1.1 Definitions

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

1.1.1 Agreement means all relevant parts of the agreement for the provision of goods and services between Carl Zeiss and the Customer including:
(a) the Sale Particulars, invoices, order forms or other documents or statements describing the goods and services;
(b) these Terms and Conditions;
(c) application for credit account.

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

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

1.1.4 "Goods and Services" means the goods and services supplied by Carl Zeiss and are as recorded on any sale particulars, invoices, order forms or any other document or statement issued by Carl Zeiss.

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

1.1.6Intellectual 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, trade, business or company names, 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.

1.1.7 Party means either Carl Zeiss or the Customer as the context requires.

1.1.8 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 General
1.2.1 The Carl Zeiss Terms and Conditions will not be waived or varied in any circumstances unless expressly agreed in writing between Carl Zeiss and the Customer.

1.2.2 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. Carl Zeiss will seek the right to legal recompense for any breach of this general condition.

2.1 The Customer acknowledges through the execution of the Sale Particulars that it has read the Agreement, 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 The customer acknowledges that:
2.2.1 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);

2.2.2 It must at all times cooperate with Carl Zeiss in respect of Carl Zeiss providing the goods and services.

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.

2.4 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.

3.1 Prices
3.1.1 Carl Zeiss will invoice the Customer in accordance with the Agreement.

3.1.2 Prices are provided in Australian (AUD$) dollars exclusive of GST.

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

3.1.4 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.

3.2 Terms of Payment
3.2.1 Unless otherwise agreed, the Customer will make payment within 30 days of the date of the invoice.

3.2.2 Acceptance of a customer order is conditional upon the Customer providing Carl Zeiss with a credit application which is first approved by Carl Zeiss with an appropriate credit limit being set at the sole discretion of Carl Zeiss.

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

3.2.4 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.

3.2.5 The Customer's obligation to pay is fulfilled only when Carl Zeiss is able to dispose freely of the invoiced amount and there is no reservation for repayment.

3.2.6 Carl Zeiss may set off any claims it has against the Customer against claims for payment which the Customer may have against Carl Zeiss. Without prejudice to further claims, Carl Zeiss may charge interest on any past due amounts from the due date at the Specified Interest Rate (including, without limitation, credit charges and processing costs), such interest shall accrue daily.

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

3.3 Default
3.3.1 The Agreement may be terminated at any time by Carl Zeiss providing a minimum of three months notice in writing to the Customer.

3.3.2 The Agreement may also be terminated immediately by Carl Zeiss in the event that:
(a) The Customer commits or allows to be committed any material breach of its obligations under the Agreement;
(b) The Customer becomes bankrupt, is ordered to wind up or passes into liquidation or administration;
(c) The Customer 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;
(d) The Customer has not remedied any default in accordance with the appropriate provisions of the Agreement.

4.1 Carl Zeiss' compliance with the time of delivery presume the timely receipt of all information necessary for delivery be supplied by the Customer, the granting of all necessary permits and releases, the Customer's observation of the terms of payment and the performance of all of the Customer's obligations, which are preconditions to the performance of Carl Zeiss' obligations. If these preconditions are not met in a timely manner, the time of delivery must be appropriately extended. The time of delivery is be deemed to have been complied with when the products leave Carl Zeiss' outlet or the Customer is advised that the goods are ready for shipment.

4.2 If the Customer causes an interruption or delay of Carl Zeiss' contractual performance, any additional costs are to be borne by the Customer.

4.3 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.

4.4 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.

4.5 Delivery may be made in partial shipments.

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

4.7 If the dispatch, collection or delivery is delayed or becomes impossible for reasons beyond Carl Zeiss' control, Carl Zeiss will notify the Customer. Carl Zeiss will grant the Customer a reasonable period of time for removal of the goods. Upon expiration of this period, Carl Zeiss (at its sole discretion) may store the goods in Carl Zeiss outlet or elsewhere, at the Customer's expense.

4.8 In the event that Carl Zeiss agrees to install the goods, any costs associated with or incidental to the installation must be borne by the Customer including:

4.8.1 the provision of adequate power etc;

4.8.2 the costs associated with preparing a site for installation; and
4.8.3 the costs associated with varying a site in order to limit the effect of extraneous elements on the goods.

5.1 The risk of loss of, or damage to the goods passes to the Customer upon dispatch of the goods from Carl Zeiss' outlet.

5.2 In the event that Carl Zeiss stores the Customer's goods pursuant to Clause 4.7, such storage will be at the Customer's risk.

5.3 Upon such storage, Carl Zeiss' contractual obligation to deliver is deemed fulfilled.

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 may accept products with externally visible damage or loss caused by transport only if such damage or loss is noted on the freight documents, and this 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.

6.3 Failure to act in accordance with subclauses 6.1 and 6.2 and means that the goods are deemed to be complete and in conformity with the Agreement.

7.1 When property passes
Property in the goods supplied by Carl Zeiss to the Customer under these terms and conditions does not pass to the Customer until the money owing for those goods, and any other money 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.

7.2 Allocation of payments
Where the Customer does not make payment in respect of specific goods, payment must be treated as having been made first in respect of goods which have passed out of the possession of the Customer, and then in respect of whatever goods still in the possession of the Customer Carl Zeiss elects.

7.3 Customer's obligations until paid for Until the goods have been paid for in full:
7.3.1 the Customer must store the goods in such manner as to show clearly that they are the property of Carl Zeiss;
7.3.2 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. The Customer receives all proceeds, whether tangible or intangible, direct or indirect, of any dealing with the goods (including any proceeds from insurance claims) in trust for Carl Zeiss and must keep the proceeds in a separate bank account until the liability to Carl Zeiss is discharged; and
7.3.3 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 (Book Debts).

7.4 Balance sale price remains a debt
If the sale price of all goods sold by Carl Zeiss to the Customer is greater than the sum of:
7.4.1 the proceeds actually received by Carl Zeiss in respect of all dealings by the Customer with the goods; and
7.4.2 all other payments received by Carl Zeiss in respect of the goods; the difference remains a debt owing by the Customer to Carl Zeiss.

7.5 Carl Zeiss's authority to inspect and reclaim
The Customer irrevocably authorises Carl Zeiss at any time, to enter any premises:
7.5.1 upon which Carl Zeiss's goods are stored to enable Carl Zeiss:
(a) to inspect the goods; and/or
(b) if the Customer has breached the contract, to reclaim possession of the goods; and

Carl Zeiss Pty Ltd
ABN 82 008 410 704
Valid from September 2004

7.5.2 upon which the Customer's records pertaining to the goods are held to inspect and copy the records.

7.6 Goods attached to premises
Carl Zeiss's property in the goods is not affected by the fact that the goods become fixtures attached to premises of the Customer 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.

8.1 Acceptance tests will not be conducted in respect of the goods unless agreed as a part of the Agreement. If acceptance tests are required under the Agreement, the Customer bears the costs of the tests.

8.2 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.

8.3 Acceptance may not be refused because of minor defects.

9.1 Carl Zeiss guarantees that the goods are free from defects in material and workmanship.

9.2 Subject to Clause 6 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.

9.3 Carl Zeiss will decide whether defects will be repaired at the facility where the goods are used, or at the facilities of one of Carl Zeiss' representatives or subsidiaries or at a Carl Zeiss outlet. If Carl Zeiss decides not to repair the defects at the facility where the goods are used, the Customer, must pack the defective goods securely, properly and safely for shipment and send them to the address designated by Carl Zeiss.

9.4 Carl Zeiss will bear only the costs of workmanship and material arising out of the repair of the goods or the cost of the replacement goods, as the case may be, in respect of goods in the warranty period.

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

9.6 Unless otherwise agreed, the warranty period is 12 months which commences on the date the risk of loss passes to the Customer.

9.7 If the Agreement provides for an acceptance test, the warranty period will commence on the date of the acceptance test.

9.8 Carl Zeiss remains obligated to remedy defects only if the Customer maintains its obligations under the Agreement. In particular, agreed payments must be made in accordance with the terms of payment.

9.9 Defects resulting from normal wear and tear (especially in working parts) or from mishandling shall not be covered by this warranty and the warranty obligation terminates if the products are modified or repaired by any person not authorised by Carl Zeiss.

9.10 This express warranty is in addition to any condition or warranty implied in the Agreement by the Trade Practices Act 1974 or a similar State or Territory legislation.

10.1 The following provisions apply to software:
10.1.1 Carl Zeiss warrants that the software delivered to the Customer corresponds to Carl Zeiss' program specifications, provided it has been installed in Carl Zeiss corresponding systems and in accordance with all instructions.
10.1.2 Carl Zeiss is not liable nor does it provide any warranty for software, interfaces, etc, produced by other manufacturers and supplied by Carl Zeiss.

10.2 Only software defects which can be reproduced at any time are considered to be defects covered by Carl Zeiss' warranty obligation.

10.3 Carl Zeiss will remedy software defects which substantially impair its use in accordance with the Agreement, at Carl Zeiss' sole discretion and option and 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. 10.4 Carl Zeiss does not warrant that the software will function without error in each configuration the Customer may select, unless such configuration has been specified by Carl Zeiss.

10.5 Carl Zeiss will not be liable for claims based on a data loss and in any event, the Customer must have performed a data backup in a machine-readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to ensure the restoration of data.

10.6 All warranties, including express and implied warranties of merchantability and fitness for a special purpose, other than those expressly set forth herein are excluded to the extent permitted by law. Any claims for damages, whether contractual or statutory, shall be subject to the limitations and exclusions of liability stipulated in Clause 11.

10.7 This express warranty is in addition to any condition or warranty implied in the Agreement by the Trade Practices Act 1974 or a similar State or Territory legislation.

11.1 The liability of Carl Zeiss, if any, for a breach of a non-excludable condition or warranty implied by the Trade Practices Act 1974 or similar State or Territory legislation in relation to the supply of goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption or in negligence, in tort, in contract or otherwise is limited, at the option of Carl Zeiss, to:
(a) In the case of goods:
(i) The replacement of the goods or the supply of equivalent goods;
(ii) The repair of the goods;
(iii) The payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) The payment of the cost of having the goods repaired; and
(b) In the case of services:
(i) Supplying the services again; or
(ii) Paying the cost of having the services supplied again.

11.2 The liability of Carl Zeiss under clause 11.1 is reduced proportionately, to the extent of the Customer's failure to comply with its obligations and responsibilities under the Agreement or the Customer's failure to mitigate its loss.

11.3 In no event shall Carl Zeiss be liable for:
11.3.1 Any incidental or consequential damages, loss of profits or lost data, or any other indirect damages, even if Carl Zeiss has been informed of the possibility thereof; or
11.3.2 Any costs or expenses for the procurement of substitute equipment or services.

11.4 The Customer indemnifies Carl Zeiss against:
11.4.1 All losses incurred by Carl Zeiss;
11.4.2 All liabilities incurred by Carl Zeiss; and
11.4.3 All 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 in connection with the demand, action, arbitration, mediation, compromise or out of court settlement, appeal or other proceeding;
arising directly or indirectly as a result of or in connection with a breach or non-performance of any of the obligations or warranties of the Customer under the Agreement whether express or implied.

11.5 Unless otherwise stated in the Agreement, Carl Zeiss will not be liable or responsible to the Customer for:
11.5.1 Supply and Maintenance of any goods, services or materials outside the Agreement;
11.5.2 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;
11.5.3 Maintenance of faults caused by wilful damage to and/or improper use of goods;
11.5.4 The provision of consumable items;
11.5.5 The failure of equipment not covered under the Agreement;
11.5.6 Equipment faults or damage existing prior to the commencement date;
11.5.7 Damage to goods or its software configuration by the connection of other equipment without the approval of Carl Zeiss; and
11.5.8 Damage caused by unforeseen events.

12.1 Ownership of Intellectual Property
12.1.1 The Intellectual Property Rights in all data in whatever form furnished by a Party prior to or during the execution of the Agreement will remain the property of that Party and the other Party will receive no right, title, licence or interest except to use it for the purpose of performing its obligation under the Agreement.
12.1.2 Except as provided in clause 12.1.1, the Intellectual Property Rights in all data owned and utilised by Carl Zeiss for the purpose of the Agreement will remain the property of Carl Zeiss.
12.1.3 Carl Zeiss will retain the right and title to all Intellectual Property Rights with respect to Carl Zeiss pre-existing property (with subsisting Intellectual Property Rights). Such property includes all inventions, patents, patent applications, trade marks, designs, copyright, technical know-how, commercial information, software tools and methodologies belonging to and utilised by Carl Zeiss for the purpose of providing the goods and services under the Agreement.

13.1 Carl Zeiss grants to the Customer a non-exclusive, non-transferable license to use programs, related documentation and subsequent amendments exclusively in connection with the product on which the Customer initially uses such programs, documentation and amendments. 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.

13.2 The Customer must not make these programs, related documentation and subsequent amendments available to third parties, nor - even for the Customer's own purposes, except for one backup copy - copy or otherwise duplicate them, without our prior written consent.

13.3 Source programs are available only by separate written agreement.

14.1 This Agreement is governed by the law of New South Wales, Australia.

14.2 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.

Valid from September 2004