Article 1 – General
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as ‘the General Terms and Conditions’) govern all offers, price quotations, tenders and contracts relating to both the delivery of goods and the provision of services by Sanskar Pty. Ltd.(hereinafter referred to as: ‘the Supplier’) to buyers and customers (hereinafter referred to as: ‘the Customer’), effective as of 6 August 2004.
1.2 All variations from or changes to the General Terms and Conditions require the prior written consent of the Supplier.
1.3 The Supplier is not bound by additional and/or different terms and conditions of the Customer or third parties, including general purchasing terms and conditions, unless the Supplier has accepted these in writing.
1.4 These General Terms and Conditions prevail over any conflicting terms and conditions of the Customer or third parties.
1.5 If a competent court rules any provision of these General Terms and Conditions to be null and void or non-binding in any other way, the other provisions of these General Terms and Conditions shall remain in effect in full.
Article 2 – Orders, offers and contracts
2.1 All offers, tenders and price quotations are issued without obligation unless explicitly stated otherwise. Offers, tenders and quotations are based on the order information supplied by the Customer with any request, and the Supplier may assume these to be accurate.
2.2 Agreements between the Supplier and Customer are contracted only if and to the extent that the Supplier has accepted orders, or are deemed to have been contracted if the Supplier has already begun performing the work. If sales are made from stocks, the invoice may serve as a written order confirmation.
2.3 Descriptions in orders, tenders and/or quotations will be as accurate as possible, but are not binding on the Supplier. The Supplier reserves all rights regarding changes of a technical nature.
2.4 The Supplier has the right, if an order to deliver goods or provide services does not lead to a contract, to charge the Customer for all the costs the Supplier incurs in order to issue a tender.
Article 3 – Deliveries and delivery dates
3.1 All delivery dates given by the Supplier are approximations only, and can in no case be regarded as final dates unless explicitly agreed otherwise. In the event of late delivery, therefore, the Supplier must be issued with written notice of default from the Customer.
3.2 The Supplier has the right to suspend delivery if the Customer has not met all its obligations to the Supplier. Suspension applies until the time that the Customer does comply with these obligations.
3.3 Deliveries are made ex-store, ex-works, ex-factory or ex-outlet, at the Supplier’s discretion.
3.4 Goods to be delivered by the Supplier are shipped at the Customers risk. The choice of transport method is at the Supplier’s discretion. Goods shipments are not insured unless the Customer explicitly so requests: in that case, the costs are borne by the Customer.
3.5 Unless explicitly agreed otherwise, the Customer bears the costs of import and export duties, stamp duties, freight charges and inward clearing costs and taxes etc.
3.6 The Supplier reserves the right to make part deliveries and to invoice these separately.
Article 4 – Prices
4.1 The prices quoted by the Supplier are based on current ex-works, ex-factory, ex-store or ex-outlet prices on the delivery date, are inclusive of GST and, unless explicitly stated otherwise, exclusive of packaging and dispatch costs.
4.2 The Supplier has the right to charge the Customer for all price-increasing factors, including increases in cost prices and rates for materials, wage costs, social insurance charges, taxes, transport charges, supplier’s factory or other charges and movements in exchange rates, arising after a tender, offer is issued or after an agreement is contracted. The Customer has the right to dissolve the contract/order within eight days of receiving notice of the increase.
Article 5 – Payment
5.1 Unless explicitly agreed otherwise in writing, payments must be made in cash or by authorisation with no deduction of any discounts. The payment term is deemed to be a final term. No compensation, deduction or settlement is permitted.
5.2 Before making a delivery, the Supplier has the right at all times to require sufficient security, at its own discretion, for compliance with the Customers payment obligations. This provision applies likewise if credit is agreed. If the Customer refuses to provide the required security, the Supplier has the right to regard the contract/order as dissolved, without prejudice to its rights to claim compensation for expenses and loss of earnings.
5.3 In the event of overdue payment, the Customer owes the Supplier interest on all overdue payments as from the due date shown in the invoice, at a rate of 1% above the discount rate for promissory notes of ANZ Bank Australia in effect at that time, with a minimum of 1.5% per month. The Customer is also liable for out-of-court collection charges, with a minimum of 15% of the overdue amount.
Article 6 – Reservation of ownership
6.1 The Supplier reserves ownership of all goods that it delivers to the Customer until the customer has settled all its payment obligations, including amounts due for penalties, interest and costs.
6.2 Further to the aforementioned reservation of ownership, the Customer undertakes to establish reserve a non-possessory pledge on all goods delivered by the Supplier to the Customer, at the Supplier’s earliest request, as security for all the Supplier’s existing and future receivables from the Customer, on any grounds whatsoever.
6.3 For as long as it is established that ownership of the delivered goods has not yet been transferred to the Customer, the Customer does not have the right to sell the delivered goods or to dispose of them in any other way without the Supplier’s explicit written consent.
Article 7 – Complaints
7.1 The Customer must report complaints regarding delivered goods or services to the Supplier in writing, within seven days of delivery.
7.2 In the event of a complaint regarding delivered goods that the Supplier finds to be justified, the Supplier has the right to resend the relevant goods or to replace them with similar goods. The Supplier is not liable to pay compensation for any damages unless these are attributable to malicious intent or gross negligence on the Supplier’s part.
Article 8 – Rights of the Supplier
8.1 The copyrights and all other intellectual and industrial property rights relating to goods delivered or made available in any other way by the Supplier to the Customer are held solely by the Supplier or its licensors, unless the parties explicitly agree otherwise in writing. The Customer receives only the user rights for these, on the basis of the applicable licensing terms.
8.2 The Customer is not permitted to remove or alter any designation concerning copyright, brands, trade names or other intellectual or industrial property rights including the photographs and concerning the confidential nature of, and confidentiality requirements regarding the garments.
8.3 The Supplier may take technical measures to protect the items sold.
Article 9 – Force majeure
9.1 Apart from the statutory provisions, force majeure on the Supplier’s part arises if the Supplier is prevented from complying with its obligations by circumstances beyond its control, including, but not confined to the failure of suppliers to meet their obligations to the Supplier.
Article 10 – Guarantee
10.1 The products offered by the Supplier is governed solely by the manufacturer’s guarantee provisions, where available.
10.2 Without prejudice to the provisions of Article 10.1, the Supplier will supply a guarantee for production defects for a period of three months following the delivery date of the products that is not acquired from another supplier. The guarantee provides cover only for the repair or exchange of defective products by the Supplier, to the best of its ability, at its own expense. All replaced products become the property of the Supplier.
10.3 All guarantee claims shall lapse if changes have been made to the product that, in the Supplier’s view, could affect the normal operation and reliability of the product, without the Supplier’s written consent. The same applies if parts from another supplier are added within the guarantee term, or if repairs are made to the product without the Supplier’s consent.
10.4 Loss of earnings, consequential loss or other indirect damages not specifically named here are excluded from the guarantee. The guarantee applies for defects caused solely by incorrect production, construction or materials. The guarantee does not apply in the case of normal wear and tear or damages arising as a result of accidents, or in the event of changes made to the material or construction by the Customer or third parties, negligence or unskilled treatment, or if the cause of the defect cannot be clearly established.
10.5 The Customer bears the costs and risks of transportation from and to the Supplier’s workplace.
10.6 The Supplier does not guarantee, either explicitly or implicitly, the quality, marketability or suitability of the product for any specific purpose. All products are issued and sold under licence, in its condition at the time of sale. The risk concerning the quality and performance of the product is born by the Customer.
10.7 The Supplier is not required to exchange used product. The Supplier reserves the right to return the purchase price.
10.8 The Supplier is not required to issue long-term guarantees (longer than three months) for used products included in ‘bargains’. The price of these is so low that this cannot be claimed.
Article 11 – Liability
11.1 Without prejudice to the provisions concerning the guarantee, the Supplier explicitly excludes all further liability for all damages arising for any reason whatsoever, including all direct and indirect damages such as consequential loss or loss of earnings caused, among other things, by the failure of delivered goods to function properly.
11.2 If and to the extent that the Supplier holds any liability, the Supplier shall in no case be liable for an amount in excess of the value of the delivered goods that directly or indirectly caused damages, or that was directly or indirectly involved in the damages, which value shall be determined on the basis of the invoice for the relevant delivery, on the understanding that the Supplier, if the delivered product is not directly or indirectly related to the damages, shall be liable only for direct damages caused by malicious intent or gross negligence on the part of the Supplier.
11.3 The Supplier must be notified in writing of any claims for damages resulting from the foregoing, within one month of the date on which the damages arise.
11.4 The Customer indemnifies the Supplier against all third party claims for damages arising as a result of or in connection with the product delivered or issued under licence by the Supplier.
Article 12 – Dissolution
12.1 If the Customer fails to meet one or more of its payment obligations on time or in full, the Supplier has the right, without notice of default or the intervention of a court, and without liability for any compensation for damages, to dissolve the relevant contract or to suspend delivery with immediate effect, by means of written notice, without prejudice to the Supplier’s right to claim full compensation for damages.
12.2 In addition to its other rights, the Supplier may dissolve the contract with the Customer with immediate effect at any time, by written notification of the Customer, without notice of default, the intervention of a court or liability to the Customer, if the Customer is unable to pay its due debts or fails to do so, becomes insolvent, contracts a private agreement with its creditors or convenes a meeting of its creditors, if a meeting of the Customers shareholders resolves to dissolve or liquidate the Customer, a trustee, administrator or person with a similar mandate is appointed for the Customers assets or estate or any part thereof, or if the Customer takes or undergoes such measures in relation to debts, if the Customer or a third party petition for a compulsory winding up order for the Customer or the Customer is granted a moratorium on payments, provisional or otherwise, if the Customer discontinues its business or if a garnishment order is imposed in connection with substantial debts of the Customer and is sustained for at least one month.