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Terms and conditions of Carl Zeiss Pty Ltd

1. DEFINITIONS

1.1 In these Terms and Conditions, unless the contrary intention appears, the following definitions will apply:

Agreement means all relevant parts of the agreement for the provision of Goods and/or Services between ZEISS and the Customer including (in the order of priority, in the event of any inconsistency):

(a) the Sale Particulars, invoices, order forms or other documents or statements describing the Goods and/or Services;

(b) these Terms and Conditions; and

Carl Zeiss means Carl Zeiss Pty. Limited ACN 008 410 704.

Confidential Information means all information of a party which would reasonably be regarded as confidential, disclosed to the other party before or after the date of this Agreement, but does not include information which is in, or comes into, the public domain other than by a breach of this Agreement, or which is independently known to the other party as evidenced by its written records.

Customer means the signatory to the Sale Particulars to which these Carl Zeiss Terms and Conditions refer.

Goods mean the goods or equipment supplied by Carl Zeiss, as recorded on any Sale Particulars, invoices, order forms or any other document issued by Carl Zeiss.

GST means GST as defined under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means all rights conferred under statute, common law, equity and includes (without limitation) copyright, trade marks, designs, scripts, patents, semi-conductor or circuit layout rights or other such proprietary rights, or any rights to registration of such rights existing in Australia, whether created before or on or after the date of an agreement.

On Site is defined in clause 11.3(c).

Privacy Laws means all laws, regulations and guidelines relating to the handling of personal information including the Privacy Act 1988 (Cth) and the National Privacy Principles.

Purchase Price means the purchase price for the Goods and/or Services, as specified in the Sale Particulars.

Sale Particulars mean the sales particulars or quotations provided to the Customer setting out the Goods and/or Services, the Purchase Price and other relevant details.

Services mean the services supplied by Carl Zeiss, as recorded on any Sale Particulars, invoices, order forms or any other document issued by Carl Zeiss.

Software means the software required to be used in conjunction with the Goods.

Specified Interest Rate means the interest rate quoted by Westpac Banking Corporation as its base lending rate from time to time plus a margin of 4%.

1.2 In these Terms and Conditions, unless the context otherwise requires:

(a) headings will be ignored in construing these Terms and Conditions; and

(b) references to statutes include all statutes amending, consolidating or replacing such statutes.

2. SCOPE OF AGREEMENT

2.1 The Customer acknowledges through the execution of the Sale Particulars that it has read these Terms and Conditions, understands it and agrees to be bound by it and further agrees it is the complete and exclusive statement of the Agreement between the Parties superseding all proposals, quotations, orders, oral and written and all other communications between the Parties

2.2 These Terms and Conditions will apply notwithstanding any other terms proposed by the Customer.

2.3 Carl Zeiss quotations are not binding upon Carl Zeiss and orders become binding on Carl Zeiss only after Carl Zeiss has provided the Customer with written acknowledgement. In any event, Carl Zeiss quotations will be valid for 30 days after the date of that quotation.

2.4 Acceptance of a Customer’s order is conditional upon the Customer providing Carl Zeiss with a credit application approved by Carl Zeiss at the sole discretion of Carl Zeiss.

2.5 If any term condition or provision of the Agreement is found to be invalid, or unenforceable to any extent, the Parties will endeavour in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in the Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

3. TERMINATION

(a) This Agreement may be terminated at any time by Carl Zeiss providing a minimum of 3 months written notice to the Customer. Carl Zeiss may provide compensation to the Customer at Carl Zeiss’ sole discretion.

(b) Carl Zeiss may immediately terminate this Agreement if the Customer:

(i) commits or allows to be committed any material breach of its obligations under this Agreement;

(ii) becomes bankrupt, is ordered to wind up or passes into liquidation or administration;

(iii) ceases to carry on business or a substantial part thereof, has a receiver or manager or administrator appointed, or generally becomes unable to pay its debts as they fall due; or

(iv) has not remedied any default within 14 days of a notice from Carl Zeiss requiring it to do so.

(i) must pay Carl Zeiss all amounts owing to Carl Zeiss up to the date of termination of this Agreement, including any reasonable costs incurred by Carl Zeiss as a result of the termination of this Agreement (including third party cancellation fees and administrative costs); and

(ii) agrees to return or destroy all copies of the Software and related documentation in its possession or control at its expense. The Customer also agrees to send Carl Zeiss a certificate that the Software has been destroyed.

4. PURCHASE PRICE AND TERMS OF PAYMENT

4.1 Carl Zeiss will invoice the Purchase Price and any expenses (estimates of which will be provided upfront) to the Customer in accordance with this Agreement.

4.2 Purchase Price is provided in Australian dollars inclusive GST.

4.3 Regardless of any other provision in this Agreement, if GST is imposed on any Goods or Services supplied to the Customer under this Agreement, the amount which the Customer must pay for that supply is increased by the amount of that GST.

4.4 Where a variation in an existing or new government tax, duty or charge affects the cost of goods or services, Carl Zeiss may vary the price accordingly from the date of the government impost and the Customer must pay that additional amount.

4.5 Unless otherwise agreed, the Customer will make payment within 30 days of the date of the invoice.

4.6 Deductions (e.g. taxes, fees) are not permitted.

4.7 For purposes of determining its timeliness, a payment is deemed to be made on the day that payment is credited to Carl Zeiss’ bank account, or, in the case of cheques and drafts, on the day they are paid, and when Carl Zeiss is able to dispose freely of the invoiced amount and there is no reservation for repayment.

4.8 Carl Zeiss may charge interest on any outstanding amounts of the Purchase Price from the due date at the Specified Interest Rate, such interest shall accrue daily.

4.9 Carl Zeiss may set off any claims it has against the Customer against claims for payment which the Customer may have against Carl Zeiss under this Agreement.

4.10 The Customer must not set off claims it may have against Carl Zeiss.

5. DELIVERY AND INSTALLATION

5.1 Carl Zeiss’ compliance with the time of delivery presumes the following preconditions:

(a) the timely receipt of all information necessary for delivery be supplied by the Customer;

(b) the granting of all necessary permits and releases; and

If these preconditions are not met in a timely manner, Carl Zeiss may extend the time of delivery. The time of delivery is deemed to have been complied with when the Goods leave Carl Zeiss’ outlet or the Customer is advised that the Goods are ready for shipment.

5.2 If the Customer causes an interruption or delay of Carl Zeiss’ contractual performance, any additional costs as a result are to be borne by the Customer.

5.3 If Carl Zeiss is unable to fulfil the time of delivery because of unforeseeable events beyond its control, including, without limitation, strikes, lockouts, mobilization, war, insurrections, terrorism, changes in law, acts of government, shortages of materials or energy, incorrect or late supplies in spite of careful choice of suppliers, business interruption or transportation difficulties, Carl Zeiss may extend the time of delivery appropriately.

5.4 If Carl Zeiss is responsible for any delay in delivery, the Customer must provide Carl Zeiss with a reasonable extension of time within which to deliver the Goods.

5.5 Delivery may be made in partial shipments.

5.6 Unless otherwise agreed, Carl Zeiss will determine the route and mode of transportation.

5.7 If the dispatch, collection or delivery is delayed or becomes impossible for reasons beyond Carl Zeiss’ control, Carl Zeiss will notify the Customer.

5.8 In the event that Carl Zeiss agrees to install the Goods, all costs associated with or incidental to the installation may be borne by the Customer including:

(a) the costs associated with preparing a site for installation; and

(b) the costs associated with varying a site in order to limit the effect of extraneous elements on the Goods.

6. OBVIOUS DEFECTS, DAMAGE OR SHORTAGES IN DELIVERY

6.1 Obvious defects, incorrect shipments and shortages not caused by transport must be reported in writing, to Carl Zeiss within 7 days of dispatch of the Goods.

6.2 If delivered by carrier, the Customer must accept products with externally visible damage or loss caused by transport if such damage or loss is noted on the freight documents and such note is countersigned by the carrier. This also applies when internal or latent damage or loss can be assumed on the basis of the external condition of the shipment (e.g. damaged packing). Damage or loss caused by transport which is not externally visible must be reported to the carrier immediately after discovery. In both cases the Customer must notify Carl Zeiss immediately in writing within 7 days. Failure to act in accordance with subclauses 6.1 and 6.2 constitutes acceptance of the Goods, and the Goods are deemed to comply with this Agreement.

7. CUSTOMER’S OBLIGATIONS

7.1 The Customer must:

(a) nominate a representative capable of making decisions and providing instructions, including the relevant requirements for the Services to be performed;

(b) allow Carl Zeiss’ personnel reasonable access to the site(s) for the purpose of performing the Services where required;

(c) keep the site(s), the Goods and/or its staff for the purpose of performing the Services available at all times in a manner which ensures disruption-free operation;

(d) promptly provide all decisions, materials, support staff and any information reasonably required by Carl Zeiss to assist in performing the Services, including providing detailed specifications of the requirements in writing, responding to questions without delay, performing intermediate tests and tests of work results;

(e) provide adequate power, water and other utilities;

(f) inform Carl Zeiss of any special safety and factory regulations and particular sources of danger that Carl Zeiss may encounter at the Customer’s site;

(g) obtain all necessary consents for Carl Zeiss to use, modify and reproduce the Customer’s materials for the purpose of performing the Services; and

(h) authorise Carl Zeiss to enter any premises:

(i) upon which the Goods are stored to enable Carl Zeiss:

(A) to inspect the Goods; and/or

(B) if the Customer has breached this Agreement, to reclaim possession of the Goods; and

(ii) upon which the Customer’s records pertaining to the purchase of the Goods are held, to inspect and copy those records.

7.2 Unless otherwise agreed in writing, customer resale of Carl Zeiss Goods or Services is not permitted. Any breach of this condition by the Customer will provide Carl Zeiss with the right (in addition to any other rights Carl Zeiss has at law) to immediately terminate the Agreement and all Services.

8. RETENTION OF TITLE

8.1 Title in the Goods does not pass to the Customer:

(a) until the Purchase Price for those Goods owing by the Customer to Carl Zeiss, has been paid. The Customer in the meantime takes custody of the Goods and retains them as the fiduciary agent and bailee of Carl Zeiss; or

(b) for prepaid Goods, until Carl Zeiss invoices the Customer for those Goods.

8.2 Until the Purchase Price has been paid in full:

(a) the Customer may sell the Goods, in the ordinary course of its business, but only as fiduciary agent of Carl Zeiss. Any right to bind Carl Zeiss to any liability to a third party by contract or otherwise is expressly negatived;

(b) any proceeds the Customer receives from dealing with the Goods (including any proceeds from insurance claims) will be held in trust for Carl Zeiss and must be kept in a separate bank account until the liability to Carl Zeiss is discharged; and

(c) the Customer agrees not to sell, assign, charge or otherwise encumber or grant any interest over any obligations which any third party may owe to the Customer as a result of the use, manufacture or resale of the Goods.

8.3 If the Purchase Price for all Goods sold by Carl Zeiss to the Customer is greater than the sum of:

(a) the proceeds actually received by Carl Zeiss in respect of all dealings by the Customer with the Goods; and

(b) all other payments received by Carl Zeiss in respect of the Goods;

the difference remains a debt owing by the Customer to Carl Zeiss.

8.4 Carl Zeiss’s title in the Goods is not affected by the fact that the Goods become fixtures attached to the Customer’s premises or a third party, and if Carl Zeiss enters those premises for the purpose of reclaiming possession of the Goods, and incurs any liability to any person in connection with the entry or reclamation, the Customer indemnifies Carl Zeiss against that liability.

9. RISK

9.1 The risk of loss or damage to the Goods passes to the Customer upon dispatch of the goods from Carl Zeiss’ outlet.

9.2 In the event Carl Zeiss stores the Customer’s Goods for any reason, such storage will be at the Customer’s sole risk. Upon such storage, Carl Zeiss’ contractual obligation to deliver is deemed fulfilled.

10. ACCEPTANCE TESTS

10.1 Acceptance tests will not be conducted in respect of the Goods unless agreed as a part of this Agreement. If acceptance tests are required under this Agreement, the acceptance test will be conducted in accordance with the user manual for the Goods and the Customer bears the costs of the tests.

10.2 Where an acceptance test is required, the Customer must, within 5 business days of the installation of the Goods and acting reasonably:

(a) accept the Goods by notifying Carl Zeiss of the acceptance or by signing the ‘Instrument Installed Base Form’ which will be provided to the Customer upon installation; or

(b) reject the Goods, in which case the Customer must notify Carl Zeiss of the reasons for rejection.
Acceptance will be deemed to have occurred after 5 business days of the installation date, unless the Customer specifies otherwise during this time.

10.3 If the Goods fail an acceptance test, the Customer may:

(a) waive the requirement for further acceptance testing;

(b) ask Carl Zeiss to fix the Goods so that they meet the acceptance test at no additional charge; or

(d) If the Customer waives an agreed upon acceptance test, or does not attend the test in spite of timely notice, acceptance will be deemed to occur upon completion of testing by Carl Zeiss. Additional costs resulting from the delay of acceptance tests for reasons beyond Carl Zeiss’ control must be borne by the Customer. In any event, the Goods are deemed accepted when the Customer causes the Goods to be placed into service.

10.4 Acceptance may not be refused because of minor defects.

11. WARRANTY

11.1 The Customer acknowledges that:

(a) Carl Zeiss has not made any representations, warranties or undertakings about the condition or quality of the Goods or Services, their suitability or fitness for purpose, or their safety except those implied by legislation (to the extent to which they apply cannot be excluded);
(b) it must at all times cooperate with Carl Zeiss in respect of Carl Zeiss providing the Goods and Services.

11.2 All warranties, including express and implied warranties of merchantability and fitness for a special purpose, other than those expressly stated in this Agreement are excluded to the extent permitted by law.

11.3 In relation to the Goods only:

Carl Zeiss warrants that the Goods are free from defects in material and workmanship for a period of 12 months which commences:

(i) on the date the risk of loss passes to you; or

(ii) if this Agreement provides for an acceptance test, on the date of the acceptance test

(b) If the Customer reports any defects to Carl Zeiss, Carl Zeiss will, at its sole discretion, either replace or repair the Goods free of charge provided the Customer has complied with its obligations under this Agreement.

(c) Carl Zeiss decides whether defects will be repaired at the facility where the Goods are used (On Site), or at its outlet. If Carl Zeiss decides not to repair the defects On Site, the Customer must pack the defective Goods securely, properly and safely for shipment and send them to the address designated by Carl Zeiss.

(d) Costs associated with delivering the Goods On Site or to a facility or outlet designated by Carl Zeiss will be the responsibility of the Customer.

(e) Carl Zeiss will only bear the costs of workmanship and material arising out of the repair of the Goods or the cost of the replacement Goods, during the warranty period.

(f) If the defects are repaired at the site where the goods are used, Carl Zeiss will only bear those costs which would have been incurred if the repair had been carried out at a Carl Zeiss outlet

11.4 In relation to the Software only:

(a) Carl Zeiss warrants that the Software corresponds to its program specifications, provided it has been installed in accordance with Carl Zeiss’ instructions.

(b) Carl Zeiss will remedy defects which substantially impair the use of the Software in accordance with this Agreement, at its sole discretion and option, depending on the extent of the defect, either by installation of an improved version of the Software or by advice on how to eliminate such defects or to avoid their effects.

(d) Carl Zeiss does not warrant that the Software will function without error in each configuration selected by the Customer, unless such configuration has been specified by Carl Zeiss.
11.5 These warranties do not apply:

(a) to latent defects or defects existing as at the date of this Agreement;

(b) to defects resulting from normal wear and tear, negligence, wilful misconduct, mishandling, improper use or damage caused by unforeseen events;

(d) faults or defects caused by third parties, including work done by unauthorised service or repair agents.

11.6 To the extent permitted by law, Carl Zeiss is not liable nor does it provide any warranties for Software, interfaces and other Goods produced by other manufacturers and supplied by Carl Zeiss.

11.7 Where the Purchase Price is less than $40,000 or the Goods or Services are of a kind ordinarily acquired for personal, domestic or household use, the following applies.

(a) These warranties are provided in addition to other rights and remedies that are available at law.

(b) Carl Zeiss’ Goods and Services 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 goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

12. MAKING A WARRANTY CLAIM

12.1 If a defect appears within the warranty period the Customer must notify Carl Zeiss of the defect immediately after it has been discovered, and do everything in their power to mitigate any damage caused by a defect.

12.2 In order to make a warranty claim Customers must send to Carl Zeiss in writing the following information:

(a) the name and address of the Customer;

(b) details of the product purchased by the Customer;

(d) the place the product was purchased by the Customer; and

(e) the nature of the product’s defect

12.3 The above information should be accompanied with the receipt or proof of purchase of the product and sent to PO Box 501 North Ryde NSW 2113.

12.4 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods

12.5 If the Goods are capable of retaining user generated data, repair of the Goods may result in loss of the data.

13. LIABILITY, INDEMNITY AND EXCLUSIONS

13.1 The aggregate liability of Carl Zeiss in connection with this Agreement is limited, at the option of Carl Zeiss, to:

(a) in the case of the Goods:

(i) replacement, repair or resupply of the Goods with Carl Zeiss goods; or

(ii) the cost of replacing, repairing or acquiring equivalent Goods; and

(b) in the case of the Services:

(i) supplying the Services again; or

(ii) paying the cost of having the Services supplied again, but in any event, will not exceed the Purchase Price paid by the Customer under this Agreement.

13.2 In no event shall Carl Zeiss be liable for:

(a) any incidental or consequential damages, loss of profits, loss of data or any other indirect damages, even if Carl Zeiss has been informed of the possibility thereof;

(b) any costs or expenses for the procurement of substitute equipment or services;

(d) the preparation of, or additional charges for site facilities or ongoing provisioning of those facilities with respect to but not limited to mains power, security or air-conditioning;

(e) maintenance of faults caused by willful damage to and/or improper use of Goods;

(f) the provision of consumable items;

(g) the failure of equipment not covered under the Agreement;

(h) equipment faults or damage existing prior to the commencement date;

(i) damage to Goods or its software configuration by the connection of other equipment without the approval of Carl Zeiss; and

(j) damage caused by unforeseen events.

13.3 The Customer indemnifies Carl Zeiss against all claims, losses, liabilities, legal costs (on a solicitor and own client or full indemnity basis, whichever is the greater) and other costs and expenses incurred by Carl Zeiss arising directly or indirectly as a result of or in connection with:

(a) a breach or non-performance of any of the obligations or warranties of the Customer under this Agreement whether express or implied;

(b) the Customer’s use of the Goods; or

14. CONFIDENTIALITY AND PRIVACY

14.1 The parties will:

(a) keep confidential the Confidential Information;

(b) use the Confidential Information for the sole purpose of performing its obligations under this Agreement; and

(c) not disclose the Confidential Information to any person other than those who need to know the Confidential Information.

14.2 Carl Zeiss agrees to comply with the Privacy Laws.

15. INTELLECTUAL PROPERTY

15.1 The parties agree that the ownership of the Intellectual Property Rights existing at the date of this Agreement will not be altered, transferred or assigned.

15.2 Carl Zeiss grants to the Customer a non-exclusive, non-transferable licence to use programs, related documentation and subsequent amendments exclusively in connection with the initial use of the Goods in accordance with this Agreement. The Customer has no further rights to the programs, relating documentation or subsequent amendments. Carl Zeiss remains the sole owner of the relevant Intellectual Property Rights.

15.3 The Customer must not make the programs and related documentation referred to in clause 14.2 available to third parties, nor (even for the Customer’s own purposes) copy or otherwise duplicate them, without Carl Zeiss’ prior written consent.

15.4 Source programs are available only by separate written agreement.

16. PROTECTION AND SECURITY

16.1 The Customer acknowledges and agrees:

(a) to take appropriate action in accordance with this clause 15 to satisfy the Customer’s obligations for the protection and security of the Software;

(b) that all media upon which copies of the Software is stored is the Customer’s property;

(c) refrain from altering or removing a copyright statement or other notice of ownership of Intellectual Property Rights which accompanies the Software;

(d) to only make copies of the Software as are reasonably required for the purposes of back-up and security;

(e) ensure that prior to disposing of any storage media, any Software contained on that media has been removed, erased or otherwise destroyed; and

(f) to not, without Carl Zeiss’ prior written consent, provide or otherwise make available any Software in any form to any person other than to the Customer’s employees or agents or other persons engaged by the Customer to use or support the Software.

16.2 Subject to clause 15.1, the Customer agrees that this Agreement does not entitle the Customer to:

(a) use, modify or adapt the Software in any way that is contrary to this Agreement;

(b) on-sell any copy of the Software;

(d) do anything that would prejudice the existing right, title or interest in the Software.

17. GOVERNING LAW

17.1 This Agreement is governed by the laws of New South Wales, Australia.

17.2 Carl Zeiss and the Customer agree that the courts of New South Wales have jurisdiction to hear any action in respect of, or arising out of, the Agreement and hereby submit themselves to the jurisdiction of those courts. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from this Agreement.

18. GENERAL

18.1 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.

18.2 Carl Zeiss may, in its sole discretion, sub-contract the performance of any part of the Agreement to any third party.

18.3 Any term or provision of this Agreement will not be waived or varied in any circumstances unless expressly agreed in writing between Carl Zeiss and the Customer.

18.4 The Customer must not transfer or assign its rights and obligations under this Agreement without Carl Zeiss’ prior consent.

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