Terms and Conditions

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Terms and Conditions:

This Agreement is between Axient Pty Ltd ABN 14 090 510 848 (“we“, “us“, “our“) and a customer (“you“, “your“) who is supplied Equipment, Licensed Software and/or Services by us.

  1. Definitions

    In this Agreement:

    Additional Charge” means a charge in accordance with our standard rates in effect from time to time.

    Adjusted Balance” means any adjustment made to the Price, which is agreed in the Statement of Work.

    Agreement” means the agreement for the supply and/or installation of the Equipment, Licensed Software and/or Services, and incorporates the Quote and Statement of Work issued to you, and these Terms and Conditions.

    Business Hours” means between 9am and 5pm on weekdays, except public holidays in New South Wales.

    Delivery Date” means the date or period for the delivery of the Equipment, Licensed Software and/or Services as specified in the Quote or the Statement of Work.

    Equipment” means the equipment described in the Quote, Statement of Work or as otherwise supplied by us to you.

    Force Majeure” means a circumstance such as an act of God, lightning strike, earthquake, flood, storm, explosion, fire or a natural disaster; acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; strikes; or any other event or thing outside a party’s control.

    Installation Date” means the date (if any) specified in the Quote or Statement of Work for the installation of the Equipment and/or Licensed Software.

    Intellectual Property Rights” means copyright, trade mark, design, patent, semiconductor or circuit layout rights.

    Licensed Software” means the software described in the Quote or Statement of Work consisting of a set of instructions or statements in machine readable medium and any enhancement, modification, update or new release of that software or part thereof that may be provided under the Software License Agreement.

    Operating Manuals” means documentation, if any, relevant to instruction in the use of the Equipment.

    Price” means the Price payable by you to us for the supply of the Equipment, Licensed Software and/or Services as stated in the Quote, Statement of Work or as otherwise agreed in writing.

    Quote” means the written quotation form we provide to you which details the Equipment, Licensed Software and/or Services you are purchasing from us and a genuine estimate of the Price.

    Restraint Period” means a period of 2 years commencing on the day on which the last party to complete an obligation under this Agreement has so completed it.

    Services” means the services described in the Quote, Statement of Work or as otherwise supplied by us to you.

    Site” means the location for delivery and installation of the Equipment as specified in the Quote, Statement of Work or as otherwise agreed in writing.

    Software License Agreement” means the agreement between the parties or the owner of the rights in the Licensed Software where you are granted a license to use the Licensed Software.

    Statement of Work” is a written document we give to you which provides more detail to the Quote and the Price for the Equipment, Licensed Software and/or Services.

    “Warranty Period” means 90 days from delivery.

  2. Interpretation

    Unless the contrary intention appears:

    1. words in the singular number include the plural and vice versa;
    2. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
    3. a reference to the Quote or Statement of Work issued to you includes a reference to any part of that Quote of Statement of Work, where relevant, which is incorporated by reference; and
    4. monetary references are in Australian Dollars.
  3. Equipment and Licensed Software
    1. We may change any part of the Equipment or Licensed Software if we believe the change will not adversely affect performance, capacity or configuration in any material respect. If a change is made, we will notify you on or prior to delivery.
    2. Title in the Equipment and Licensed Software will pass to you upon full payment of the Price, any Additional Charges and any interest due. Risk in the Equipment and Licensed Software will pass to you upon delivery.
    3. You agree to use the Licensed Software in accordance with the relevant Software License Agreement.
  4. Operating Manuals

    We will provide you with an Operating Manual (if any) as specified in the Quote or Statement of Work.

  5. Site
    1. You must prepare the Site and access to it before delivery. You must also comply with our reasonable directions upon delivery.
    2. You must ensure the Site has adequate electrical supply and mechanical fittings, and suitable environmental conditions.
    3. You may be required to provide us with information and assistance to ensure the Site is suitable and ready for the Equipment, Licensed Software and Services.
    4. At your expense you can request for us to inspect the Site prior to delivery to ensure the Site is suitable and ready. If this is required, you must ensure we are granted all necessary access.
    5. If the Site is not suitable or ready for delivery or installation on the Delivery Date, you are liable to pay us for any loss or damage we suffer because of the delay.
  6. Delivery and installation
    1. We will use reasonable endeavours to:
      1. deliver the Equipment on the Delivery Date;
      2. install the Equipment on the Installation Date; and
      3. deliver and install the Licensed Software by the Delivery Date, at the Site during Normal Business Hours.
    2. If we ask to deliver the Equipment or the Licensed Software before the Delivery Date or install the Equipment or the Licensed Software before the Installation Date, you will use your best endeavours to allow this.
    3. If you want the Equipment or Licensed Software delivered to or installed at a location other than the Site, you need to tell us no less than 30 days prior to the Delivery Date and the Installation Date, respectively, and we will decide whether it is feasible and on what terms.
    4. If you request the Delivery Date or Installation Date change, we will try to meet your request but Additional Charges may apply.
    5. We may require your assistance to ensure the Equipment and Licensed Software are installed satisfactorily. For example, we may require you to provide us with personnel and facilities, which includes any security clearances.
    6. If the installation cost of the Equipment or the Licensed Software is greater than we could have reasonably contemplated in our Quote or the Statement of Work, we may require you to pay an Additional Charge.
  7. Training

    If you need training to use the Equipment and/or Licensed Software, we will provide it subject to payment of an Additional Charge.

  8. Price
    1. You are required to pay us the Price within 14 days of the invoice date unless we otherwise agree in writing.
    2. The Price is exclusive of taxes, duties and charges imposed or levied by any government at any time in connection with the supply of the Equipment, Services and/or Licensed Software.
    3. If payment to us is late, we may charge you interest at a rate of 12% per annum.
    4. The Price may be varied by us:
      1. in the Statement of Work;
      2. if an Additional Charge applies pursuant to this Agreement;
      3. if we deliver or install Equipment and/or Licensed Software in circumstances other than those expressly or reasonably contemplated in a transaction of this nature;
      4. there is a change in the timing or complexity of delivery or installation; or
      5. there is a change to the Equipment, Licensed Software and/or Services after we issue you with a Quote.
  9. Insurance

    You agree to insure the Equipment and the Licensed Software upon delivery to you for no less than their replacement cost and we will be named as an insured party.

  10. Employees and contractors
    1. During the Restraint Period you cannot solicit for employment, contract or for the provision of services, either directly or indirectly, any person who is employed or contracted by us.
    2. If person who is employed or contracted by us seeks to be employed or contracted by you prior to the expiration of the Restraint Period, you must promptly tell us.
  11. Intellectual property rights
    1. We will indemnify you if your use of the Equipment or Licensed Software according to our instructions, infringes the Intellectual Property Rights of a third party. This indemnity will only apply if you:
      1. tell us immediately of any infringement, suspected infringement or alleged infringement;
      2. give us the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to legal proceedings;
      3. provide us with all necessary assistance in conducting the defence of such a claim; and
      4. permit us to modify, alter or substitute the infringing part of the Equipment or Licensed Software at our expense in order to avoid continuing infringement, or allow us to procure the authority for you to continue the use and possession.
    2. We will not indemnify you to the extent that an infringement, suspected infringement or alleged infringement arises from:
      1. use of the Equipment and/or Licensed Software in combination by any means and in any form with other goods not approved us;
      2. use of the Equipment and/or Licensed Software in a manner or for a purpose not reasonably contemplated or not authorised by us;
      3. modification or alteration of the Equipment and/or Licensed Software without our prior written consent; or
      4. any transaction entered into by you relating to the Equipment and/or Licensed Software without our prior written consent.
    3. If proceedings are brought or threatened by a third party against you alleging that your use of the Equipment and/or Licensed Software constitutes an infringement of Intellectual Property Rights, we may decide to conduct the defence of such proceedings. If this occurs, you will provide all necessary co-operation, information and assistance to us.
    4. You indemnify us against any loss, costs, expenses, demands or liability, arising out of a claim by a third party alleging such infringement if the claim arises from an event specified in subclause (b) or if our ability to defend a claim has been prejudiced by your failure to comply with subclauses (a) or (c).
  12. Warranties
    1. The Equipment is new unless otherwise stated in the Quote or Statement of Work.
    2. If the Equipment is defective, you must notify us in the Warranty Period. If necessary, we will replace or repair the defective Equipment.
    3. We will not replace or repair an alleged defect if:
      1. you notify us after the Warranty Period;
      2. the Equipment is: not used as intended; used contrary to the Operating Manual; modified; used unlawfully; subject to unusual physical, environment or electrical stress; reinstalled or moved; or used by someone other than you;
      3. you are in breach of this Agreement;
      4. you did not make our recommended changes;
      5. the serial number is removed or defaced; or
      6. there is an express exclusion in the Quote or the Statement of Work.
    4. If we inspect an alleged defect and there is no defect or one of the circumstances in subclause (c) apply, our costs of the inspection are payable by you.
  13. Implied terms
    1. Subject to subclause (b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
    2. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, our liability for any breach of such condition or warranty shall be limited to:
      1. if the breach relates to Equipment or Licensed Software:
        1. their replacement or the supply of equivalent goods;
        2. their repair; or
        3. payment of the replacement cost, or
      2. if the breach relates to Services, resupply of the Services or payment of the cost of having the Services resupplied.
  14. Liability
    1. Except in relation to liability for personal injury we are not liable to you if you breach this Agreement.
    2. You agree that you have not relied on any representation made by us which has not been stated expressly in this Agreement and you have the opportunity to verify any representation from us.
    3. You indemnify us (including our directors, employees and contractors) from and against loss or liability caused by a breach of this Agreement by you, or any act or omission of yours (including your directors, employees and contractors).
  15. Termination
    1. We may terminate this Agreement immediately by notice in writing if you:
      1. are in breach of this Agreement and such breach is not remedied within thirty (30) days of written notice by us;
      2. become insolvent or are about to;
      3. being a partnership, dissolve or are about to;
      4. being a natural person, die; or
      5. you cease or are about to cease conducting your business.
    2. If we give you notice pursuant to subclause (a), we may also:
      1. repossess the Equipment and Licensed Software if payment of the Price and any Additional Charges have not been made in full;
      2. retain any money paid by you;
      3. charge you for Services performed that have not previously been charged to you; and
      4. pursue remedies provided by law.
    3. You may terminate this Agreement immediately by notice in writing if we:
      1. are in breach of this Agreement and such breach is not remedied within thirty (30) days of written notice by you; or
      2. become insolvent or are about to.
  16. Force majeure
    1. Neither party is liable for delay or failure to perform obligations pursuant to this Agreement if such delay is due to Force Majeure.
    2. If a delay or failure by a party to perform obligations due to Force Majeure exceeds sixty (60) days, either party may terminate this Agreement by providing written notice to the other party. If this occurs, we will refund money previously paid by you for Equipment, Licensed Software or Services not yet provided by us.
  17. General
    1. Entire agreement: This Agreement constitutes the entire agreement between the parties in respect of the Equipment and Services, and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
    2. Precedence:
      1. The documents comprising this Agreement shall be read in the following order of precedence: Statement of Work, then the Quote, then the Software License Agreement, then this Agreement.
      2. If there is a conflict, the document lower in the order of precedence shall be read down to resolve such conflict.
      3. If the conflict remains, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
    3. No assignment: This Agreement cannot be assigned by you without our written approval.
    4. Waiver: No right in this Agreement is deemed to be waived except by written notice signed by each party.
    5. Variation: This Agreement cannot be varied unless agreed in writing.
    6. Survival: The provisions in this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
    7. Severability: If any provision in this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.
    8. Governing law: This Agreement will be governed by and construed according to the law of the jurisdiction of the State of New South Wales and the parties submit to the jurisdiction of the Courts there.
    9. Notices: Notices may be delivered by hand, mail or email to the addresses for each party specified in the Quote, or such other address as is notified in writing by one party to the other. Notice will be deemed given:
      1. in the case of hand delivery, upon written acknowledgment by a person at that address;
      2. in the case of posting, three days after sending;
      3. in the case of email, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.