Sales Terms and Conditions
1. Definitions
In these Terms and Conditions:
- ACL (Australian Consumer Law) means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and its associated regulations.
- After Hours means any time outside of Business Hours, including public holidays.
- Business Hours means 8:30 AM to 5:00 PM, Monday to Friday.
- Company means Xacom Pty Ltd ACN 008 053 110 (Note: Please verify this ACN is correct).
- Consumer has the meaning given in the ACL.
- Customer means the natural person or corporation named in a Quote or Invoice (and if more than one, jointly and severally).
- Goods means all materials and/or equipment to be supplied by the Company as set out in a Quote, including any software.
- GST and GST Law have the meanings defined in A New Tax System (Goods and Services Tax Transition) Act 1999.
- Intellectual Property (IP) means the Company’s proprietary interests in and relating to Goods and Services, including but not limited to: service marks, trademarks, logos, designs, patents, copyrights, inventions, know-how, trade secrets, software, code, algorithms, and circuit layouts.
- Invoice means a document issued by the Company to the Customer identifying an amount due for payment, which may be a Tax Invoice.
- PPSA means the Personal Property Securities Act 2009 (Cth) and its associated regulations.
- PPSR means the Personal Properties Securities Register.
- Price means the total price for all Goods and Services detailed in the Quote, exclusive of GST.
- Quote means a document issued by the Company to the Customer detailing the scope of works, Goods, and/or Services, subject to these Terms and Conditions.
- Respond means communication from the Company to the Customer acknowledging receipt of a notice of defect and the planned attendance.
- Services means all services (including labour) to be supplied by the Company as set out in a Quote.
- SOP Act means the Building and Construction Industry Security of Payment Act 1999 (NSW) and corresponding legislation in other states and territories.
- PPSA Definitions: Terms such as Security Agreement, Commingled Goods, Financing Statement, Collateral, Personal Property, Purchase Money Security Interest (PMSI), Registration, and Security Interest have the meanings prescribed to them in the PPSA.
- 2.1. Acceptance: The Customer’s acceptance of a Quote (whether by written confirmation, issuing a purchase order, or accepting delivery of Goods/Services) constitutes a binding agreement for the Company to carry out the works specified in the Quote in accordance with these Terms and Conditions.
- 2.2. Basis of Proposal: This Quote and all associated pricing are based on the plans, specifications, and other information provided by the Customer. The scope of work is limited to the items explicitly detailed in this Quote.
- 2.3. Contract Type: This Quote is provided on a "Supply and Install" basis and is not a "Design and Construct" (D&C) contract, unless otherwise specified.
- 2.4. Primacy of Terms: These Terms and Conditions are incorporated into all Quotes, orders, and agreements. They shall prevail over any other terms and conditions (including any on the Customer's purchase order) to the fullest extent permitted by law.
- 2.5. Entire Agreement: These Terms and Conditions, together with the relevant Quote, constitute the entire agreement between the parties. All other representations, warranties, or specifications not expressly included are excluded, other than those required by law (such as the ACL).
3. Scope of Work & Obligations
- 3.1. Scope of Works:
- Supply Only: Where a Quote is for "supply only," the Company will supply tested hardware. The Customer is responsible for all installation work and must ensure its work (including cabling) is of a standard that will not degrade or inhibit the performance of the Company's Goods. The Customer agrees to provide cable test reports to the Company prior to fit-off.
- Supply and Install: Where a Quote is for "supply and install," the Company will supply tested hardware, provide cabling, terminate, test, and fit-off as specified in the Quote.
- Inclusions: Unless otherwise stated, a "supply and install" Quote includes commissioning of the system and one session of user training with appropriate manuals.
- 3.2. Exclusions: The Quote and Price do not include (unless specifically noted in the Quote):
- Civil & Building Works: Any civil works, trenching, chasing of walls, or provision of underground conduits; core penetrations, penetration sealing, or fire-stopping; cutting for door strikes; patching, painting, or making good of any surfaces.
- Access & Infrastructure: Hire or provision of scissor lifts, Elevated Work Platforms (EWP), or other high-level access equipment; provision of in-situ (in-slab) conduits; supply or installation of cable trays, ladders, racking, cabinets, or specialised mounting brackets.
- Power & Services: Supply of 240V general purpose outlets (GPOs) or 240V cabling; provision of network data points, cabling, or connections; telecommunications lines or services.
- Third-Party Hardware & Integration: Computer hardware and software (unless specified); detection loops; access control equipment for boom gates/roller doors; provision of a dry set of contacts from the fire indicator panel (FIP).
- Fees & Other Services: ACMA licences, site allowances, off-site system monitoring services, or Council permits and associated fees.
- 3.3. Customer Obligations: The Customer agrees to provide the following at its own cost:
- Access: Uninterrupted and safe access to all necessary areas of the site for Company technicians during Business Hours (or as otherwise agreed).
- Notice: Provide 4 weeks' notice for the Company to attend the site for installation, commissioning, training, or site meetings.
- IT & Network:
- Provide all necessary IP addresses, network information, VLANs, and security credentials as required.
- Provide and maintain secure TCP/IP connectivity and remote access methods for the Company's agents for configuration, commissioning, and support.
- Acknowledge that any project delays, downtime, or additional labour incurred by the Company while awaiting the Customer's IT resources will be classified as a variation and shall be chargeable at the Company's standard hourly rates.
- Information: Supply all configuration and messaging information in the agreed format prior to the commencement of fit-off.
- Third-Party Cabling: Ensure that cabling from other interfaces (e.g., to a Nurse Call or Security Server) is provided by the respective suppliers, meets the Company's specifications, is tested, and is terminated at the required location.
- Notification of Change: Provide 14 days' written notice of any proposed change in the Customer's name or other details (address, email, trading name, etc.).
4. Commercial & Payment Terms
- 4.1. Pricing & Validity:
- All Quotes are valid for 30 days from the issue date.
- All prices are in Australian Dollars (AUD) and are exclusive of GST.
- This quotation is based on the AUD/USD exchange rate at the date of this proposal. The Company reserves the right to re-price this quotation should the exchange rate fluctuate by more than +/- $0.02 USD prior to a formal purchase order being received.
- 4.2. Payment Terms (Projects):
- Payment terms are as indicated on the Quote.
- If no terms are indicated for a project: the first Invoice is due 7 days after the date of issue; all subsequent Invoices are due 30 days after the date of Invoice.
- The Company may issue Invoices based on works completed or to be completed during a calendar month, typically on or about the 25th of the month.
- 4.3. Payment Terms (Care Service Agreements):
- The Customer will pay agreement charges in accordance with the proposal as subject to invoices, typically as an annual instalment in advance.
- The Customer may not set-off any amounts owed to the Company.
- 4.4. General Payment Conditions:
- Payment must be by EFT to the Company's nominated bank account.
- Payment by credit card will attract a surcharge of 1.5% (or 3% for American Express and Diners Club).
- 4.5. Default & Disputes:
- Default: If Payment Terms are not met, all outstanding amounts become immediately due and payable. The Company may charge interest on all overdue amounts at a rate of 10% per annum, calculated daily from the due date until payment is made in full.
- Dishonour Fee: If a payment tendered by the Customer is dishonoured, the Customer will pay the Company a $30.00 fee to cover bank penalty fees.
- Invoice Disputes: The Customer must advise the Company in writing of any dispute regarding an Invoice, including specific details, within 14 days of receiving the Invoice. If no such notice is received, the Customer is deemed to have accepted the Invoice as correct and payable in full.
- 4.6. Credit: Credit limits are at the absolute discretion of the Company and may be varied or withdrawn at any time with written notice.
- 4.7. Liquidated Damages: No liquidated damages or penalties will be accepted by the Company under this agreement.
- 4.8. Working Hours: All works are scheduled to be performed during normal business hours (8:30 AM – 5:00 PM, Monday to Friday, excluding public holidays). Work requested outside of these hours will be subject to additional, after-hours labour charges.
5. Title, Risk & Security Interest (PPSA)
- 5.1. Risk and Title:
- Risk: Risk of loss, damage, or injury to the Goods passes to the Customer on delivery to the Customer's premises or designated site.
- Title: The Company retains legal and beneficial ownership (Title) of the Goods until the Price and all other amounts owing by the Customer have been paid in full.
- 5.2. Customer Obligations (as Bailee): Until Title passes to the Customer, the Customer:
- Holds the Goods as a bailee and fiduciary agent for the Company.
- Must not make any alterations to the Goods or remove or deface any identifying marks.
- Must not purport to sell, on-hire, charge, or encumber the Goods.
- If the Goods are re-sold, the Customer holds the proceeds of such re-supply on trust for the Company and must pay such proceeds to the Company upon receipt.
- 5.3. Right to Repossess:
- If the Customer fails to pay any amount due, or if there is any matter likely to adversely affect the Customer's trading ability, the Company may:
- Withhold delivery of any further Goods.
- Cancel the Customer's credit account.
- (Except where the Customer is a Consumer) Enter any premises occupied by the Customer or where the Goods are located, without notice, to search for and remove the Goods.
- If the Customer fails to pay any amount due, or if there is any matter likely to adversely affect the Customer's trading ability, the Company may:
- 5.4. Security Interest (PPSA):
- The Customer acknowledges that these Terms and Conditions constitute a Security Agreement and create a Security Interest (including a Purchase Money Security Interest (PMSI)) in all present and future Goods supplied by the Company and their proceeds.
- The Security Interest attaches to the Goods when they are dispatched from the Company’s (or its supplier's) premises.
- The Customer agrees to do all things necessary to allow the Company to register its Security Interest (e.g., as a Financing Statement) on the PPSR to ensure it is enforceable and perfected.
- The Customer indemnifies the Company against any costs incurred in registering, maintaining, or enforcing its Security Interest.
- Contracting Out: To the extent permitted by the PPSA, the parties agree to contract out of the following provisions: sections 95, 96, 118, 121(4), 125, 129, 130, 132, 135, 142, 143, and 157.
- Non-Disclosure: The Customer agrees that neither party will disclose information of the kind referred to in section 275(1) of the PPSA.
6. Warranty, Liability & Returns
- 6.1. Standard Warranty (Projects):
- Period: The warranty period commences upon practical completion and/or system commissioning and extends for twelve (12) months.
- Coverage: During this period, the Company will repair or replace, at its option and expense, any equipment supplied under this agreement that proves to be faulty due to defects in materials or workmanship. Any warranty works will be undertaken during normal business hours (8:30 AM – 5:00 PM, Monday to Friday, excluding public holidays).
- Conditions: This warranty is conditional upon the system being serviced and maintained in accordance with Australian Standard AS2201 (where applicable) and manufacturer guidelines. The warranty does not cover faults arising from misuse, neglect, improper operation, power surges, or unauthorised modification.
- 6.2. Australian Consumer Law (ACL):
- Nothing in these Terms and Conditions is intended to exclude, restrict, or modify any rights which the Customer may have under the ACL.
- For Consumers: If the Customer is a Consumer, the Goods and Services come with guarantees that cannot be excluded under the ACL. For a "major failure" of Goods or Services, a Consumer may be entitled to a replacement, refund, or compensation as prescribed by the ACL.
- 6.3. Limitation of Liability (Non-Consumer):
- If the Customer is not a Consumer, then to the extent permitted by law, all conditions, warranties, and liabilities not expressly contained in these Terms and Conditions are excluded. The Company's liability shall be limited to the amount specified in section 276A(1) of the ACL.
- 6.4. Consequential Loss: The Company is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party (e.g., loss of turnover, profits, business, or goodwill), except to the extent of any liability imposed by the ACL.
- 6.5. Returns & Delivery:
- Returns (Non-Consumer): If the Customer is not a Consumer, Goods will not be accepted for return for reasons other than defects, without the prior written agreement of the Company. If agreed, a handling fee of $30.00 or 20% of the value of the Goods (whichever is higher) may be charged.
- Delivery: Any date or time quoted for delivery is an estimate only. The Company will use its best endeavours to meet estimated dates but will not be liable for any damage or loss suffered by the Customer for failure to meet such dates.
- Substitution: The Customer agrees to accept the substitution of Goods with items of equal or better quality and performance, at the Company's discretion.
7. Care Service Agreements
- 7.1. Formation and Term:
- A Care Service Agreement is formed upon the Company's acceptance of the Customer's purchase order.
- After the minimum term outlined in the proposal, the agreement continues unless terminated by either party with a minimum of 3 months' written notice.
- After the initial minimum term, the Company may apply CPI increases at its discretion.
- 7.2. Maintenance:
- Remedial Maintenance: The Company provides remedial maintenance according to the service levels and coverage in the agreement. If a defect is found, the Customer will:
- Notify the Company via the support line or email.
- Discontinue use of affected equipment.
- Not attempt unsolicited repair.
- Service Level Definition: The Company has sole discretion to classify defects as Priority 1, 2, or 3. Response times are a best endeavour and not a guarantee of rectification within that time.
- Preventative Maintenance: The Company will provide preventative maintenance (e.g., health checks, updates, training) as specified in the agreement proposal.
- Backups: The Company will produce system configuration backups. If remote access is allowed, these will be stored on the Company's servers. The Company only guarantees storage of the most recent system backup. Message history is stored on client servers for a default period of 2 months.
- Remedial Maintenance: The Company provides remedial maintenance according to the service levels and coverage in the agreement. If a defect is found, the Customer will:
- 7.3. Maintenance Limitations:
- The Customer is responsible for any loss or damage relating to:
- Damage in excess of normal wear and tear (e.g., misuse, neglect, malicious damage).
- Replacement of backbone or external cabling.
- Backup and storage of the Customer's own system data.
- "Acts of God" (e.g., lightning strikes, water damage).
- Only services directly indicated in the agreement are covered. Additional works will be charged on a fee-for-service basis.
- The Customer is responsible for any loss or damage relating to:
- 7.4. First Level Maintenance: The Customer agrees to provide first-level maintenance, including checking power/connectivity and assisting with basic remote troubleshooting.
- 7.5. Hardware Cover (if applicable):
- If the agreement includes hardware cover, the Company will repair or replace hardware that has ceased to function within its expected lifespan due to 'Fair Wear & Tear' or 'All Failure' as defined in the proposal.
- 'Fair wear and tear' means normal deterioration. The expected lifespan of hardware is determined solely by the Company.
- Exclusions: Hardware coverage excludes failure outside the expected lifespan, voluntary customer upgrades, and end-of-life system upgrades.
- Not Insurance: This coverage is not insurance. The Customer must maintain all relevant insurances for the equipment's replacement value.
- 7.6. Configuration (if applicable):
- If the agreement includes configuration, this refers to simple "moves and changes" not requiring third-party interfacing.
- The Company reserves the right to revise rates if the quantity of changes is deemed excessive.
- The Customer must give 30-day's written notice before relocating hardware. Relocation can be undertaken by the Company at an additional cost.
- 7.7. Reporting (if applicable):
- By default, systems retain information for 2-3 months.
- Reporting is limited to 'DIY', 'Automated', or 'Ad-hoc' reports as defined in the proposal.
- 'Custom reporting' may be possible but is not guaranteed and may incur costs and delays.
- 7.8. Termination of Care Service Agreement:
- Notice: Termination requires 3 months' written notice by either party (after the minimum term).
- Early Termination: If the Customer terminates prior to the minimum term, they remain liable for the balance of all agreement charges for that minimum term.
- Default: The Company may terminate the agreement within 7 days (or as specified by notice) if the Customer fails to pay, breaches a material term, or becomes insolvent.
8. Intellectual Property & Confidentiality
- 8.1. Intellectual Property: The Customer acknowledges that the Company owns all IP in the Goods and Services. The Customer disclaims any interest in the IP, will not challenge its validity, and will not take any action prejudicial to the Company's IP. Where an implied IP licence exists, it is limited to that necessary for ordinary system operation.
- 8.2. Confidentiality: Each party agrees to keep all information of the other party that is confidential in strict confidence and must only use such information for purposes necessary to comply with this agreement.
9. General & Legal Provisions
- 9.1. Governing Law: These Terms and Conditions shall be governed by the law of the State of Victoria.
- 9.2. Dispute Resolution: Parties will use their best endeavours to settle any disputes amicably by negotiation. If a dispute cannot be settled, either party may issue a Dispute Notice, and if not settled within 21 days, the matter may be referred to a mediator.
- 9.3. Indemnity: The Customer indemnifies the Company and its agents against any loss or damages incurred as a result of:
- The Customer failing to meet any terms and conditions of the agreement;
- Any wrongful or negligent act or failure to act by the Customer; or
- Any damage to property or personnel (except to the extent that such loss is caused by the Company).
- 9.4. Assignment: Neither party shall assign its rights under this agreement without the prior written consent of the other.
- 9.5. Variation: The Company may vary these Terms and Conditions by providing written notice to the Customer. Any variation will take effect for all orders placed after the Customer receives such notice.
- 9.6. Notices: Any notice shall be deemed properly given if sent by email, courier, or pre-paid post to the last known address of the party.
- 9.7. Force Majeure: The Company shall not be liable for a default or failure of its obligations resulting directly or indirectly from a Force Majeure Event (e.g., act of God, war, strike, fire, flood, pandemic, or shortage of materials).
- 9.8. Waiver: The failure by the Company to insist on strict performance of any term, or any delay in exercising its rights, does not constitute a waiver of that term or right.
- 9.9. Severability: If any provision of these Terms and Conditions is found to be invalid or unenforceable, that provision shall be enforced to the maximum extent possible, and the remaining provisions shall continue in full force and effect.
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