Terms & Conditions

This Site is made available by Omni-tuff Group Pty Ltd T/A DAYWALK (‘DAYWALK’) and its subsidiaries, affiliates, parent companies and any of their related businesses are referred to in these Terms & Conditions as “we”, “us” or “our”.

1. Rights
All rights in all material and content (including, but not limited to, text, images, web pages, sound, software (including, code, interface and website structure) and video, and the look and feel, design and compilation thereof) at this Site are owned by us or our licensors. You agree that you are permitted to use this material and/or content only as set out in these Terms & Conditions or as otherwise expressly authorised in writing by us or our licensors, and that you may not otherwise copy, reproduce, transmit, publicly perform, distribute, commercially exploit, adapt, translate, modify, bundle, merge, share or make available to any person, or create derivative works of such material or content.

2. Intellectual Property
We are the owner and/or authorised user of all trade marks, service marks, patents, copyrights, database rights and all other intellectual property appearing on or contained within the Site, unless otherwise indicated. Except as provided in these Terms & Conditions, use of the Site does not grant you any right, title, interest or license to any such intellectual property you may access on the Site. Except as provided in these Terms & Conditions, any use or reproduction of the intellectual property is prohibited.

3. Copying
You may view this Site and you are welcome to print hard copies of material on it solely for your lawful, personal, non-commercial use. All other copying, whether in electronic, hard copy or other format, is prohibited and may breach intellectual property laws and other laws world-wide. Furthermore, you are not entitled to reproduce, transmit, publicly perform, distribute, adapt, translate, modify, bundle, merge, share or make available to any person, or create derivative works of such material, or use it for commercial purposes, without our prior written consent. All other rights are reserved.

4. Acceptable Usage Policy
This Site may contain discussion groups, bulletin boards, chat rooms and other interactive services. We support the free flow of information and ideas over the Internet but do not actively monitor use of our discussion groups, bulletin boards or chat rooms. Similarly, we do not exercise editorial control over the content of any third party sites, electronic mail transmission, text message, news group, bulletin board, chat room or other material created or accessible over or through the Site. As a result, you may be exposed to content on the Site or on sites accessible over or through the Site that you find offensive or objectionable. However, we do reserve the right to monitor our discussion groups, bulletin boards, chat rooms and other interactive portions of the Site and to remove any content which, in our sole discretion, constitutes a misuse of these interactive services and may restrict, suspend or terminate your use of these services or the Site where we believe that there has been such a misuse.

The following examples constitute a misuse of the interactive services:

(a) using the services for any improper, unlawful or immoral purpose, causing any nuisance by your use of the services or causing the operation of the services to be jeopardised or impaired;

(b) using the services to create, host or transmit (whether in a live chat room, on a bulletin board or otherwise) any defamatory, offensive, or obscene material or engaging in activities which would cause offence to others on grounds of race, religion, creed or sex;

(c) using the services to harm, or attempt to harm, minors in any way;

(d) using the services to create, host or transmit any material that threatens or encourages bodily harm or the destruction of property or would constitute a criminal offence or give rise to civil liability;

(e) using the services to create, host or transmit material which infringes the copyright, trademark, patent, trade secret or other intellectual property or proprietary rights of any other party;

(f) using the services to create, host or transmit unsolicited advertising material to other users;

(g) using the services to create, host or transmit any material that harasses another; using the services to make fraudulent offers to sell or buy products, items or services;

(h) adding, removing or modifying identifying network header information in an effort to deceive or mislead;

(i) using the services to access, or to attempt to access, the accounts of others or to penetrate, or attempt to penetrate, our or a third party’s security measures, computer software, hardware, electronic communication system, or telecommunications systems;

(j) using the services to collect, or attempt to collect, personal information about third parties without their knowledge or consent or to engage in screen scraping, database scraping or any other activity with the purpose of obtaining lists of users or other data;

(k) using the services for any activity which adversely affects the ability of other people or systems to use the services or the Internet generally;

(l) reselling, repurposing or redistributing any services provided by us our contractors or our licensees without our prior written consent; or impersonating any person or entity or using a false name that you are not authorised to use.

This list only serves to provide examples and is not meant to be an exclusive list of the type of misuses of the interactive services that may result in the restriction, suspension or termination of your access to the Site. Due to the global nature of the Internet, users hereby agree to comply with all local rules regarding on-line conduct and acceptable content. Users also agree to comply with any applicable rules regarding the export of any data from any country.

The opinions expressed in live chat rooms and/or posted on bulletin boards or on other interactive services are not necessarily ours. Any statements, advice and opinions made by such participants are those of such participants only. We neither endorse nor shall be held responsible for any such statements, advice or opinions.

5. NO WARRANTIES
THIS SITE IS PROVIDED “AS IS,” AND YOUR USE THEREOF IS AT YOUR OWN RISK. WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ASSIGNS, DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE WILL BE FREE FROM VIRUSES. ALTHOUGH WE TAKE REASONABLE STEPS TO SECURE THE SITE, YOU ACKNOWLEDGE THAT THE INTERNET IS NOT A COMPLETELY SECURE MEDIUM AND WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, THAT ANY INFORMATION OR MATERIALS YOU POST ON OR TRANSMIT THROUGH THE SITE WILL BE SAFE FROM UNAUTHORIZED ACCESS OR USE. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.

6.THIRD PARTY GOODS AND SERVICES
WE DO NOT VOUCH FOR THOSE PERSONS, COMPANIES AND OTHER ORGANISATIONS WHOSE GOODS OR SERVICES MAY BE ACCESSED OR DISPLAYED THROUGH OR ON THE SITE.

7. Your responsibility
You should always verify the information set out in this Site with independent authorities before acting or relying on it. It is your responsibility to use virus checking software on any material downloaded from this Site and to ensure the compatibility of such software with your equipment.

In circumstances where you provide us with information relating to any third parties, you warrant that you have received that third party’s consent in relation to such disclosure and that the third party has been informed of, and agrees to, our Privacy Statement and the uses which we may make of such information.

8. NO LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ASSIGNS, HEREBY DISCLAIM ALL LIABILITY FOR ANY LOSS, COST OR DAMAGE (DIRECT, INDIRECT, CONSEQUENTIAL ,OR OTHERWISE) SUFFERED BY YOU AS A RESULT OF YOUR USE OF THE SITE OR FROM ANY COMPUTER VIRUS TRANSMITTED THROUGH THE SITE, OR OTHER SITES ACCESSED FROM THIS SITE, WHETHER SUCH LOSS, COST OR DAMAGE ARISES FROM OUR NEGLIGENCE OR OTHERWISE AND EVEN IF WE ARE EXPRESSLY INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, COSTS, LOSSES AND CAUSES OF ACTION IN THE AGGREGATE (WHETHER IN CONTRACT, TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY, OR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00 (AUD).

9. Materials submitted by you
Unless specifically requested, we do not solicit nor do we wish to receive any confidential, secret or proprietary information or other material from you through the Site, any of its services, by email, or in any other way. Any information or material submitted by you, and which has not been specifically requested by us, will be deemed not to be confidential, secret or proprietary. You agree that any information or materials submitted by you to this Site, whether ideas, creative concepts or other materials, may be used, reproduced and disclosed by us without restriction for whatever purpose we deem fit and without payment of any sum or acknowledgement of you as their source. You also warrant that any “moral rights” in posted materials have been irrevocably waived by the appropriate authors. WE SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY YOU AS A RESULT OF USE OR DISCLOSURE OF SUCH MATERIALS BY US TO THE EXTENT PERMITTED BY LAW. This paragraph 8 does not affect any rights you may have under data privacy laws that protect your personal information or similar privacy laws, to the extent that such rights cannot be excluded..

10. User Information
In the course of your use of the Site, you may be asked to provide personal information to us (such information referred to hereinafter as “User Information”). Our information collection and use policies with respect to such User Information are set forth in the Site Privacy Policy, which Privacy Policy is incorporated into these Terms & Conditions by reference. You acknowledge and agree that you are solely responsible for the accuracy and content of the User Information.

11. Links from and to the Site
You acknowledge and agree that we have no responsibility for the information provided by Web sites to which you may link from this Site (“Linked Sites”). Links to Linked Sites do not constitute an endorsement by or association with us of such sites or the content, products, advertising or other materials presented on such sites. We have no control over these Linked Sites and do not edit or monitor them. You acknowledge and agree that we are not responsible or liable, directly or indirectly, for any damage, loss or cost caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites.

12. Indemnity
You will indemnify us against any loss, damage or cost incurred by us arising out of your use of the Site, any of its services or any information accessible over or through the Site, including information obtained from linked sites, your submission or transmission of information or material on or through the Site or your violation of these Terms & Conditions or any other laws, regulations and rules. You will also indemnify against any claims that information or material which you have submitted to us is in violation of any law or in breach of any third party rights (including, but not limited to, claims in respect of defamation, invasion of privacy, breach of confidence, infringement of copyright or infringement of any other intellectual property right). We reserve the right to exclusively defend and control any claims arising from the above and any such indemnification matters and that you will fully cooperate with us in any such defences.

13. Restriction, Suspension and Termination
We may restrict, suspend or terminate your access to the Site and/or your ability to avail of any of the services on the Site, including interactive services, if we believe that you have breached these Terms & Conditions at any time. Any such restriction, suspension or termination will be without prejudice to any rights which we may have against you in respect of your breach of these Terms & Conditions. We may also remove the Site as a whole or any sections or features of the Site at any time. Please note that we have the ability to trace your IP address and if necessary contact your ISP in the event of a suspected breach of these Terms & Conditions.

14. Entire Agreement
These Terms & Conditions, including our Privacy Policy, constitutes the entire agreement between you and us in relation to its subject matter and supersedes any and all prior promises, representations, agreements, statements and understandings whatsoever between us. To the extent that software is available through the Site, such software may be subject to a license agreement that is distributed or included with such software and you agree to abide by the terms and conditions of any such license agreements. The failure by us to exercise or enforce any right or provision of the Terms & Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms & Conditions is found by a court of competent jurisdiction to be unenforceable or invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms & Conditions shall remain in full force and effect.

15. Law and Jurisdiction
These Terms & Conditions, including the Privacy Policy and any matter relating to this Site, shall be governed by Australian law.

 

TERMS AND CONDITIONS OF TRADE

 

1. Definitions
(i) ‘Daywalk’ shall mean Omni-tuff Group Pty Ltd T/A Daywalk (ABN 87 620 859 556) and its successors and assigns.
(ii) ‘The Customer’ shall include any person acting on behalf of and with the authority of the customer.
(iii) ‘Goods’ shall mean goods products and services supplied by Daywalk to the customer.
(iv) ‘Price’ shall mean the cost of the goods as detailed by Daywalk to the customer.
2. Contract
2.1 Terms of Contract
All Goods supplied by Daywalk are supplied on these terms and conditions and any instructions received by Daywalk from the
Customer and/or the Customer’s acceptance of Goods supplied by Daywalk shall constitute acceptance of these terms and
conditions.
2.2 Binding Agreement
No terms or conditions submitted by either party that are in addition to, different from or inconsistent with those contained herein or
in the Goods and Services Order, including without limitation, Customer’s printed terms and conditions, or any terms and conditions
contained in any order acknowledgment, confirmation, acceptance, bill of lading or other instrument, shall be binding upon either
party unless specifically and expressly agreed to in writing signed and duly authorised by representatives of both parties.
2.3 Each contract for the sale of goods under these terms and conditions shall be deemed to be made in the State of Queensland and
subject to the laws of that State.
2.4 Nothing in these terms and conditions is intended to have the effect of contracting out of any applicable provisions of any
legislation except to the extent permitted by such legislation.
2.5 Should any provision of these terms and conditions be invalid, void illegal or unenforceable the remaining provisions shall not be
affected prejudiced or impaired and shall remain enforceable.
2.6 The failure by Daywalk to exercise or any delay in exercising any right power or privilege available to Daywalk under these Terms and
Conditions will not operate as a waiver thereof or preclude any further or other exercise thereof or the exercise of any other right or
power.
3. Payment
3.1 Payment Terms
3.1.1 The whole amount of the Contract Price shall be due and payable immediately unless terms of credit have been extended
by the Daywalk upon completion of the Daywalk’s official Credit Application Form.
3.1.2 The terms of credit extended to the Customer (if any) will be specified in the Daywalk’s invoice.
3.1.3 If Daywalk issues a credit note to the Customer (whether on request by the Customer, or at its own discretion or
otherwise), the Customer agrees that the issue of the credit note is an act of commercial good faith by Daywalk and not
an admission of liability to the Customer in relation to any of the matters pertaining to the issue of the credit note.
3.2 Late Payments
3.2.1 If the customer defaults in making payment to Daywalk in accordance with the agreed terms of trade, Daywalk may:
3.2.1.1 Charge interest on any amount overdue.
3.2.1.2 Withdraw any credit approval upon notice to the customer.
4. Romalpa Clause
4.1 Ownership in the Goods does not pass to the Customer until the Customer has discharged all outstanding indebtedness whether in
respect of the Goods or otherwise. The Customer shall accept the risk in the Goods upon receipt of the Goods. Pending payment for
the Goods the Customer shall provide suitable care and storage of the Goods.
5. Supply and Delivery of Goods
5.1 Delivery
5.1.1 The delivery time made known to the Customer is an estimate only and Daywalk shall not be liable for late delivery or nondelivery
including any loss, damage or delay occasioned to the Customer or its customers arising from late or nondelivery.
5.1.2 Daywalk may refuse to accept any order in whole or in part and may elect to fulfil an order in one delivery or two or morepart
deliveries.
5.1.3 Goods shall be deemed to have been delivered in full, correctly and without apparent defect unless the customer notifies
Daywalk to the contrary.
5.1.4 Daywalk should be notified within seven days of delivery.
5.1.5 Should there be any shortfall or error in delivery or any apparent defect in the goods, Daywalk’s responsibility will be to
fully discharge by delivery of goods to make up such shortfall or to correct such error or replace any apparently defective
goods.6. Goods Supplied
6.1 The customer acknowledges that he/she relies on his/her own skill and judgment in respect of the suitability of the goods for the
purposes of the customer.
7. Warranties
7.1 Daywalk warrants the quality of the goods in accordance with its standard warranty. Except as provided by these terms and
conditions or in the standard warranty.
7.2 Daywalk shall not be under any liability to the customer in respect of any loss or damage including consequential or indirect loss or
damage or loss of profits however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of
the goods.
7.3 In no case shall Daywalk’s responsibility exceed the invoiced cost of the goods.
8. Privacy
8.1 Any collection, use and transfer by Daywalk of any personal information in the course of providing goods and services under these
terms and conditions is to comply with all applicable laws in Australian including the Australian Privacy Principles in the Privacy
Amendment (Enhancing Privacy Protection) Act 2012 (Cth) and the Privacy Act 1988 (Cth).
8.2 Where necessary, Daywalk will obtain all necessary consents in relation to the collection, use and transfer of Personal Information
required under this clause from the relevant individual.
9. Force Majeure
9.1 Neither Daywalk nor the customer shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial
action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
10. PPSA
10.1 Terms in this clause have the same meaning as given to them in the PPSA. Upon entering into this Agreement, the Purchaser and
the Guarantor/s acknowledge and agree that these terms and conditions:
10.1.1 Constitute a security agreement for the purposes of the PPSA; and
10.1.2 Create a security interest in addition to personal property already held by the Purchaser in:
10.1.2.1.1 All product (including but not limited to any collateral related to that product) that will be supplied in the
future by Daywalk to the Purchaser;
10.1.2.1.2 The proceeds of the product and collateral sold by the Purchaser; and
10.1.2.1.3 Any collateral that could be secured by a purchase money security interest under the PPSA, including but
not limited to purchase money obligations.
10.1.3 Daywalk is entitled to register its security interest granted under these terms on the PPSA register and the Purchaser
waives its rights to receive written notification of such registration by Daywalk.
10.1.4 The value of the security interest is the total amount due and payable by the Purchaser from time to time.
10.1.5 Until title to the product passes to the Purchaser, the Purchaser must not give Daywalk a written demand or allow any
other person to give the Purchase a written demand requiring Daywalk to register a financing change statement under the
PPSA or enter into or allow any other person to enter into the PPSR and financing change statement under the PPSA.
10.1.6 The Purchaser will not enter into any security agreement that permits any other person or entity to register any security
interest in respect of the product or the proceeds of the product.
10.1.7 The following shall constitute an event of default by the Purchaser:
10.1.7.1.1 Non-payment of any sum by the due date;
10.1.7.1.2 The Purchaser intimates that it will not pay any sum by the due date;
10.1.7.1.3 Any other creditor seizes or intimates that it intends to seize the products of Daywalk;
10.1.7.1.4 Any product in the possession or control of the Purchaser is materially damaged while any sum due from
the Purchaser to Daywalk remains unpaid;
10.1.7.1.5 The Purchaser becomes insolvent, is put into liquidation, has a receiver appointed or enters into a scheme
of arrangement in relation to the Purchaser or any of the Purchaser’s assets or a landlord proceeds against
the Purchaser or any of its assets;
10.1.7.1.6 A court judgment is entered again the Purchaser and remains unsatisfied for seven days or more;
10.1.7.1.7 Any material adverse change in the financial position of the Purchaser, of which Daywalk shall be the sole
judge.
10.1.8 The Purchaser agrees to pay any charges of and incidental to registration of the security interest created by this
Agreement pursuant to the PPSA on the PPSR, if required by Daywalk.
10.1.9 If Daywalk has cause to exercise any of its rights under the PPSA, the Purchaser shall indemnify Daywalk in relation to any
claims made against Daywalk by any third parties as a result of such exercise.

 

E & OE March 2020
F996 01.03.20