DAYCO PURCHASE ORDERS ARE SUBJECT TO THE FOLLOWING
TERMS AND CONDITIONS
“Buyer” means Dayco Australia Pty Limited.
“Seller” means the person, firm or corporation to whom the Order is addressed.
"Australian Consumer Law" means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as given effect under Part XI of the Competition and Consumer Act 2010 (Cth), and under the same or similar provisions of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (as amended or replaced from time to time).
"Consumer" means a consumer within the meaning of section 3 of the Australian Consumer Law.
"Order" means the purchase order between the Buyer and Seller to which these terms and conditions relate.
The Seller shall promptly in writing acknowledge acceptance of the Buyer's Order. Objections, if any, must be raised by the Seller before proceeding to execute the Order.
3. Inconsistent Terms
In the event that any invoice or other document forwarded to the Buyer by the Seller contains anything inconsistent with these terms and conditions, such document and any goods which it accompanies are only accepted by the Buyer on the express understanding that these terms and conditions are to prevail in all cases.
4. Acceptance or Rejection
All the goods covered by the Order whether paid for or not shall be subject to inspection by the Buyer. If any of the goods do not comply with the requirements of these terms and conditions, the Buyer may either reject the goods or any of them, or retain the whole or any of them, without prejudice to its rights at law, including under the Australian Consumer Law. Following inspection the Buyer will notify the Seller of any defects discovered and hold any goods claimed to be so defective at the risk and pending the instructions of the Seller for a period not exceeding 30 days from such notification. If the Seller fails to respond to the Buyer’s claim that such goods are defective within 30 days of the Buyer having notified the Seller, the Buyer is entitled to cancel the Order and return the goods at the Seller's expense and be entitled to a refund of any payment that the Buyer has made to the Seller for the goods.
5. Quality and Fitness
Goods supplied hereunder shall:
(a) comply in all respects with the description set out on the reverse side hereof;
(b) comply with all consumer guarantees as prescribed under the Australian Consumer Law; and
(c) be of a standard not less than that prescribed for such goods by the Standards Association of Australia.
The Buyer relies on the skill and judgement of the Seller with the intent that the goods ordered shall be fit for the purpose for which they are required by the Buyer.
Unless otherwise stated on the face hereof, insurance is the responsibility of the Seller until the goods are accepted by the Buyer.
(a) be rendered separately for each delivery and accompany goods;
(b) cover not more than one Order;
(c) be rendered with Order number quoted thereon.
If invoice is subject to settlement discount, period will be calculated from the date the invoice is received by the Buyer.
8. Other Documents
All packing slips, delivery dockets and other documents or correspondence relating to the Order must bear the Buyer's Order number.
9. Statutory Requirements
The Seller shall comply with all statutory and other requirements at law in connection with the manufacture, packing, packaging, marketing, branding and delivery of the goods to the Buyer.
10. Patent Rights
By accepting the Order the Seller agrees to defend, protect and save harmless the Buyer, its successors, assigns, customers, and the users of its product by reason of the use of the articles hereby ordered against all claims for actual or alleged infringement of any Letters Patent, Trademarks or similar protection. If the Seller makes representation that goods ordered are protected by one or more patents, and any such patents are found to be invalid, this contract may forthwith be cancelled by the Buyer.
11. (1) Design to be retained in confidence
Any articles of work or work done according to the Buyer's design, or developed for it at its direction, or any designs supplied by the Buyer or copies thereof, shall be held by the Seller on behalf of the Buyer and at its disposal and shall not be disclosed or furnished to any other person, firm or government without the Buyer’s written consent.
11. (2) Dayco Property
Unless otherwise agreed in writing all tools, equipment or material of every description furnished to Seller by Buyer or specifically paid for by Buyer, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the personal property of Buyer. Such property and whatever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as “Property of Dayco Australia Pty Limited” and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for property and shall not use such property except in filing Orders. Such property while in Seller's custody or control shall be held at Seller's risk, shall be kept insured by Seller at Seller's expense in an amount equal to the replacement cost with loss payable to Buyer and shall be subject to removal at Buyer's written request, in which event Seller shall prepare such property for shipment and shall redeliver to Buyer in the same condition as originally received by Seller with reasonable wear and tear expected.
Each package shall be numbered and labelled with the Buyer's Order number, contents and weight and shall be accompanied by an itemised packing slip and shall be properly packed for consignment. No charges will be allowed for packing, crating, freight, express or cartage unless specified on the face hereof. Time is of the essence hereof and if any goods are not delivered within the time specified on the Order or within a reasonable time if no time is specified, the Buyer may refuse to accept such goods and may cancel all or part of the Order. The Seller assumes liability for any damage (including loss of profits) arising from failure to meet the delivery date (if any) stated on the reverse side hereof.
Notwithstanding anything herein or any right or remedies available to the Buyer under any other provision of these terms and conditions or any other law, including the Australian Consumer Law, the Buyer reserves the right to cancel the Order in part or in whole, for failure of the Seller to meet delivery requirements or for faulty workmanship.
The contract between the Seller and the Buyer shall be governed and construed according to the Laws of Victoria and the Buyer agrees to submit to the jurisdiction of the courts located in the Capital City of Victoria.
15. Liability and indemnity
15. (1) No exclusion or limitation
To the extent that Buyer acquires goods from Seller as a Consumer, or acquires goods from Seller that are ultimately supplied to a Consumer (whether by Buyer or by a third party), Buyer may have certain rights and remedies (including, without limitation, consumer guarantee rights or rights to indemnity) that cannot be excluded, restricted or modified by agreement. Subject to sub-clause 15.(2) below, nothing in this sub-clause 15.(1) or any of these terms operates to modify the application of any implied condition or warranty, provision or remedy (including a right to indemnity) implied or conferred to the benefit of the Buyer, or the imposition of any liability on the Seller, whether implied or conferred by statute (including under the Australian Consumer Law), custom, or the general law.
Seller must indemnify Buyer on demand against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Buyer) that Buyer may sustain or incur as a result of or in connection with its acquisition and / or re-supply of goods acquired under any Order arising from or attributable to:
(a) any breach, performance or non-performance of these terms by Seller, including, but not limited to, a breach in respect of which Buyer exercises an express right to terminate any Agreement between the Buyer and Seller governed by these terms and conditions;
(b) any breach of any law by Seller, whether arising under statute, the common law or general law (for negligence or otherwise), or on any other basis in law or equity; or
(c) any failure by Seller to comply with its obligations under the consumer guarantees regime under Parts 3-2 and 5-4 of the Australian Consumer Law.