TERMS AND CONDITIONS OF SALE
“Seller” shall mean Dilectio Pty Ltd and include its employees and agents and any subsidiary Company of the Seller.
“Buyer” shall mean and include the person or persons, company or other entity named as the Applicant in the attached Application for Credit Account and any partner, servant, agent, contractor, or employee of that person or company and in the case of two or more persons shall refer to each of them jointly and severally.
2.1 All orders placed by the Buyer will be subject to these Terms and Conditions of Sale unless otherwise expressly agreed to in writing by the Seller.
2.2 The Buyer waives any terms and conditions of purchase which are inconsistent with these Terms and Conditions of Sale.
2.3 The Buyer agrees that all contracts made with the Seller shall be deemed to be made in the State of New South Wales and the Buyer agrees to submit to the jurisdiction of the appropriate Court in that State.
2.4 All sales are made at the ruling price of the Seller at the time of delivery, unless otherwise agreed in writing.
2.5 Any notice in writing required to be given to the Buyer shall be deemed to be duly given or served after the expiration of 2 business days from the date of posting by ordinary pre-paid mail to the postal address (or where there is no postal address listed, to the business address) of the Buyer as set out in the attached Application for Credit Account, or such other address as may from time to time be provided by the Buyer, but only where such new address is acknowledged by return in writing from the Seller.
2.6 These Terms and Conditions of Sale may be the subject of any variation or alteration by notice in writing to the Buyer by the Seller, including but not limited to any variation or alteration which may be contained in any Tax Invoice(s) supplied to the Buyer by the Seller from time to time. Such variation or alteration will apply as and from the date the notice is given or any other date nominated by the Seller whichever should occur later.
2.7 The Seller shall be entitled at any time to assign its rights under the attached Application for Credit Account, these Terms and Conditions of Sale and any attached or accompanying Deed of Guarantee and Indemnity.
3.1 The Buyer acknowledges and accepts that goods delivered must be kept below 5 degrees C immediately upon delivery and the Seller accepts no liability for goods not stored appropriately.
3.2 The Seller shall not be liable for any claim, loss, or expense whatsoever or howsoever arising which is made after the expiration of 14 days from the date of delivery.
3.3 The Seller will not be subject to any liability which exceeds the replacement value of the subject goods. The Seller will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The Buyer acknowledges this express limitation of liability and agrees to limit any claim accordingly.
3.4 The Seller shall not be liable for any claim, loss, or expense sustained or incurred by any person arising in any way as a result of the unavailability of goods or any failure or delay in delivery of the goods or any part thereof and such failure or delay will not affect the Seller’s rights under these Terms and Conditions of Sale or otherwise.
3.5 Any advice, recommendation, information, or representation provided by the Seller as to the quality or performance of the goods or their suitability for a particular purpose or otherwise in relation to the goods is given in good faith but without any liability or responsibility on the part of the Seller. The Buyer acknowledges that it has not relied upon or been induced by any representation by the Seller.
3.6 The Buyer agrees that this credit account is not transferable or assignable and that the Applicant and any Guarantors executing this Application for Credit Account or Deed of Guarantee and Indemnity, at all times remain liable to the Seller pursuant to these Terms and Conditions of Sale, unless the Seller expressly acknowledges in writing that the Seller has released the Applicant or any one or more of the Guarantors as the case may be, from any liability incurred on the granting of future credit.
3.7 The Buyer acknowledges and expressly agrees that where a Company or other corporation named in the Application for Credit Account as the Applicant changes its name, or where one or more of the directors of the Applicant is also or becomes a director of a new or different entity that commences and/or continues to trade with the Seller (“the New Entity”), that the New Entity will continue to remain liable to or will additionally become liable to the Seller in accordance with these Terms and Conditions of Sale as if the New Entity had completed a further Application for Credit Account with the Seller and will consequently and accordingly continue to hold or will additionally hold the Guarantor(s) named in the Deed of Guarantee and Indemnity liable to the Seller in the manner set out in the Deed of Guarantee and Indemnity to the extent that such Guarantor(s) are also director(s) of the New Entity.
4.1 Unless otherwise agreed in writing, all prices are strictly net of GST and the Buyer shall make payment such that it is received by the Seller within seven (7) days after the date of the Seller’s invoice.
4.2 Time for payment of the Seller’s invoice(s) will be of the essence such that if payment is not made in accordance with the above payment terms, the Buyer agrees and acknowledges the Seller shall be immediately entitled to:
4.2.1 Suspend all further orders or the supply of goods or deliveries until all outstanding monies have been paid or to require the payment of cash upon delivery of any further goods.
4.2.2 The forthwith payment of all amounts owing by the Buyer to the Seller, whether or not such amounts are then due for payment.
4.2.3 Charge the Buyer an administration fee/ account keeping fee of $30.00 per month or on any part of a calendar month in which monies remain overdue for payment.
4.2.4 Charge the Buyer interest at the rate of 3.0% per month calculated on a daily basis from the due date of payment on the total of any or all monies which remain overdue for payment from time to time and such interest shall accrue before as well as after any court Judgment which is entered against the Buyer.
4.2.5 Recover from the Buyer all damages, expenses, legal fees (including but not limited to all fees payable by the Seller to a Solicitor) and costs of collection incurred (which means and includes all fees, costs, and commissions, whether actually payable or contingently liable to be paid to a mercantile agent on the recovery of a debt) by the Seller in exercising or attempting to exercise the Seller’s rights in relation to these Terms and Conditions of Sale or howsoever otherwise incurred, in addition to all other remedies the Seller may have at law.
4.2.6 Apply all payments received from the Buyer in the consecutive priority of firstly satisfying any and all monies remaining unpaid in accordance with clauses 4.2.3 to 4.2.6 and thereafter in satisfaction of any and all other monies outstanding to the Seller.
4.2.7 Register a caveat against the title to all land or to charge any property or asset currently or in the future owned or partly owned or acquired by the Buyer as beneficial owner or as the trustee of any trust, or upon which the Buyer is registered on the title as a proprietor, to secure the obligations of the Buyer under these Terms and Conditions of Sale and the Buyer further agrees and grants to the Seller the right to appoint a Receiver to sell any such land or property or asset for the benefit of the Seller in accordance with these Terms and Conditions of Sale.
5.1 Unless otherwise stipulated in writing by the Seller, the Buyer shall be responsible for the cost of any delivery. If the Seller is requested to arrange for the delivery of goods beyond their usual business premises, the Buyer shall pay all delivery charges stipulated by the Seller. The Seller shall in all cases be entitled to choose the method of transport.
5.2 The Buyer shall provide reasonable and proper access to the site specified for delivery.
5.3 Where for any reason the time necessarily spent by the Seller in attempting to or effecting delivery exceeds 15 minutes the Buyer agrees to pay all costs and expenses of the Seller thereby incurred.
5.4 The Buyer shall be responsible for any damage whatsoever or howsoever caused in the course of delivery and shall indemnify the Seller in relation to every claim whatsoever which arises in relation thereto.
5.5 The Buyer authorises the Seller to subcontract delivery in its absolute discretion.
5.6 The Seller may unilaterally delay or suspend any delivery or part of the delivery for any period or cancel any agreement for sale or withdraw credit facilities to the Buyer at any time without notice and such action shall not constitute a breach of contract with the Buyer nor shall it affect any other provisions of any contract with the Buyer which are to the Seller’s disadvantage or affect the Seller’s rights under these Terms and Conditions of Sale or otherwise.
5.7 Where the Buyer or the Buyer’s agent is not on site to accept delivery whether by the Supplier or the Supplier’s agent, the Buyer expressly agrees and acknowledges the Proof of Delivery provided by the driver or delivery company shall be deemed as acceptance. This Proof of Delivery is to include two or more of the following :-
The signature and/or name of the recipient or delivery driver, a time and date record of the delivery, a temperature reading at or below 5 degrees Celsius on delivery, a photo of the delivery, and a GPS location of the delivery.
6. CLAIMS, RETURNS, AND CANCELLATIONS
The responsibility rests with the Buyer to ensure thorough and careful inspection of the goods immediately upon delivery:
6.1 Disputed claims will not be accepted unless received by the Seller in writing within 24 hours of the delivery date of the goods. Claims outside of this period will only be accepted at the absolute discretion of the Seller.
6.2 Goods will only be accepted for credit if they are the wrong product or damaged in transit. Credits are authorised in writing by a representative of the seller.
6.3 Any variation or cancellation of an order must be approved in writing by the Seller.
If the Buyer fails to comply with any of these Terms and Conditions of Sale or:
7.1 Being an individual commits any act of bankruptcy, or corporation passes a resolution for winding up or liquidation or,
7.2 Enters into any composition or arrangement with creditors or if an Administrator, Receiver, or Manager is appointed over any property or assets or, becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, the Seller may in addition to exercising any of its rights against the Buyer, suspend any further deliveries and immediately recover possession of any products not paid for in full and sell them.