AutoMap Pty Ltd
General Terms and Conditions (‘’T&Cs“ for short)
Toowong, Brisbane QLD. Australia
Current: October 2021
General Terms and Conditions
1. Scope
1.1 The scope of the present General Terms and Conditions (hereinafter referred to as “T&Cs” for short) shall extend to all deliveries and services of AutoMap Pty Ltd ACN 634 603 633 (hereinafter referred to as “AutoMap” for short) to contractual partners (hereinafter referred to as “the Customer” for short).
1.2 Deviations from the present T&Cs shall only be valid if they are expressly acknowledged by AutoMap in writing. Actions taken by AutoMap to fulfil contractual obligations shall not be regarded as consent to the terms of the contract which deviate from the present T&Cs.
1.3 If deliveries and/or services are made/provided to consumers in terms of the Australian Competition and Consumer Act, the present T&Cs shall apply insofar as they do not contradict the provisions of this Act.
1.4 AutoMap may vary or amend these T&Cs with reasonable notice to the Customer, including by posting the updated T&Cs on AutoMap’s website, or otherwise providing a copy (including electronically) to the Customer. Any variations or amendments will apply to orders accepted after the notice date.
2. Quotation
2.1 Quotations submitted by AutoMap are an invitation to treat only, and shall be subject to change. Prices quoted exclude GST and any other taxes or duties imposed on or in relation to goods and services (unless otherwise stated).
2.2 Information provided in catalogues, brochures, presentations etc. shall only be authoritative if it is expressly referred to in the order confirmation.
2.3 Quotation and project documents may be neither reproduced nor made accessible to third parties without the consent of AutoMap. They shall remain the property of AutoMap and must be returned or destroyed at any time upon request.
3. Conclusion of the contract
3.1 A binding contract between AutoMap and the Customer shall only come into effect with the written order confirmation by AutoMap or the actual delivery or performance of the service by AutoMap to the Customer.
3.2 Subsequent amendments and additions to a contract concluded between AutoMap and the Customer must be in writing in order to be valid.
4. Prices
4.1 Provided that no agreement to the contrary is made between the Parties, the prices communicated by AutoMap shall always be “Ex works“ (EXW Brisbane), but shall not include packaging and Tax. Customs duties, charges, taxes and/or other levies which are incurred in connection with the delivery must be borne by the Customer.
4.2 If an order from the Customer deviates from the quotation, AutoMap shall be entitled to make changes to the prices.
4.3 Prices communicated by AutoMap shall be based on the material and labour costs at the time of the quotation being submitted. In the event that these costs increase between the submission of the quotation and the time of the delivery, AutoMap shall be entitled to make adjustments to the price in accordance with the extent of the change. If the Customer requests any variation to the order, AutoMap may change its price to account for the variation.
5. Delivery
5.1 The time for the delivery or performance periods indicated to the Customer shall start with the date of the order confirmation, but on no account before all the advance performances to be provided by the Customer have been effected, including without limitation, payment of any deposits or other instalments. Any indicated time for delivery or performance by AutoMap is an estimate only and not a contractual commitment.
5.2 If official and/or other approvals are necessary for delivery or performance in the state where the Customer is based, the agreed period shall be extended until these approvals are available. The Customer shall be responsible for obtaining these approvals.
5.3 The obligations and periods resulting from a contract shall be suspended as long as the Customer is in arrears vis-à-vis AutoMap with a liability and/or an advance performance to be provided by the former.
5.4 AutoMap shall be entitled to make part or advance deliveries and to charge for these.
5.5 Indicated delivery or performance periods shall be subject to obstacles which are unforeseeable or independent of the Parties’ will, e.g. war, infectious disease, pandemic, elementary events, state or official interventions and prohibitions, energy or raw material shortages, strikes, transport damages or delays, etc. Such obstacles shall entitle AutoMap to extend the delivery or performance periods accordingly, without giving rise to claims of any kind whatsoever against AutoMap on the part of the Customer. This shall even apply if these obstacles are suffered by suppliers of AutoMap.
5.6 If the shipment of goods which are ready for dispatch is not possible for reasons for which AutoMap is not responsible, or if the shipment of goods which are ready for dispatch is not desired by the Customer, AutoMap shall be entitled to store the goods at the expense and risk of the Customer. The delivery shall thus be deemed to be performed.
6. Performance and transfer of risk
6.1 The costs and risk shall be transferred from AutoMap to the Customer upon handover to the carrier in Brisbane. This shall apply even if assembly work has to be carried out at the Customer’s domicile. If the transportation is performed by AutoMap, the costs and risk shall be transferred to the Customer once the goods have left the factory or warehouse in Brisbane.
6.2 If delivery is delayed for reasons for which the Customer is responsible, the costs and risks shall be transferred to the latter when the goods are ready for dispatch. In addition, 5.6 shall apply.
6.3 All the periods which are connected to performance by AutoMap shall start to run on the specified dates. This shall also apply in the event that quality controls or trial runs shall be reserved for the goods delivered and/or services rendered.
7. Payment
7.1 If nothing is agreed to the contrary between AutoMap and the Customer, 50% of the agreed remuneration shall be due upon receipt of the order confirmation, and the remaining 50% of the remuneration shall be due not later than 30 days after delivery.
7.2 In the event of partial invoices, the corresponding part payments shall be due upon the receipt of the invoice by the Customer. This shall also apply for payments which are owed by the Customer for subsequent deliveries or for services going beyond the original order.
7.3 All the payments must be made by the Customer without any deductions and free of transaction charges to the bank account of AutoMap in the agreed currency. AutoMap is not obliged to accept cheques or bills of exchange. Irrespective of this, the acceptance of cheques or bills of exchange shall take place exclusively on account of payment, and the Customer must bear all the associated expenses.
7.4 The Customer shall not be entitled to withhold or offset payments on account of guarantee claims , claims for compensation or other claims – whatever their legal basis – and/or pleas.
7.5 If the Customer is in default with its payments, AutoMap shall, in particular, be entitled, irrespective of any other claims to which it is entitled (e.g. dunning and collection expenses, as well as the costs of any legal advice and representation) a) to postpone the fulfilment of its own obligations until the payments which are due have been effected (whereby all the additional expenses resulting from the postponed fulfilment must be borne by the Customer in this case) b) to declare all the outstanding payments due (default) c) to charge default at the prevailing rate for post-judgement interest pursuant to the Civil Proceedings Act 2011 (Qld) for the period from the due date until the date of payment in full;. d) to revoke all the agreed reductions, discounts and other concessions e) to withdraw from the contract in the event of non-performance in spite of a reasonable grace period and – irrespective of the assertion of a claim for damages going beyond this – to charge a flat rate compensation (cancellation fee) to the amount of 15% of the order value.
7.6 For the purpose of clarification, it is noted that AutoMap shall credit payments by the Customer first against claims arising from work and services (especially for repairs and assembly), then against receivables for spare parts, then against interest and additional fees, then against claims arising from the delivery of goods which are not subject to a retention.
8. Retention of title
8.1 AutoMap shall retain the title to the goods until the Customer has satisfied all its contractual obligations in full. The Customer is obliged to comply with all the formal requirements which it is necessary to observe for the protection of AutoMap’s ownership, including holding such items as fiduciary bailee and agent for AutoMap. Furthermore, it must keep the goods which are subject to a retention of title in good condition and have the necessary repairs carried out immediately in AutoMap’s workshops or in other workshops recognised by AutoMap.
8.2 Any resale, pledging, transfer by way of security, leasing and/or other surrender of the goods which are subject to a retention of title by the Customer shall only be permissible with the prior written consent of AutoMap.
8.3 If the goods which are the property of AutoMap is affected by attachment measures or otherwise by measures which put AutoMap’s right of ownership at risk, the Customer shall be obliged to mention AutoMap’s right of ownership immediately and to take all the necessary measures for safeguarding the ownership of AutoMap at its own expense. Irrespective of this, the Customer must inform AutoMap.
8.4 If the goods which are subject to a retention of title is sold by the Customer, AutoMap’s retained title shall extend to the future proceeds or to the purchase price receivable arising from this transaction. In the event of such a resale, the Customer is obliged to report it immediately and to store the proceeds separately.
8.5 If the goods delivered by AutoMap are processed and/or combined or mixed with other items, AutoMap shall be entitled to the resulting proportional co-ownership share.
8.6. AutoMap may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of AutoMap, and for this purpose the Customer irrevocably authorises and licences AutoMap to enter such premises and also indemnifies AutoMap from and against all costs, claims, demands or actions by any party arising from such action.
9. Repair orders
9.1 If it is discovered, in the course of a repair order by the Customer, that (additional) spare parts are necessary for the repairs, these spare parts must be paid for by the Customer, even without a separate additional order. In the event that the Customer desires provisional or incomplete repairs, AutoMap shall accept no liability whatsoever for the result of the repairs or the functionality of the item to be prepared. The same shall apply in the event that used or new parts are provided by the Customer in the context of repairs. For the purpose of clarification, it is noted that, for batteries supplied by AutoMap, losses of capacity which are standard according to the state of the art or which can be traced back to improper use shall not constitute a defect in any event.
10. Guarantee
10.1 Provided that nothing is agreed to the contrary between the Parties, the guarantee period shall amount to six months from the transfer of risk in accordance with 6.1. This shall also apply to items subject to the delivery/service which are firmly connected to a building or the ground. AutoMap shall provide no guarantee in the event of the sale of used goods and in the event of the acceptance of repair orders or in the event of alterations or conversions. There shall also be no entitlement to a guarantee for wear parts.
10.2 The Customer is obliged to take over delivered goods or services immediately, to examine them and to report any quantity and quality defects to AutoMap immediately and in writing; otherwise the Customer waives the right to any claims for defects. If no written defect notification reaches AutoMap within eight days of the delivery of goods or performance of the service, the goods or the service shall be deemed approved, and other claims of the Customer (of any kind whatsoever, especially guarantee claims) shall be excluded. Hidden defects must be reported to AutoMap immediately, otherwise all the claims of the Customer shall also expire. The guarantee claim of the Customer shall be limited to the rectification or the replacement of the defective product or of the part of the product affected by the defect, at the discretion of AutoMap. Parts replaced by AutoMap within the framework of the guarantee shall become the property of AutoMap. The Customer must grant AutoMap the time required for the proper rectification of the defect; otherwise he shall forfeit his guarantee rights. All the other costs and expenses (in particular for packaging, loading and transport) which arise in connection with the defect which has occurred and/or its rectification shall be borne by the Customer. Provided that nothing is agreed to the contrary between the Parties, AutoMap’s guarantee obligations must be fulfilled at its premises in Brisbane.
10.3 The existence of a defect at the time of the handover must be proven by the Customer.
10.4 Defects which arise as a result of improper or non-contractual use shall expressly not justify any guarantee claims. This shall, in particular, apply if the Customer does not observe instruction manuals or other instructions from AutoMap relating to the use of the goods or if the Customer does not have the prescribed technical checks (e.g. mandatory service) performed properly and punctually. For goods or parts of goods which were exclusively or mainly produced on the basis of guidelines or other specifications of the Customer, the guarantee shall only extend to execution in accordance with the order.
10.5 Services provided by AutoMap in the context of the satisfaction of guarantee claims shall not extend the original guarantee period. The guarantee shall expire if the customer makes changes or repairs to the goods itself or through third parties, without the consent of AutoMap. Invoices for services performed in this context shall not be recognised.
11. Liability
11.1 Without prejudice to the exemptions from liability provided for in the Australian Competition and Consumer Act (hereinafter referred to as “CCA”), a liability on the part of AutoMap in accordance with the CCA shall be ruled out if instructions or warnings and safety information (especially in instruction manuals) are not followed. Unless there are mandatory statutory provisions to the contrary, any redress claims which customers or third parties assert against AutoMap on the basis of product liability in terms of the CCA shall be expressly excluded.
11.2 Except as these T&Cs specifically state, or as contained in any express warranty provided in relation to the goods or services, the order does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
11.3 If the Customer is a consumer under the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and associated Regulations as amended (“ACL”) nothing in these T&Cs restrict, limit or modify the Customer’s rights or remedies against AutoMap for failure of a statutory guarantee under the ACL.
11.4 If the Customer on-supplies the goods to consumer under the ACL:
(a) if the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of AutoMap’s liability to the Customer;
(b) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of AutoMap’s liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
11.5 If clause 11.3 or 11.4 do not apply, then other than as stated in the T&Cs or any written warranty statement AutoMap is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
11.6 AutoMap is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
11.7 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by AutoMap in relation to the goods or services or their use or application; and
(b) it has not made known, either expressly or by implication, to AutoMap any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.
11.8 Nothing in the T&Cs is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
11.9 AutoMap shall assume no liability for any infringements of industrial property rights (in particular patents and utility models) of third parties.
11.10 Unless there are mandatory statutory provisions to the contrary, the Customer shall take on all the liability for any claims based on compensation for damages and product liability in the event of the sale or sub-sale of the goods purchased from AutoMap to the USA and/or Canada as a distributor. Therefore, the Customer as a distributor must, in any case, completely indemnify AutoMap as the supplier in the event of such claims. Furthermore, the Customer as a distributor shall, to the fullest extent permitted by law, abstain from asserting claims against AutoMap (including redress claims) itself. In this case, the Customer shall bear the burden of proof for the existence of a (coarse) fault on the part of AutoMap.
11.11 The Customer is obliged (to the extent permitted by law) to transfer all the limitations of liability in accordance with 11.1 to 11.10 above to their customers in their entirety.
12. Withdrawal from the contract
12.1 Irrespective of any other claims to which it is entitled, AutoMap shall be entitled to withdraw from the contract in particular a) if the Customer is in default with payment in accordance with 7.5 e), b) if the delivery or service becomes impossible for reasons for which the Customer is responsible or is delayed beyond a reasonable grace period, or c) if the credit rating of the Customer significantly deteriorates after the conclusion of the contract, and the latter is prepared neither to make an advance payment nor to provide a reasonable security in the form of an abstract bank guarantee from an Australian bank to the amount of the agreed remuneration. For the purpose of clarification, it is noted that the withdrawal for the above reasons may also be declared with respect to an outstanding part of the delivery or service.
12.2 If insolvency and/or reorganisation proceedings are initiated on the assets of one of the Parties or insolvency proceedings are not initiated only because of insufficient assets to cover the costs, the other Party may declare its withdrawal from the contract with immediate effect.
12.3 If the Customer withdraws, AutoMap shall in any event be entitled – irrespective of other claims resulting from the withdrawal – to invoice services or part services which have already been provided, in accordance with the contract. This shall apply even if the delivery or service has not yet been accepted by the Customer, as well as for preparations performed by AutoMap. Alternatively, AutoMap shall be entitled to demand the return of items which have already been delivered.
13. Industrial property rights and copyright
13.1 If AutoMap produces a product partly or entirely on the basis of technical details, learning, software or other specifications of the Customer, the latter must fully indemnify AutoMap in the event of an infringement of property rights of third parties.
13.2 All the execution documents, e.g. plans, sketches, technical illustrations, software and algorithms, shall remain the intellectual property of AutoMap, as well as samples, catalogues, brochures, illustrations etc. and shall be subject to the relevant statutory restrictions with respect to reproduction, imitation, competition etc.
13.3 In the event of development orders, AutoMap shall retain title to the intellectual property (“IP”) which has arisen as a result of the order. The regulations on the retention of title in Section 8 must – unless mandatory statutory provisions provide otherwise – be expressly applied to IP as well.
13.4. With respect to all the results which are generated in connection with a development order, the Customer shall grant AutoMap and its legal successors an unrestricted, transferable, irrevocable, exclusive right of use which is unlimited in terms of space and time, open to a sub-licence and free of charge for all areas of application. Results in terms of this provision shall include in particular (but not only) inventions, developed procedures, software, data, experiences and all works protected by copyright, including all records, descriptions, experimental set-ups, models and prototypes in all the stages of development and production which are produced in this context, irrespective of their protectability.
13.5 If AutoMap produces a patentable idea in the course of a development order, AutoMap shall be entitled, without any limitation in terms of space, time and/or contents, to apply for a patent alone with respect to the patentable idea and to possess and use this patent application and/or this patent alone.
14. Personal Property Securities Act
14.1 Notwithstanding anything to the contrary contained in these T&Cs, the Personal Property Securities Act 2009 (Cth) and associated Regulations as amended (“PPSA”) applies to these T&Cs.
14.2 For the purposes of the PPSA:
(a) terms used in clause 14 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these T&Cs are a security agreement and AutoMap has a Purchase Money Security Interest in all present and future goods supplied by AutoMap to the Customer and the proceeds of the goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by AutoMap on the Personal Property Securities Register.
14.3 The security interest arising under this clause 14 attaches to the goods when the goods are collected or dispatched from AutoMap’s premises and not at any later time.
14.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
14.5 AutoMap and the Customer agree to contact out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA shall apply to these T&Cs.
14.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on AutoMap will apply only to the extent that they are mandatory or AutoMap agrees to their application in writing; and
(b) where AutoMap has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
14.7 The Customer must immediately upon AutoMap’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Order; and
(b) procure from any person considered by AutoMap to be relevant to its security position such agreements and waivers (including as equivalent to those above) as AutoMap may at any time require.
14.8 AutoMap may allocate amounts received from the Customer in any manner AutoMap determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by AutoMap.
14.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these T&Cs and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these T&Cs or the sale of the goods or services, except as otherwise required by law or that is already in the public domain.
14. Final provisions
15.1 Subject to clause 1.4, any amendment and/or addition to these T&Cs must be in writing. This shall also apply to the departure from this requirement for the written form.
15.2 If individual provisions of the present T&Cs or other agreements concluded between the Parties are invalid or impracticable or become invalid or impracticable after the conclusion of the contract, the validity of the agreement concluded between the Parties (especially of the present T&Cs) shall remain unaffected by this. The invalid or impracticable provision shall be replaced by the valid and practicable provision whose effects come closest to the economic objective which the Parties were pursuing with the invalid or impracticable provision. The above provisions shall apply accordingly in the event that the agreement concluded between the Parties (especially the present T&Cs) turns out to be incomplete.
15.3 If no agreement to the contrary is made between the Parties, the place of performance shall be the premises of AutoMap in Brisbane. The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be the court responsible for Brisbane. AutoMap shall, however, also be entitled to file a suit at the domicile of the Customer.
15.4 The Parties may also agree to the jurisdiction of a court of arbitration.
15.5 With respect to all the legal relationships arising from the present contractual relationship, the Parties agree to the application of the law of Queensland in the Country of Australia.
15.6 The Customer hereby expressly agrees to his personal data, in particular name, address and date of birth, which is known or will become known in the future in connection with the present business relationship being processed for customer support purposes and forwarded and provided to credit protection associations for the purpose of creditor protection. For the purpose of clarification, it is noted that the Customer can revoke its consent to the data transfer at any time in writing, without this revocation having an effect on the existence of the present business relationship between AutoMap and the Customer.
