In this Agreement unless the context indicates otherwise:-
1.1 “The Applicant” means the person to whom the Contract is addressed.
1.2 “The Contract” means these Terms and Conditions of Trade as amended from time to time read together with any other document provided by the Company.
1.3 “Corrections” means any changes to the Software/Hardware.
1.4 “Delivery” is deemed to take place on the date of dispatch by the Company of the Products/Services or any part of the Products/Services to the Applicant.
1.5 “Despatch” in relation to Delivery means:-
1.5.1 The date on which the Products/Services are forwarded by the Company to the address stipulated for Delivery in the order confirmation form; or
1.5.2 The date on which the Products/Services are removed by the Applicant from the premises of Company.
1.6 Each carrier used by the Company for the Delivery of the Products/Services shall be the agent of the Applicant.
1.7 “Error” means a defect in the Software which causes the Software not to operate in accordance with its documentation.
1.8 “The Products/Services” means the Products/Services referred to in the invoice and includes all hardware, software and services provided by the Company.
1.9 “The Purchase Price” means the amounts determined in accordance with clause 2 below from time to time.
1.10 “Software” means the computer programs (including the templates) supplied by the Company and includes back-ups, up-dates, mergers or partial copies permitted hereunder and subsequently supplied together with all codes, techniques, Software tools, format designs, concepts, methods and ideas associated with that computer program all of which is developed by the use of the Intellectual Property.
1.11 “Software Packages” means each single item of Software prepared and presented for sale.
1.12 “Supplier” means collectively XENON SYSTEMS PTY LTD (ABN 39 074 339 316), MEDIAPROXY PTY LTD (ABN 72 105 330 320) and XDT PTY LTD (ABN 72 105 339 320) or any of those entities individually, together with any of their wholly owned subsidiaries, related bodies corporate or assigns.
1.13 “Updates” means subsequent releases for the Software which incorporate accumulated Corrections together with revised Documentation for the Update.
1.14 All words importing:-
1.14.1 The singular, includes the plural and vice versa.
1.14.2 Any one gender includes each of the other genders, if applicable.
1.15 Each reference to a person shall include a reference to a body corporate firm or partnership.
1.16 Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
2. PURCHASE PRICE VARIATION
2.1 The price of Products/Services supplied by the Supplier is the price effective at the time of Delivery as indicated on the invoice.
2.2 Unless stated otherwise, prices are F.O.B. Melbourne and all prices are exclusive of the costs of Delivery which must be paid by the Applicant.
3. OFFER AND ACCEPTANCE
3.1 These conditions apply to all Products/Services supplied by the Supplier to the Applicant unless expressly varied in writing by the Supplier.
3.2 The Supplier reserves the right to accept in whole or in part or reject any order submitted by the Applicant.
4. TERMS OF PAYMENT
4.1 The Purchase Price is to be paid in Australian dollars, free of exchange and without deduction of any kind.
4.2 The Applicant must pay to the Supplier the amount of each invoice, within the time period specified on the front each invoice, from the date of Delivery of the Products/Services to the Applicant.
4.3 Interest at 2% per annum above the rate fixed by the Penalty Interest Rates Act of 1983 applicable at the time the payment became due shall be charged and all overdue payments until date of payment.
4.4 The Applicant shall not be entitled to withhold payment of any amount due on account of any claim against the Supplier whether admitted or disputed.
4.5 In the event that the Applicant:-
4.5.1 fails to pay for the Products/Services or any instalment or instalments thereof at the times provided for herein;
4.5.2 causes its account to exceed any credit limit allotted to it by the Supplier;
4.5.3 Makes any composition or enter into any scheme of arrangement or Deed of Assignment with or for the benefit of its Creditors (whether pursuant to the provisions of the Bankruptcy Act or otherwise);
4.5.4 becomes bankrupt or being a Supplier enters into liquidation whether voluntarily or otherwise;
4.5.5 Causes the Supplier at any time to have a justifiable doubt as to the ability of the Applicant to make payment of its obligations pursuant to the Contract; then the Supplier may in addition to any other rights or remedies which it may have hereunder be entitled in its absolute discretion to:-
• Withhold Delivery of any further Products/Services or any instalment or instalment thereof;
• Cancel this Contract and any other Contracts;
• Treat this and any other Contracts as having been repudiated by the Applicant;
• Enter upon the Applicant’s premises and remove any Products/Services which have not been paid for;
• Withhold Delivery or further deliveries as the case may be; PROVIDED THAT nothing hereinbefore contained shall release the Applicant from its obligations to take Delivery of and to pay for the Products/Services or any instalment or instalments thereof as provided herein.
5.1 Notwithstanding that an approximate date is stipulated for Delivery, the time for Delivery of the Products/Services shall not be regarded as being of the essence.
5.2 Under no circumstances may the Applicant deny a signature evidencing receipt of Products/Services by it, of any employee, agent or carrier utilised or employed by the Applicant as the case may be.
6.1 No claims in reference to items on this invoice will be recognized unless such claim is made in writing within 7 (seven) days of delivery.
6.2 The Applicant may return the Products/Services if it is found to be defective or Dead on Arrival (DOA) within 7 (seven) days of invoicing. Product/Services are classed as DOA if they exhibits a hardware malfunction within 7 (seven) working days of delivery.
6.3 If the Products/Services are found to be DOA, the Supplier agrees to cover the cost of transport to an authorized repair centre, replace or repair the Products/Services and return them to the Applicant.
7. PROPERTY AND RISK
7.1 Risk of loss, damage or deterioration to the Products/Services shall pass to the Applicant upon Delivery.
7.2 Products/Services supplied to the Applicant by the Supplier shall remain the sole and absolute property of the Supplier as legal and equitable owner until all accounts owed by the Applicant to the Seller are fully paid.
8.1 This Clause is in substitution for and excludes all express and implied conditions, warranties or liabilities of any kind relating to the Products/Services sold and save as expressly provided in this Clause, the Supplier shall be under no liability in Contract or otherwise for any injury, loss or damage of whatsoever kind or howsoever caused or by anything done or omitted to be done in connection with the Products/Services or work in connection therewith.
8.2 The Applicant acknowledges that the Products/Services are not for personal, domestic or household purposes.
8.3 Notwithstanding anything herein contained where the Products/Services are other than Products/Services ordinarily acquired for personal, domestic or household use or consumption as that expression is used for the purposes of the Competition and Consumer Act 2010 and the Goods Act (Vic) 1958, the liability of the Supplier for Products manufactured by it and Services provided by it is limited to, at the Supplier’s option:-
8.3.1 the replacement of or cost of replacement of the Products/Services; or
8.3.2 the supply of equivalent Products/Services, or
8.3.3 the repair or cost of repair of the Products/Services within a period of twelve months of delivery, so long as:
(a) the defects have arisen solely from faulty materials or workmanship;
(b) the Products have not received maltreatment, inattention or interference;
(c) accessories of any kind used by the Applicant are manufactured by or approved by Supplier;
(d) the seals of any kind on the Products remain unbroken; and
(e) the defective parts are promptly returned free of cost to the Supplier.
8.3 If the Products are not manufactured by the Supplier the guarantee of the manufacturer of those Products is accepted by the Applicant and is the only guarantee given to the Applicant in respect of the Products. The Supplier agrees to assign to the Applicant on request made by the Applicant the benefit of any warranty or entitlement to the Products that the manufacturer has granted to the Supplier under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
8.4 The Supplier’s liability for a breach of a condition or warranty implied by Pt 3-2 Div 1 of the Australian Consumer Law is limited to:-
8.4.1 in the case of Goods, any one or more of the following:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods;
(d) the payment of the cost of having the Goods repaired; or
8.4.2 in the case of services:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
8.5 The Seller’s liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the Goods repaired, whichever is the lowest amount.
8.6 The Applicant shall not have any claim of any nature whatsoever against the Supplier for any failure by the Supplier to carry out any of its obligations under any Contract as a result of a force majeure including but without being limited to strike, lock out, shortage of labour or material, delay in transport, stoppage or break down of machinery, accident of any kind, any
default or delay by any of the Supplier’s suppliers or sub-contractors, riot, political or civil disturbances, the elements, act of god, any act of any State or Government or any authority or any other cause or any nature whatsoever directly or indirectly beyond the Supplier’s control.
9.1 The Supplier may claim and recover from the Applicant on demand, in addition to any other sums payable hereunder:-
9.1.1 All losses, costs and expenses incurred by the Supplier in consequence, directly or indirectly, of any breach of the Contract on the part of the Applicant and including the legal costs, if any, as between Solicitor and own client, and any costs in relation to retaking possession of the Products/Services.
9.1.2 In the event of the Supplier remaining in possession of the Products/Services after Delivery takes place as a result of the Applicant’s unwillingness or inability to collect or accept the Products/Services:-
18.104.22.168 Interest shall be levied as in Clause 4.3 above against the Applicant.
22.214.171.124 The Supplier shall have the right to resell the Products/Services and claim any losses whatsoever that it may have sustained as a result thereof.
10. LIMITATION OF LIABILITY
10.1 Notwithstanding anything to the contrary herein contained:-
10.1.1 The Applicant accepts all risk and responsibility for the performance of the Products/Services being sufficient and suitable for its purpose.
10.1.2 The Supplier is not liable for and the Applicant releases the Supplier from any claims in respect of faulty or defective design of any Products/Services supplied unless such design has been wholly prepared by the Supplier and the responsibility for any claim has been specifically accepted by the Supplier in writing. In any event the Supplier’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with paragraph 8.2 of these conditions.
10.1.3 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Products for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Supplier is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Products/Services or arising out of the Supplier’s negligence or in any way.
10.2 The Supplier shall not be liable for any loss suffered by the Applicant or for damage to the Products/Services subsequent to Delivery.
11.1 Notwithstanding anything to the contrary contained in any order submitted by the Applicant to the Supplier, in placing any order with the Supplier, the Applicant shall be deemed to have accepted the Supplier’s Terms and Conditions of Trade.
12.1 The Applicant warrants that the information it has given is true and correct and acknowledges that any discrepancy shall be deemed constitute breach of these terms and conditions and shall entitle the Supplier to terminate this Agreement forthwith and take any action which may be necessary in order to protect its interests.
12.2 The Applicant warrants that before signing this Agreement, the Applicant has examined the Products/ Services and has satisfied itself as to the condition of the Products/Services and their suitability for the Applicant’s purpose and the Applicant agrees that no express warranty, condition or representation has been given by the Supplier as to the quality, fitness, safety, suitability or otherwise of the Products/Services prior to or at any time during the continuance of this Agreement and the Applicant’s obligation to pay rent and otherwise hereunder shall continue notwithstanding the occurrence of any defect or breakdown in the Products/Services. Nothing contained in this Agreement shall be constructed as an express warranty or representation of any kind by or on behalf of the Supplier. The Applicant further agrees that so far as the law permits all conditions and warranties which might be implied on the part of the Supplier are
hereby negatived and excluded. Liability for a breach of any implied condition or warranty on the part of the Supplier which is not capable of exclusion shall be limited (but only to the extent permitted by law) to any one or more of the replacement of the Products/Services, the supply of equivalent Products/Services, the repair of the Products/Services or the payment of the cost of having the Products/Services repaired, whichever the Supplier shall in its discretion think fit.
12.3 The warranty herein referred to shall be personal to the Applicant and not capable of assignment.
13. ENTIRE CONTRACT
13.1 The Contract constitutes the entire agreement between the Supplier and the Applicant and supersedes and novates all offers, tenders and quotations. The Applicant acknowledges that it has not been induced to enter into this agreement by any representations whatsoever made by or on behalf of the Supplier.
14. NON VARIATION
14.1 No variation, alteration or addition to the Contract shall be of any force or effect unless reduced to writing and signed by duly authorised representative of the Supplier and the Applicant.
15.1 All notices that may be given pursuant to the Contract shall be deemed to have been received:-
15.1.1 If posted by prepaid post two (2) days after the date of posting;
15.1.2 If delivered by hand, on the date of Delivery.
15.1.3 If sent by facsimile transmission, on receipt by the sender of the Activity Report as to the successful transmission.
16.1 Each clause in this Contract is severable the one from the other and if any clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall be of full force and effect.
17. MAINTENANCE SERVICES
17.1 For payment of an annual maintenance fee (“Maintenance Fee”), the Applicant may receive the following services described below as follows:-
17.1.1 Maintenance releases of the Software or parts thereof.
17.1.2 Centralised telephone support from 0830 to 1700 EST (or EST as applicable), Monday to Friday excluding State and Commonwealth gazetted public holidays. Telephone support consists of: –
126.96.36.199 Operational use of the Software.
188.8.131.52 Identifying and/or verifying the causes of suspected malfunctions, and
184.108.40.206 Advice on detours/workarounds for malfunctions.
17.2 The amount of the Maintenance Fee payable in relation to the particular Products/Services acquired by the Applicant will be set by the Supplier at the time of acquisition of the Products/Services and may be varied by the Supplier from time to time.
17.3 Payment of the Maintenance Fee is due on each anniversary of the date of the original invoice relating to the Products/Services to be serviced.
17.4 Maintenance Services under this Agreement shall not include on-site support. Onsite support provided by the Supplier will be separately chargeable at the Supplier’s prevailing rates for such services.
17.5 While the Supplier will endeavour to provide Maintenance Services as promptly as is reasonable, the time in which an Error and Correction can be devised and tested cannot be accurately assessed in advance. Consequently, all dates and times quoted or estimates for supply of Error and Corrections or their completion are estimates only and subject to alteration.
18. ITEMS RETURNED FOR REPAIR
18.1 Items sent for repair must be shipped in their original or equivalent packaging with proof of purchase, including the relevant invoice, attached to the items.
18.2 The Applicant is required to pre-pay all shipping charges and insure the shipment, or accept the risk of loss or damage during shipment.
18.3 The Supplier advises that prior to products being shipped; the Applicant should back up the data on the hard-disk drive(s) and any other storage device(s) in the product(s). The Applicant should also remove media, such as diskettes, CDs or PC cards. The Supplier does not accept liability for lost data or software.
18.4 Prior to any product being returned for repair, Applicants must apply for and receive an approved Return of Materials Authorisation (“RMA”) number from the Supplier.
18.5 The following information must be enclosed with the RMA number:
(a) model and serial number of the unit
(b) original purchase date
(c) return shipping and billing address
(d) contact name and phone number
(e) list of products being sent for repair
(f) detailed failure/problem information
18.6 The Applicant accepts that the Supplier will charge them if products are returned in packaging which is severely damaged, or if the products are missing any of the details requested in Clause 18.5.
18.7 The Applicant accepts that the Supplier has the discretion to reject products which have been sent for repair or replacement if the Supplier sees fit to do so.
19. PRODUCT EVALUATION PROGRAM
19.1 The Supplier has established a product evaluation program that enables Applicant to evaluate and test certain products prior to purchase.
19.2 To obtain Products/Services for evaluation, the customer must:-
(a) contact the Supplier for approval;
(b) Fax, mail or email a signed product evaluation form which can be obtained from the Supplier.
19.3 Freight charges for delivery and return of the product is the responsibility of the Applicant. If the Products/Services are not returned within 14 (fourteen) days, an invoice will be automatically mailed and the Applicant will be required to pay the full amount.
20. NOTICES REGARDING ONLINE PROCESSING OF ORDERS
20.1 The Applicant acknowledges and agrees that all guidelines and rules regarding ordering products from the Supplier’s website (“Online Services”) are incorporated by reference in the Terms and Conditions of Trade.
20.2 The Applicant understands and expressly agrees that use of the Supplier’s Online Services are at his/her sole risk, that any material and/or data downloaded or otherwise obtained through use of the Supplier’s Online Services is at his/her own discretion and risk and that the Applicant will be solely responsible for any damage to his/her computer system or loss of data that results from the download of such material and/or data.
20.3 The Applicant understands that all information posted on the Supplier’s website by the Applicant (“the Content”) is the sole responsibility of the Applicant.
20.4 The Applicant acknowledges and agrees that the Supplier may preserve Content and may also disclose Content if required by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:-
(a) comply with the law; and/or
(b) enforce the Terms of Conditions of Trade
20.5 In consideration of use of the Online Services, the Applicant agrees to provide true, accurate, current and complete information as prompted by the Online Services Registration Form.
20.6 The Applicant agrees that the only form of payment that is acceptable to effect orders on the Supplier’s Online Services Registration Form is by Credit Card.
20.7 The Applicant acknowledges and agrees that acceptance of payment is subject to bank approval and that the order is not valid until funds are actually transferred into the Supplier’s bank account.
20.8 If the Applicant provides any information that is untrue, inaccurate, not current or incomplete, or the Supplier has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Supplier has the right to suspend and/or terminate and/or refuse any and all current or future orders in its absolute discretion.
20.9 The Supplier does not guarantee that any transactions entered into through the Supplier’s Online Services will meet the Applicant’s requirements, be uninterrupted, timely, secure or error free.
20.10 The Supplier does not warrant that the Online Service are free from viruses or anything else which may have a harmful effect on any technology.
20.11 The Supplier reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Online Services (or any part thereof) with or without notice.
20.12 The Applicant agrees that the Supplier shall not be liable to the Applicant or any third party for any modification, suspension or discontinuance of the Online Services.
21 OWNERSHIP OF SOFTWARE AND INTELLECTUAL PROPERTY
21.1 The Supplier or its licensors (as applicable) retain the title and ownership of the Software recorded on the original disk copy and all such copies of the Software regardless of the
form or media in or on which the original and other copies may exist.
21.2 The intellectual property relating to the Software is the subject of copyright and is the property of the Supplier or its licensors (as applicable). Unauthorised copying of
the Software, including Software which has been modified, merged or included with other software, or of the Software Packages is expressly prohibited.
21.3 Unless specifically agreed in writing between the Supplier and the Applicant, all Intellectual Property Rights in any works created by the Supplier on behalf of the Applicants vest in and remain the property of the Supplier.
22.1 If a party makes a taxable supply in connection with this Contract for a consideration, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
23.1 In the event of the Products/Services consisting of more than one item, then the Supplier may at its option treat all items forming the subject matter of the Products/Services as a single unit.
23.2 In the event of any inconsistency between any other document and these Terms and Conditions of Trade, then the latter shall prevail.
23.3 Unless previously withdrawn, a tender, quotation or offer shall remain open for acceptance for the period stated therein, or when no period is stated, for thirty (30) days from the date hereof.
23.4 These conditions apply to all Products/Services supplied by the Supplier to the Applicant unless expressly varied in writing by the Supplier.
24. GOVERNING LAW AND JURISDICTION
24.1 This Contract is governed by and is to be construed in accordance with the laws of the State of Victoria, Australia. Use of the Online Services is unauthorised in any jurisdiction that does not give effect to all provisions of this Contract. The Applicant agrees that all legal proceedings arising out of or in connection with this Contract must be filed in a court located in Melbourne, Victoria, within the time limitations that apply in Victoria, Australia, or any such claims will be forever waived and barred. The Applicant expressly submits to the exclusive jurisdiction of the courts of Victoria, Australia.