Terms and Conditions

1. General

1.1
The whole of the Agreement between The Trustee for Watkins Family Trust trading as Diamond Catering Equipment Australia ABN 64 891 213 640 ("Diamond Catering Equipment Australia") and the Applicant referred to in the Credit Application (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by Diamond Catering Equipment Australia under these Terms ("Goods"), the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.

2. Credit Terms

2.1
Payment is due at date of invoice rendered in respect of the supply of the Goods unless otherwise stated in writing by Diamond Catering Equipment Australia. Diamond Catering Equipment Australia may charge liquidated damages at a rate of 2.5% per month if payment is not received by the due date.
2.2
Diamond Catering Equipment Australia's express or implied approval for extending credit to the Customer may be revoked or withdrawn by Diamond Catering Equipment Australia at any time.
2.3
Diamond Catering Equipment Australia is entitled to set-off against any money owing to the Customer amounts owed to Diamond Catering Equipment Australia by the Customer on any account whatsoever.
2.4
Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
2.5
The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Diamond Catering Equipment Australia for enforcement of obligations and recovery of monies due from the Customer to Diamond Catering Equipment Australia.

3. Quotations and Pricing

3.1
Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by Diamond Catering Equipment Australia by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). Diamond Catering Equipment Australia will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
3.2
Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.3
Unless otherwise specified by Diamond Catering Equipment Australia, the prices exclude:-
3.3.1
Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been allowed for by Diamond Catering Equipment Australia in calculating the price.
3.3.2
Costs and charges in relation to insurance, packing (other than the standard packing of Diamond Catering Equipment Australia), crating, delivery (whether by road, rail, ship or air) and export of the Goods.

4. Minimum Order Value

4.1
For an order of less than $20.00, Diamond Catering Equipment Australia reserves the right either to not accept an order or to charge the Customer a handling fee.

5. Delivery and Supply

5.1
Any times quoted for delivery and/or supply are estimates only and Diamond Catering Equipment Australia shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. Diamond Catering Equipment Australia reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
5.2
If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:-
5.2.1
shall be liable for any additional cost, charge and expense incurred by Diamond Catering Equipment Australia in complying with the Customer's direction; and
5.2.2
shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries.
5.2.3
Such action shall be deemed to be delivery to the Customer.
5.3
The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer's premises or when Diamond Catering Equipment Australia notifies the Customer that the Goods are available for collection.
5.4
If the Customer is unable or fails to accept delivery of the Goods, Diamond Catering Equipment Australia may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Diamond Catering Equipment Australia. Such action shall be deemed to be delivery to the Customer. The Customer shall be liable for all cost, charge and expense incurred by Diamond Catering Equipment Australia on account of storage, detention, double cartage/delivery or similar causes.

6. Property

6.1
Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to Diamond Catering Equipment Australia from time to time:-
6.1.1
All sums outstanding become immediately due and payable by the Customer to Diamond Catering Equipment Australia if the Customer makes default in paying any other sums due to Diamond Catering Equipment Australia, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.
6.1.2
The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for Diamond Catering Equipment Australia (returning the same to Diamond Catering Equipment Australia on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
6.1.3
The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Diamond Catering Equipment Australia provided that there shall be no right to bind Diamond Catering Equipment Australia to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for Diamond Catering Equipment Australia pursuant to the fiduciary relationship.
6.1.4
In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment ("relevant proportion") received by the Customer for such goods or products on trust for Diamond Catering Equipment Australia. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
6.1.5
Diamond Catering Equipment Australia is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage.
6.2
In addition to any lien to which Diamond Catering Equipment Australia may, by statute or otherwise, be entitled, Diamond Catering Equipment Australia shall in the event of the Customer's insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in Diamond Catering Equipment Australia's possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.

7. Availability of Stock

7.1
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer's stated standard policy not to accept back orders or the Customer specifically marks its order, "Do Not Back Order". Deliveries at any time are subject to availability of stock and Diamond Catering Equipment Australia will not be liable for any charges due to product unavailability.

8. Freight

8.1
Subject to Clause 3.3 and unless otherwise agreed, Diamond Catering Equipment Australia will ship by the least expensive route and carrier to all points. If the purchaser chooses a route with a higher charge than the route of Diamond Catering Equipment Australia's choice for shipment, Diamond Catering Equipment Australia will charge the difference to the Customer.

9. Returns, Cancellations and Claims

9.1
The Customer shall not return any Goods to Diamond Catering Equipment Australia without obtaining prior authorisation from Diamond Catering Equipment Australia. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by Diamond Catering Equipment Australia only after Goods returned are either collected by Diamond Catering Equipment Australia's authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to Diamond Catering Equipment Australia but must await receipt of a credit note.
9.2
All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
9.3
If Diamond Catering Equipment Australia accepts the return of any Goods that have been ordered, Diamond Catering Equipment Australia may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
9.4
No cancellations or partial cancellation of an order by the Customer shall be accepted by Diamond Catering Equipment Australia unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Diamond Catering Equipment Australia, will indemnify Diamond Catering Equipment Australia against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
9.5
All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to Diamond Catering Equipment Australia in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.

10. Privacy Act 1988 (“Privacy Act”)

To enable Diamond Catering Equipment Australia to assess the Customer’s application for credit, the Customer authorises Diamond Catering Equipment Australia:-
10.1
To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
10.2
To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities, and
10.3
To give to a credit reporting agency information including identity particulars and application details
AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises Diamond Catering Equipment Australia to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.

11. Notification

The Customer must notify Diamond Catering Equipment Australia in writing within seven (7) days of:-
11.1
Any alteration of the name or ownership of the Customer.
11.2
The issue of any legal proceedings against the Customer.
11.3
The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.
11.4
Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Diamond Catering Equipment Australia for all Goods supplied to the new owner by Diamond Catering Equipment Australia until notice of any such change is received.

12. Warranties

No warranties except those implied and that by law cannot be excluded are given by Diamond Catering Equipment Australia in respect of Goods supplied. Where it is lawful to do so, the liability of Diamond Catering Equipment Australia for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by Diamond Catering Equipment Australia.
Please return the product to Diamond Catering Equipment Australia for warranty repair as per our Terms and Conditions see below Diamond Catering Equipment Australia. Warrant each new DIAMOND CATERING EQUIPMENT AUSTRALIA appliance manufactured by DIAMOND CATERING EQUIPMENT AUSTRALIA to be free from defects in materials or manufacturing process for a period of 1 years from the date of original purchase (unless otherwise stated). Should defects due to faulty materials or manufacturing process develop within the warranty period, the appliance will be repaired without charge providing all conditions of this warranty are observed.
12.1
Proof of Purchase and Warranty card must be retained and available on request.
12.2
This Warranty is void if the equipment has been damaged due to misuse/neglect or is used for a purpose for which it was not suited; and no repairs, alterations or modifications have been attempted by other than Diamond Catering Equipment Australia or its authorised Service Agent.
12.3
Diamond Catering Equipment Australia. Reserves the right to reject a claim for warranty if service is required due to misapplication, improper installation, inadequate wiring, and incorrect voltage conditions. Under no circumstances shall DIAMOND CATERING EQUIPMENT AUSTRALIA or its agents bear responsibility for consequential damages of any kind.
12.4
Where required by Statute or local authority, equipment must be installed by qualified person in accordance with all relevant regulations. Failure to do this will void product warranty.
12.5
Cost of transport of any appliance or part to and from DIAMOND CATERING EQUIPMENT AUSTRALIA or its Service Agent is to be paid by the owner.
12.6
A charge will be made where failure is due to neglect, abuse or accidental damage on the part of the operator, or when no fault can be found or the fault is due to causes outside the control of Diamond Catering Equipment Australia.
12.7
The above does not preclude the purchaser from their statutory rights as a consumer.
Please note that it is company policy not to provide verbal confirmation that a repair will be covered under warranty until the unit has been assessed by Diamond Catering Equipment Australia or Authorised Diamond Catering Equipment Australia Service Agent. A work order number will be provided on request after the above Terms and Conditions have been met in the event that the appliance is covered by warranty.

13. Force Majeure

13.1
Diamond Catering Equipment Australia shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to Diamond Catering Equipment Australia shall be paid immediately and, unless prohibited by law, Diamond Catering Equipment Australia may elect to terminate the Agreement.

14. Equitable Charge

14.1
The Customer as beneficial owner and/or registered proprietor now charges in favour of Diamond Catering Equipment Australia all of the Customer's estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer's Street Address in the Credit Application if applicable) ("Land") to secure payment of accounts rendered by Diamond Catering Equipment Australia to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by Diamond Catering Equipment Australia and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.

15. Failure to Act

15.1
Diamond Catering Equipment Australia's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or Diamond Catering Equipment Australia's failure to exercise any right or remedy available under these Terms or at law, or Diamond Catering Equipment Australia's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of Diamond Catering Equipment Australia's right to demand timely payment of future obligations or strict compliance with the Terms.

17. Retention of Title

17.1
As long as the Customer owes Diamond Catering Equipment Australia any part of the sale price for Goods supplied at any time Diamond Catering Equipment Australia shall retain the legal title in all Goods supplied and not yet used or resold. The Customer shall keep such Goods stored separately during the time he has them in such a way that Goods remain identifiable and shall hold such Goods as bailee for Diamond Catering Equipment Australia. When such Goods are filled or used, even with loss of identity, legal title to the resultant product shall vest in Diamond Catering Equipment Australia.
17.2
If the Customer resells the Goods aforementioned before all moneys payable by the Customer to Diamond Catering Equipment Australia have been paid, the Customer agrees that it holds the proceeds of re-supply of the Goods on trust for and as agent for Diamond Catering Equipment Australia immediately when they are receivable or received, such proceeds to be kept in a separate account.
17.3
It is further accepted, acknowledged and agreed that:
17.3.1
shall the retention of title clause herein constitutes a security agreement for the purposes of the PPSA which creates a Security Interest in all Goods including any Commingled Goods. It is the intention of Diamond Catering Equipment Australia and the Customer that upon registration of the Company’s Security Interest on the PPSR a Purchase Money Security Interest will result; and
17.3.2
shall until such time as ownership of the Goods shall pass from Diamond Catering Equipment Australia to the Customer, Diamond Catering Equipment Australia may give notice in writing to the Customer to return the Goods to Diamond Catering Equipment Australia. Upon such notice the Customer‘s rights to obtain ownership or any other interest in the Goods shall cease.