These Terms and Conditions apply to all Orders placed with and Products supplied by Davey Water Products Pty. Ltd. (ABN 18 06 6327 517) of 6 Lakeview Drive, Scoresby, Victoria, 3179 (“Davey”)
1. Definitions and Interpretations
“Account” means an account within the meaning of the PPS Act;
“Australian Consumer Law” or “ACL” means Schedule 2 to the Competition and Consumer Act 2010 (Cth);
“Authorised Online Resellers” means those eligible Customers appointed by Davey in accordance with its Authorised Online Reseller program to sell Products online;
“Contract” means an agreement between Davey and a Customer for the supply of products;
“Customer” means an authorized dealer or other person that enters into a Contract with Davey and clauses 11 and 12 are deemed to include qualified trade buyers or other end-users who acquire Products or Services;
“Davey” means Davey Water Products Pty. Ltd. (ABN 18 06 6327 517);
“Davey Guarantee” means the Davey Repair or Replacement Guarantee provided with the Product installation and operating instructions and as described in clause 11.2;
“Davey Price List” means the current price list published by Davey; “Event of Termination” means any event specified in Clause 15;
“Internet Policy” means the guidelines contained in the document entitled “Davey Internet Policy” and attached as Annexure B (as varied by Davey by time to time);
“Loss” means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental; “Order” means an order placed by a Customer with Davey for the supply of Products;
“Pre & Post Sales Guidelines” means the guidelines contained in the document entitled “Pre & Post Sales Guidelines” and attached as Annexure A (as varied by Davey by time to time);
“PMSI” means a purchase money security interest as defined in PPS Act; “PPS Act” means the Personal Property Securities Act 2009 (Cth); “Proceeds” means “proceeds” as defined in section 31 of the PPS Act;
“Products” means all of those goods offered for sale by Davey which are supplied or to be supplied by Davey to a Customer together with related Services (if any) from time to time;
“Security Agreement” means a security agreement within the meaning of the PPS Act; “Security Interest” means a security interest within the meaning of the PPS Act;
“Secured Moneys” means all debts and monetary liabilities the Customer owes Davey on any account or under or in relation to any agreements between the parties for the sale of Products and in any capacity and irrespective of whether the debts or liabilities:
a) are present or future;
b) are actual prospective, contingent or otherwise;
c) are at any time ascertained or unascertained;
d) are owed or incurred by or on account of the Customer alone, or severally or jointly with any other person;
e) are owed or incurred by or on account of Davey or severally or jointly with any other person;
f) are owed to any other person as agent (whether disclosed or not) for or on behalf of Davey;
g) are owed or incurred as principal, interests, fees, charges, taxes, damages, (whether for breach of contract or tort or incurred on any other ground) or other Loss or on any other account;
h) are owed or incurred for the account of Davey directly as a result of:
i) The assignment to Davey of any debt or liability of a Customer or any other dealing with any such debt or liability;
ii) Are owed to or incurred to the account of Davey before the date of these Terms and Conditions or before the date of any assignment of these Terms and Conditions to Davey by any other person or otherwise; or
iii) Comprise any combination of the above.
“Services” means all those services offered by Davey which are supplied or to be supplied by Davey to a Customer, qualified trade buyer or other end user (whether or not associated with the sale of Products) and includes:
a) installation, testing, commissioning or maintenance services;
b) design works;
c) monitoring, remote operation or data tracking of or associated with Products including through use of an App.
“Terms and Conditions” or “agreement” means these terms and conditions of sale set out below and amended from time to time by Davey in accordance with clause 16.8; and “Verification Statement” means a verification statement within the meaning of the PPS Act.
2. Formation of Contract of Sales of Products
Subject to clause 16.8, these Terms and Conditions apply to all Orders placed with, and Products supplied by, Davey and supersede all previous terms and conditions in respect of any previous Contract between Davey and the Customer which is hereby terminated.
2.1 Contract is made between Davey and the Customer for the sales and purchase of Products only if an Order has been placed and the Order has been accepted by Davey. Acceptance of an Order may be by delivery of all or part of the Products ordered.
2.2 Davey will not accept a Customer’s Order for delivery:
a) to any person other than the Customer; or
b) to any other location or premises than agreed to in writing by Davey;
2.3 The Customer warrants that the Products shall be intended for incorporating in products or systems manufactured or installed by the Customer or if the Products are re-sold separately then only to qualified trade buyers and retail end users in Australia.
2.4 All Contracts are to be subject to and conditional upon the Customer:
a) Completing a Credit Application in a form and manner to the satisfaction of Davey, if required by Davey; and
b) Providing security for payment in a form and manner to the satisfaction of Davey, if required by Davey ; and
c) Warranting to Davey that, if they intend to re-sell the Products to qualified trade buyers and to retail end users the Customer will protect the good name and reputation of the Products by providing the pre-sales education and facilitating post-sales service in accordance with the Pre & Post Sales Guidelines or in any other form and manner to the satisfaction of Davey and in line with Davey’s training.
2.5 In acknowledgement that Davey products are technically complex products and warrant significant point of sales assistance (including proper selection) and access to post-sales support the Customer agrees to only advertise the Products online in accordance with the Internet Policy and acknowledges that only Authorised Online Resellers are permitted to sell the Products online.
2.6 Notwithstanding any qualifications, or purported qualifications, of these terms and conditions contained in any purchase order or other document of the Customer, these terms and conditions may only be varied in writing by Davey.
3. Prices and Quotations
3.1 The price payable for Products is that amount set out in the Davey Price List, as published from time to time as at the date of delivery, unless otherwise agreed in writing by Davey.
3.2 Unless previously specified or withdrawn, Davey’s quotations are valid for a period of 30 calendar days from the date of issuance.
3.3 All prices quoted by Davey and featured in the Davey Price List are exclusive of GST unless otherwise specified.
3.4 All Orders for Products must clearly state the product number, quantity required and any other information that Davey from time to time requires. Any Customer requests for specific design modifications to a Product, or for Products to be manufactured in accordance with the Customer’s own specifications (‘non-standard Products’) must be:
a) in writing accompanied by a detailed description of the scope of work;
b) provide a reasonable time scale for providing the non-standard Product (for which Davey shall not be responsible in meeting);
c) include all information relevant to and which may impact on the required functionality, operating capacity and environment for the non-standard Product.
The specification and price for supply of the non-standard Products must be agreed in writing and included in the Order. The supply of the non-standard Products is subject to clauses 12.3 to 12.7 inclusive and any limitations or conditions specified by Davey in the Order or associated quotation.
3.5 Davey will not be bound by clerical errors or omissions whether in computation or otherwise in any quotation, acknowledgment or invoice and the same shall be subject to correction.
3.6 Davey may provide general advice with regard to the functionality and capability of Products. However, the Customer must satisfy itself that its selection of Products is appropriate for their purposes or for purposes made known to them by trade buyers or retail end users.
3.7 Any Customer request for specific advice from Davey with regard to the suitability of any Product, or combination of Products, for a particular purpose must be:
a) in writing accompanied by a detailed description of the scope of work;
b) provide a reasonable time scale for confirming and providing advice (for which Davey shall not be responsible in meeting);
c) include all information relevant to and which may impact on Product selection.
The specification and price for supply of the advice must be agreed in writing and included in the Order, and subject to any limitations or conditions specified by Davey in the Order or associated quotation.
3.8 Davey will use reasonable endeavours to engage with and provide advice and assistance to the Customer in a timely manner, however any such advice:
a) can only be relied upon by Customer if in writing;
b) may need to be updated if not acted on immediately, including by obtaining updated water tests or assessments; and
c) is a Service subject to clauses 12.3 to 12.7 inclusive.
4.1 The Customer promises to pay the price payable for Product delivered by Davey without deduction or set-off by electronic bank transfer to Davey’s nominated bank account or in such other manner as Davey may agree in writing not later than thirty (30) days after the end of the month of invoice, or as agreed in writing by Davey.
4.2 The Customer shall be liable to pay interest on all overdue amounts from the due date for payment until the date of payment in full. The interest payable is that rate payable pursuant to the Penalty Interest Rates Act (Vic) 1983.
4.3 The Customer must pay Davey all registration and enforcement costs and expenses which Davey may reasonably incur in:
a) preparing, lodging or registering any Financing Statement or Financing Change Statement (each as defined in PPS Act) in relation to any Security Interests that are granted to Davey under this agreement;
b) maintaining those registrations; and
c) enforcing its rights under these Terms and Conditions and any Security Interests granted to Davey under this agreement.
4.4 Davey shall be entitled to apply or appropriate any payments to any account of the Customer. Should the Customer have a number of accounts, Davey may combine any accounts and offset any amount between accounts.
4.5 Davey reserves the right to impose a credit limit at any time, which may be altered or withdrawn at Davey’s discretion with effect from the date that Davey notifies the Customer of such change.
4.6 If at any time it deems the credit-worthiness of the Customer to be unsatisfactory, Davey may require security for payment and may suspend performance of its obligations under any Contract until the provision of sufficient security. All costs and expenses of, or incurred by, Davey as a result of such suspension and any recommencement shall be payable by the Customer upon demand.
5.1 Delivery occurs and risk of Loss of Product will pass to the Customer on the earlier of:
a) Collection of Products by the Customer ;
b) Delivery of Products to the Customer ; and
c) Delivery of Products by Davey to a carrier nominated by the Customer or arranged by Davey for the purpose of delivering the Products to the Customer.
5.2 Davey will use its reasonable endeavours to deliver Products in accordance with the terms of an Order but will not be liable for any failure to deliver Products in accordance with any particular requirements of the Customer including any delay in delivery and such failure or delay will not entitle the Customer to terminate the Contract or to claim compensation of any nature.
5.3 Unless otherwise agreed, the cost of delivery of Products to the Customer is the responsibility and to the account of the Customer.
5.4 Unloading of Products at point of delivery is the Customer’s or the Customers agents’ responsibility and the Customer shall at its expense be responsible for all costs associated with the unloading of Products.
6.1 The Customer will be deemed to have accepted the Products as being in accordance with an Order placed with Davey unless it notifies Davey to the contrary within 48 hours of Delivery of Products.
6.2 All deliveries should be inspected by the Customer for missing or damaged goods before signing the proof of delivery documentation. Missing or damaged goods should be noted on the proof of delivery documentation.
7. Retention of Title
7.1 Notwithstanding the risk in Products passes pursuant to Clause 5, property in and ownership of Products remains with Davey and does not pass to the Customer until such time as all amounts which from time to time are owed by the Customer to Davey have been paid in full and until such time, subject to clause 8.3, the Customer shall:
a) hold the Products for and on behalf of Davey as a fiduciary bailee and agent (to hold possession of the goods for and on behalf of Davey);
b) store the Products separately and in such manner that they are clearly identified as the property of Davey;
c) keep the Products safe and secure and in a good condition;
d) keep the Products fully insured to their full replacement value against all risks; and
e) not encumber the Products.
7.2 The Customer grants to Davey and its agents an irrevocable license to enter any of the Customer’s premises to repossess and remove the Products. The Customer acknowledges that Davey will not be liable for any Loss suffered by the Customer as result of Davey taking such action and indemnifies Davey against such loss.
7.3 The Customer may, in the ordinary course of its business, sell and deliver the Products to a third party (and for that purpose Davey gives the Customer the right to pass the ownership of the Products to the third party). If the Customer resells the Products before payment is made, the Customer shall hold the proceeds of resale of the Products in trust for Davey and account to Davey for all moneys owed by the Customer to Davey. The Customer acknowledges that Davey has the right to trace the proceeds of resale. The Customer’s ability to resell the Products shall automatically cease if a receiver is appointed over any of the assets or undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purposes of a reconstruction
or amalgamation approved by Davey) or calls a meeting of or makes any arrangement or composition with creditors or commits any act of bankruptcy.
7.4 In addition to Davey’s rights described above, as security for the due and punctual payment of the Secured Moneys, the Customer:
a) charges and grants a Security Interest to Davey in all of the Customer’s present and future rights and interest in the Products and any Proceeds of the Products; and
b) charges to Davey, and as an additional and separate Security Interest, all present and future Account, Chattel Paper (as defined in the PPS Act) and all other rights or chose in action which form part of or relate to the Products or any part of them at any time.
8. Personal Property Securities Law
8.1 The Customer acknowledges that under this agreement the Customer grants Security Interest to Davey including without limitations:
a) first, a retention of title in respect of the Products (in accordance with Clause 7.1) and
b) secondly, a charge over the Products and the Proceeds of the Products (in accordance with Clause 7.4).
8.2 The Customer acknowledges that this agreement constitutes a Security Agreement.
8.3 The Customer will do anything reasonably required by Davey to enable Davey to register its Security Interest, the priority Davey requires, and to maintain the registration. The Security Interest arising under these Terms and Conditions attaches to the Products when the Customer obtains possession of the Products and the parties confirm that they have not agreed that any Security Interest under these Terms and Conditions attaches at any later time.
8.4 The Customer acknowledges that Davey may perfect its Security Interest by lodging a Financing Statement (as defined in the PPS Act) on the Personal Property Securities Register established under the PPS Act. If:
a) A PPS law applies, or will at a future date apply to this agreement, or Davey determines that a PPS Law applies, or will at a future date apply, to this agreement, and
b) In Davey’s opinion (acting reasonably), the PPS Law
i) adversely affects or would adversely affect Davey’s security position or its rights or obligations under or in connection with this agreement; or
ii) enables or would enable Davey’s security position to be improved without adversely affecting the Customer in a material respect,
then Davey may give notice to the Customer requiring the Customer to do anything that in Davey’s opinion is reasonably necessary to ensure that, to the maximum possible extent, Davey’s security position, and rights and obligations, are
not adversely affected as contemplated by Clause 8.4 b i) (or that any such adverse effect is overcome), or that Davey’s security position is improved as contemplated in Clause 8.4 b ii) and the Customer must comply with the requirements of that notice within the time stipulated in the notice.
8.5 In Clause 8.4, PPS Law means:
a) the PPS Act;
b) any regulations made at any time under the PPS Act;
c) any amendment to any of the above, made at any time; or
d) any amendment made at any time to any other legislation as a consequence of a PPS Law referred to in Clauses 8.5a to 8.5b.
8.6 All of the enforcement provisions of Chapter 4 of the PPS Act apply to all of the Security Interests created under or referred to in these terms, except as excluded by Clause 8.7.
8.7 The following provisions of the PPS Act will not apply to the enforcement of this these terms: section 95,121(4), 130,132(3), 132(4), 135,142 and 143.
9.1 All Orders for Products placed by a Customer on Davey are irrevocable but may be varied by agreement in writing and on terms which will indemnify Davey against all Loss.
9.2 A fee will be applied to any Order for Non Standard Product that is cancelled before delivery to the Customer. This fee will be based on the costs Davey will incur as a direct result of the cancellation.
9.3 Davey shall be entitled to cancel the Order by notifying the Customer in writing if fulfillment is impossible within a reasonable period of time because of war, strike, lockout, political conditions or other incident of force majeure beyond Davey’s control. The same applies, in the case of delayed or faulty delivery from a sub-supplier. In the event of such incidents, Davey shall not be liable for any Loss suffered by the Customer.
10.1 The Customer may not return Products for credit without the prior written approval of Davey and then only on the condition that the Products are;
a) listed in Davey’s current published Price List when returned and are in an unused condition, in original packaging, unsoiled, undamaged and in re-saleable condition; and
b) returned within 60 days from date of delivery with freight and insurance prepaid by the Customer and accompanied by a Goods Return Advice stating the original invoice number, date of purchase, customer order number and reason for return.
10.2 The value of credit, if any, will be in the absolute and unfettered discretion of Davey, and in any case limited to the amount originally invoiced for the Products, save that Products returned will attract a charge (the amount of which shall be at the discretion of Davey but not less than 15% of the price for those Products).
10.3 For faulty products and claims under the Davey Guarantee refer to clauses 11 and 12.
11. Davey Guarantee
11.1 The Davey Guarantee is provided to the Customer only. Where the Terms and Conditions apply to a supply between Davey/authorised dealer and qualified trade buyers or other end-users, the Davey Guarantee and the definition of “Customer” in clauses 11 and 12 are amended to refer to such buyers and end-users.
11.2 Subject to clause 11.3, Davey warrants the Products will be free from defects in material and workmanship from the date of purchase to the end of the guarantee period specified in the Davey Guarantee and is provided subject to the conditions specified in the Davey Guarantee.
11.3 To the fullest extent permitted by law, and except where consumer guarantees imposed by the Australian Consumer Law are applicable, no warranty, condition, undertaking or term (whether express or implied) as to the condition, quality, reliability, accuracy or completeness, performance, merchantability or fitness for purpose of the Products is given or assumed by Davey.
11.4 The benefits of the Davey Guarantee are in addition to other rights the Customer may have under law relating to the supply of the Products.
11.5 If the Customer is acquiring Products and related services (if any) from Davey in the course of Davey’s business and that person is a “consumer” for the purposes of the Australian Consumer Law, then the following condition applies to the exclusion of any other contrary term or condition of the supply:
The Products come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
11.6 Davey Guarantee claims must be made prior to the end of the period specified in clause 11.2. Where the Terms and Conditions apply to a supply between Davey/ Customer (being an authorised dealer) and qualified trade buyers or end-users, then claims must adopt the following procedure and requirements:
a) The qualified trade buyers or end-user must at its expense either deliver to, or arrange for an infield inspection from, Davey or the authorised dealer from which the Product was acquired;
b) The Product must be delivered to, or inspected by, Davey or the authorised dealer within the relevant guarantee period specified in clause 11.2. Davey will not be responsible for the delivery costs;
c) All Davey Guarantee claims must be accompanied by the original receipt;
d) If Davey determines that the claim is valid, Davey will, at its option, return the repaired Product or provide a replacement Product free of charge;
e) If Davey determines that the claim under the Davey Guarantee is not valid, Davey will notify the authorised dealer, trade buyer or end-user.
11.7 The Davey Guarantee does not cover third party products or services. Davey will provide reasonable assistance to provide the benefit of any manufacturer warranties to the Customer for such third party products or services.
12.1 The Davey Guarantee in clauses 11.2 to 11.5 is subject to the exclusions specified in the Davey Guarantee and will not apply where the Products have been:
a) stored or handled inappropriately, negligently or in such a manner as to effect performance and operational life;
(b) installed outside specifications and installation instructions as published by Davey from time to time;
(c) operated outside specifications, maintenance and operating instructions as published by Davey from time to time;
(d) modified or altered in any way not approved by Davey;
(e) damaged from normal wear and tear;
(f) damaged from:
(i) operation at a duty point other than that specified and quoted;
(ii) sand or abrasive materials;
(iii) inappropriate chemicals or additives to the water including corrosive, saline or abrasive water or liquid;
(iv) electrolytic action;
(v) abnormal conditions including pressure, stress or liquid temperature beyond the recommended range;
(vi) incorrect voltage or ‘unclean’ electrical supply;
(viii) Acts of God including but not limited to lightning strikes or high voltage spikes;
(ix) the lack of reasonable and proper use, maintenance and repairs; or
(x) repairs or maintenance conducted by unauthorised persons.
12.2 The Davey Guarantee in clauses 11.2 to 11.5 will not apply to:
a) the replacement of the consumables of the Products. Consumables means but is not limited to mechanical seals, bearings or capacitors;
b) defects caused by products, components or services that have been supplied to Davey by third parties.
12.3 Pursuant to the Australian Consumer Law, this clause 12.3 applies in respect of any of the Products (including Services) supplied under this Contract which are of a kind ordinarily acquired for personal, domestic or household use or consumption. To the extent permitted by law, Davey’s liability for failure to comply with a guarantee that applies under the Australian Consumer Law, is hereby limited to, in the case of the Products, at Davey’s option, any one or more of the following:
a) the replacement of the Products or the supply of an equivalent product;
b) the repair of the Products;
c) the payment of the cost of replacing the Products or of acquiring an equivalent product; or
d) the payment of the cost of having the Products repaired.
To the extent that Davey fails to comply with a guarantee that under the Australian Consumer Law applies to Davey’s provision of services, then Davey’s liability is similarly limited, at Davey’s option, to the re-supply of the services or reimbursing the Customer for paying someone else to supply the services.
12.4 This clause 12.4 applies where any Act, statute, rule or regulation (other than Division 1 of Part 3-2 of the Australian Consumer Law and regulations made in relation thereto) (“other law”) implies in this Contract any term, condition, warranty, right or obligation (“implied term”), and the other law avoids or prohibits a provision in a contract excluding or modifying the application of, exercise of or liability under such implied term. To the extent permitted by law, the liability of Davey for any breach by it of such implied term is limited, at Davey’s option, to any one or more of the remedies referred to in clause 12.3 above.
12.5 To the fullest extent permitted by law or statute, Davey shall not be liable (in contract, tort or otherwise) for incidental or consequential damage or injury, including, but not limited to, loss of crops, loss of profits, rental or substitute equipment, or other commercial loss or personal injury or death howsoever caused and whether or not the result of negligence.
12.6 In any event the total liability of Davey for any breach of any term, condition or warranty, express or implied, which cannot lawfully be excluded is limited to the fullest extent permitted to one of the remedies in clause 12.3 at Davey’s option.
12.7 The Customer indemnifies Davey against all claims, proceedings, losses, costs (including legal costs) and expenses whatsoever and howsoever arising from and in connection with any:
a) unauthorised representations or any errors, mistakes and inaccuracies made by the Customer in relation to the Products (including the Services);
(b) breach or default under these Terms and Conditions;
(c) negligent act or omission of the Customer.
12.8 This clause 12 will survive termination of this Contract.
13. Installation and Commissioning
13.1 Unless specifically included in the Davey offer, installation and commissioning is not included in the price quoted. Installation and commissioning can be requested from Davey and will be subject to a separate Order and will be charged separately.
13.2 Where Davey has agreed to install and commission the Products, the Customer is responsible for ensuring that the Products are able to be installed and commissioned and that Davey has full, uninterrupted and safe access to the relevant site in order to do so. The Customer will provide the assistance of Customer’s personnel during the agreed installation and commissioning times and such other assistance as Davey may reasonably require in the circumstances.
13.3 Unless expressly agreed in writing, Davey shall not take responsibility for providing connections to services as part of any installation. All connections not provided by Davey, must be safe and provided at the required equipment flowrates, pressures, volumes, current and voltage. Davey will not accept liability for, and the Davey Guarantee does not cover, issues with performance of the Products to the extent they are caused or contributed to by variations in water supply, ‘únclean’ electrical supply or the failure to provide the required flowrates, pressures, volumes, current or voltage of services, or any fluctuation in these services.
13.4 Any commissioning is to be done after installation is complete, power and water available and the specified duty or performance can be achieved.
13.5 Commissioning test equipment (gauges, flow meters etc) is to be installed and operating by the Customer before commissioning.
13.6 Commissioning will be to determine the correct operation of the Davey Products, not the whole system.
13.7 Installation and commissioning services are provided subject to clause 12.3 to 12.7 inclusive. Davey shall not be liable for any inability to install or commission the Products for reasons beyond its reasonable control. Davey shall not be liable for damages resulting from any incorrect or improper installation or commissioning undertaken by the Customer or any third party not engaged by Davey. Davey may refuse or delay the installation or commissioning of the Products if its personnel attending are concerned for the safety of the site, access or personal safety.
14. Drawings & documentation
14.1 Descriptions necessary for proper and safe installation, starting, operation and maintenance of the supplied Products will be made available either on-line or with manuals provided to the Customer upon delivery of the Products. Intellectual propertyrights in all Product drawings and descriptions remain the property of Davey and may not be copied or reproduced, without the express written permission of Davey.
14.2 Unless otherwise agreed upon by Davey in writing, standard Davey documentation shall be provided in all cases. A variation to standard documentation requires prior written approval and may be subject to additional costs. Davey shall not be liable for any delays as a result of non-compliance with non-standard documentation requests.
14.3 The Customer acknowledges that Davey remains the owner of all copyright, designs, patents, trade marks and other intellectual property rights subsisting in, used on or in relation to the Products, drawings and descriptions, and advertising material supplied in connection with such Products.
14.4 The Customer agrees not to use the ‘Davey’ name in its trading, corporate or domain name or any other trade marks or other intellectual property of Davey or unless permitted by Davey; and will immediately cease use of any of Davey’s intellectual property when requested by Davey.
14.5 In order to market and advertise for sale the Products Davey provides to the Customer a non-exclusive royalty free license to use the ‘Davey’ name and trademarks as applied to that Product but only in accordance with Davey’s Internet Policy and Davey’s brand style guidelines or in any other manner specified by Davey to ensure the value and integrity of Davey’s brands and trade marks.
15.1 It is an event of termination if:
a) the Customer breaches or fails to observe any of these Terms or Conditions, including the guidelines and policies set out in the Annexures A and B;
b) the Customer trades outside the terms and conditions of the Customer’s credit facilities (if any) or the supply of Product to the Customer will result in the Customer trading outside the terms and conditions of the Customer’s credit facilities and, in particular, the credit limit in force from time to time;
c) the Customer refuses or fails to comply with a request pursuant to Clause 4 (in particular clauses 4.1 and 4.6) within seven days of receipt of this request;,
d) the Customer commits an act of bankruptcy or becomes insolvent;
e) the Customer enters into receivership, a scheme of arrangement or voluntary administration, subject to any statutorily imposed periods of time associated with the imposition of enforcement of this clause;
f) any guarantor of the Customer’s indebtedness to Davey revokes a guarantee;
g) if Davey, its solicitor or agent delivers, to the Customer, a written demand for payment or notifies the Customer in writing the security provided to Davey for payment is not satisfactory and the Customer fails to fully comply with the payment request or remedy the provision of security within seven days of receipt of this request;
h) the Customer knowingly misrepresents Davey or its products to members of the public or prospective purchasers;
i) the Customer supplies the Products to a person who has been terminated as a Customer, because of having knowingly misrepresented Davey or its products to members of the public or prospective purchasers, where Davey has requested the Customer to desist because of concern that there will be further misrepresentation; or
j) there occurs or will occur directly or indirectly a material change in ownership or control of the Customer.
15.2 If an Event of Termination occurs Davey will be entitled (without prejudice to any other right or remedy provided) at its option to immediately do any one or more of the following:
a) refuse to accept or to complete any Order, or any portion of an Order which is unfulfilled at the time of the notification of the Event of Termination provided that where Davey elects to fulfil an order these Terms and Conditions will apply to that Order;
b) cease to supply Products to the Customer or any part or division of the Customer;
c) suspend or cancel any credit facility provided to the Customer;
d) demand immediate payment of all Secured Moneys (whether due or not) in respect of any Order (including, for the avoidance of doubt, any amount payable for products ordered by Davey and services supplied by Davey prior
to the time that Davey receives notice of the Event of Termination including all work in progress); or
e) terminate any Contract; and furthermore:
f) the Customer will not be entitled to any compensation in respect of such action or termination;
g) where the Customer has paid for Products, Davey may, at its option, require the return for credit of any Products in the possession of the Customer; and
h) the Customer will immediately return to Davey all price lists and other material provided by Davey to the Customer.
16.1 If any of these Terms and Conditions infringes any law in Australia it must be read down so that it does not infringe that law, otherwise it will be severable.
16.2 The Customer must not assign any Contract without the prior written consent of Davey.
16.3 All notices to be given by a party under these Terms and Conditions must be in writing and may be given to the other party by hand delivery, prepaid post or facsimile addressed to the other party at its last known address or facsimile numbers as specified by the other party. Any notice will be deemed to have been received by the person to whom it was sent:
a) In the case of hand delivery, upon delivery
b) In the case of prepaid post, three days after dispatch
c) In the case of facsimile upon completion of the transmission: or
d) email, when the email enters the information system of the addressee.
16.4 Davey does not need to give the Customer any notice under the PPS Act unless the notice is required by the PPS Act and that requirement cannot be excluded.
16.5 The parties agree that neither party will disclose to an “interested person” (as defined in section 275 of the PPS Act) or any other person, any information of the kind described in section 275 of the PPS Act. The Customer will not authorize the disclosure of any information of the kind described in section 275 of the PPS Act.
16.6 Each party agrees to keep all information of the other party that is of a confidential nature (including pricing) which is disclosed arising out of or in connection with these Terms and Conditions (apart from information in the public domain or independently developed by the other party) in strict confidence. A party must only use the other party’s confidential information for purposes necessary to comply with, or enjoy a benefit conferred by, these Terms and Conditions.
16.7 Waiver of any right by Davey arising from a breach of these Terms of Conditions or upon the occurrence of an Event of Termination must be in writing and executed by Davey. A failure or delay in the exercise of a right arising from a breach of these Terms and Conditions or the occurrence of an Event of Termination by Davey does not result in a waiver of that right.
16.8 Notwithstanding clause 2 Davey may by written notice to the Customer alter or replace these Terms and Conditions from time to time. All Orders placed subsequently by the Customer shall be upon these Terms and Conditions as altered or replaced.
16.9 Davey shall not be liable for any delay in providing Products (including Services) occasioned by any cause beyond its reasonable control including, without limitation, any delays caused by the Customer, Customer’s representatives, delivery agents, suppliers or third parties or acts of God which impact on the supply and delivery of the Products (and Services).
16.10 It is acknowledged that the Products should
only be installed by qualified personnel, are technically complex and warrant significant point of sales assistance (including proper selection). Accordingly the distribution network for the Products consists of distributors chosen by Davey based on the ability of the network to properly and consistently represent Davey brands and to maintain quality and safety of Davey products and the consumer experience throughout distribution of Davey products to end users. With regard to online advertising and sales of Products this is managed by Davey through requiring its Customers comply with Davey’s Internet Policy. It is acknowledged by the Customer that only Authorised Online Resellers are permitted to sell the Products online and Davey supplies Products to Customer on the condition that the Customer must not, without Davey’s prior written approval, re-sell these Products:
a) via any third-party online website or digital media platform;
b) via any online sales platform unless they are an Authorised Online Reseller and then only in accordance with the terms and conditions of the Authorised Online Reseller Agreement; or
c) to any person or entity who the Customer knows or ought reasonably to know intends to re-sell the Products online in contravention of the Internet Policy including via any third-party online website or digital media.
17. Applicable law
17.1 Terms and Conditions and any Contracts are governed by and must be construed in accordance with the laws of Australia and the Customer agrees to submit to the exclusive jurisdiction of the courts of Victoria, Australia.
ANNEXURE A – Davey Internet Policy
Updated and Effective: 1st July 2021. Supersedes all previous versions.
This Internet Policy sets out Davey’s standards for the marketing, advertising, and sale of the Products on the Internet by its direct account distributors (‘Customers’). The Internet Policy must be read in conjunction with, and forms part of, Davey’s Terms & Conditions of Sale.
Since the 1950s Davey’s distributors have promoted and sold Davey products in many different channels and mar- kets, including in more recent times by selling a selective range of products online. However, Davey has found that online sales have the potential to increase product liability and warranty claims and create a negative customer experience in the absence of advice as to correct product selection, installation, and use.
This can lead to an undesirable after sales experience for a user, which has the potential to cause significant damage to the DAVEY brand and the goodwill we have developed over many years. These guidelines have been prepared to ensure that these risks are minimised, that user experience is enhanced, and the integrity and value of Davey’s brand and intellectual property is protected.
The objectives of the Internet Policy are to ensure that:
a) Products are selected and used safely in accordance with Davey’s instructions and recommended use for the Products;
b) Products are installed correctly by qualified or professionally trained installers;
c) the end-users of the Products receive professional pre-sales advice, education and recommendations for the appropriate intended use, safe handling and care of the Products from trained representatives;
d) effective after-sales support is provided for Products, including to minimise the challenges associated with infield inspections of installed and connected Products sold online to geographically remote locations;
e) Davey’s brand integrity, value and reputation is protected by ensuring the Products are advertised and sold consistent with their intended use and high standards of sale and technical support provided by its representatives at the point of sale; and
f) Products are promoted online in a transparent manner that respects consumer rights.
Only Authorised Online Resellers are permitted to sell a select range of Davey Products online subject to their ongoing compliance with the Authorised Online Reseller Agreement. Authorised Online Resellers must meet spe- cific criteria to ensure that they have the experience, training and resources (including retail presence and service qualifications) to properly manage the online sales experience from product selection through to service support.
All Davey dealers (Customers) are permitted to promote, advertise, and market Davey Products online over the Internet, via email or any similar method in accordance with the guidelines set out in the Internet Policy.
However Customers, who are not Authorised Online Resellers, must not: sell, offer to sell or state anything in their online promotion of Davey Products to facilitate an online sale of the Products, apart from encouraging the pro- spective customer into their store. Products must be sold directly to the consumer from the Customer’s retail store or from its service vehicle.
Promotion of Davey Products is only permitted on Customer’s own branded websites in the Customer’s business name/s of its Davey account or a name which is otherwise clearly identifiable as an extension of their bricks and mortar business.
The Customer (who is not an Authorised Online Reseller) must:
a) ensure that any advertisements or marketing material featuring the Products states that the product is “Available In- Store Only”. The product needs to be genuinely available in-store.
b) not make any statements or representations that implies any sale method other than an ‘in-store’ sale. For example, any text such as “call for pricing”, “free shipping” or similar is not allowed.
c) not include a “shopping cart” in any listing of Davey Products.
d) not offer to sell those Products over the phone, internet, email or similar methods.
e) state the Customer’s retail location at which the Products will be available for sale.
Only genuine and professional images (including, but not limited to photos, images, and drawings), branding, logos or product information which are provided or authorised by Davey are permitted to be used to advertise Davey Products. All direct Customers of Davey Products are licensed to use such material for the promotion of Davey Products, subject to their compliance with the Davey Internet Sales Policy and Davey’s Brand Guidelines.
Transparency & Consumer Protection
In the course of promotion of the Davey Products Customers must:
a) clearly state their business name, trading name (if applicable), ABN or ACN, business address and contact phone number(s), which distinguish them from Davey.
b) explicitly state that a Davey Product on offer is new, comes in its original packaging with full manufacturer’s manuals and is subject to limited manufacturer’s warranty and consumer guarantees as per the Australian Consumer Law. If the product is not new or not in its original packaging, this must be unambiguously highlighted for potential buyer.
c) not make claims on behalf of, or with the aim to represent, Davey.
d) clearly state the price, including applicable taxes and fees as to not be misleading to consumers.
e) ensure that any product claim or description made online with respect to Products on offer match with the product being sold. They must not engage in any false or misleading representations.
f) respect their audience and agree to not partake in any online behaviour that may reflect poorly on Davey Products or the DAVEY brand (e.g. defamatory language / harassing content).
The Customer acknowledges that Davey’s Warranty is subject to exclusions, and that any Products sold online in contravention of this policy or the Authorised Online Reseller terms may be voided in the event that the Custom- er’s advice (or failure to provide appropriate advice) results in Products being:
a) operated outside Davey’s specifications, maintenance and operating instructions;
b) installed outside specifications and Davey’s installation instructions as published by Davey from time to time; or
c) stored or handled inappropriately by the end user.
Davey will not be responsible for the cost of in-field servicing or freight for back to base service for any Products sold online by Customers in contravention of this policy or for Products re-sold outside the country of purchase.
We are aware that Davey Products are sometimes listed on selling marketplaces such as eBay, TradeMe, Gumtree, Amazon, or Facebook Marketplace by sellers outside of the authorised Davey distribution network. This is not authorised by Davey and is at the risk of the marketplace seller. Davey will take appropriate action to notify any non-authorised sellers which it becomes aware are infringing Davey’s intellectual property in connection with their
online sales or which falsely represent themselves as an authorised Davey distributor or Authorised Online Reseller.
Davey requires its Customers to comply with this policy to manage the reputational, product and legal risks as- sociated with online sales. Davey will monitor ongoing compliance to this policy. Non-compliance with this policy constitutes a material breach of Davey’s Terms and Conditions of Sale (clause 2.5). Davey will contact any Custom- ers which it becomes aware are infringing the Internet Policy and, if required, will take further action as set out in Davey’s Terms and Conditions of Sale (clause 15.2).
This policy takes effect from 1st July 2021 and may be periodically amended at Davey’s discretion.
Capitalised terms in the Internet Policy have the same meaning as those terms as used in the Davey Terms & Conditions of Sale.
ANNEXURE B – Pre & Post Sale Guidelines
Updated and Effective: 1st July 2021. Supersedes all previous versions..
Davey relies on its distribution network to ensure that expertise and guidance is applied to product selection, instal- lation, and use, and that after sales support and service is provided promptly and courteously.
It is important that end users and qualified trade buyers of Davey Products have the option of visiting a retailer’s store and speaking directly with a trained and knowledgeable distributor. This is an important factor to mitigate the risks of selecting the wrong product, or improper use or maintenance. It also means that queries can be readily addressed, and there is a point of contact for after sales service, increasing customer satisfaction.
All Customers who re-sell Davey Products must ensure that the qualified trade buyer or end user is recommended the correct model for their specific application. Immediately prior to the collection or delivery of each Product to its customer, the Customer must educate, fully inform and advise them of:
a) the correct operating procedure for that Product;
b) the features and other advantages of that Product;
c) the routine maintenance required with respect to the operation of that Product;
d) the necessity to read and understand the Installation & Operating instructions accompanying that product;
e) the details of the current Davey warranty in respect of that Product and that their first point of contact during the warranty period is the Customer.
f) such other matters as Davey may reasonably require from time to time.
The Customer must also inspect and check the condition of each Product and ensure it is fully and correctly assem- bled and in working and proper order before delivery and hand over to a customer and be accompanied by the appropriate operating manuals.
For Authorised Online Resellers, these obligations also apply to online internet sales in accordance with the condi- tions set out in the Authorised Online Reseller Agreement.
All Authorised Online Resellers must be Davey authorised service agents and as such are required to provide and maintain full inhouse service facilities to a high standard as specified by Davey. This includes the having and maintaining of suitable and sufficient workshop premises, facilities, and equipment, including a minimum range of specified workshop tools as specified by Davey, to maintain, repair and service the Products.
Davey Pool Partners must ensure that an end user has access to water testing and specialist advice to assist in the proper maintenance of the Davey products and provide a safe swimming environment. The Customer must be, and must ensure that all its personnel are, conversant with all technical information supplied by Davey to the Customer, or made available on the Davey website, from time to time concerning Products. Customers shall manage product enquires and Warranty claims promptly and courteously in accordance with the protocols set out in Davey’s Terms & Conditions of Sale (clause 11.6) and as directed by Davey.
Non-compliance with this policy constitutes a material breach of Davey’s Terms and Conditions of Sale (clause 2.4). Davey will contact any Customers which it becomes aware are infringing this policy and, if required, will take further action as set out in Davey’s Terms and Conditions of Sale (clause 15.2).
This policy takes effect from 1st July 2021 and may be periodically amended at Davey’s discretion.