STANDARD TERMS AND CONDITIONS OF SALE
- APPLICABILITY – All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of parts and accessories (“Products”) sold via the ezgo.com.au, augustaparts.com.au and shopezgo.com.au websites (“Website”) of Augusta Golf Cars Pty Limited (“Company”) are subject to and shall be governed exclusively by the provisions of these STANDARD TERMS AND CONDITIONS OF SALE (the “Agreement”). Purchaser’s offer to purchase Products from Company is limited to the terms and conditions of this Agreement. Any terms or conditions in addition to, or inconsistent with those stated herein, that are proposed by Purchaser in any offer to Company are hereby, by reference, totally rejected. No such additional, different or inconsistent terms and conditions shall become part of this Agreement between Company and Purchaser unless expressly agreed to in a writing signed by both parties. Company’s acceptance of any offer to purchase by Purchaser is expressly conditioned upon Purchaser’s full agreement to all the terms and conditions herein stated, and any terms in addition to, or inconsistent with those contained in Purchaser’s Product order or receipt by Purchaser of Company’s Products, shall in all events constitute full acknowledgment of and assent to the terms and conditions in this Agreement.
- LIMITED WARRANTY – Any Products purchased from Company via the Website shall be free from defects in material or workmanship under normal use and service (the “Limited Warranty”). This Limited Warranty with respect only to parts is for defects reported to Company no later than three (3) months from the date of delivery of the Products to the Purchaser’s location. Products repaired or replaced under this Limited Warranty are warranted for three (3) months from the date of delivery.
EXCLUSIONS: Specifically EXCLUDED from this Limited Warranty are:
(a) Routine maintenance items, cosmetic deterioration or electrical components susceptible to fluctuations in electric current.
(b) Damage to a Product resulting from inadequate maintenance, neglect, abuse, accident or collision.
(c) Damage to a Product resulting from installation or use of non-Company approved parts or accessories.
(d) Damage to a Product during shipment to the Purchaser.
REMEDY: Purchaser’s sole and exclusive remedy under this Limited Warranty in the event of a defect in material or workmanship in the Product is that Company will, at its sole option, repair or replace any defective Product. If Company elects to repair or replace a defective Product, Company may at its discretion provide a factory reconditioned Product or new Product from an alternate supplier. All replaced Products become the sole property of Company. This exclusive remedy will not be deemed to have failed of its essential purpose so long as Company has made reasonable efforts to repair or replace the defective Product.
DISCLAIMER: THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED FOR THE PRODUCTS AND IS MADE IN LIEU OF ALL OTHER WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL SUCH OTHER WARRANTIES BEING EXPLICITLY DISCLAIMED.
LIMITATIONS: THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION). THE RESPONSIBILITY OF COMPANY FOR PRODUCT MALFUNCTIONS AND DEFECTS IS LIMITED TO REPAIR AND REPLACEMENT OF THE PRODUCTS AS SET FORTH IN THE LIMITED WARRANTY. ALL EXPRESS AND IMPLIED WARRANTIES FOR THE PRODUCT, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN TIME TO THE TERM OF THE LIMITED WARRANTY. NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WILL APPLY AFTER THE LIMITED WARRANTY PERIOD HAS EXPIRED. SOME STATES DO NOT ALLOW SPECIFIC LIMITATIONS ON IMPLIED WARRANTIES OR THEIR DURATION, SO THIS LIMITATION MAY NOT APPLY TO YOU.
Company reserves the right to improve, modify or change the design of any Company Product without being responsible to modify previously manufactured Products.
No Company employee or representative, or any other person, has any authority to bind Company beyond the terms of this Limited Warranty without the express written approval of the Company Warranty Department.
- DELIVERY, TITLE AND RISK OF LOSS -The Products will be delivered to the Purchaser’s designated location and risk of loss will transfer upon delivery to the Purchaser’s location. Title will transfer upon delivery of the Products by Company to the common carrier. Unless otherwise indicated in the purchase order, all delivery dates specified in the purchase order are estimates only and time is not of the essence in Company’s performance of any purchase order. IN NO EVENT SHALL COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR LIQUIDATED DAMAGES ARISING OUT OF OR RELATED TO A DELAY OR FAILURE TO DELIVER COMPANY PRODUCTS.
- PACKING and SHIPMENT – Purchaser shall promptly and thoroughly inspect all shipments of Products immediately after delivery. Purchaser shall notify Company in writing within five (5) business days after the delivery of any Product of any damage to the Product or error in the shipment. Company reserves the right to refuse to adjust any errors in shipment or damage to the Products in the event the foregoing procedure has not been followed. Purchaser shall within five (5) business days after delivery notify the Company in writing of any other failure of Products to conform to this Agreement which is reasonably discoverable upon delivery. All failures of Products to conform to this Agreement not reported to the Company as required by this Section 4 will be deemed forever waived.
- TAXES -Any applicable duties or sales, use, excise, value-added or similar taxes will be added to the price and included in the invoice.
- TERMS OF PAYMENT
(a) The full price of all Products shall be due and payable in cash or cash equivalent upon order of the Products, unless Company has agreed in writing to extend credit to Purchaser, in which event the price of all Products delivered pursuant to such extension of credit shall be due and payable as provided in such separate writing. Company may at any time, and for any reason whatever, revoke its extension of credit or alter the terms and conditions thereof with respect to any sale without prior notice to Purchaser prior to shipment.
(b) Unless otherwise agreed to by Company, all payments shall be in Australian Dollars.
(c) On late payments, the price shall, without prejudice to Company's right to immediate payment, be increased by the lesser of 1 1/2% per month on the unpaid balance or the maximum permitted by law.
(d) If any time in Company's reasonable judgment, Purchaser is unable or unwilling to meet the payment terms specified, Company may require satisfactory assurance or full or partial payment as a condition to commencing or continuing manufacture or making shipment, and may, if shipment has been made, recover the Products from the carrier, pending receipt of such assurances.
- LIMITATION OF LIABILITY -IN NO CASE SHALL COMPANY OR ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INSURERS AND ATTORNEYS BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSSES FOR PROPERTY DAMAGE, PERSONAL INJURY, DEATH, ECONOMIC LOSS OR LOSS OF CONVENIENCE, ARISING FROM OR RELATED TO ANY ALLEGED FAILURE OF A PRODUCT OR ANY OTHER BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHETHER OR NOT AUGUSTA GOLF CARS PTY LTD WAS APPRISED OF THE FORSEEABILITY OF SUCH DAMAGES OR LOSSES. THE RIGHT OF PURCHASER TO RECOVER DAMAGES WITHIN THE LIMITATIONS SET FORTH IN THE LIMITED WARRANTY IS PURCHASER’S EXCLUSIVE ALTERNATIVE REMEDY IF THE LIMITED REMEDY OF REPAIR OR REPLACEMENT OF THE PRODUCT FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS ALTERNATIVE REMEDY WILL BE ENFORCEABLE EVEN IF THE LIMITED REMEDY OF REPAIR OR REPLACEMENT FAILS OF ITS ESSENTIAL PURPOSE.
- FORCE MAJEURE -The Company shall not be liable to Purchaser or any third party for Company’s failure to perform any of its obligations under this Agreement when the failure is caused in whole or in part by the occurrence of any contingency beyond the control of the Company or its Affiliates, including but not limited to war (whether an actual declaration thereof is made or not) or hostility; sabotage, terrorism, insurrection, riot or other act of civil disobedience, crime, tort or other unlawful act; act of a public enemy; failure or delay in transportation; act of any government or any agency, subdivision or branch thereof; judicial action; strike or other labour dispute; accident, fire, epidemic, explosion, flood, storm or other act of God; shortage of labour, fuel, materials or machinery, or technical failure; or delay or failure to perform by any supplier. In the event of a shortage of Products which makes it impossible or impracticable for the Company to fill all orders from all of its purchasers in the quantities and within the time periods originally agreed upon, the Company will allocate its available Products in any manner it deems reasonable. In no event shall Purchaser’s lack of finances or ability to perform or pay be considered an event of Force Majeure.
- CHOICE OF LAW; BINDING ARBITRATION
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, exclusive of its conflict of law provisions.
(b) BINDING ARBITRATION: ANY CLAIM, DISPUTE, OR CONTROVERSY, (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN PURCHASER AND COMPANY, arising from or relating to this Agreement (including but not limited to the Limited Warranty), its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE Australian Centre for International Commercial Arbitration (ACICA) under its Code of Procedure then in effect available via the Internet at http://www.acica.org.au or via telephone at (+61 (0) 2 9223 1099 ) or at (Level 16, 1 Castlereagh Street Sydney NSW 2000). The arbitration will be limited solely to the dispute or controversy between Purchaser and Company and NEITHER PURCHASER NOR COMPANY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PURCHASERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Company will be responsible for paying any arbitration filing fees and fees required to obtain a hearing to the extent such fees exceed the amount of the filing fee for initiating a claim in the court of general jurisdiction in the state in which Purchaser resides. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for shifting providing by law. Information may be obtained and claims may be filed with the ACICA. The exclusive place of arbitration shall be Brisbane, Queensland, Australia.
- STATUTE OF LIMITATIONS -To the extent permitted by applicable law, any lawsuit for breach of contract, including breach of warranty, arising out of or related to the transactions covered by this Agreement, must be commenced not later than twelve (12) months from the date the cause of action arose.
- COMPLIANCE WITH EXPORT LAWS AND REGULATIONS -If Purchaser is responsible for obtaining export approvals, Purchaser warrants that it will not assist or participate in any export of Products or related technical data without first obtaining the required export license and will not knowingly assist or participate in any such diversion or other violation of applicable Australian laws and regulations. If Company is responsible for obtaining export approvals, Purchaser shall assist Company, as necessary, in obtaining such approvals. Purchaser shall indemnify and hold harmless Company for any losses or claims arising out of or related to Purchaser’s failure to comply with applicable export control laws and regulations.
- ANTI-CORRUPTION COMPLIANCE– In the event Purchaser resells the Products outside of Australia, Purchaser certifies that neither Purchaser nor any of its officers, employees or representatives have paid, offered to pay or promised to pay, or authorized the payment of, directly or indirectly through any other person or firm, anything of value (in the form of compensation, gift, contribution or otherwise) to: (a) any person or entity employed by or acting for or on behalf of any other purchaser, whether private or governmental, for the purpose of inducing or rewarding any favourable action by such purchaser in connection with this transaction; or (b) any government official, political party or official of such party, or any candidate for political office, for the purpose of inducing or rewarding favourable action or the exercise of influence by such official, party or candidate in connection with this transaction. Purchaser shall indemnify and hold harmless Company and its affiliates for any losses or claims arising out of or related to Purchaser’s failure to comply with the provisions of this Section 12.
- RELATIONSHIP OF THE PARTIES – Nothing in this Agreement makes Company or Purchaser the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
- WAIVER -The failure of Company to enforce any right or remedy provided in this Agreement or any other agreement between the parties, or by law, on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
- SEVERABILITY -A finding that any provision of this Agreement is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of this Agreement or the validity or enforceability of that provision in any other jurisdiction.
- ASSIGNMENT and DELEGATION -No right or interest in the sale of Products hereunder shall be assigned by Purchaser without the written permission of Company, and no delegation of any obligation owed, or the performance of any obligation by Purchaser, shall be made without the written permission of Company. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes unless made in conformity with this Section 16. Company shall have the right to assign this Agreement or any related purchase order and its obligations thereunder to any affiliate of Company or any successor to substantially all of the assets of Company. In the event of a proper assignment, this Agreement shall be binding upon and inure to the benefit of either party’s successors or assigns.
- THIRD PARTY RIGHTS –Notwithstanding any provision of law, no third party shall have any right to enforce this Agreement or any other contractual rights against Company or its affiliates, except as explicitly set forth in this Agreement.
- INTERPRETATION, PAROL EVIDENCE –This Agreement is intended as a final expression of the relationship between Company and Purchaser and as a complete and exclusive statement of the terms thereof. No course of prior dealings between Company and Purchaser, and no usage of the trade shall be relevant to supplement or explain any term used herein. Acceptance or acquiescence in a course of performance rendered hereunder shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used herein, the definition contained in the Uniform Commercial Code shall control.
- ENTIRE AGREEMENT –This Agreement, including attachments hereto, constitutes the entire understanding and agreement between the parties and supersedes any prior oral or written agreements with respect to the subject matter hereof.