Sales Terms and Conditions
Xacom’s Care Service Agreements and the provision of maintenance to the customer are subject to the following terms and conditions
1. The Care Service Agreement Contract
1.1 Formation
The care service agreement is formed upon Xacom’s acceptance of the customer’s purchase order (subject to a credit application) and consists of the quotation/proposal, these terms and conditions and the purchase order. In the event of any inconsistencies, these terms and conditions prevail over the quotation, purchase order and any other documents or correspondence provided by either party.
Upon providing a purchase order, or the signing of these terms & conditions or any document which incorporates them, the customer agrees to be bound by these terms and conditions.
The customer will supply required information in agreed formats prior to the agreement commencing.
1.2 Length of the Agreement
After the minimum term outlined in your care service agreement proposal, the agreement continues unless either party terminates it (subject to minimum notice).
After the initial minimum term, Xacom may at its discretion choose to exercise CPI increases.
1.3 Payment
The customer will pay agreement charges in accordance with the proposal as subject to invoices.
The customer may not set-off any amounts owed to Xacom or assert any purported right to set-off or make any claim based upon a set-off.
The customer must pay interest on a daily rate for any overdue amount, including additional services, at 12% pa. Xacom is not obligated to carry out any maintenance services while amounts remain unpaid. Late payments indemnify Xacom for any loss or damage.
Xacom will issue tax invoices in accordance with GST law for each annual instalment, which may be subject to GST, GST-free or GST-exempt. All charges exclude GST unless otherwise stated.
1.4 General Expectations
1.4.1 Timeliness
Both parties agree to communicate and comply with reasonable requests relating to this agreement within 3 business days.
1.4.2 Confidentiality
Both parties agree to keep all information of the other party confidential. Each party may only use the other party’s confidential information for the purpose of complying with or enjoying a benefit conferred by this agreement.
1.4.3 Health & Safety
Both parties commit to:
- Complying with all relevant laws, regulations and standards applicable to health and safety in their jurisdiction
- Taking all reasonable steps to identify and minimise workplace and other hazards
- Notifying each other of any changes that may give rise to additional or increased risk of hazards
2. Maintenance
2.1 Remedial Maintenance
Xacom provides 24/7 remedial maintenance for all Xacom software and hardware according to service levels and coverage inclusions in their agreement.
If the customer discovers a defect in the solution, they will:
- Notify Xacom as soon as practicable via our support line or support email address
- Discontinue the use of affected equipment
- Not attempt unsolicited repair
In response, Xacom will:
- Acknowledge the customer’s notification through a response within agreed service levels
- Begin attending any issues within agreed service level response times
- Repair the equipment at their discretion in accordance with service levels
If Xacom sends any hardware away from the site for overhaul or repair, Xacom will bear all associated costs, including packing, carriage and insurance.
2.2 Service Level Definition
Priority | Description | Response Time & Site Attendance | After Hours |
1 | Time sensitive issue posing immediate risk to safety through significant impact to core system functionality | As per individual proposal | Critical priority 1 jobs are attended to after hours at no additional charge |
2 | Important but not critically time sensitive from a safety perspective or there is a serviceable workaround in place | As per individual proposal | Major priority 2 jobs can be completed after hours, if required, with a callout fee |
3 | Minor modifications or system configuration of existing equipment/software excluding project and structural works | As per individual proposal | Minor priority 3 jobs are not completed outside of business hours |
Xacom has sole discretion to classify defects as priority 1, 2 or 3.
While Xacom will make best endeavours to resolve issues expediently, response times are not a guarantee of rectification within that time frame.
2.3 Preventative Maintenance
Depending on the individual Care Service Agreement proposal, Xacom provides preventative maintenance in the form of:
- Quarterly remote health checks
- Annual on site health checks
- System monitoring
- Hardware and software updates and replacement
- Training, documentation and videos to enable effective system operation
2.3.1 Backups
During quarterly remote health checks, Xacom will produce a local backup of the system configuration.
If remote file transfer access is allowed then these backups will be stored on Xacom’s servers for the purpose enabling system restoration in the event of a failure.
Xacom only guarantees storage of the most recent system backup.
Message history is stored on client servers for reporting purposes for a period of 2 months by default.
2.4 Maintenance Expectations
The customer agrees to take all reasonable precautions to maintain the software and hardware in proper working order including maintaining robust IT security systems.
Xacom warrants that during the term of the agreement, the system will operate according to provided specifications and manuals.
2.4.1 Limitations
The customer is responsible for any loss or damage relating to the following:
- Damage in excess of normal wear and tear through:
- Misuse or incorrect operation
- Malicious damage
- Neglect
- Replacement of backbone or external cabling except that between Xacom nodes
- Backup and storage of customer system data
- “Acts of God” (e.g. lightning strikes, water damage etc.)
Where any of these have occurred, Xacom reserves the right to charge for attempting to restore the system to proper working order but cannot guarantee the restoration of normal operations.
Only the services directly indicated in this agreement are covered, additional works not included will be charged for on a fee for services basis requiring a purchase order or quotation.
All repairs and replacement parts must be prior approved in writing by Xacom.
2.4.2 First Level Maintenance
The customer agrees to provide first level maintenance including:
- Checking the power and connectivity of devices and other general basic requirements
- Being available to perform basic tests of system functionality to aid with troubleshooting
- Retaining damaged equipment for inspection and testing by Xacom staff
- Assisting Xacom in attaining any information possibly relating to the failure event including CCTV footage
2.4.3 Providing Access
The customer will at no additional cost provide a safe, clean and accessible environment both in terms of software and hardware.
Upon arrangement, Xacom and its agents will be allowed to enter the customer’s site to inspect equipment and carry out inspections, tests and maintenance to meet service levels or as deemed reasonable by Xacom.
The customer will ensure that secure TCP/IP connectivity and remote access methods for all Xacom agents are provided and maintained. Where such connectivity/access does not exist, the customer will provide it at their cost through a mutually agreed method.
2.4.4 Communicating Changes
The customer will advise Xacom of any proposed changes that could impact the services of this agreement with sufficient prior notice for Xacom to assess, advise and schedule any required changes.
The customer will give Xacom 14 days written notice of any proposed change in their name or other details including but not limited to address, email, trading name or business activities.
3. Hardware Cover
If the care service agreement includes the coverage for hardware failure, the following terms apply:
3.1 Fair Wear & Tear
‘Fair wear and tear’ means deterioration of the condition of equipment that occurs under normal conditions of use during the equipment’s expected lifespan.
The expected lifespan of hardware is determined solely by Xacom and can be provided upon request.
3.2 All Failure
‘All failure’ refers to any loss of system functionality.
For agreement including coverage for ‘all failure’, Xacom will provide repair and replacement for any hardware or software we have provided to the customer which has ceased to function within its expected lifespan.
Whil Xacom will be generous in interpretation of ‘all failure’ to the customer’s benefit, where there is repeated, egregious or malicious damage to equipment, Xacom reserved the right to discontinue or renegotiate coverage.
3.3 Exclusions
Hardware coverage excludes:
- Failure outside of the expected lifespan of the hardware
- Upgrades to the system when it reaches end of life
- Voluntary upgrades instigated by the customer to improve their system during the hardware lifespan
The expected lifespan of hardware is determined solely by Xacom and can be provided upon request.
Xacom hardware coverage is not insurance and in no way diminishes the requirement for the customer to maintain all relevant insurances. The customer is expected to exercise relevant insurances in the case of a hardware failure event.
4. Configuration
If the care service agreement includes the coverage for configuration, moves, changes or integrations, the following terms apply:
‘Moves and changes’ refer to simple configuration works which do not require interfacing with another external system or vendor.
‘Integration’ is defined as work to interface a Xacom system with a third party platform or vendor.
If Xacom determines the quantity of configurations, moves, changes or integrations to be excessive, Xacom reserves the right to revise related inclusions and service rates.
The customer must give 30-day’s written notice prior to changing or relocating any hardware covered by the agreement. Xacom can undertake the relocation for an additional cost, including dismantling, packing, unpacking, reinstalling, and recommissioning. Xacom’s relocation charges (including insurance) will be fair and comparable to other users in similar situations.
5. Reporting
Where the care service agreement includes coverage for reporting, the following terms apply:
By default Xacom systems retain information for 2-3 months and do not generate reports on times outside of this range.
5.1 DIY Reporting
‘DIY reporting’ refers to customer user configurable reporting which allows customers to self server their own reports front the system
5.2 Automated & Ad-hoc Reporting
‘Automated reporting’ refers to reports scheduled to run automatically at scheduled intervals.
‘Ad-hoc reporting’ is one-off reports available from a range of pre-defined types which can be generated according to details provided by the customer. While technically customer user accessible, they require more system knowledge to use.
Both of these report types can be implemented by calling or emailing Xacom’s Care Service Team.
5.2.1 Limitations
Automated and ad-hoc reports are limited to simple predefined reports which are not customised or modified before being sent to the customer.
5.3 Custom Reporting
‘Custom reporting’ refers to the customisation or modification of a system report to represent data in a particular format or include data from non-standard report sources or time periods.
No guarantees can be made for the availability of desired custom report data and depending on complexity they can take many weeks to produce.
6. System Ownership
Where hardware is purchased, the title to hardware passes to the customer on payment in full for the equipment. Before this time the customer is bailee for Xacom must return hardware to Xacom within 7 days if requested, at their own expense.
The risk for hardware passes to the customer upon delivery. This includes liability for loss, damage or injury arising out of its use, installation, storage or possession
Xacom retains the title to the software and intellectual property rights.
Where an implied intellectual property customer licence is found to exist, it is limited to that which is necessary to ensure ordinary system operation. The customer cannot further develop, change or commercialise the IP.
Regarding hardware/software, the customer will not:
- Make, or allow any alterations or additions
- Remove, obscure or deface any identifying mark, label or device
- Purport, or attempt to sell or on-hire. If this is ignored, the customer will agree to hold and pay all such proceeds to Xacom
If the customer fails to pay any amount due, or there is any matter likely to adversely affect the trading ability or asset position of Xacom, then, Xacom may
- Withhold delivery of software/hardware
- Not carry out service works
- Cancel the customer’s credit account.
7. Indemnity etc.
7.1 Liability
Where the customer fails to meet expectations outlined in these terms and conditions, Xacom holds no liability for any subsequent damage or loss sustained by the customer or their customers.
Xacom is not liable for return to operation where the solution is dependent on third parties.
7.2 Indemnity
The customer indemnifies Xacom and its agents/employees against any loss or damages incurred as a result of:
- The customer failing to meet any terms and conditions of the agreement
- Alleged infringement of intellectual property rights
- Any wrongful or negligent act or failure to act by the customer, its agents or subcontractors
- Any damage to property or personnel (Including any injury resulting in death or economic loss except to the extent that such loss is caused by Xacom)
The indemnities survive the expiry or termination of the agreement and it is not necessary for Xacom to incur expense before enforcing a right or indemnification.
7.3 Insurance
The customer must take out and maintain all necessary insurances including:
- Compliance with the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) by registration as an employer
- Payment of any Work Cover premium required to be paid under that act
The customer is expected to maintain insurance coverage for the equipment in an amount not less than its replacement value. The insurance coverage shall be in force for the entire agreement period.
7.4 Survival of Covenants
If any provision of the Agreement is or becomes void or unenforceable, the remaining provisions will continue in full force and effect.
7.5 Force Majeure
Xacom shall not be liable for a default or failure of obligations resulting directly, or indirectly, from a Force Majeure Event.
7.6 Waivers
Each party acknowledges and agrees that this Agreement, including the quote, purchase order and terms and conditions constitutes the entire agreement and excludes other waivers.
No failure of Xacom to exercise any right or power operates as a waiver of it or precludes any further exercising of it.
8. Dispute Resolution
Parties will use the best endeavours to settle any disputes amicably by negotiation.
If parties cannot settle the dispute by negotiation in a reasonable time, either party may issue to the other a Dispute Notice. If the Dispute cannot be settled within 21 days of issuance of the notice, either party may make a nomination in writing within 14 days of that date to have a mediator appointed.
These terms and conditions shall be governed by the law of the State of Victoria.
9. Termination
9.1 Notice
If the customer or Xacom wishes to change or terminate the agreement, they must give at least 3 months written notice.
If the customer wishes to terminate the agreement prior to the minimum term, they remain liable for the balance of agreement charges for the minimum term.
9.2 Defaults
Each of the following is an event of default which immediately
- The Customer fails to pay agreement charges on the due date for payment and such failure continues for more than 5 Business Days after notice.
- The Customer fails to perform or observe any of the covenants or provisions of the Contract and such default continues for more than 5 Business Days after notice.
- The Customer commits any act of insolvency or ceases to carry on business
- The Customer is unable to take out insurance policy/s as required.
- Any of the Equipment or Accessories are abandoned, condemned or are seized or appropriated by a third party.
9.3 Expedited Termination
Should the customer default or commit a clear and egregious breach of this agreement that poses significant risk of loss or damages to Xacom, Xacom reserves the right to terminate this agreement within 7 days and may claim damages based on the severity of the breach.
Definitions
‘After hours’ are any time outside of business hours plus public holidays
‘Business hours’ are 8:30am to 5pm Monday - Friday
‘Collection’ means collection of the Equipment, whether by the Customer or any agent of the Customer, from Xacom’s Premises or from the premises of any manufacturer or other person or company where the Equipment are for the time being located
‘Customer’ means the person or company with whom or which Xacom makes the Contract
‘Equipment’ means the Equipment including the Accessories rented to the Customer as detailed in the Contract or as may be agreed in writing by Xacom and the Customer
‘Force Majeure Event’ means an act of God, act of civil or military authority, act of public enemy, war, accident, fire, explosion, earthquake, flood, pandemic, the elements, strike, labour dispute, shortage of suitable parts, materials or any other event beyond the reasonable control of Xacom.
‘Installation’ means Electrical Installation of any electrical wiring, fitting or apparatus used for the control of electricity in any of the components listed in our supplied quote.
‘Loss’ means:
- Loss, including but not limited to direct loss, consequential loss, special loss, loss of anticipated profits and/or loss of business opportunity
- Damage including but not limited to any damages or compensation and/or any damage to reputation
- Cost or expense including legal costs on a full indemnity basis;
‘Normal wear and tear’ means deterioration of the condition of equipment that occurs under normal conditions of use.
‘Patching and make-good’ refers to any works subsequent to hardware installation or removal required to return adjacent hardware or surfaces to a good condition.
‘Respond’ is defined as communication from Xacom to the customer, acknowledging their receipt of the notice of defect and our planned attendance to it according to its criticality.
‘Xacom’ means Xacom Pty Ltd (ACN 605 337 737) trading as Xacom of 1/2a Sarton Rd, Clayton Victoria 3168.
Project Terms & Conditions
No allowance has been made for:
- Supply of 240V general purpose outlets
- Provision of data points - to be supplied by the site
- Civil works, trenching and/or underground conduits
- Patching and painting
- Scissor/plant hire if required for access
- Offsite monitoring
- Door strike cutting (unless otherwise stated)
- Insitu conduit works
- Core penetrations or penetration sealing
- EWP or high level access
- Cable tray/ladder or catenary wire for cabling
- Council permits and/or associated fees
- Chasing cable into concrete, masonry or brick works
- Dry fire to provide dry set of contacts at our control equipment
Clients IT Involvement. A great deal of our works are based on using your IT departments resources. Our proposal is based on open and free access together with all IT requirements being available as we need them. If our team need to wait for your IT team to provide access, answer questions, open ports or any other matter relating to our IT requirements, then any and all down time will be back charged at an hourly rate.
No liquidated damages incurred
Client to provide Xacom technicians with all required remote & on-site access to complete the works
Client to provide Xacom technicians with any necessary IP addresses
All works performed during normal business hours between 8:30am-5pm, Monday-Friday
Our proposal is not based on Design and Construct (D&C)
This quotation is valid for 30 days.
If the $AUD rises or falls +/-$0.02 USD from the date of this quotation, this quotation will need to be repriced.
This proposal is based on the following plans and documents
Warranty
The warranty period commences at the completion of the system commissioning and extends for a period of 12 months. During the warranty period, equipment supplied under this agreement which proves faulty will be repaired or replaced by Xacom at its option and at its expense. Warranty is dependent on regular service work being carried out to Australian Standard AS2201. To the extent that there are inconsistencies between the warranty and the exclusions the warranty prevails.