for failure to meet any estimated date.
9.3 If Cobs Fine Foods cannot complete the services by any estimated date, it will complete the services within a reasonable time.
10.1 Subject to clause 11.6, Cobs Fine Foods will arrange for the delivery of the goods to the Customer.
10.2 The Customer 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 Customer to the point of delivery.
10.3 Cobs Fine Foods may make part delivery of goods or provision of services and Cobs Fine Foods may invoice the Customer for the goods or services provided.
10.4 The Customer indemnifies Cobs Fine Foods against any loss or damage suffered by Cobs Fine Foods, its subcontractors or employees as a result of delivery, except where the Customer is a consumer and Cobs Fine Foods has not used due care and skill.
10.5 If delivery is attempted and is unable to be completed the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable monthly on demand.
10.6 If agreed that the Customer will collect the goods: (a) the Customer must collect the goods with 7 days of being advised they are ready; (b) if the Customer does not collect the goods within this time, the Customer 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 Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against Cobs Fine Foods for failure of a statutory guarantee under the ACL.
11.3 If the Customer 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 Cobs Fine Foods’ liability to the Customer; (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 Cobs Fine Foods’ liability to the Customer; howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
11.4 If clause 12.2 or 12.3 do not apply, then other than as stated in the Terms or any written warranty statement Cobs Fine Foods is not liable to the Customer 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 Customer or any third party.
11.5 Cobs Fine Foods is not liable for any indirect or consequential losses or expenses suffered by the Customer 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 Customer acknowledges that: (a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Cobs Fine Foods in relation to the goods or services or their use or application. (b) it has not made known, either expressly or by implication, to Cobs Fine Foods 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 Customer.
11.7 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 Cobs Fine Foods is unable to deliver the goods or provide the services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
12.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Cobs Fine Foods once the order has been accepted.
12.3 Orders placed with Cobs Fine Foods cannot be cancelled without written approval of Cobs Fine Foods.
12.4 In the event that Cobs Fine Foods accepts the cancellation of any order placed with it, Cobs Fine Foods shall be entitled to charge a reasonable fee for any work down by or on behalf of Cobs Fine Foods to the date of cancellation including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
13. Change of Ownership
13.1 The Customer agrees to notify Cobs Fine Foods in writing of any change of ownership of the Customer within 7 days of such change and indemnifies Cobs Fine Foods against any loss or damage incurred by it as a result of the Customer’s failure to notify Cobs Fine Foods of any change.
14. Power to sell Goods
14.1 Nothing herein contained shall prevent the Customer from selling the goods to any third party provided that the proceeds of any such sale shall be held in trust by the Customer for Cobs Fine Foods until Cobs Fine Foods has received payment in full for the goods.
15. Shortages and Exchanges
15.1 Subject to clause 15.2 and 15.4, Cobs Fine Foods will not be liable for any shortages, damage or noncompliance with the specifications in the Agreement unless the Customer notifies Cobs Fine Foods with full details and description within 7 days of delivery otherwise the Customer is deemed to have accepted the goods.
15.2 When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by Cobs Fine Foods, Cobs Fine Foods may, at its option, replace the goods, or refund the price of the goods.
15.3 Subject to clause 16.4, Cobs Fine Foods 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 Cobs Fine Foods; (c) have been altered in any way; (d) have been used; or (e) are not in their original condition and packaging.
15.4 If the Customer is a consumer, nothing in this clause 16 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
16. Freight Costs
16.1 Cobs Fine Goods shall not be liable for freight costs on goods returned to it by the Customer.
17. Force Majeure
17.1 Cobs Fine Foods 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, Cobs Fine Foods may suspend or terminate the Agreement by written notice to the Customer.
18.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
18.2 The Customer cannot assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Cobbs Fine Foods.
18.3 Cobs Fine Foods will retain ownership of all of its intellectual property rights in existence as at the date of each Agreement or come into existence after the date of each Agreement otherwise than in connection with an Agreement.
18.4 Cobs Fine Foods’ failure to enforce any of these Terms shall not be construed as a waiver of any of Cobs Fine Foods’ rights.
18.5 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.
18.6 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.
18.7 The Customer must comply with the Australian Privacy Principles in connection with any personal information supplied to it in connection with this Agreement.
Website Terms and Conditions
The information contained in this website is for general information purposes only. The information is provided by Burst Foods Pty Ltd ACN 619 846 114 trading as Cobs Fine Foods (Cobs Fine Foods we, us, our). Whilst Cobs Fine Foods endeavours to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to this website or the information, products, services, or related graphics contained on this website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
Through this website you are able to link to other websites which are not under the control of Cobs Fine Foods or our related bodies corporate (as defined in the Corporations Act 2001 (Cth)). We have no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them. Product availability on suppliers’ website is limited, directly to stock availability through Cobs Fine Foods and our related bodies corporate. We have no control of stock availability through our stockists.
The intellectual property rights in all content made available to you on or through this website remains the property of Cobs Fine Foods and our related bodies corporate or our licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by Cobs Fine Foods and our licensors. You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, duplicate, copy, sell, distribute or otherwise reproduce or exploit, in any format, any of the content or copies of the content supplied to you or which appears on this website nor may you use any such content in connection with any business or commercial enterprise.
You must not misuse this website. You will not: commit or encourage a criminal offence; transmit or distribute a virus, trojan, worm, logic bomb or post any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the website; corrupt data; cause annoyance to other users; infringe upon the rights of any other person’s proprietary rights; send any unsolicited advertising or promotional material, commonly referred to as “spam”; or attempt to affect the performance or functionality of any computer facilities of or accessed through this website.
Cobs Fine Foods will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this website or to your downloading of any material posted on it, or on any website linked to it.
Every effort is made to keep the website up and running smoothly. However, Cobs Fine Foods takes no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.
Cobs Fine Foods reserves the right to amend these terms & conditions without notice to you from time to time. If Cobs Fine Foods decides to change these terms & conditions, it will post those changes here. Cobs Fine Foods encourages you to visit this section of the website regularly in order to remain informed of any changes. Any such amendment will be effective once the revised terms have been posted on this website.
You agree to indemnify, defend and hold harmless Cobs Fine Foods, its directors, officers, employees, consultants, agents, and related bodies corporate, from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from your use of this website or your breach of these terms & conditions.
If you breach these terms & conditions, failure by Cobs Fine Foods to take action will not constitute a waiver of our rights and remedies arising from that breach and Cobs Fine Foods reserves its entitlement to enforce its rights and remedies in relation to that breach or any other situation where you commit a breach of these terms & conditions. Any waiver of any provision of the terms & conditions will be effective only if it is in writing and executed by Cobs Fine Foods.
These terms & conditions are to be construed in accordance with the laws of Victoria, Australia and in the event of any dispute or claim associated with these terms & conditions, that dispute or claim shall be subject to the exclusive jurisdiction of Victoria, Australia.
Any provision in these terms & conditions which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise must be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of these terms & conditions or affecting the validity or enforceability of that provision in any other jurisdiction.