TERMS AND CONDITIONS OF SALE GENERAL
GENERAL TERMS AND CONDITIONS OF SALE (TERMS)
These Terms apply to the sale and purchase of all DE'LONGHI and KENWOOD branded products (Products) by De'Longhi Australia Pty Limited ABN 49 104 012 857 (Company) to any person(s), business or company (Purchaser). 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. These Terms prevail over any terms in any documents of the Purchaser.
- PRODUCT PRICES. Product 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.
- GST AND OTHER CHARGES. Goods and Sales Tax (GST) is included in prices. Other Government taxes, charges and levies will be charged to the Purchaser's account if and as applicable.
- 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.
- 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.
- DESPATCH AND DELIVERY. Unless otherwise stated, any times quoted for despatch and delivery are to date from receipt by the Company of a written order from the Purchaser. Any despatch / delivery times quoted by the Company are estimates only. The Company is not liable to the Purchaser for any loss or damage suffered or incurred as the result of late or delayed despatch or delivery.
- WARRANTY. The Company will honour its obligations setout 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 the Competition and Consumer Act 2010 (Australia) and Consumer Guarantees Act 1993 (NZ).
- PROPERTY RISK AND TITLE IN THE GOODS. Risk in any and all Products supplied by the Company will pass to the Purchaser on despatch of the Products from the Company's premises. Legal and beneficial ownership of any and all Products shall remain with the Company until the Purchaser pays in full the purchase price and all other monies payable to or owing but not paid to the Company by the Purchaser on any account. If payment is overdue the Company may recover and/or resell the Products or any of them and for that purpose may enter upon any place where the Products are stored. Until payment is made in full by the Purchaser of the Products, the Purchaser holds the Products as bailee for the Company and will store the Products properly and in such a manner that they are clearly identifiable as the property of the Company and insure the Products against loss or damage, noting the Company's interest as owner of the Products. The rights of the Company under this term 7 shall extend to any mixed Products into which the Products are incorporated, mixed or used as material for manufacture. This term 7 survives the termination of these Terms.
- TERMS OF PAYMENT. Unless otherwise specified all payments shall be made in full to the Company by the 20th of the month following the date of invoice. Without limiting any of the Company's rights whether pursuant to these Terms or at common law, payment by the Purchaser in accordance with these Terms will be the essence of the contract between the parties, and failure on the part of the Purchaser to make payment on any due date may entitle the Company to treat such failure as repudiation of the contract to recover damages for breach of contract from the Purchaser.
- LIMITATION OF LIABILITY/INDEMNITY. With the exception of the warranty contained at clause 6, 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 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 in this term 9 will survive the termination of these Terms by either party, by any means, or for any reason.
- FORCE MAJEURE. The Company shall be relieved of liability otherwise incurred under these Terms 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 supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code introduced.
- CANCELLATIONS / RETURNS. The acceptance of any cancellation of any order, and whether or not the Purchaser will then be liable for an cancellation charges or eligible for a credit for any returned goods will be determined in the Company's sole and absolute discretion. Products or parts will not be accepted for return or credit without written permission of the Company. No Products, parts or repairs will be accepted on any freight forward basis by the Company.
- FREIGHT DAMAGE NOTIFICATION. Notice of transit damage must be made within 48 hours of receipt of product by the Purchaser.
- INTERNET TRADING. In addition to compliance with these Terms, sale and distribution of the Products online will only be permissible by the Purchaser in the following circumstances (NOTE: the provisions of this term 13 apply to all parent and child accounts pertaining to the Purchaser).
- All Internet based sales activities must be approved and agreed to in writing by the Company prior to their commencement.
- To obtain approval from the Company, the Purchaser's online retail facility must 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).
- The only Products which can be promoted and made available for sale online by the Purchaser, are Products which are:
- in stock and readily available to the Purchaser for prompt delivery to the customer; and
- which are directly supplied to the Purchaser by the Company under, and in accordance with, these Terms.
- Internet sales are only permissible:
- via a website address containing the Purchaser's trading name (e.g. www.tradingname.com.au);and
- via a website under the sole and direct management and control of the Purchaser.
- For an abundance of clarity, on-selling to other online businesses is expressly prohibited.
Failure to comply with the provisions of this term 13 may result in the termination of supply of Products to the Purchaser, as determined in the Company's sole and absolute discretion.
- 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.
- 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) 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.
- WAIVER. Failure of the Company to insist upon strict performance of any of these Terms or the delay in exercising any of the Company's rights under these Terms will not constitute a waiver of these Terms or the Company's rights.
- VARIATION OF TERMS. The Purchaser must obtain written confirmation of any and all variations to these Terms (including all representations or understandings which may conflict with one or more of these Terms).
- AMENDMENT. These Terms may be amended by the Company at any time and in its absolute discretion.
- MEDIATION. Any dispute arising out of or in relation to these Terms, including any dispute in relation to the respective rights or obligations of either party shall be referred to and settled by mediation by the Australian Commercial Dispute Centre.
- JURISDICTION. 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.