XMAS TRADING 2023 - Sat 23rd: Office Closed/ Last Deliveries | Sun 24th - Mon 1st: Closed | Tues 2nd, Wed 3rd: Office Open | Thurs 4th: First 2024 Deliveries
“Seller” shall mean Lilydale Instant Lawn 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 Victoria 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 Turf is a perishable product. Lilydale Instant Lawn will not accept any responsibility, or be held liable for any deterioration of turf quality due to delays with
installation periods, or poor management on behalf of the recipient once the product is delivered.
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
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
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
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 thirty (30) days
after the end of the month in which the Seller’s invoice is dated.
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 a monthly account keeping fee being the greater of $50.00 or 5.0% of the total of any and all monies which remain overdue for payment on
the first day of each month.
4.2.4 Charge the Buyer an administration fee of $50.00 per month or on any part of a calendar month in which monies remain overdue for payment or in the event
that a cheque presented for payment is subsequently dishonoured.
4.2.5 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.
4.2.6 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.
4.2.7 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.
4.2.8 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. PROPERTY AND RISK
5.1 Ownership in any or all goods delivered by the Seller to the Buyer will remain with the Seller until the price of those goods and all other monies remaining
unpaid by the Buyer to the Seller have been paid in full, however the risk in any goods will transfer to the Buyer upon delivery to the Buyer or his agent or a carrier
nominated by the Buyer. Until the Seller is paid in full for the goods the relationship of the Buyer to the Seller shall be fiduciary in respect of the goods such that the
Buyer shall hold the goods as Bailee only for the Seller.
5.2 The Buyer may effect sale of the goods or part thereof in the usual course of business upon the conditions that:
5.2.1 Until sale of the goods occurs the Buyer shall store the goods separately from its own until ownership has manifested in the Buyer.
5.2.2 The Buyer holds all proceeds of sale relating to the Sellers goods on trust for the Seller.
5.2.3 The Buyer agrees that were the goods are sold to a third party prior to payment to the Seller the Buyer automatically assigns to the Seller its rights to recover
payment from the third party of any outstanding moneys relating to the sale or disposal of the Seller’s goods.
5.3 If the Seller’s written demand for payment of the goods is unsatisfied the Buyer agrees and acknowledges the Seller will be entitled to forthwith enter any
premises owned or occupied by the Buyer and the Buyer grants the right of such entry to the Seller to recover any goods which are the property of the Seller and
which the Seller reasonably believes to be on such premises and for the Seller to exert such force as is necessary to gain entry to any such premises and the Buyer
expressly indemnifies and saves harmless the Seller in relation to any loss or damages sustained as a result of any such entry or taking possession of the goods.
5.4 Where the goods the subject of any unpaid invoice are indistinguishable from goods previously sold by the Seller to the Buyer (due to not having a serial
number or other identifying mark), the Seller shall be entitled to take possession of such quantity of indistinguishable goods from the Buyer as the Seller reasonably
estimates in its sole and absolute discretion is necessary to satisfy the amount of the unpaid invoices.
6.1 Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of the Seller as full legal and equitable
owner until such time as the Buyer shall have paid the Seller the full purchase price together with the full price of any other goods the subject of any other
agreement with the Seller.
6.2 The Buyer acknowledges that it receives possession of and holds goods delivered by the Seller solely as bailee for the Seller until such time as the
full price thereof is paid to the Seller together with the full price of any other goods then the subject of any other agreement with the Seller and that a fiduciary
relationship exists between the Seller and the Buyer.
6.3 Until such time as the Buyer becomes the owner of the goods, it will
store them on the premises separately;
ensure that the goods are kept in good and serviceable condition;
secure the goods from risk, damage and theft; and
keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Buyer.
if the Goods are processed or commingled with or made an accession to other goods by the Buyer, the Buyer shall record and make available to the Seller on
request the record of the date of the processing, or commingling or accession and hold the product, or mass or whole in a way that clearly indicates the Seller’s
title to the product, or mass or whole.
the Buyer shall not deal with the Goods, either in their original state or as part of a product, mass or whole, for a consideration of less value than the amount
necessary to discharge the Buyer’s liability to the Seller in full for or in relation to the Goods and shall retain the consideration or other Proceeds of the Goods
separate from all other property of the Buyer and in a manner, which clearly identifies it as such consideration or other Proceeds of the Goods, product, mass or
whole (unless otherwise agreed in writing by the Seller).
6.4 By accepting the Supply the Buyer agrees that:
a Security Interest is created in favour of the Seller within the meaning of the PPSA in:
(ii) the Proceeds of sale of the Goods;
(iii) any other property, to which the Goods become an accession or with which they are commingled;
(iv) any product or mass, of which the Goods become a part by manufacture, process, assembly or commingling.
the Security Interest secures:
the Buyer’s obligation to pay for the Goods, and
(ii) any and all other obligations of the Buyer to pay money or money’s worth (including costs, expenses, damages or
losses) for the benefit of the Seller now or in the future or from time to time under this agreement.
to the extent the Seller’s Security Interest secures the Buyers obligation to pay for any of the Goods, it constitutes as a PMSI;
6.5 With respect to the Seller’s Security Interest while it is retained by the Seller, the Buyer:
will when called upon by the Seller sign any further documents or provide any further information which the Seller may
reasonably require to register a financing statement or financing change statement on the Personal Properties Security Register (“PPS
Register”), or in connection with the issue of a verification statement;
will not register or apply to register a financing statement or financing change statement which is in any way connected with the
Goods (or any accession, mass or product, of which they form part) without the Seller’s prior written consent, which may be given
or withheld at the seller’s absolute discretion;
will pay any costs or, expenses or losses incurred by the Seller and keep the Seller indemnified against any loss, damage or
liability to third parties incurred in relation to:
registering or seeking the release of any document relating to the Seller’s Security Interest on the PPS Register; or
enforcing the Seller’s security Interest (including its legal costs, on a solicitor-client basis);
will give the Seller at least 14 days written notice of any proposed change in its name, contact details, place of incorporation,
address, location, nature of business, ownership, or business practice; and
it irrevocably appoints the Seller to be the Buyer’s attorney to do anything which the Buyer agrees to do under these Terms
and Conditions and anything which the attorney thinks desirable to protect the Sellers Security Interest and the Buyer will take
all steps required to ratify anything done by the attorney under this clause.
6.6 To the extent permitted by law, the Buyer waives its right to notices as a grantor under section 157 of the PPSA; acknowledging, that the
collateral, subject of the Seller’s Security Interest is properly described as commercial property. To the extent that they impose any obligation
on the Seller or grant any right to the Buyer and section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125,
130, 132 (3), 132 (4), 135, 142, and 143 of the PPSA do not apply to this agreement or the Seller’s security interest in the Goods. To the
extent, that Part 4.3 of the PPSA imposes any obligation on the Seller or grants any right to the Buyer and s.115(7) permits, its application
pursuant to s.116(2) is excluded.
6.7 Notwithstanding the payment by the buyer of part or all of the price relating to the Goods, any proceeds or other property in which the
Seller’s Security Interest will continue to exist in the Goods, any Proceeds of the Goods or other property, in which the Sellers Security Interest may apply (by
operation by operation of these Terms and Conditions or statute) until the Sellers Security Interest is discharged in writing by the Seller.
6.8 The Buyer will not do, or omit to do, nor allow to be done or omitted to be done, anything which might adversely affect the Sellers
6.9 If the Buyer sells the Goods, either in their original state or as part of a product, mass or whole to its buyers, the Buyer, in its position
as a fiduciary, assigns to the Seller and authorises the Seller to sue in its name to recover the benefit of any claim against its buyers for
the price of the Goods, the product, mass or whole, and, in addition to its obligations under the PPSA, it shall hold on trust for the Seller and
account to the Seller for the consideration and all Proceeds received in relation to the Goods, product, mass or whole.
6.10 This clause shall apply even though the Seller may give credit to the Buyer.
6.11 Without limiting the rights or remedies available to the Seller under these Terms and Conditions, statute (including under the PPSA) or other
law, if the Buyer;
(being a natural person) commits an act of bankruptcy;
(being a corporation) does anything which entitles anyone to apply to wind up the Buyer or is subject to the appointment of an
administrator or receiver and manager; or
breaches any of these “Terms and Conditions”,
(each of which is hereafter referred to as ‘an act of default’), the seller may take possession of and retain, resell or otherwise dispose of the
Goods or any product, mass or whole, of which they form part.
6.12 To the extent permitted by law, in the event of any such act of default, the Buyer authorises the Seller to enter premises where the Goods
may be located to take possession of the Goods or any product, mass or whole, of which they form part without notice to the Buyer. The
Buyer shall indemnify the Seller against all claims arising out of the entry by the Seller into premises to take possession of the Goods or
any product, mass or whole, of which they form part.
7.1 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.
7.2 Unless prior agreement is reached, and the Delivery Waiver/Disclaimer signed, the company undertakes to deliver and the customer to receive Lilydale
Instant Lawn products at the nature strip. The delivery vehicle will only enter the job area to facilitate unloading at the customer’s own risk and responsibility and at
the absolute discretion of the truck driver.
7.3 The Buyer shall provide reasonable and proper access to the site specified for delivery.
7.4 Turf orders detailed on the face of the delivery docket and the corresponding pallet labels must be double checked by the customer on delivery. Lilydale
Instant Lawn will not be held responsible if this check is not made prior to dispatch and leaving the jobsite.
7.4 Where for any reason the time necessarily spent by the Seller in attempting to or effecting delivery exceeds 30 minutes the Buyer agrees to pay all costs and
expenses of the Seller thereby incurred.
7.5 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.
7.6 The Buyer authorises the Seller to subcontract delivery in its absolute discretion.
7.7 The Seller may unilaterally delay or suspend any delivery or part of a 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.
7.8 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 signature of the delivery driver denoting the time, date and place of delivery shall be deemed acceptance by the Buyer of the such delivery.
7.9 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 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.
8. CLAIMS, RETURNS AND CANCELLATIONS
The responsibility rests with the Buyer to ensure thorough and careful inspection of the goods immediately upon delivery:
8.1 In the event the customer who originally placed the turf order, or the person placing the order on his or her behalf, find it necessary to cancel the order after
our minimum 48hour cancellation period, such cancellation will only be accepted on the terms that the purchaser accept full responsibility for all expenses
incurred thus far up to the time of cancellation.
8.2 Disputed claims will not be accepted unless received by the Seller in writing within 14 days of the delivery date of the goods. Claims outside of this period will
only be accepted at the absolute discretion of the Seller.
8.3 Goods will only be accepted for return if authorised in writing by a representative of the Seller prior to the return, must be freight prepaid by the Buyer, be in
their original condition and packaging, quote the original Tax Invoice details, the name of the authorised representative of the Seller and the authorisation date.
8.4 Where goods which are not subject to a claim are authorised by the Seller for return or cancellation of an order, the Supplier in its absolute discretion reserves
the right to charge the Buyer a handling fee representing 20% of the sale price of the goods.
8.5 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:
9.1 Being an individual commits any act of bankruptcy, or corporation passes a resolution for winding up or liquidation or,
9.2 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.