These terms & conditions of sale (Terms & Conditions) apply for the supply of products, merchandise, merchandise displays and services (“Products”) by De'Longhi Australia Pty Limited ABN 49 104 012 857 (Company) and its associated and subsidiary companies (all of which are referred to as the Company) to any person(s), business or company (Purchaser). Except as otherwise expressly agreed in writing between the Company’s duly authorised officer and the Purchaser, these Terms & Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued in relation to the Products.
a) The placement of an order for Products, acceptance of delivery of Products, or payment for any Products by the Purchaser is deemed to be acceptance of these Terms & Conditions.
b) If the Purchaser cancels or alters any order with the Company, then the Company reserves the right to charge the Purchaser any associated costs.
c) The placement of orders through a dedicated EDI or B2B process (electronic data interface), where orders are transferred by a electronic medium by the Purchaser or its third party members, utilising a global location number (GLN or equivalent) which is submitted to the Company by the Purchaser, is acceptance by the Purchaser as being the placement of an order as stated in Clause 1.a).
Prices are subject to alteration in the Company's absolute discretion and without prior notice. The issue of a new price list takes precedence as from the date on the price list over all previous price lists. All tender and quotation prices quoted by the Company are valid for a period of 30 days unless otherwise agreed and thereafter are subject to change without notice and all Products are offered subject to the right of the Company to withdraw them from sale.
3. GST AND OTHER CHARGES
Goods and Sales Tax (GST) is included in prices. All taxes, duties, fees, charges and levies will be payable by the Purchaser. This will be stated in an invoice to the Purchaser from the Company.
4. PRODUCT RANGE, DESIGN AND DEVELOPMENT
The Company reserves the right to modify or redesign any Product or part thereof without notice. The Company reserves the right to add to or remove from the range of Products supplied by it at any time and without notice.
5 FITNESS FOR PURPOSE
The Purchaser assumes responsibility for the capacity and performance of the Products being sufficient and suitable for the purpose for which they are purchased.
6. DELIVERY AND RISK
a) The Company shall endeavour to effect delivery of the Products at the time or times required by the Purchaser but failure to do so shall not confer any right of cancellation or refusal of delivery on the Purchaser or render the Company liable for any loss or damage directly or indirectly sustained by the Purchaser as a result thereof.
b) The Company's delivery obligation is discharged on arrival of the Products at the Purchaser's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Purchaser shall unload the Products upon delivery, provided that if the Purchaser is unable or unwilling to accept physical delivery of the Products, the Company shall be entitled to charge a fee for any delay experienced or for the storage of the Products at the risk and cost of the Purchaser. The Company may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms & Conditions.
c) The risk in the Products shall pass to the Purchaser upon delivery to the Purchaser or its agent or to a transport company nominated by the Purchaser.
d) The Purchaser shall examine the Products promptly after delivery and the Company shall not be liable for any misdelivery, shortage, defect or damage unless the Company receives details in writing within two (2) days of the date of delivery of the Products.
e) The Company is not liable for any claims for non fulfilment or late delivery of Products, or any loss or damage (including consequential loss or damage) suffered by the Purchaser arising from the delay in delivery or failure to deliver. The Purchaser shall accept and pay for the Products notwithstanding late delivery.
g) Subject to clause 6 d), acceptance of the Products shall be deemed for all purposes to have taken place when delivery has occurred.
h) No Products will be accepted for return by the Company unless agreed in writing by the Company prior to such return and then only upon conditions acceptable to the Company and at the Purchaser’s entire risk as to loss or damage. Where the Company agrees to accept Products for return to the Company, it may at its discretion charge a restocking charge to the Purchaser, which will be immediately payable.
i) Any claim made by the Purchaser in relation to rebates must be made within six (6) months of the date of delivery. If no rebate claim is made by the Purchaser within six (6) months of delivery, the Products are deemed to be accepted by the Purchaser upon the rebate applied and no further claim will be made by the Purchaser nor payable by the Company.
j) 3rd party deliveries of the Product may be arranged at the request of the Purchaser subject to the acceptance of the Company. The cost of such delivery shall be to the Purchaser’s account and the delivery charges will be detailed separately on the sales invoice. The Company is entitled to charge a fee for delivery.
The Company will honour its obligations set out in any express warranty given by the Company to the consumer and will honour its obligations owed to consumers pursuant to the guarantees contained in theCompetition and Consumer Act 2010 (CTH)with notation to the following;
a) The Products are warranted by the product’s manufacturer against defective workmanship and materials. The Purchaser acknowledges that such warranty is limited to the repair or replacement of any defective Product or materials at its option and is subject to the terms stated in the Warranty Card attached to the Product.
b) To the extent permitted by law all implied guarantees. conditions and warranties are expressly excluded.
c) Except as provided in this clause, the Company shall not be liable for any loss or damage, whether direct or indirect (including consequential losses or damage) arising out of any breach of contract by the Company or any negligence of the Company, its employees or agents.
d) Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify, or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
8. LEGAL & EQUITABLE TITLE
a) Ownership of the Products remains with the Company until the Purchaser has paid all indebtedness on an all monies basis to the Company on any account whatsoever.
b) The Purchaser agrees that it is in possession of the Products solely as a bailee for the Company until all payments owing to the Company have been made in full on an ongoing basis and until such payment:
i)the Purchaser shall be fully responsible for any loss or damage to the Products whatsoever and howsoever caused following delivery;
ii)the Purchaser shall store the Products separately from its own goods and those of any other party and in a manner which clearly identifies the Products, whether as separate chattels or as components, as the property of the Company; and
iii)the Purchaser shall maintain records of Products owned by the Company identifying them as the Company's property. The Purchaser shall allow the Company to inspect these records and the Products upon request.
c) The Company licenses the Purchaser to install the Products. If the Products are affixed to other materials, the Company’s security interest shall continue in accordance with thePersonal Property Securities Act 2009(Cth)(‘PPSA”).
d) The Purchaser shall be at liberty to sell the Products subject to the condition that until payment has been made to the Company, the Purchaser shall sell as an agent and bailee for the Company.
e) The Company reserves the following rights in relation to the Products until all amounts owed by the Purchaser to the Company are fully paid;
i) to enter the Purchaser’s premises (or the premises of any associated company or agent where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products; and
ii) to keep or resell any of the Products repossessed pursuant to clause 8 e) i).
f) If the Products are sold by the Purchaser, the Purchaser must hold in trust such part of the proceeds of any such sales as represent the invoice price of the Product sold in a separate identifiable account as the beneficiary property of the Company and must pay such amount to the Company upon request. The Company is entitled to maintain an action against the Purchaser for the purchase price of the Product.
g) If payment for the Product is not made by the Purchaser by the due date specified by the Company to the Purchaser, then the Purchaser shall return the Products to the Company on demand. If the Purchaser does not return the Product to the Company within 48 hours of receipt of the demand, the Company shall be entitled to enter the premises at any time to do all things necessary to recover the Product. The Purchaser shall be liable for all costs associated with the exercise by the Company of its rights under this clause and all such costs shall be repayable on demand.
h) The Purchaser agrees and acknowledges that all stock to hand at the Purchaser’s address and or nominated third party address is classified as being unpaid stock held to the value of the indebtedness to the Company. All Products identified by the Company’s brands and product numbers are noted as unpaid stock and title remains with the Company.
For the purpose of securing payment to the Company of all monies owing by the Purchaser to the Company, the Purchaser hereby;
a) charges in favour of the Company all of the Purchaser’s interest in any real property currently owned or later acquired by the purchaser and consents to the Company registering a caveat in respect of such charge;
b) authorises and consents to the Company taking all actions necessary to give effect to this security;
c) the Purchaser hereby irrevocably appoints the Company and any person nominated by the Company severally the attorney of the Purchaser with power to execute, sign and deliver any document required in connection with the registration of such charge or caveat.
10. TERMS OF PAYMENT
a) The granting of credit to a Purchaser shall be at the absolute discretion (including the right of the Company to forthwith revoke credit without notice) of the Company and unless otherwise demanded by the Company the Purchaser shall make payment of all amounts payable by the last business day of the month following the month in which the Products are charged. Payments shall be made by electronic funds transfer (EFT) or made paid directly into the Company’s bank account. In the event that the Company owes money to the Purchaser, the Company is entitled to contra the payment to be made to the Purchaser against the debt owed to the Company by the Purchaser.
b) The Purchaser shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off, unless otherwise agreed by the Company.
c) If the Purchaser fails to make payment in accordance with clause 10.(a) and or 10.(b) the Company shall be entitled to;
i) require the payment prior to the time of any further Products being supplied;
ii) claim from the Purchaser all costs, expenses and charges incurred including, but not limited to, any mercantile agent’s costs, legal costs and disbursements on a solicitor-client full indemnity basis;
iii) cease any further deliveries to the Purchaser and terminate any agreement in relation to Products that have not been delivered to the Purchaser;
iv) preclude, withdraw and or cancel the Purchaser from participating in special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until its accounts are no longer overdue;
v) demand the reimbursement of any special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs that the Company did not obtain a positive benefit from the advanced disbursement.
vi)require the Purchaser to provide to the Company a copy of the latest audited financial statement and or other financial details upon request by the Company; and
vii) at the discretion of the Company, charge an account keeping fee at the rate of two per centum (2%) per month on a cumulative basis calculated on a day to day basis on any monies due but unpaid to the Company. Such amounts will be computed from the due date for payment. The parties agree that such amounts are not a penalty but are a true measure of damages incurred by the Company.
d) Payments received from the Purchaser will be credited first against any account keeping fees and all such fees shall be payable on demand.
e) The Company at its discretion, may set-off monies that are owing by the Company to the Purchaser under any other agreement, against any monies that the Purchaser owes to the Company under these Terms and Conditions or any other agreement.
f) Payment of any amount by the Purchaser must be treated as being received in the following order:
i) First, in relation to obligations that are not secured under thePersonal Properties Securities Act 2009(PPSA), in the order in which those obligations were incurred;
ii) Second, in relation to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred; and
iii) Third, in relation to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
a) The Purchaser will be in default if;
i) the Purchaser breaches these terms and condition or any other agreement with the Company for the supply of Products;
ii) payment for the Products has not been received by the Company by the due date of payment;
iii) the Purchaser, being an individual, commits an act of bankruptcy or becomes insolvent;
iv) the Purchaser being a body corporate ceases to carry on its business or becomes insolvent or an order is made, or a resolution passed for its winding up, whether voluntary or otherwise or if a receiver, receiver and manager, or administrator is appointed to the whole, or any part of its assets or;
v) the Company determines the Purchaser’s credit worthiness or its credit standing alters adversely.
b) If the Purchaser defaults, the Company may;
i) treat the agreement with the Purchaser as repudiated and sue for breach of contract or other remedies available to the Company;
ii) refuse to supply any Products to the Purchaser;
iii) claim the return of any Products in the Purchaser’s possession where title has not passed to a consumer;
iv) without notice to the Purchaser withdraw or vary any credit the Company may have provided to the Purchaser; or
v) without notice to the Purchaser, make all monies owing to the Company on any account immediately due & payable.
12. SERVICE OF DOCUMENTS
Service of any notices may be effected by forwarding same by pre-paid post which will be deemed to have been received two days after postage, or facsimile which will be deemed to be received on successful transmission, to the last known address and facsimile of the parties.
13. STATEMENT OF DEBT
A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of the Company shall be prima facie evidence of the amount of the indebtedness of the Purchaser to the Company at that time.
14. INDEMNITY AND LIMITATION OF LIABILITY
a) With the exception of the warranty contained in these Terms & Conditions, the Company will not be liable for any loss or damage whatsoever which is suffered or incurred (including but not limited to indirect or consequential loss) suffered or sustained by the Purchaser in connection with these Terms & Conditions or the sale and supply of the Products, except for any liability which cannot be excluded by law. The Purchaser shall indemnify the Company against any liability for any loss or damage whatsoever which is suffered or incurred (including but not limited to indirect or consequential loss) suffered or sustained by the Company or any third party resulting from or relating to any act or omission of, or any representation made by, the Purchaser or a servant or agent of the Purchaser. The provisions stated will survive the termination of these Terms and Conditions by either party, by any means, or for any reason.
b) To the extent permitted by law all terms, guarantees, conditions, warranties and representations, expressed or implied, by statute or otherwise, are hereby expressly excluded.
c) To the extent permitted by law, the Company shall not be liable to the Purchaser for any injury, harm, loss, damage, costs, expense or other claim including economic loss or loss of profits however arising from the supply of the Products or arising from any breach, default or negligence of the Company in connection with the supply of the Products.
d) If the Purchaser is entitled to the benefit of any implied terms which cannot be excluded, the Company’s liability shall be limited, at its option, in the case of a supply of Products to:
i) the replacement of the Product or the supply of an equivalent or similar Product;
ii) the payment of the costs of replacing the Products or acquiring the relevant Products;
iii) the payment of the costs of having the Products repaired;
iv) the repair of the Products;
v) in the case of services, the resupply of the services; or
vi) the payment of the cost of having the services performed again.
(a) The Purchaser agrees that:
i) each order accepted by the Company, being an order accepted under these Terms & Conditions, creates a registrable security interest under the PPSA in any Products supplied under it;
(ii) the Purchaser acknowledges the right of the Company to register a financing statement under the PPSA with respect to the security interest created by these Terms & Conditions;
(iii)if the Company registers a security interest under the PPSA, the Company may exercise any or all remedies afforded to the Company as a secured party under it without prejudice to any other rights or remedies arising out of a breach by the Purchaer of any agreement with the Company; and
(iv) the Products are collateral for the purposes of the PPSA.
(b) The Purchaser waives any right the Purchaser has under the PPSA to receive notice in relation to registration events.
(c) The Purchaser and the Company agree that neither will disclose information of the kind specified in Section 275 (1) of the PPSA.
(d) At the election of the Company to be exercised at any time in its absolute discretion, any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.
16. FORCE MAJEURE
The Company shall be relieved of liability otherwise incurred under these Terms & Conditions whenever and to the extent to which performance of its obligations is frustrated, delayed, prevented or impeded by an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, government department, government agency or other governmental body, a failure of a Company, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code introduced.
17. PRODUCT CANCELLATIONS AND RETURNS
a) The acceptance of any cancellation of any order, and whether or not the Purchaser will then be liable for any cancellation charges or eligible for a credit for any returned goods will be determined in the Company's sole and absolute discretion.
b) Products or parts will not be accepted for return or credit without written permission of the Company. Products must be accompanied by a Goods Return Authority Form duly signed by the Company’s duly authorised representative. Details of the Goods Return Authority number will be supplied as acceptance for the return of those specific products noted. Additional Products returned unauthorised will not be accepted.
c) No Products, parts or repairs will be accepted on any freight forward basis by the Company.
d) Except as required by law, the Company is under no obligation to accept Products which the Purchaser wishes to return or exchange.
e) Products returned for credit may be subject to a handling fee of 20% of the invoiced value of the returned Product if it is deemed that the return is from circumstances outside the Company’s control.
18. INTERNET TRADING
In addition to compliance with these Terms & Conditions, the on selling and distribution of the Products online will only be permissible to the Purchaser and its authorised 3rd party distributors, in the following circumstances;
a) All Internet based sales activities must be approved and agreed to in writing by the Company prior to their commencement.
b) To obtain approval from the Company, the Purchaser's and its authorised 3rd party distributors online retail facility must, unless otherwise agreed by the Company, be supported by a fully maintained retail operation and showroom, physically displaying the Products available for sale online (i.e. the Purchaser cannot operate online only).
c) The only Products which can be promoted and made available for sale online by the Purchaser, are Products which are:
i)in stock and readily available to the Purchaser for prompt delivery to the Purchaser; and
ii)are directly supplied to the Purchaser by the Company under, and in accordance with these Terms & Conditions.
d) Internet sales are only permissible;
i) via a website address containing the Purchaser's trading name (e.g.www.tradingname.com.au); and
ii)via a website under the sole and direct management and control of the Purchaser.
e) For an abundance of clarity, on-selling to other online businesses is expressly prohibited.
f) The Company at its discretion, can deem noncompliance to this Clause as a breach of these Terms & Conditions and withdraw supply to the Purchaser and or its 3rd party distributor as determined in the Company's sole and absolute discretion.
19. SPECIAL OFFERS
Redemption and cash back offers offered by the Company from time to time are only available on retail purchases and all online purchases are excluded from these offers. The terms of any such offers by the Company must be strictly adhered to by the Purchaser.
20. INTELLECTUAL PROPERTY
The Purchaser acknowledges and agrees that it is not granted any rights, title or interest in any intellectual property owned or licensed by the Company (including the DE'LONGHI and KENWOOD Logos or any other logos managed or owned by the Company) and that the Purchaser must not use any of the Company's intellectual property without prior written consent from the Company. The Purchaser must not make any changes to the Products or any materials, including documents or packaging, which contain or display any of the Company's intellectual property.
Failure of the Company to insist upon strict performance of any of these Terms & Conditions or the delay in exercising any of the Company's rights under these Terms & Conditions will not constitute a waiver of these Terms & Conditions or the Company's rights.
22. VARIATION OF TERMS
The Purchaser must obtain written confirmation from the Company of any and all variations to these Terms & Conditions (including all representations or understandings which may conflict with one or more of these Terms & Conditions).
These Terms & Conditions may be amended by the Company at any time and in its absolute discretion.
a) Any dispute between the parties arising from the performance of the provisions of these Terms & Conditions must be settled through friendly consultation by the parties. All disputes arising in respect of the Terms & Conditions which are not resolved within thirty (30) days of first arising will be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with the said Rules. The place of arbitration will be Sydney, New South Wales. The procedural and substantive law applicable to the arbitration will be that of New South Wales. The decision of the arbitrator will be final and binding for both parties.
b) During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of these Terms & Conditions which are not under dispute.
These terms are governed by the law of New South Wales. Each party submits to the jurisdiction of the courts of New South Wales for any proceedings in connection with these Terms.
26. PRIVACY STATEMENT
Statement to Individuals pursuant to the Privacy Act 1988
a) The Company adheres to the National Privacy Principles in respect of any personal information collected from an individual before 12 March 2014 and to the Australian Privacy Principles in respect of any personal information collected from an individual on or after 12 March 2014.
b) The contact details of the Company can be found on its website.
c) The personal information requested in this form is required to assess your credit application and on-going credit worthiness to maintain an account.
d) Personal information supplied may be disclosed in the course of assessing your application and or on going credit to a credit reporting agency, trade credit insurer, or to the Registrar of the Personal Property Securities Register in the course of registering a financing statement in the Personal Property Securities Register and if the application exceeds a certain amount of credit, to the parent of the Company.
e) You are entitled upon request to have access to the personal information held by the Company.
f) If the personal information is not provided by you, then your application for credit may not be considered.
g) By providing the personal information requested, you hereby consent to the collection, use, disclosure and transfer of such personal information in accordance with this Statement and by the Privacy Act 1988.