Terms and Conditions

1 – Definitions and interpretation

1.1 Definitions

Buyer means the purchaser of the Goods, whose details are set out in the invoice.
Goods means the products and, if any, services specified on the invoice.
Daviesway is Daviesway Pty Ltd of 15 Helen Street, Heidelberg, VIC 3081(ACN 004 185 460)

1.2 Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2  – General

These conditions (which will only be waived in writing signed by Daviesway and the Buyer) will prevail over all conditions of the Buyer's order, to the extent of any inconsistency.

3 – Terms of sale

The Goods and all other products sold by Daviesway are sold on these terms and conditions.

4 – Daviesway's quotations

Unless previously withdrawn, Daviesway's quotations are open for acceptance within the period stated in them or, when no period is so stated, within 14 days only after its date. Daviesway reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.

5 – Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer's expense, even if that cost has been omitted from any quotation.

6 – Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with Daviesway within 3 days from the date of receipt of Goods by the Buyer.

7 – Drawings, etc

  1. All specifications, drawings, and particulars of weights and dimensions submitted to Daviesway are approximate only and any deviation from any of these things does not vitiate any contract with Daviesway or form grounds for any claim against Daviesway.
  2. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
  3. Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, Daviesway's price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Daviesway as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

8 – Performance

Any performance figures given by Daviesway are estimates only. Daviesway is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

9 – Delivery

  1. The delivery times made known to the Buyer are estimates only and Daviesway is not liable for late delivery or non-delivery.
  2. Daviesway will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non- delivery or late installation of the Goods
  3. Daviesway may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
  4. If Daviesway delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
    (i) this does not constitute a repudiation of the contract of sale formed by these conditions; and
    (ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.

10 – Loss or damage in transit

  1. Daviesway is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not Daviesway is legally responsible for the actions of that person).
  2. Daviesway must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer:
    (i) has notified Daviesway and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and
    (ii) serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.

11 – Guarantee

  1. Daviesway's liability for Goods manufactured by it is limited to making good any defects. This must be done by repairing the defects or, at Daviesway's option, by replacement, within a period not exceeding 12 calendar months after the Goods have been dispatched. This applies so long as:
    (i) the defects have arisen solely from faulty materials or workmanship;
    (ii) the Goods have not received maltreatment, inattention or interference;
    (iii) accessories of any kind used by the Buyer are manufactured by or approved by Daviesway;
    (iv) the seals of any kind on the Goods remain unbroken; and
    (v) the defective parts are promptly returned free of cost to Daviesway.
  2. If the Goods are not manufactured by Daviesway, the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer for the Goods. Daviesway agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to Daviesway under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
  3. Daviesway is not liable for, and the Buyer releases Daviesway from, any claims in respect of faulty or defective design of any Goods supplied. This is unless the design has been wholly prepared by Daviesway and the responsibility for any claim has been specifically accepted by Daviesway in writing.
  4. Daviesway's liability under clause 11(c) is limited strictly to the replacement of defective parts in accordance with clause 11(a) of these conditions.
  5. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. Daviesway is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of Daviesway's negligence or in any way.

12 – Consumer guarantees

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

Daviesway's liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:

  1. in the case of Goods, any one or more of:
    (i) the replacement of the Goods or the supply of equivalent goods;
    (ii) the repair of the Goods;
    (iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
    (iv) the payment of the cost of having the Goods repaired; or
  2. in the case of services:
    (i) the supplying of the services again; or
    (ii) the payment of the cost of having the services supplied again.

13 – Indemnification of suppliers by manufacturers

Daviesway's liability under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:

  1. the cost of replacing the Goods;
  2. the cost of obtaining equivalent goods; or
  3. the cost of having the Goods repaired, whichever is the lowest amount.

14 – Prices

  1. Unless otherwise stated all prices quoted by Daviesway are exclusive of Goods and Services Tax (GST).
  2. Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.
  3. If Daviesway makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer's account.

15 – Payment

  1. The purchase price for the Goods plus GST where applicable is payable on or before the 1st day of the month following the delivery of the Goods (Payment Due Date) unless other terms of payment are agreed in writing between the parties.
  2. The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the Westpac Business Indicator Rate as published from time to time plus 2%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

16 – Rights in relation to Goods

  1. Daviesway reserves the following rights in relation to the Goods until all accounts owed by the Buyer to Daviesway are fully paid:
    (i) ownership of the Goods;
    (ii) to enter the Buyer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
    (iii) subject to, and in accordance with, the Personal Property Securities Act 2009, to keep or resell any Goods repossessed pursuant to clause 16(a)(ii).
  2. If the Goods are resold, or products manufactured using the Goods are sold, by the Buyer, the Buyer will hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account. This will be held the beneficial property of Daviesway and the Buyer will pay such amount to Daviesway upon request. Despite the provisions above, Daviesway will be entitled to maintain an action against the Buyer for the purchase price and the risk of the Goods shall pass to the Buyer upon delivery.

17 – Buyer's property

Any property of the Buyer under Daviesway's possession, custody or control is completely at the Buyer's risk as regards loss or damage caused to the property or by it.

18 – Storage

Daviesway reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 7 days of a request by Daviesway for such instructions. The parties agree that Daviesway may charge for storage from the first day after Daviesway requests the Buyer to provide delivery instructions.

19 – Returned Goods

  1. Except for any provisions to the contrary contained in this agreement, Daviesway is not under any duty to accept Goods returned by the Buyer. Daviesway will do so only on terms to be agreed in writing in each individual case.
  2. If Daviesway agrees to accept returned Goods from the Buyer under clause 19(a) of this clause, the Buyer must return the Goods to Daviesway at Daviesway's place of business referred to on the invoice.

20 – Goods sold

All Goods to be supplied by Daviesway to the Buyer are as described on the purchase order agreed by Daviesway and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

21 – Cancellation

No order may be cancelled by the Buyer except with the written consent of Daviesway. If there is a cancellation of the order by the Buyer, Daviesway has the right to claim indemnity against all losses suffered by Daviesway as a result of such cancellation.

22 – Personal Property Securities Act (Cth) 2009 (PPSA)

  1. This agreement is a security agreement.
  2. The interest of Daviesway in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
  3. The Buyer consents to Daviesway registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by Daviesway to facilitate registration.
  4. Until title in the Goods has passed to the Buyer as contemplated by clause 16 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business..
  5. The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
  6. Daviesway and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. Daviesway and Buyer agree that Daviesway will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
  7. Unless the Goods are used predominantly for personal, domestic or household purposes, Daviesway and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of Daviesway's security interest in the Goods or of this agreement:
    (i) any requirement for Daviesway to give the Buyer a notice of removal of accession;
    (ii) any requirement for Daviesway to give the Buyer a notice of Daviesway's proposed disposal of the goods;
    (iii) any requirement for Daviesway to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
    (iv) any requirement for Daviesway to give the Buyer a statement of account if Daviesway does not dispose of the Goods;
    (v) any right the Buyer has to redeem the Goods before Daviesway exercises a right of disposal; and
    (vi) any right the Buyer has to reinstate this agreement before Daviesway exercises a right of disposal of the Goods.
    (h) Expressions defined in the PPSA have the same meaning when used in this agreement.

23 – Termination

  1. This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
  2. Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 21 days after receipt of a written notice by the other party requiring rectification of the breach.
  3. Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
  4. The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.

24 – Place of contract

This agreement shall be governed by and construed in accordance with Victorian law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.