In this section, “Company” means Les Deux Coqs or any of its associated and subsidiary companies in existence now or in the future, or any other agent or sub agent (whether disclosed or not).
“Conditions of Sale” means these Conditions of Sale as varied and applicable from time to time.
"Customer” means the party placing the Order with or purchasing Products from the Company.
"Order" means an offer by a Customer to purchase Products from the Company.
“Products” includes all products listed on the Company price list as published from time to time and current at the time of the Customer placing an order and any products sold or delivered to the Customer by the Company.
1. Sale Terms
1.1 The Conditions of sale apply to all supplies by the company to the customer including all orders or other sales and will prevail over all prior Conditions previously agreed between the parties or which the customer puts forward at any time without the company’s express written agreement.
1.2 The Conditions of Sale may be amended from time to time by the Company without prior notice. Publication of the amended Conditions of Sale on the website of the Company shall be deemed to amend the Conditions of Sale and be notice of that amendment and the amended Conditions of Sale shall apply to any Order or part of an Order from the time of amendment. The Company may, but shall not otherwise be required or responsible to notify the Customer of the existence or content of any amendments to the Conditions of Sale
2. Order and Acceptance
2.1 Any Order submitted to the Company by a Customer shall be deemed to be made pursuant to the terms of the Conditions of Sale. Any Order placed or made by the Customer for the purchase of the Products shall be an irrevocable offer under those terms.
2.2 The Company may accept any Order in whole or in part by providing confirmation of the Order. Acceptance may be oral, by conduct or in writing at the Company’s discretion. Accepted Orders may not be varied or cancelled by the Customer without the Company’s written consent and (subject to the Conditions set out herein) there is no right of return.
3. Security of Customer Account Number
3.1 The Customer must ensure that its Customer account number issued is available only to those of its employees authorised to use it. The Customer acknowledges that it will be liable for all Orders requested with the quotation of the Customer account number.
4.1 The price of the Products shall be as agreed between the parties and where there is no written confirmation of the price, the price shall be the amount indicated on Invoices provided by the Company to the Customer regarding Products ordered.
4.2 Prior to acceptance of an Order, the Company may change its published prices at any time without notice. The customer is not entitled to any credit for stock on hand in the event of a price reduction after the Order has been invoiced.
4.3 The Price includes delivery unless otherwise specified.
4.4 Any discount or rebate will only apply if the Customer and the Company agree in writing.
5. Credit granting and payment
5.1 The Company may accept an Order and allow credit for part or all of its value or may accept an Order and require pre-payment as a condition of delivery.
5.2 Credit approval once granted may be withdrawn at any time. Where credit approval has not been granted, or is withdrawn, payment for all Products supplied is required before delivery (cash or cleared funds). Where credit has been approved for the Customer, all Invoices issued by the Company are due and payable by the date for payment agreed in writing by the Customer and the Company, but if no agreement in writing is made, then seven (7) days from the date of the Invoice provided by the Company to the Customer regarding Products ordered.
6. Credit Policy and Default
6.1 In the event that the Customer fails to make any payment payable pursuant to the Conditions of Sale within the payment terms or breaches any of the warranties, obligations or agreements, the Customer shall be in default.
6.2 The Company may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 1.0% per calendar month calculated from the due date and accruing monthly therefrom until the date of payment.
6.3 If the Customer is in default the Customer must reimburse and indemnify the Company from and against all expenses, costs and disbursements incurred by the Company in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to the Company by any mercantile agency. If the Customer fails to pay any amount by the due date, the Company may at its sole discretion:
(a) suspend trading on the account
(b) cancel any provision of credit to the Customer;
(c) reverse any rebates or discounts allowed;
(d) change credit payment terms including require cash pre‑payment for any further Products ordered;
(e) provide to a credit reporting agency details of the payment default;
(f) commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest and costs;
(g) decline to supply Products to the Customer and terminate this and any other agreement with the Customer; and;
(h) exercise any other rights at law including pursuant to the PPS Act.
6.4 A certificate of debt signed by a representative of the Company shall be prima facie evidence and proof of money owing by the Customer to the Company at the time of the certificate.
7.1 Delivery of the Products shall be deemed to have taken place when:
(a) the Products are delivered at the Customer’s nominated address (in the event that the Products are delivered by the Company or the Company’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Products in which event the carrier shall be deemed to be the Customer’s agent.
7.2 The Company’s nominated address shall be the address specified in the Commercial Account Application Form or otherwise notified in writing by the Company.
7.3 If the Customer requires regular delivery of Product to more than one delivery address, the Company may open separate accounts for each delivery address.
7.4 Delivery of Products may not be refused by the Customer after an Order has been accepted by the Company. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by the Company.
7.5 The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery.
7.6 Delivery of Products to a third party or place nominated in any way by the Customer is deemed to be delivery to the Customer pursuant to these Conditions of Sale.
7.7 The Company shall not be liable for any loss or damage or expense arising from failure by the Company to deliver the Products at a specified time, promptly or at all and the failure of the Company to deliver at a specific time or at all shall not entitle either party to treat this contract as repudiated.
7.8 Where the Company, the Company’s carrier or agent enters the Customer’s premises to make deliveries, the Customer releases the Company from claims for damage to the premises or personal injury. The Customer also indemnifies the Company against losses relating to damage to third party’s premises or personal injury in making deliveries to the Customer.
8. Credit Card recovery of costs
8.1 A service fee sufficient to cover the Company’s administration and banking cost may be added to the price where payment by the Customer is made by way of a credit card.
09.1 No cheque is allowed
10. Passing of Risk
10.1 The risk (but not title) in respect of Products sold passes to the Customer immediately upon delivery to the customer, the Customer’s agent or courier as the case may be.
11. Retention of Title to the Products Pending Payment
11.1 Legal and beneficial ownership of the Products shall remain with the Company and shall not pass to the Customer until the Company has received in full (cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Company from the Customer on any credit account with the Company or pursuant to these Conditions of Sale.
11.2 Until ownership of the Products has passed to the Customer, the Customer shall keep the Products in question as fiduciary agent and bailee for and on behalf of the Company.
12. Claims and Returns
12.1 Refunds or returns will only be given to the extent there is a non-excludable right to return or refund under the Australian Consumer Law or the Sale of Goods Act SA or other applicable legislation.
12.2 The Customer will inspect and check all Products received and within 24 hours of receipt notify the Company in writing of any shortage in quantity, defect, incorrect specification, damage or Products not in accordance with the Customer’s Order. The Customer is responsible for checking that Products correspond with those Ordered prior to use. After use or expiry of the time stated herein the Product shall be deemed to be free from any defect or damage at delivery.
12.3 The Customer agrees that it will not return any of the Products without first informing the Company and either obtaining approval from a duly authorised officer of the Company or so that a Returns Authorisation (“RA”) number may be issued by the Company for valid returns. The RA is valid for 30 days. Returned Products must be unmarked, in a saleable condition and must include the original packaging, accessories, delivery document and Invoice.
12.4 No credit or replacement will be given unless and until Products so returned have been verified as being valid for return or are defective and are returned with approval from a duly authorised officer of the Company or a valid RA number. An administration and restocking fee shall be debited to the Customer’s account where the returned Products prove to be not defective or not otherwise valid for return. Returned Products must be returned to the Company at the address notified by the Company.
12.5 All freight, handling and other charges in relation to returning Products (other than Products defective or not ordered) are the responsibility of the Customer.
13. Product Information, Photos and Images
13.1 The Product range on the Company website may vary from printed catalogues. Product information, photos and images may differ from the actual Products. Photos and images on the website and in printed material are for general illustration purposes only.
14. Disputed Charges
14.1 If the Customer objects to any invoiced item or amount, the Customer may withhold payment of the disputed amount, but only if on or before payment or the due date for payment (whichever occurs first), the undisputed amount of the Tax Invoice is paid in full and notice in writing of the dispute is given to the Company, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount.
14.2 The Company will investigate all disputes. If the amount is found to be payable (in whole or in part) then the Customer must pay the due amount within 7 days of receiving notice and the basis of the decision.
14.3 Invoiced amounts that are not objected to in writing within 30 days of the due date will be deemed to be correctly charged and accepted by the Customer and the Customer waives all claims against the Invoice.
15.1 Notwithstanding any other provision to the contrary, if any amount is not paid by the Customer within the terms for payment, or if the Customer is subject to an insolvency event (including administration, liquidation or receivership) then until all amounts owed by the Customer to the Company are fully paid the Company may:
(a) retake possession of the Products; and
(b) keep or resell any of the Products repossessed.
15.2 The Customer hereby grants full leave and irrevocable license without any liability to the Company and any person authorised by the Company to enter any premises by any means where the Products may for the time being be placed or stored for the purpose of retaking possession of the Products.
16.1 Payments must be made in Australian dollars. Payments remitted in foreign currency must include all related bank charges and currency conversion costs both on the payment and receiving end.
17. Set-off and assignment
17.1 The Customer shall not be entitled to set off against or deduct from the price of Products sold any sums owed or claimed to be owed to the Customer by the Company.
17.2 The Customer may not assign or subcontract any contract for the purchase of Products or its rights or obligations under an agreement the subject of the Conditions of Sale.
18 Force Majeure
18.1 The Company will have no liability to the Customer in relation to any loss, damage or expense caused by the Company’s failure to complete an Order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock‑out, war or the inability of the Company’s suppliers to supply necessary products or any other matter beyond the Company’s control.
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