GOOD SIGHT AUSTRALIA PTY LTD
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Scope
Sales and deliveries of Good Sight Australia Pty Ltd (Good Sight) are made exclusively under the following General Terms and Conditions (“Terms and Conditions”), applicable and accepted by the customer placing an order with or receiving delivery, and which shall also apply to all future transactions of Good Sight with the customer. Any application of the customer’s conflicting or supplementary terms and conditions shall be excluded, even if such terms and conditions are not expressly objected to by Good Sight.
Execution of Contract
Offers and Quotations of Good Sight shall be non-binding until converted into a contract. A contract shall not become effective until it has been confirmed in writing by Good Sight and shall be governed exclusively by the contents of the confirmed order and these Terms and Conditions. Oral agreements or promises are only valid if they have been confirmed by Good Sight in writing. Good Sight shall retain all rights over the information provided in the offers, quotations, and sales documentation, e.g. pricing, photos, drawings, equipment specific data, etc. These items must not be made available to third parties and must be returned to Good Sight without undue delay upon demand.
Delivery Dates and Times
Delivery dates and/or delivery times are only binding if confirmed in writing by Good Sight as binding, provided that the customer has supplied Good Sight in a timely manner all information and/or documentation required for the performance of such delivery and – in case advance payment has been agreed – if the customer has paid any advance payments in full prior to the delivery. If the customer is in default of any advance payments, the delivery date or delivery time may be rescheduled. Delivery times agreed by the parties shall begin on the date of the written confirmation of the respective order. In the event of additional or supplementary contracts are entered into at a later date, the delivery periods and/or times shall be extended or rescheduled.
Events which are unforeseeable, unavoidable and lie beyond the control and sphere of influence of Good Sight and for which Good Sight is not responsible, such as force majeure, war, natural disasters, or labour disputes, shall release Good Sight for their duration from its obligation to make timely delivery or perform its obligations in a timely manner. Delivery and/or performance periods and dates shall be extended or rescheduled by the length of such a disturbance, and the customer shall be informed of the occurrence in a timely manner. If the end of such disturbance is not foreseeable, or should it continue for more than 45 days, each party shall be entitled to rescind the contract.
For any products not produced by Good Sight, the delivery obligation(s) shall be subject to Good Sight’s timely and complete receipt of such products from its suppliers.
If deliveries by Good Sight are delayed, the customer shall only be entitled to rescind the contract if Good Sight is responsible for the delay and after expiry of a reasonable grace period.
Should the customer be in default of the acceptance of delivery or be in breach of any other obligations as mutually agreed, Good Sight shall be entitled to reasonably store the products at the customer’s risk and expense, or to rescind the contract in accordance with the statutory provisions, without prejudice to other rights of the customer.
Good Sight may make partial delivery for good reason to the extent this is reasonable for the customer.
Shipment, Passage of Risk, Insurance
In the absence of any other instructions mutually agreed, shipment shall be made using a reasonable method of shipment with the usual manner of packaging; and risk shall pass to the customer:
a. In the case of a contract of sale involving the shipment of products, upon delivery of the products or goods to the common carrier commissioned by Good Sight, or
b. In the case of the customer collecting the goods directly, upon handover to the customer, or
c. In the case of collection by a third party authorised by the customer, upon handover to the authorised third party, or
d. In the case the customer be in default of acceptance, risk shall pass to the customer upon default, or
e. In the case the products shall be collected by the customer or an authorised third party, and delivery is delayed on grounds for which the customer is responsible, risk shall pass to the customer on the date the customer is notified of the readiness of the products for shipment.
Prices, Terms of Payment
Unless the parties have otherwise agreed in writing on a certain price, the price shall be determined by the price list of Good Sight as applicable at the date of the conclusion of the contract.
Unless otherwise agreed in writing, all prices of Good Sight shall be ex works Good Sight’s headquarters exclusive of Goods and Services Tax (GST) do not include any shipment and packaging costs, which will be charged separately.
Unless otherwise agreed in writing, each invoice of Good Sight shall be due for payment without any deductions within 30 calendar days of the date of invoice. The customer shall be in default of payment if this period lapses unsuccessfully. Payments by the customer shall not be deemed to have been made until Good Sight has received such payment and can exercise control over the funds.
In the event that the customer is in default of payment, Good Sight shall be entitled to demand default interest as permitted by law, without prejudice to the assertion of further claims for damages due to the default of payment.
The customer is only entitled to a set-off if its counterclaim is uncontested or has been agreed to in writing by Good Sight.
The customer is only entitled to assert a right of retention to the extent that his counterclaim is based on the same contract and is uncontested, ready for decision or has been finally adjudicated.
If Good Sight becomes aware of the risk of the customer’s inability to perform after the execution of the contract, Good Sight shall be entitled to make any outstanding deliveries only against prepayment or the provision of adequate security. If such prepayments or security have not been rendered even after the expiration of a reasonable grace period set by Good Sight, Good Sight may
partially or totally rescind individual or all of the affected contracts with the customer. Good Sight shall be entitled to assert any further rights it may have.
Retention of Title
The delivered products shall remain the property of Good Sight until any and all claims of Good Sight arising under its business relationship with the customer have been fully paid.
In the case of current accounts, this retention of title shall serve as security for the claim for the balance to which Good Sight is entitled. The customer shall only be allowed to sell the products subject to retention of title (“Secured Products”) within normal and proper business transactions. The customer is not entitled to pledge the Secured Products, grant liens over them, or make other dispositions endangering Good Sight’s
title to them.
The customer hereby assigns any receivables arising from the resale of the Secured Products to Good Sight, and Good Sight hereby accepts such assignment. Attachments of or claims by third parties to the Secured Products shall be immediately reported to Good Sight by the customer and accompanied by the necessary documents. The customer shall at the same time advise the third party of Good Sight’s retention of title. Any costs of a defence against attachments and claims shall be borne by the customer.
The customer is obliged to treat the Secured Products with care for the duration of the retention of title.
Should the customer be in default of material obligations such as payments to Good Sight, Good Sight may, after rescission of the contract according to applicable statutory provisions, request surrender of the Secured Products and may make use of them otherwise for the purpose of satisfying its matured claims against the customer without prejudice to any other rights it may have. In such case, the customer shall immediately surrender the Secured Products and grant Good Sight or Good Sight’s agents access to the same.
The customer shall cooperate in all measures which are necessary for the validity and enforceability of such security rights.
Upon demand by Good Sight, the customer must insure the Secured Products appropriately and provide Good Sight with the respective proof of such insurance and to assign the claims arising from such insurance to Good Sight.
Trademarks and Advertising
The customer shall not perform and may not authorise a third party to perform any act that may endanger the trademarks or other intellectual property rights used by Good Sight in relation to the products. In particular, the customer may not obscure, alter or remove in any manner the trademarks and/or other distinctive features, whether imprinted or attached, that are part of Good Sight’s products and may not include or attach any other features.
All sales promotional, advertising, and sales material (“Advertising Material”) provided by Good Sight shall remain the property of Good Sight. The customer may use this Advertising Material only in accordance with the instructions of Good Sight and in relation to the sale of the products, and the customer may not authorise any third party to use the Advertising Material.
The customer may only advertise the products and use the Advertising Material and the trademarks of Good Sight for this purpose if Good Sight has granted its prior express consent in writing. Good
Sight may withdraw its consent at any time; in such case the entire advertising of the customer must be ceased at the customer’s expense according to the instructions of Good Sight. Irrespective of Good Sight’s consent, the customer shall in any event remain responsible for ensuring that all advertising measures or advertisements fulfil the statutory requirements, if any, and do not breach any industrial property rights of third parties.
Quality, Customer’s Rights in case of Defects, Duty to Inspect the Products
Upon passing of the risk the quality of the delivered products shall exclusively be determined by the specific written agreements concerning the characteristics, features and specifications of the products.
Information provided in sales catalogs, price lists and any other informative literature provided by Good Sight or any other descriptions of the products shall under no circumstances constitute a guarantee for any specific quality of the products; such specific quality or durability guarantees must expressly be made in writing.
Good Sight reserves its right to change the products slightly with regard to their construction, material and/or finish to the extent their agreed characteristics are not changed thereby.
The customer’s rights in case of defects of the products shall require that he inspects the delivered products upon delivery without undue delay and notifies Good Sight of any defects in writing and without undue delay, but no later than two weeks following delivery; hidden defects must be notified to Good Sight in writing without undue delay upon their discovery.
In the event of any notification of a defect, Good Sight shall have the right to inspect and test the products to which objection was made. The customer will grant Good Sight the required period of time and opportunity to exercise such right. Good Sight may also demand from the customer that he returns the product to which objection was made to Good Sight at Good Sight’s expense. Should the customer’s notification of the defect prove to be unjustified, the customer shall be obliged to reimburse Good Sight for all costs incurred in this respect, e.g. travel expenses or shipping costs.
Remedies available to the customer upon notification of a defect are exclusive and expressly limited to obtaining the parts, labour or replacement of the whole or any part of the Car Wash Equipment, where applicable, in accordance with the terms of the warranty and shall not include consequential damages.
The Customer shall not hold Good Sight liable for loss, damage or expense attributable to a loss of use of the Car Wash Facilities, a loss of profits or other commercial loss, or any special or consequential damages (except liability for consequential damages, which by law may not be disclaimed).
To the extent that the Competition & Consumer Act of 2010 as amended permits Good Sight to limit its liability for a breach of a condition of warranty implied by that Act then the liability of Good Sight for such breach shall be at the option of Good Sight limited to the replacement or repair of the goods or Equipment as supplied.
The customer shall give Good Sight the necessary reasonable period of time and opportunity for Subsequent
Items that have been replaced by Good Sight shall, upon Good Sight’s demand, be returned to Good Sight.
The customer’s rights in case of defects shall be excluded in the following events:
a. natural wear and tear
b. defects of the products due to reasons for which the customer bears responsibility, such as inappropriate or improper use, non-observance of the operations instructions, incorrect start-up of operation, or faulty treatment (e.g. excessive wear),
c. incorrect assembly and/or installation by the customer or a third party commissioned by the customer, and
d. the use of unsuitable accessories or unsuitable spare parts or the performance of inappropriate repair works by the customer or a third party commissioned by the customer.
Good Sight shall bear the costs for shipment, travel, labour and material which accrue for the purpose of Subsequent Performance.
The limitation period for the customer’s claims for defects shall be twelve months beginning with the hand-over of the products to the customer
Limitation of Liability and Damage Compensation
Good Sight’s statutory liability for damages shall be limited as follows:
a. Good Sight shall only be liable for damages caused by a slightly negligent breach of a material contractual obligation up to the amount of the typically foreseeable damage at the time of entering into the contract;
b. Good Sight shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
The customer shall take all reasonable measures necessary to avert and reduce damages.
Product Liability
The Customer indemnifies and keeps Good Sight indemnified against any loss, damage or liability arising directly or indirectly from a use, modification or alteration of the goods that is not in accordance with (without limitation) any applicable law or the goods’ normal use, manufacturer’s recommendations or Good Sight’s instructions or the manuals or goods’ safety and operating practices relating to the goods.
Miscellaneous
Amendments of and supplements to this contract and/or these Terms and Conditions and any additional agreements must be in writing in order to become effective. The same shall apply to the waiver of or any amendment to this written form requirement.
If a provision of the contract and/or these Terms and Conditions is invalid, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. In such case, the parties undertake to replace the invalid provisions by a valid provision coming closest to the commercial purpose of the invalid provision.
The laws of the New South Wales and the Commonwealth of Australia shall apply exclusively to these Terms and Conditions and the parties’ contractual relationship.