1.1 Supplies to be delivered hereunder shall be generally in accordance with the Manufacturer’s standard written description(s) and specifications(s) for such supplies current at time of Order placement subject to 1.2 below. Customer acknowledges that is has either examined such descriptions and specifications or hereby waives requirement to examine them.

Excelcom (Aust) Pty Ltd and its suppliers reserve the right to carry out product improvement programmes, which could result in changes to the supplies to be delivered under this Order. Such changes will not service to degrade the performance in comparison with the Manufacturer’s written description(s) and specifications(s) current at time of Order placement or quality of the supplies.

2.1 The supplies to be delivered hereunder are those detailed in the System Configuration.

2.2 Services to be performed if separately prices are those detailed in the Services Schedule but otherwise are as described in the System Configuration.

2.3 The System Configuration may incorporate special terms and conditions applicable to the supply of all or part of the supplies. In the event of any inconsistency between these term and conditions and any terms and conditions specified in the System Configuration, then to the extent of such inconsistency the former shall prevail.

3.1 The prices to be paid under this Order are detailed in the Schedule. In the event that the price of any item is omitted, Customer shall pay Excelcom (Aust) Pty Ltd list price for the item current at time of order or if such list price is not available such price as is reasonable having regard to all circumstances.

3.2 Unless otherwise stated, prices exclude all duties and taxes including GST payable in respect of the supplies. Customer agrees to pay all such duties and taxes (but excluding any income taxes levied on Excelcom(Aust) Pty Ltd) and to reimburse Excelcom (Aust) Pty Ltd for payment of same.

3.3 In the event prices are stated to include duties and taxes these have been calculated on rates applicable at time of quotation. The prices shall be adjusted to take into account the amount of duties and taxes actually paid or payable in respect of the supplies.

3.4 Where all or part of the supplies are obtained from overseas suppliers, prices are based on exchange rates current at time of quotation and prices to be paid by Customer shall be adjusted to take into account any variation of the exchange rates prevailing at the time Excelcom (Aust) Pty Ltd or its Australian suppliers pays overseas supplier. Variations of less than plus or minus 2% shall be disregarded.

3.5 Prices are for delivery to sites within the metropolitan areas. Excelcom (Aust) Pty Ltd shall be entitled to recover from Customer additional cost incurred in delivery outside the metropolitan areas. Metropolitan areas are defined to be the areas within 50 kilometres of GPO of Melbourne, Sydney, Brisbane, Adelaide Perth and Canberra.

• If total purchase value is over $10,000.00 (ex GST) :30% of the purchase order is payable immediately upon placement of purchase order to Excelcom (Aust) Pty Ltd by the customer; 60% of the value of the purchase order when equipment is delivered; 10% of the value of the purchase order on completion of the project, on customer acceptance.

   

• If total purchase value is below $10,000.00 (ex GST): 50% of the purchase order when purchase order is placed on Excelcom (Aust) Pty Ltd by the customer; 50% of the value of the purchase order on completion of the project on customer acceptance.

   

• Excelcom (Aust) Pty Ltd reserves the right to refuse credit and change the above payment terms at its discretion.

   

• The customer shall pay interest calculated at 2.5% per week on the balance of all overdue payments. Customer acknowledges that such interest is a genuine pre-estimate of Excelcom (Aust) Pty Ltd cost incurred by late payment plus compensation for resources applied by Excelcom (Aust) Pty Ltd in reclaiming owed funds.

• All invoices are issued on strict 14 days terms from date of invoice. A payable invoice is agreed to be overdue 30 days from date of invoice, whereby interest will be calculated and payable to Excelcom (Aust) Pty Ltd.

   

• If a customer invoice reaches an overdue period of 45 days from date of invoice, Excelcom (Aust) Pty Ltd will issue a final invoice to the client including interest rate charges, and the entire accumulated amount will be due.

   

The purchase order value originally placed by the customer may change if there is any additional cancellation of items. The value of the purchase order will include the provision of all equipment, hardware, software and services. All additions to subsequent orders will be paid 100% on delivery. Orders that are placed by the customer after the initial order of equipment and software has been completed and accepted by the customer are regarded as additional to subsequent orders and these are to be 100% on delivery.

4.2 If the customer cancels the order after payment of the relevant instalment due on order, all costs incurred by Excelcom (Aust) Pty Ltd (via order processing charges, inventory, storage, customized equipment etc) will be deducted from the payment. If the costs are greater than the instalment paid the customer shall forfeit the entire instalment payment, or be liable for payment of the additional costs incurred by Excelcom (Aust) Pty Ltd

4.3 In the event customer fails to make any payment by the due date.

4.4 Standard terms of Excelcom (Aust) Pty Ltd invoice is fourteen (14) days and clause 4.2 comes into effect following fifteenth (15) day.

5.1 Delivery of supplies shall be made to the delivery address stated on the Equipment and Service Schedule.

5.2 In the event customer requests delay in delivery of any supplies beyond the Scheduled delivery date(s) or Excelcom (Aust) Pty Ltd tenders items of supplies for delivery and customer refuses to accept delivery, then payment in full for such items shall fall due upon the Scheduled delivery date if payment of the supplies has not already been made to Excelcom (Aust) Pty Ltd

5.3 Excelcom (Aust) Pty Ltd shall make all reasonable efforts to meet the scheduled delivery date(s) set out in the Equipment and Software Schedule or otherwise quoted as acknowledged. However, Excelcom (Aust) Pty Ltd shall not be liable for any failure to meet such delivery date(s).

5.4 Risk in the items of the supplies shall pass upon delivery. Property in such items (excluding Software) shall pass when full payment has been received in respect of them. Until such time as full payment is made Customer shall not sell, pledge, charge or otherwise encumber such items or part with possession or control of them.

5.5 Where performance of services is delayed by customer beyond any scheduled commencement date or where unscheduled, beyond the date Excelcom (Aust) Pty Ltd reasonably offers to commence such performance then Excelcom (Aust) Pty Ltd shall be entitled to recover from customer all reasonable additional costs arising as a result of such delay.

6.1 Upon delivery of each item of Equipment and Software or completion of any item of services, such item shall be deemed to have been accepted unless, within 7 days of the date of such delivery or completion, customer notifies Excelcom (Aust) Pty Ltd in writing of any deficiencies and provides reasonable evidence thereof. Where agreed Excelcom (Aust) Pty Ltd shall install and/or test items of Equipment and Software. Testing shall be conducted in accordance with Excelcom (Aust) Pty Ltd’s standard test procedure for such item and upon satisfactory completion Excelcom (Aust) Pty Ltd representative conducting the test shall give customer a certificate to the effect that the standard test procedure has been passed? Customer shall be invited to witness such tests.

7.1 Customer shall ensure that premises in which Equipment and Software are to be installed are satisfactory for the operation of the equipment. Premises should conform with Excelcom (Aust) Pty Ltd site planning guide or should this not be available for particular equipment, with other specific instructions of Excelcom (Aust) Pty Ltd. Customer is responsible for requesting Site Planning Guide or other instructions.

7.2 Where Excelcom (Aust) Pty Ltd undertakes to install Equipment and Software, customer shall make available satisfactory premises in accordance with 7.1 by the due date for installation and shall ensure that all necessary services are available and operating during the installation period in which testing is carried out by Excelcom (Aust) Pty Ltd

7.3 Where Excelcom (Aust) Pty Ltd undertakes installation and testing activities, customer shall ensure that Excelcom (Aust) Pty Ltd personnel are given access to the premises where the equipment is being installed during normal working hours and such other items as may be reasonably requested by Excelcom (Aust) Pty Ltd

7.4 In the event that Excelcom are required to bore or trench to lay underground communications cabling Excelcom (Aust) Pty. Ltd. will not be responsible for any underground cables, gas or water should such damage occur.
Excelcom (Aust) Pty. Ltd will call 1100 dbyd and make every effort to avoid such damage; however the end customer is responsible for any cost of repair and down time incurred by Excelcom(Aust)Pty.Ltd. for the said damage.

Where customer trades in equipment and receives a credit against the price due under the Order. Customer warrants that it has full title in the equipment and full authority to deal in it. Title shall pass to Excelcom (Aust) Pty Ltd on date of this Order or delivery to Excelcom (Aust) Pty Ltd whichever is sooner.

Items of equipment shall be packed for shipment and storage in accordance with usual commercial practical for such types of items, unless otherwise agreed in writing.

10.1 Excelcom (Aust) Pty Ltd warrants supplies of hardware only against design defects, material and workmanship as follows : Manufacturer Warranty : This is for 12 months from the date of installation. This warranty applies to replacement of defective parts only. Labour and additional parts are not included in this warranty.
Extended Warranty : This is for 12 months from the date of installation. This warranty applies to replacement of defective parts and includes labour with standard response time (next day) only for critical or catastrophic fault (6 hours 50km from GPO of the city) Additional parts are included in this warranty.
At the time of purchase the customer will nominate the warranty they would like to purchase.

10.2 Excelcom (Aust) Pty Ltd will make good any defects in the media containing the software notified during the 180 day period from date of delivery or as otherwise set out in the schedule hereto. Excelcom (Aust) Pty Ltd warrants only that the software as delivered by Excelcom (Aust) Pty Ltd and properly installed and operated on the equipment, will perform substantially as described in its current user documentation.
Excelcom (Aust) Pty Ltd DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED

10.3 Unless otherwise agreed in this Order, customer is responsible at its cost for the return of defective Equipment and Software to Excelcom (Aust) Pty Ltd at the address designated in this Order or if no address has been designated, at its nearest office. Excelcom (Aust) Pty Ltd shall be responsible for the cost of returning Equipment and Software repaired or replaced under warranty to customer.

• Operation of equipment outside the specified or advised environment conditions
• Inadequate or improper maintenance by customer or its agents
• Modifications to supplies not authorized by Excelcom (Aust) Pty Ltd
• Misuse and accidental damage (outside normal wear and tear)

10.5 Where customer reports a defect and subsequently a defect is found not to exist then if demanded, customer shall reimburse Excelcom (Aust) Pty Ltd its reasonable costs of investigating the reported defect.

10.6 Where services are defectively performed; Excelcom (Aust) Pty Ltd shall make good such services to the extent necessary to correct the defect.

11.1 In the event that customer becomes aware of any claim in respect of any items of the supplies for infringement of patent, copyright or other intellectual property enforceable in Australia it shall promptly notify Excelcom (Aust) Pty Ltd.

11.2 Upon becoming aware of such a claim Excelcom (Aust) Pty Ltd shall have sole control at its expense of all matters relating to the claim including any defence, negotiations, settlement or compromise.

11.3 In the event of such a claim arising and succeeding (or in Excelcom (Aust) Pty Ltd’s reasonable opinion such a claim is likely to arise and/or succeed) Excelcom (Aust) Pty Ltd may at its option either procure for the customer the right to continue use of such items of supplies, or replace or modify them so that they become non-infringing, or recover them and pay customer price for such item less depreciation based on an equal amount per year over the lifetime of the relevant item as projected by Excelcom (Aust) Pty Ltd.

11.4 No liability for patent or copyright infringement shall attach to Excelcom (Aust) Pty Ltd when such infringement arises as a result of :
A) The use of the items in combination with other equipment and software not supplied by Excelcom (Aust) Pty Ltd.
B) Modifications not authorized by Excelcom (Aust) Pty Ltd.
C) Use that could not reasonably be foreseen by Excelcom (Aust) Pty Ltd.

Excelcom (Aust) Pty Ltd shall not be liable for any failure to perform its obligations under this Order for any cause beyond its reasonable control including without limitation fire, flood, strikes, transportation delays, fuel and energy shortages, defaults of sub-contractors, terrorism, lightening damage and other acts of God.

13.1 Except as expressly set out in Order and subject to 13.3 Excelcom (Aust) Pty Ltd accepts no other responsibility or liability whatsoever and howsoever arising whether in contract, tort or otherwise and all other conditions and warranties (including the warranties of merchantable quality and fitness for purpose) contained in or implied by Statute or rule of law are hereby excluded.

13.2 Subject to 13.3 it is specifically acknowledged by customer that Excelcom (Aust) Pty Ltd shall not be liable in any event howsoever arising whether in contract, tort or otherwise for any indirect or consequential damages including without limitation damages for loss of revenue and profit and in any event liability shall not exceed the price paid for the supplies or services.

13.3 NOTHING STATED IN THIS ORDER IS INTENDED TO EXCLUDE RESTRICT OR MODIFY ANY WARRANTY RIGHT OR LIABILITY IMPOSED BY COMMONWEALTH OR STATE LAW EXCEPT TO THE EXTEND THAT SUCH EXCLUSION IS PERMITTED.

14.1 In the event that :
A) Customer becomes insolvent or unable to pay its debts as they fall due or has a receiver appointed or is subject or voluntary or involuntary bankruptcy proceedings.
B) Customer is in material default of any obligation hereunder.
C) Customer fails to make any payment in full on the due date(s)

Then Excelcom (Aust) Pty Ltd may give written notice to Customer either requiring payment in full prior to delivery of any Equipment and Software or performance of services, suspend performance of its obligations under the Order or cancel the Order. Such action shall be without prejudice to any other rights Excelcom (Aust) Pty Ltd may have whether for damages or otherwise.

15.1 No failure by Excelcom (Aust) Pty Ltd to insist upon strict performance of any of the terms and conditions of this Order or any delay in exercising any of its remedies shall constitute a waiver or variation of such terms and conditions or a waiver of any default or remedy thereof

Excelcom (Aust) Pty Ltd is not responsible whatsoever for the performance, liability, affect on business or conduct and/or misconduct of any 3rd party product or 3rd party supplier in relation to 3rd party product that Excelcom (Aust) Pty Ltd may or may not provide as part of its overall service deilvery. Excelcom (Aust) Pty Ltd takes all care but no responsibility in relation to inconvenience, damage, contingent liability or general or specific adverse affects on the business, staff, operations, reputation or profitability of the client.

Unless otherwise agreed in writing, customer acknowledges that Equipment and Software is not to be exported or sold to third parties with a likelihood of being exported, without first obtaining the agreement of Excelcom (Aust) Pty Ltd or in the case of items of US origin without first obtaining United States Government Licence. Customer agrees to indemnify and hold harmless Excelcom (Aust) Pty Ltd against any losses arising as a result of breach of this condition.

Any amendment to this Order shall be agreed in writing and signed by duly authorized representatives of both parties.

18.2 Neither party may assign or transfer this Order in whole or in part including any rights duties or obligations hereunder without the written consent of the other party not to be unreasonably withheld.

18.3 Headings are included for convenience only and do not form part of this Order or affect any interpretation of it.

18.4 Notices under this Order shall be in writing and transmitted by mail or facsimile to the address set out in this Agreement or such other address as each party may nominate from time to time by notice.

18.5 In the event that any provision of this Order is held by a court of competent jurisdictions to be unenforceable, such provision shall be deemed to be severed but the other provisions of this Order shall continue in full force and effect unless the effect of such severance is to materially alter the nature of the Agreement between the Parties in which case this Order shall be deemed to be frustrated.

Any Software supplied under this Order remains the property of Excelcom (Aust) Pty Ltd or the current owner if different and no title in the Software is hereby transferred.

19.2 Purchaser is granted a non-transferable non-exclusive Licence to use Software solely for the purpose for which it is supplied.

19.3 Purchaser shall not make copies of Software or parts thereof without the written consent of Excelcom (Aust) Pty Ltd

19.4 Purchaser shall not modify, alter or dissemble the Software in any manner whatsoever.

• A licence granted under 18.2 is on the basis of payment of a periodic licence fee and Purchaser fails to pay such fee on its due date or,

• Purchaser is in material breach of any other material obligation to Excelcom (Aust) Pty Ltd relating to Software then Excelcom (Aust) Pty Ltd shall be entitled to terminate the licence granted under 18.2 forthwith by notice in writing and Purchaser shall then immediately return to Excelcom (Aust) Pty Ltd all Software including any copies thereof.

Purchaser shall indemnify Excelcom (Aust) Pty Ltd against any claims, losses, costs and expenses incurred by Excelcom (Aust) Pty Ltd as a result of use or handling of Software by Purchaser in a manner contrary to this Agreement.
Licence granted under 18.2 hereof shall be subject to additional terms (if any) contained in or called up by the Software schedule.