Terms & Conditions of Trade

 

Definitions

1. “ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.
2. “Agreement” means any agreement for the provision of Goods or Services by Daywalk to the Customer.
3. “consumer” is as defined in section 3 of the ACL and in determining if the Customer is a consumer, the determination is made as if the Customer is a consumer under the Agreement.
4. “Credit Application Form” means the Credit Application specified in Part 1 for extended payment or credit terms provided at Daywalk’s sole discretion to the Customer and on terms acceptable to Daywalk.
5. “Customer” means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Daywalk to the Customer.
6. “Daywalk” means Omni-tuff Group Pty Ltd trading as Daywalk ABN 87 620 859 556 its successors and assigns or any person acting on behalf of and with the authority of Omni-tuff Group Pty Ltd.
7. “Goods” means any goods or products supplied by Daywalk to the Customer under any contract, agreement or order or other forms provided by Daywalk to the Customer and where the context so permits will include any supply of Services.
8. “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
9. “PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
10. “Price” means the Price payable for the Goods.
11. “Services” means all services supplied by Daywalk to the Customer (and where the context so permits will include any supply of Goods).
12. “Terms” means these Terms & Conditions of Trade

 

The ACL

1. 1. 1. Nothing in the Terms is intended to have the effect of excluding, restricting, or modifying any applicable provisions of the ACL or any State or Territory legislation applicable to the sale of goods or supply of service which cannot be excluded, restricted or modified.
      2. Where the Customer buys Goods as a consumer, these Terms will be subject to any laws or legislation governing the rights of Consumers and will not affect the Consumer’s statutory rights.

 

Acceptance

1. 1. 1. These Terms apply exclusively to every Agreement.
      2. Any instructions received by Daywalk from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Daywalk will constitute acceptance of the Agreement.
      3. Where there is more than one Customer, the Customers will be jointly and severally liable for all payments of the Price.
      4. Upon acceptance of the Agreement by the Customer the Terms are binding on the Customer and can only be amended by the Customer with the prior written consent of Daywalk.
      5. The Customer must obtain Daywalk’s prior written consent to (which may be granted or withheld by Daywalk in Daywalk’s absolute discretion) any proposed change of ownership of the Customer and must give Daywalk not less than fourteen (14) days prior written notice of any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer will be liable for any loss incurred by Daywalk as a result of the Customer’s failure to comply with this clause.
      6. Goods are supplied by Daywalk only on these Terms and, unless otherwise agreed in writing by Daywalk, these Terms apply to every order placed by the Customer.  The Customer expressly acknowledges and agrees that these Terms replace and apply to the exclusion of any terms and conditions contained in any purchase order or other document issued by the Customer.
      7. Daywalk is entitled to refuse to accept an order from the Customer if there are any outstanding moneys owing by the Customer to Daywalk.

 

Price and Payment

1. 1. 1. On receipt of a purchase order from the Customer, Daywalk will specify the quoted Price for the Goods to be supplied.
      2. At Daywalk’s sole discretion the Price will be either:
         1. as indicated on invoices provided by Daywalk to the Customer in respect of Goods supplied; or
         2. the Price nominated by Daywalk at the date of delivery of the Goods according to Daywalk’s current pricelist; or
         3. Daywalk’s quoted Price (subject to clause 4.3) which will be binding upon Daywalk provided that the Customer accepts Daywalk’s quotation in writing within fourteen (14) days.
      3. Daywalk reserves the right to change the Price in the event of a variation to Daywalk’s quotation (including, but not limited to, any variation as a result of fluctuations in currency exchange rates). All variations will be charged for on the basis of Daywalk’s quotation and will be shown as variations on the invoice.
      4. Payment of the Price must be made in cleared funds to Daywalk by cheque, bank cheque, credit card (subject to payment of any surcharges), direct debit or other method agreed by Daywalk, prior to delivery.
      5. If Daywalk has accepted and approved a Credit Application Form and granted the Customer  an approved credit limit, payment for approved Customers must be made in accordance with the terms specified in the Credit Application Form or as invoiced by Daywalk from time to time. The Customer acknowledges and agrees that Daywalk may vary or withdraw the line of credit approved in the Credit Application Form at any time and in its absolute discretion.  The Customer must not allow the balance of its account to exceed any approved credit limit and Daywalk may refuse to accept any order which may put the Customer’s account over the approved credit limit.
      6. Time for payment for the Goods will be of the essence and will be as stated on the invoice provided by Daywalk. If no time is stated on the invoice, then payment must be made within 30 days of invoice date.
      7. If Daywalk issues a credit note, the Customer agrees this is without admission of liability and without prejudice to Daywalk’s rights.
      8. GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.

 

Delivery of the Goods

1. 1. 1. Unless expressly agreed to the contrary in writing, delivery of the Goods will take place when the Customer (or a nominated carrier or third party of the Customer) takes possession of the Goods at Daywalk’s premises.
      2. Daywalk, may at its sole discretion, agree to deliver the Goods to a location nominated by the Customer. The Customer acknowledges and agrees that:
         1. the costs associated with the delivery of the Goods (including insurance) are in addition to the Price and payable by the Customer and will include any additional charges incurred by Daywalk as a result of the Goods being unable to be delivered to the Customer for any reason.
         2. delivery of the Goods, is deemed to take place when the Goods are delivered to the Customer’s premises or to the address of a third party nominated by the Customer;
         3. Daywalk may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid in accordance with the provisions in the Terms.
         4. any period or date for delivery of Goods or provision of Services stated by Daywalk is an estimate only. If Daywalk cannot complete any delivery by any estimated date, it will use reasonable endeavours to complete the delivery within a reasonable time.
         5. the failure of Daywalk to deliver will not entitle either party to treat the Agreement as repudiated.
      3. Daywalk will use its reasonable endeavours to meet any estimated dates for delivery of the Goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date or to deliver the Goods at all, where due to circumstances beyond the control of the Daywalk.

 

Risk

1. 1. 1. The risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Goods being dispatched or taken from Daywalk’s premises.
      2. The Goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Goods.
      3. Where the Customer expressly requests Daywalk to leave Goods outside Daywalk’s premises for collection, then such Goods will be left at the Customer’s sole risk and it will be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
      4. The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the Goods sold by Daywalk, unless recoverable from Daywalk on the failure of any statutory guarantee under the ACL.
      5. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Daywalk is entitled to receive all insurance proceeds payable for the Goods. The production of the Terms by Daywalk is sufficient evidence of Daywalk’s rights to receive the insurance proceeds without the need for any person dealing with Daywalk to make further enquiries.

 

All Moneys Retention of Title

1. 1. 1. Daywalk and the Customer agree that the legal and equitable, title ownership and property in the Goods remains with Daywalk absolutely at all times until:
         1. Daywalk has been paid in full for all Goods purchased by the Customer under all individual contracts, agreements or orders between Daywalk and the Customer; and
         2. the Customer has met all other obligations due by the Customer to Daywalk in respect of the Agreement between Daywalk and the Customer.
      2. The Customer is a trustee and bailee of the Goods and the proceeds received by or owed to the Customer from the sale of the Goods and until such time as Daywalk has received payment in full of all amounts owing by the Customer to Daywalk, then the Customer must hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Daywalk, on trust for Daywalk.
      3. The trust and bailment referred to in clause 7.2 continues in relation to separate purchases of Daywalk’s Goods delivered to the Customer until the Price for the Goods under all individual contracts, agreements or orders between Daywalk and the Customer have been paid in full.
      4. The Customer expressly acknowledges and agrees that Daywalk is not obliged or required to distinguish between Goods sold to the Customer pursuant to invoices which remain unpaid and Goods sold to the Customer pursuant to invoices which have been paid.
      5. Where the Customer does not make payment in respect of specific Goods, payment may be treated by Daywalk has having been made first in respect of Goods which have passed out of the possession of the Customer and then in respect of whatever Goods are still in the possession of the Customer, as Daywalk elects.
      6. Receipt by Daywalk of any payment will not be deemed to be payment until that payment has been honoured, cleared or recognised and until then Daywalk’s ownership or rights in respect of the Goods will continue.
      7. It is further agreed that:
         1. until the Goods are paid for in full, the Customer must not sell or supply any Goods to any person other than in its ordinary or usual course of business and in its capacity as fiduciary agent of Daywalk. Upon such sale occurring, the Customer must hold such proceeds on trust for Daywalk in accordance with clause 7.2;
         2. where practicable the Goods must be kept separate and identifiable until the Price for the Goods under all individual contracts, agreements or orders has been paid in full and all other obligations of the Customer are met;
         3. until such time as ownership of the Goods passes from Daywalk to the Customer, Daywalk may give notice in writing to the Customer to return the Goods or any of them to Daywalk. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods will cease;
         4. Daywalk has the right of stopping the Goods in transit whether or not delivery has been made;
         5. if the Customer fails to return the Goods to Daywalk, then Daywalk or Daywalk’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods and in doing so, the Customer acknowledges and agrees that Daywalk will not be deemed to be relinquishing any of its rights as a creditor when exercising any of its rights as owner of the Goods under this clause 7.1 and Daywalk’s security interest will continue in full force and effect;
         6. the Customer must not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Daywalk;
         7. Daywalk can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
         8. until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Daywalk will be the owner of the end products.

 

Liability 

1. 1. 1. Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Goods or Services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services or any contractual remedy for their failure.
      2. If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against Daywalk for failure of a statutory guarantee under the ACL.
      3. If the Customer on-supplies the Goods to a consumer and:
         1. the Goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Daywalk’s liability to the Customer;
         2. the Goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Daywalk’s liability to the Customer;
         3. howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
      4. If Clause 8.2or 8.3 do not apply, then other than as stated in the Terms or any written warranty statement Daywalk is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
      5. Daywalk is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
      6. The Customer acknowledges and agrees that:
         1. it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Daywalk in relation to the goods or services or their use or application.
         2. it has not made known, either expressly or by implication, to Daywalk any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.
         3. Daywalk is not liable for any failure or defect in Goods produced to the specifications provided by the Customer or Services by particular methods specified by the Customer and in no circumstances will Daywalk be responsible for unauthorised modification made to the Goods by the Customer.
         4. Daywalk is not liable for any incorrect or unsuitable application or use of the Goods by the Customer including the Customer not using Goods in accordance with any user guides.
      7. Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods or the provision of Services which cannot be excluded, restricted or modified.

 

Personal Property Securities Act

1. 1. 1. Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
      2. For the purposes of the PPSA:
         1. terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA;
         2. these Terms are a security agreement and Daywalk has a Purchase Money Security Interest in all present and future Goods supplied by Daywalk to the Customer and the proceeds from sale of the Goods;
         3. the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
         4. the Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by Daywalk on the Personal Property Securities Register.
      3. The security interest arising under this clause attaches to the Goods when the Goods are collected or dispatched from the Daywalk premises and not at any later time.
      4. Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures, or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
      5. Daywalk and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
      6. To the extent permitted by the PPSA, the Customer agrees that:
         1. the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Daywalk will apply only to the extent that they are mandatory or Daywalk agrees to their application in writing; and
         2. where Daywalk has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
      7. The Customer must immediately upon Daywalk request:
         1. do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
         2. procure from any person considered by Daywalk to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Daywalk may at any time require.
      8. Daywalk may allocate amounts received from the Customer in any manner Daywalk determines, including in any manner required to preserve any Purchase Money Security Interest it has in Goods supplied by Daywalk.
      9. For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of Goods and details of the Goods will always be kept confidential. Neither party may disclose any information pertaining to these Terms or the sale of the Goods, except as otherwise required by law or that is already in the public domain.

 

Defects

The Customer must inspect the Goods on delivery and, within 14 days of delivery (time being of the essence), notify Daywalk of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer must afford Daywalk an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions the Goods will be presumed to be free from any defect or damage. For defective Goods, which Daywalk has agreed in writing that the Customer is entitled to reject, Daywalk’s liability is limited to either (at Daywalk’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the ACL and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

 

Warranty

Subject to clause 8 and the requirements of the ACL:

1. for Goods not manufactured or engineered by Daywalk, the warranty will be the current warranty provided by the manufacturer or engineer of the Goods.
2. Daywalk will not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer or engineer of the Goods.

 

Confidentiality

All information, data and user manuals provided to the Customer as well as all drawings, designs, techniques and improvements (whether patentable or un-patentable) made or conceived by Daywalk or its agents or employees that relate in any way to the Goods or to Daywalk’s business (Information) are confidential and proprietary to Daywalk and shall not be reproduced, quoted, distributed, or communicated to, or used by, any other person or entity without the express prior written consent of Daywalk. The Customer agrees to take reasonable precautions to prevent unauthorized disclosure or use of the Information and shall only disclose the Information to, and permit its use by, the Customer’s employees and agents necessarily involved in the use and operation of the Goods. The Customer shall inform its employees and agents receiving goods and services provided by Daywalk of the confidential nature thereof and of the obligations of the Customer and its employees and agents acting on behalf of the Customer. The foregoing confidentiality restrictions shall survive indefinitely.

 

Intellectual Property

1. 1. 1. Where Daywalk has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents will remain vested in Daywalk, and may only be used by the Customer at Daywalk’s discretion. To the extent not inconsistent with clause 12 relating to confidentiality, the Customer shall have the right to make copies of such drawings or documentation to satisfy the Customer’s internal requirements, provided that the Customer identifies the documentation as the copyright of Daywalk. No other copies or use of any drawings or documentation or any portion thereof shall be made without the prior written approval of Daywalk.
      2. The Customer takes no interest in any intellectual property rights in or attaching to the Goods. Without limiting the foregoing, the Customer may not reverse engineer or otherwise use or exploit such intellectual property rights independently of the Goods themselves.
      3. The Customer warrants that all designs or instructions to Daywalk will not cause Daywalk to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Daywalk against any action taken by a third party against Daywalk in respect of any such infringement.
      4. The Customer agrees that Daywalk may use any documents, designs, drawings or Goods created by Daywalk for the purposes of advertising, marketing, or entry into any competition.

 

Default and Consequences of Default

1. 1. 1. If the Customer defaults in payment by the due date of any amount payable to Daywalk, then all money which would become payable by the Customer to Daywalk at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Daywalk may, without prejudice to any of its other accrued or contingent rights:
         1. charge the Customer interest on any sum due at a rate equal to the then current standard contract default rate of the Queensland Law Society Incorporated (or any successor body) at the date the invoice was issued per calendar month for the period from the due date until the date of payment in full;
         2. charge the Customer for, and the Customer must indemnify Daywalk from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Goods;
         3. cease or suspend supply of any further Goods and Services to the Customer;
         4. by written notice to the Customer, terminate any uncompleted Agreement with the Customer;
         5. by written notice to the Customer, terminate any credit account granted to the Customer; and/or
         6. exercise any rights that Daywalk may have under any security and/or guarantee provided by either the Customer or the Guarantor.
      2. Without prejudice to any other remedies Daywalk may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Daywalk may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Daywalk will not be liable to the Customer for any loss or damage the Customer suffers because Daywalk has exercised its rights under this clause.
      3. Without prejudice to Daywalk’s other remedies at law Daywalk will be entitled to cancel, vary or suspend any credit account or credit limit granted to the Customer and/or cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Daywalk will, whether or not due for payment, become immediately payable in the event that:
         1. in Daywalk’s opinion the Customer will be unable to meet its payments as they fall due; or
         2. the Customer becomes insolvent or subject to external administration, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
         3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer;
         4. the Customer ceases to carry on its current business or a material part of its current business, or threatens to do either of these things; or
         5. any event occurs which in the reasonable opinion of Daywalk is likely to adversely affect the ability of the Customer to perform its obligations under these terms and conditions or any credit account granted to the Customer.

 

Returns 

1. 1. If the Goods are:
      1. deemed unsuitable by the Customer;
      2. incorrectly delivered by Daywalk;
      3. missing from a delivery,

the Customer must advise Daywalk by submitting a claim in writing, accompanied by a clear photograph of the Goods to be returned, to Daywalk within seven (7) days from the date of receipt of the Goods (in the case of incorrect delivery) or within seven (7) days of delivery of the Goods to the Customer (for missing Goods or change of mind). If the Customer fails to make a claim within these seven (7) day periods (as applicable), then to the extent permitted by law, the Customer is deemed to have accepted the Goods and will be required to pay for them in full.

1. Without limiting any other provision of these Terms including any express or implied limitation of liability on Daywalk, if the Goods are:
   1. defective; or
   2. contravene any applicable statutory guarantee,

the Customer must notify Daywalk within seven (7) days, or longer if, in the reasonable opinion of Daywalk,  the notification period should be extended because the Customer did not become aware of the matter referred to in clause (a) or (b) until after that seven (7) day period.

1. For any notification of return of Goods contemplated by this clause 15, the Customer must provide:
   1. a clear photographic image of the Goods, including images of any alleged defects;
   2. specify Daywalk’s item number for the Goods (where applicable);
   3. the invoice number upon which the Goods were purchased; and
   4. any other evidence reasonably required by Daywalk to ascertain proof of purchase and the basis for the return of the Goods.

If Daywalk agrees, in its absolute discretion, to the return of the Goods, Daywalk will provide written notice to the Customer approving the Goods for return.

1. The Customer shall not return any Goods without Daywalk’s prior written approval. Any Goods approved for return to Daywalk under this clause 15 must:
   1. be in brand new and unused condition, capable of resale;
   2. with undamaged packaging;
   3. returned within one (1) month of the original purchase date.
2. The Customer must pay a 30% restocking fee on the total Price of the Goods returned (except for Goods returned in accordance with clause 15.2) to Daywalk, to be deducted from any amounts to be refunded to the Customer.
3. Subject to receiving Daywalk’s written approval, the Customer shall return the Goods (where appropriate) in brand new and unused condition with undamaged packaging and:
   1. in the case of change of mind returns or incorrect delivery, Daywalk will in return credit the Customer’s account with an amount equal to the Price of the Goods less a restocking fee, being the gross invoice Price of all returns;
   2. in the case of missing Goods, Daywalk’s sole obligation will be to re-deliver the missing Goods; or
   3. in the case of Goods being defective or contravening any applicable statutory guarantee in:
      1. any minor way, Daywalk may in its absolute discretion, repair, replace or refund the equivalent value of the Goods; or
      2. in any major way, the Customer may elect to have the Goods replaced or their equivalent value refunded.
4. For the purposes of clauses 15.2 and 15.6(c), Daywalk will determine whether such Goods contravene clause 15.2 in a major or minor way, having regard to section 260 of the Australian Consumer Law.
5. Notwithstanding any other provisions of these Terms the Customer shall not return any Goods which have been:
   1. custom made, custom cut, custom processed or custom acquired;
   2. discontinued or no longer stocked by Daywalk;
   3. altered or used in any way;
   4. where Goods include safety seals, these must be intact and untampered;
   5. are not in their original condition and packaging.
6. The Customer acknowledges its responsibility to inspect the Goods on delivery.  This responsibility remains with the Customer even where the goods are delivered to a third party.

 

Cancellation

1. 1. 1. Daywalk may cancel any Agreement to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving reasonable written notice to the Customer. On giving such notice Daywalk will repay to the Customer any sums paid in respect of the Price. Daywalk will not be liable for any loss or damage whatsoever arising from such cancellation.
      2. If the Customer cancels delivery of Goods the Customer will be liable for any loss incurred by Daywalk (including, but not limited to, any loss of profits) up to the time of cancellation.
      3. Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will not be accepted once the order has been placed by the Customer.

 

Payment Failure – Daywalk’s Rights 

1. 1. 1. Where the Customer has left any item with Daywalk for repair, modification, exchange or for Daywalk to perform any other Service in relation to the item and Daywalk has not received or been tendered the whole of the Price, or the payment has been dishonoured, Daywalk will have:
         1. a lien on the item;
         2. the right to retain the item for the Price while Daywalk is in possession of the item;
         3. a right to sell the item.
      2. The lien of Daywalk will continue despite the commencement of proceedings, or judgment for the Price having been obtained.

 

Force Majeure 

1. 1. 1. Daywalk shall not be or be deemed to be liable or in default or breach of any contract, including these Terms, as a result of a Force Majeure Event.
      2. A Force Majeure Event shall include any cause beyond the reasonable control of Daywalk including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, government sanctioned restrictions, health related events (such as epidemics and/or pandemics), acts of God, acts or threats of terrorism or war.
      3. Where a Force Majeure Event occurs, Daywalk may suspend or terminate any contract with a Customer by written notice.

 

General

1. 1. If any provision of these terms and conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
   2. If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.
   3. These Terms and any Agreement to which they apply will be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
   4. Daywalk will be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Daywalk of the Terms, subject to any requirements of the ACL.
   5. In the event of any breach of this contract by Daywalk the remedies of the Customer will be limited to damages which under no circumstances will exceed the Price of the Goods unless required otherwise by the ACL.
   6. The Customer is not entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Daywalk nor to withhold payment of any invoice because part of that invoice is in dispute.
   7. Daywalk may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
   8. The Customer agrees that Daywalk may review the Terms at any time. If, following any such review, there is to be any change to the Terms, then that change will take effect from the date on which Daywalk notifies the Customer of such change. Except where Daywalk supplies further Goods to the Customer and the Customer accepts such Goods, the Customer will be under no obligation to accept such changes.
   9. The failure by Daywalk to enforce any provision of the Terms will not be treated as a waiver of that provision, nor will it affect Daywalk’s right to subsequently enforce that provision.

E&OE F996 27.01.2023