Hardware Supply Terms and Conditions
1. Definitions and Interpretation
1.1 Definitions
In this Agreement, unless the context requires otherwise:
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales, Australia;
Claim means actions, suits, causes of action, proceedings, claims or demands;
Commencement Date means the commencement date of this Agreement, as specified in Order;
Confidential Information means any information, specifications, documentation, manuals, data, source code or object code which a party may have imparted or does impart to the other relating to the business of that party or of its Related Bodies Corporate, clients or customers, including but not limited to all know-how, technical and financial information, materials and any other commercially valuable or sensitive information in whatever form, including inventions (whether or not reduced to practice), trade secrets, formulae, graphs, drawings, samples, devices, models and any other materials or information of whatever description, which a party regards as confidential, proprietary or of a commercially sensitive nature. In the case of LX, the Intellectual Property Rights and any trade secrets incorporated into the Device(s) and LX Firmware forms part of its Confidential Information. Confidential
Information excludes: (a) information which is lawfully in the public domain prior to its disclosure to the party; (b) information which enters the public domain otherwise than as a result of an unauthorised disclosure by a party or any of its Related Bodies Corporate, or by a third party who has obtained such information from a party or any of its Related Bodies Corporate; (c) information which is or becomes lawfully available to the party from a third party who has the lawful power to disclose such information to the party on a non-confidential basis; or (d) information which is rightfully known or independently developed by the party prior to the date of disclosure;
Corporations Act means the Corporations Act 2001 (Cth);
Customer Equipment means the Customer's owned or leased plant and equipment;
Defect means a material defect in materials or workmanship that impacts the functionality, productivity, usability or efficiency of the Device, but excludes fair wear and tear or accidental damage, and Defective means that the Device contains a Defect;
Device means any device, equipment, hardware or tools supplied by LX to the Customer, as specified in the Order;
Discloser means a discloser of Confidential Information;
Fees means the Price and any other fees payable by the Customer for the Device(s) and Services (if any), as specified in an Order;
Force Majeure Event means any fire, flood, earthquake, cyclone, or act of God; riot, civil disorder, rebellion or revolution; war or terrorist act; epidemic or pandemic (whether declared or undeclared) or other public health emergency; or other similar cause beyond the reasonable control of the non-performing party, but in each case only if and to the extent that the non-performing party is without fault in causing the event and the event or its effect could not have been prevented by reasonable precautions (such as disaster recovery or business continuity procedures) or mitigated by the implementation of reasonable alternatives;
GST means any tax, levy, charge or impost implemented under the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
IncytProtect means LX's IncytProtect service for the supply of repair, service and replacement services in relation to a Device, as specified in an Order;
IncytProtect Terms and Conditions means the terms and conditions applicable to IncytProtect, as amended by LX from time to time;
Insolvency Event means in respect of a Party, the occurrence of one or more of the following events: (a) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the company; (b) a provisional liquidator, liquidator or person having a similar function under the laws of any relevant jurisdiction is appointed in respect of the company or any action is taken to appoint such a person and the action is not stayed, dismissed or withdrawn within 10 Business Days; (c) the company is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it; or (d) anything analogous to or of a similar effect to anything described above under the Laws of any relevant jurisdiction;
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967, whether or not now existing, and whether or not registered or registrable, and includes any right to apply for the registration of such rights, and includes all renewals and extensions;
Interest Rate means the then-current Commonwealth Bank of Australia business overdraft index rate;
LX Firmware means the firmware installed on the Device, including any authorised new release of that firmware;
Non-Excludable Terms mean terms, conditions and warranties implied by applicable law into contracts for the supply of goods or services, and which the applicable law expressly provides may not be excluded, restricted or modified or may be excluded, restricted or modified only to a limited extent;
Operating Manual means the information and documentation necessary to operate and maintain the Device, as provided by LX from time to time;
Order means a document (including a quote) in a form acceptable to LX specifying the commercial details relating to the provision of the Device to the Customer by LX;
Order Term has the meaning given in clause 2(b);
Party means a party to this Agreement and Parties means both of them;
Personal Information has the meaning given in the Privacy Act;
Personnel means in respect of a Party, that Party's employees, officers, contractors and agents;
Price means the price payable for the Device, as set out in an Order;
Privacy Act means the Privacy Act 1988 (Cth);
Recipient means a recipient of Confidential Information;
Related Body Corporate has the meaning it is given in the Corporations Act;
Services means the maintenance services and installation to be provided by LX to the Customer, as described in an Order (if any);
Term has the meaning given in clause 2(a);
WHS Act means the principal work health and safety Act in the State or Territory in which the Device is provided; and WHS Regulations means the principal work health and safety Regulations in the State or Territory in which the Device is provided.
1.2 Interpretation
The following apply in the interpretation of this Agreement, unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) a reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this document includes its successors and permitted assigns;
(g) any reference to any agreement or document includes that agreement or document as amended at any time;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and performing any action from time to time;
(j) an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
(l) when a thing is required to be done or money is required to be paid under this document on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day;
(m) a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated; and
(n) a reference to dollars or $ means Australian dollars.
1.3 Inconsistency
These terms and conditions, the Schedule, the IncytProtect Terms and Conditions, and any executed Orders, (collectively, the Agreement) set out the terms and conditions which govern the provision of the Devices by LX to the Customer. If there is an inconsistency between the various parts of the Agreement, the following order of precedence will apply to the extent of the inconsistency: (a) these terms and conditions; (b) the Schedule; (c) the IncytProtect Terms and Conditions (only if the Order specifies that IncytProtect will be provided); and (d) each Order.
2. Term
(a) This Agreement commences on the Commencement Date and continues until terminated in accordance with clause 13 (Term).
(b) Each Order will commence on the Start Date and continue until terminated in accordance with clause 13 (each an Order Term).
3. Supply of Device(s)
3.1 Orders
(a) The Customer may submit an Order to LX from time to time. LX is not obliged to accept any Orders or enter into any Orders and may provide Device(s) to any party, whether or not of the nature contemplated by this Agreement.
(b) An Order is only accepted if the Customer receives LX's confirmation of acceptance via a separate email. If the Order is not accepted, the Customer will not be charged for the Order.
3.2 Delivery
(a) LX will use its best endeavours to deliver the Devices to the Customer on the Delivery Date specified in the Order.
(b) If LX foresees that a Delivery Date cannot be met, LX will inform the Customer of this and provide the expected new delivery date without delay.
(c) LX will label, package and transport the Device to the Customer, and the Customer will reimburse LX for the cost of transport and shipping on request.
(d) If the Customer orders more than one Device, the Devices may be shipped in one delivery or by instalments.
(e) The Customer bears the risk of loss or damage to the Device(s) upon delivery to the location specified in the Customer Contract.
3.3 Acceptance testing
(a) Upon receipt of the Device, the Customer will test the Device and ensure it operates in accordance with the Operating Manual.
(b) If the Device does not conform to the Operating Manual, the Customer will promptly notify LX of such non-conformance. If LX agrees that the Device is Defective, the Customer will return the Device to LX in accordance with LX's reasonable instructions, and subject to clause 3.3(c), LX will provide a replacement Device to the Customer.
(c) On receipt of the Device from the Customer, LX will test the Device and ensure it operates in accordance with the Operating Manual. In the event the Device conforms with the Operating Manual, the Customer will reimburse LX for reasonable costs incurred by LX in the return and replacement of the Device.
3.4 Risk and title
Risk in the Device passes to the Customer on delivery. Title in the Device passes to the Customer on full payment of the Device Fee.
4. Customer obligations
4.1 Acknowledgement
The Customer acknowledges and agrees that LX owns all right, title and interest in the Intellectual Property Rights and trade secrets subsisting in the Device.
4.2 Use of Device
The Customer will:
(a) operate the Device, and will ensure its Personnel operate the Device, for the purpose it was designed and in accordance with:
- the Operating Manual;
- the parameters of the warranty provided by LX under the Schedule;
- any directions or recommendations reasonably made by LX;
- to the extent not inconsistent with the foregoing, recognised methods and best industry standards for the Device of its type; and
- all laws applicable to the use of the Device;
(b) only operate and maintain the Device using competent, qualified, trained and licensed Personnel approved by LX, and using appropriate methods and best industry standards of operation;
(c) not disassemble, modify, adapt, alter or otherwise change the Device, including by removing any SIM card from the Device, if any; and
(d) only use the Device in conjunction with the software offered, supplied or provided by LX from time to time.
4.3 Maintenance of and damage to Device
(a) The Customer will:
- comply with the warranty requirements as specified in the Operating Manual and Order; and
- facilitate the Services relating the Device in accordance with specifications set out in the Operating Manual and Order.
(b) If the Device is damaged but not beyond practical or economic repair, the Customer may request LX restore the Device to good working repair and condition. Any restoration will be at the customer's expense and LX agreeing to restore the Device.
4.4 General obligations
The Customer agrees and undertakes to:
(a) at its own cost comply with its obligations under the WHS Act and WHS Regulations in relation to the use of the Device;
(b) provide LX with all information and documentation as reasonably requested by, or as otherwise necessary for LX;
(c) keep the contact and other account information that LX holds about it up-to-date; and
(d) not use or attempt to use the Device for any activity which breaches any Law, order, regulation or industry code of practice.
5. LX Obligations
5.1 Provision of Device
In consideration of the Fees, LX shall provide the Customer with the Device described in the Order in accordance with this Agreement.
5.2 Services
(a) LX may agree to perform Services at its discretion upon receiving a request from the Customer by issuing a quote to the Customer, which will set out the specific services and how the Customer will be charged and the terms and conditions applicable to the provision of the Services.
(b) Additional Services will be charged on a time and materials basis at LX's then-current rates.
6. Fees
6.1 Device Fee
The Customer will pay the Device Fee specified and invoiced by LX in accordance with the Order.
6.2 Invoicing and payment
(a) LX will issue invoices for the Fees in accordance with the Order and the Customer must pay all undisputed invoices within 14 days from the date of invoice, unless otherwise specified in the Order.
(b) If the Customer disputes in good faith any amount on an invoice provided by LX, then the Customer is not obligated to pay the disputed amount until the dispute is resolved, but must pay all other undisputed amounts. Any disputed invoice will be resolved in accordance with clause 14.
(c) Subject to clause 6.2(b), if the Customer fails to pay any Fees by the due date, LX may charge interest at the Interest Rate on the outstanding Fees or any other monies due and unpaid by the Customer, until such time as the Customer has paid in full, the outstanding amount and any interest accrued on the outstanding amount, and the Customer will pay to LX any reasonable costs incurred by LX in relation to collection of any amounts owing.
6.3 Taxes
(a) Unless expressly stated otherwise, all amounts payable under this Agreement exclude GST.
(b) If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
(c) If this Agreement requires a party to pay for, reimburse or contribute to any expense, liability, indemnity or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
- the amount of the reimbursable expense less the input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense; and
- if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply.
7. Customer Equipment
Subject to any negligent act or omission of LX and to the extent permitted by any applicable laws, the Customer: (a) remains solely responsible and liable for its access and use of its Customer Equipment; and (b) indemnifies LX against all Claims, losses, liabilities, damage and injury incurred by the Customer, LX or any third party by or as a result of use of such Customer Equipment.
8. Intellectual Property Rights
(a) The Customer acknowledges that LX owns or is the licensee of all right, title to and interest in all Intellectual Property Rights in the Devices, Operating Manuals and any other documentation, and any Services supplied by LX to the Customer under this Agreement.
(b) Nothing in this Agreement transfers ownership of the Intellectual Property Rights subsisting in the Devices, Operating Manuals and related documentation, or the Services except as expressly permitted by the terms of this Agreement.
9. Privacy
If the performance of rights and obligations under this Agreement involves the handling of any Personal Information, then each Party must:
(a) comply with all applicable provisions of the Privacy Act;
(b) comply with all reasonable requests or directions of the other Party in connection with an obligation of the other Party under the Privacy Act;
(c) use the Personal Information only for the purposes of performing its obligations under this Agreement;
(d) not transfer that Personal Information outside of Australia or allow persons outside of Australia to have access to that Personal Information, unless the other Party has consented in writing to such transfer or access;
(e) take all necessary steps to ensure that such Personal Information is protected against misuse, loss and unauthorised access; and
(f) without undue delay, notify the other Party if it becomes aware of a breach of any applicable privacy laws in connection with this Agreement
10. Confidentiality
10.1 Treatment of Confidential Information
Each Party acknowledges that the Confidential Information of the other Party is valuable to the other Party. Each Party undertakes to keep the Confidential Information of the other Party secret, and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other.
10.2 Use of Confidential Information
A Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient's obligations or exercising the Recipient's rights under this Agreement.
10.3 Disclosure of Confidential Information
A Recipient may not disclose Confidential Information of the Discloser to any person except: (a) representatives, legal advisers, auditors and other consultants of the Recipient who require it for the purposes of performing its obligations or exercising its rights under this Agreement and then only on a need to know basis; or (b) if required to do so by law or a stock exchange.
10.4 Return of Confidential Information
Upon the expiry or termination of this Agreement, the Recipient must promptly deliver to the Discloser all documents or other materials containing or referring to the Discloser's Confidential Information that are in the Recipient's possession, power or control or in the possession power or control of persons who have received the Confidential Information from the Recipient under clause 10.3.
11. Warranties
11.1 Mutual warranties
Each Party warrants that it:
(a) it has the power and authority to enter into and perform its obligations under this Agreement and that the execution of this Agreement by it has been duly and validly authorised by all necessary corporate action;
(b) it has obtained all necessary consents and approvals required for it to lawfully enter into this Agreement; and
(c) its obligations under this Agreement are valid and binding and enforceable against it in accordance with their terms.
11.2 LX's warranties
LX warrants:
(a) it is entitled to enter into an Order with the Customer in respect of the relevant Device; and
(b) the Device will conform to the warranty as set out in the Schedule.
12. Liability
12.1 Limitation on liability
(a) To the extent that the LX is not permitted to lawfully exclude its liability under clause 12.6, this clause 12.1 will apply.
(b) To the extent permitted by law, LX's total aggregate liability whether in tort (including negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise, is limited to:
- the Fees paid under this Agreement in the immediately preceding 12 month period; or
- in the case of a period less than 12 months, the Fees payable in the 12 months following the Commencement Date.
12.2 No consequential loss
To the extent permitted by law, neither Party is liable whether in tort (including for negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise for indirect loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information, or pure economic loss, or for any other special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
12.3 Proportionate liability
A Party's liability under this Agreement will be reduced to the extent that the other Party caused or contributed to the relevant liability or the act giving rise to the liability.
12.4 Avoiding or minimising loss
A Party which incurs a loss under this Agreement must take reasonable steps to avoid or minimise the loss.
12.5 Indemnity
(a) To the extent permitted by law, LX indemnifies and will keep indemnified the Customer against any and all Claims arising out of:
- a Claim by a third party that the Services infringe the Intellectual Property Rights of that third party;
- death or personal injury; and
- damage to tangible or real property.
For the avoidance of doubt, this indemnity does not apply in relation to the quality or performance of the Device, which is subject to the relevant manufacturer warranty.
(b) Clause 12.5(a) will not apply to the extent the infringement is caused by:
- the Customer failing to promptly provide LX with written notice of such a Claim against the Customer;
- the Customer failing to give LX sole control of the defence and settlement of such a Claim against the Customer; or
- the Customer failing to provide LX with all reasonable assistance in relation to the defence and settlement of such a Claim.
(c) To the extent permitted by law, the Customer indemnifies and will keep indemnified LX from and against any Claims that LX suffers or incurs, whether or not contemplated by the Parties, as a result of any:
- breach of this Agreement by the Customer;
- loss of, or damage to, any property caused by any act or omission of the Customer or its Personnel, including through negligence;
- personal injury (including sickness or death) caused by an act or omission of the Customer or its Personnel, including through negligence;
- negligent or unlawful act or omission, or wilful misconduct, by the Customer or any of its Personnel; and
- Claims by the Customer or a third party against LX arising because of any act or omission of the Customer in connection with this Agreement, except to the extent that the Claim arises because of LX's negligence or breach of this Agreement.
(d) If a Claim is made by a party alleging the Customer's access or use of the Devices or Services infringes that party's Intellectual Property Rights, LX will, at its option either:
- modify or replace the Devices or Services so that they become non-infringing; or
- procure for the Customer the right to continue using the Devices or Services.
12.6 Exclusions from liability
To the extent permitted by law, LX will not be liable for loss (including under a warranty or indemnity) suffered by the Customer, or failure to provide the Services, to the extent caused or contributed to by any of the following:
(a) use of the Device in combination with firmware, software, materials or services not supplied to the Customer by LX;
(b) use of the Device in breach of this Agreement; or
(c) operation or use of any Device supplied under the Agreement other than in accordance with the Operating Manual and other relevant user documentation, or in accordance with normal business use and requirements.
13. Termination
13.1 Termination for convenience
(a) Either Party may terminate this Agreement for convenience by giving the other Party not less than 90 days' written notice.
(b) The Customer may terminate an Order by providing LX at least 30 days' notice in writing.
13.2 Termination for cause
(a) This Agreement may be terminated at any time during the Term immediately by a Party if the other Party:
- is in breach of any obligation under this Agreement and it has not rectified the breach within 30 Business Days of receiving written notice requiring it to do so;
- is no longer able to perform its obligations under this Agreement due to a change in Law which prevents a Party from performing its obligations under this Agreement; or
- suffers an Insolvency Event.
(b) Without limiting clause 13.2(a), LX may terminate this Agreement if the Customer fails to make payment and has not rectified the non-payment within seven Business Days of receiving written notice requiring it to do so.
13.3 Consequences of termination
(a) Upon expiry of this Agreement or an Order, or termination of this Agreement in accordance with this clause 13:
- where the Customer terminates this Agreement or an Order pursuant to clause 13.1, the Customer agrees to pay for any costs or expenses (including any licence fees) incurred directly under this Agreement or the relevant Order, as the case may be, by LX as a result of early termination;
- all amounts due and payable to LX, whether or not invoiced, including for Services, as at the date of termination become a debt due and payable on the effective date of termination; and
- each Party must promptly return or destroy the other Party's Confidential Information, as directed by the other Party.
(b) Termination of this Agreement or any Order will not prejudice any right or remedy of either party in respect of any antecedent breach by the other party under this Agreement or the affected Order (or any other Order).
(c) Except in respect of Orders that are also terminated at the same time, the termination of this Agreement does not affect any Orders still in force and all provisions of this Agreement will survive and remain in force, but only in relation to the surviving Orders and until expiry or termination of the Orders.
(d) Termination of one Order will not affect the continued operation of this Agreement or any other Orders.
13.4 Survival of rights
Termination of this Agreement does not affect the rights of a Party which have accrued up to the date of such termination.
14. Dispute Resolution
14.1 Dispute Notice
If any dispute or difference arises between the Parties with respect to the construction, effect or operation of this Agreement, or with respect to any matter connected with this Agreement or arising out of it (a Dispute), the Parties must take the following steps to attempt to resolve the Dispute: (a) either Party may serve a written notice on the other Party stating the nature of the Dispute and invoking the dispute resolution process set out in this clause 14 (a Dispute Notice); and (b) the Parties must meet within 10 Business Days after the date of the receipt of the Dispute Notice, or such other period as the Parties agree in writing, and negotiate in good faith to resolve the Dispute.
14.2 Mediation
If the Dispute is not resolved in accordance with this clause 14 within 20 Business Days of the date of the Dispute Notice, or such other period as the Parties agree in writing, the Dispute will be referred to mediation with the Parties to agree on a mediator who possesses the requisite skills and qualifications to assist the Parties in resolving the Dispute. The Parties will equally share all the costs of the mediation, including without limitation any fees charged by mediator.
14.3 Commencing proceedings
Other than proceedings for urgent interlocutory relief, a Party may not commence or maintain any proceedings in any court with respect to a Dispute unless and until that Party has complied with the procedures in this clause 14.
15. General
15.1 Relationship of the Parties
Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship between the Parties, and each of the Parties agree that they are entering into this Agreement only as independent contractors.
15.2 Force Majeure
(a) Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
(b) If a Force Majeure Event arises:
- the affected Party must notify the other Party of the extent to which the affected Party is unable to perform its obligations;
- the affected Party will use its reasonable endeavours to mitigate the effect of the Force Majeure Event; and
- the affected Party will not be liable to the other Party for any Claim the other Party suffers or incurs as a result of that Force Majeure Event.
(c) A Force Majeure Event does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner.
(d) If the Force Majeure Event continues for a period of more than 30 days, either Party may terminate this Agreement by written notice to the other Party.
15.3 Notices
Any notice given in connection with this Agreement must be in legible writing and must be addressed to a Party and either hand delivered to, or sent by post to the relevant address or emailed to the relevant email address, as set out in the Order. A notice is taken to have been given:
- in the case of being hand delivered, on the date on which it is delivered;
- in the case of being sent by post, on the fifth (ninth if sent to an address in another country) day after the date of posting; or
- in the case of delivery by email, at the time sent, unless the sender is notified, by a system or person involved in the delivery of the email, that the email was not successfully sent.
15.4 Governing Law
This Agreement is governed by the laws of New South Wales, Australia. Each Party submits to the non-exclusive jurisdiction of the courts of New South Wales and its appellate courts.
15.5 Counterparts
This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same Agreement. The counterparts of this agreement may be executed electronically and delivered by electronic means by either party to the other party, and the receiving party may rely on the receipt of such document so executed and delivered by electronic means as if the original had been received.
15.6 Waiver
A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the Party or Parties to be bound.
15.7 Costs
Each Party musty bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
15.8 Severability
If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction, and the remainder of this Agreement will continue to operate in full force.
15.9 Assignment and novation
The Customer may not assign or transfer its rights and obligations under this Agreement without the prior written consent of LX. LX may assign, transfer or novate its rights and obligations under this Agreement without the prior written consent of the Customer.
15.10 Remedies
The rights of a Party under this Agreement are cumulative and not exclusive of any rights provided by Law.
15.11 Amendments
LX may vary the terms and conditions of this Agreement by giving at least 30 days' prior written notice to the Customer. The Customer acknowledges and agrees that notice may be given as a publication or announcement on the Platform.
15.12 Survival
Clauses 1, 6, 8, 9, 10, 12, 13, 14, and 15 survive termination of this Agreement.
15.3 Entire Agreement
This Agreement constitutes the entire agreement between the Parties about its subject matter and supersedes any previous understandings or agreements on that subject matter.
Schedule – Device Warranty
1. LX responsibilities and Customer rights
(a) If the Customer believes a Device has a Defect or is Defective, Customer will immediately notify LX of the potential Defect in writing and provide any information reasonably requested by LX in relation to the potential Defect. Subject to clause 1(b), LX:
- will organise for return of the Device to its premises within five Business Days of receiving the Customer's notice and any relevant information; and
- will use its best endeavours to repair the existing Device or, where repair is not feasible and LX has replacement Devices in stock, provide the Customer with a replacement Device within 14 Business Days of receipt of the existing Device at its premises.
The Customer acknowledges that the timeframe set out in clause 1(a)(ii) represents the time a Device spends at LX in the repair process and does not include time in transit.
(b) If LX reasonably determines the Device does not have a Defect or is not Defective, LX will notify the Customer in writing of its determination and advise whether the Device is functioning, or requires repair or replacement. If the Device:
- is functioning, LX will return the Device to the Customer at the Customer's cost; or
- not functioning (otherwise than as a result of a Defect), and requires repair or replacement, then LX will (at its discretion) use its best endeavours to repair or replace the Device at the Customer's cost.
(c) If LX reasonably determines the Device has a Defect and the Customer wishes to have the Device repaired, serviced or replaced:
- the Customer will notify LX in writing and provide any information reasonably requested by LX in relation to the Device;
- on written confirmation of LX, the Customer will send the Device to LX by nationally-recognised parcel service at the Customer's sole cost;
- LX will, at its discretion and cost, on receipt of the Device:
- use its best endeavours to repair the Device; or
- replace the Device.
2. Customer’s responsibilities
(a) The Customer should only ever send the Device to LX if the LX representative responding to the notice provided in accordance with clause 1(a) has confirmed the Device should be sent to LX. Devices received by LX without notice may be returned to obtain the appropriate information.
(b) The Customer must package all Devices to normal commercial standards, being of the standard of the original packaging in which the Device was initially delivered to the Customer. The Customer must provide for the safe transportation of a Device to LX's nominated premises, and the Customer will bear all risks and costs associated with such transportation.
(c) If required by LX, the Customer must allow for representatives of LX to have remote system access to the Device, or the Customer’s cooperation in provision of vehicles for Device testing and repairs at reasonable times and locations.
3. Limitations on warranty
(a) The warranty period in relation to a Device is 36 months.
(b) The Customer may incur additional charges at the prevailing rates as advised by LX for activities that are not covered under LX’s repair obligations, including:
- replacement of consumable parts or accessories, including but not limited to batteries, cables, print heads, carrying cases, tapes and ribbons;
- repair of problems caused by natural disasters that would cause internal and external component damage or destruction;
- repair of problems caused by the Customer or its Personnel not using the Device in accordance with the Operating Manual, or otherwise using the Device in a manner not permitted by this Agreement, or caused by having the Device repaired by the Customer or a third party;
- repair of problems caused by physical damage, operator error, unauthorized alterations or attempted repair, including alterations or repair conducted by the Customer or a third party; and
- cosmetic imperfections that do not influence functionality of the Device.
(c) LX will be entitled to terminate an Order or the Agreement for excessive replacement requests by the Customer.
(d) LX is not obligated to provide services for any Device if the Customer fails to comply with the obligations contained in this Agreement.
(e) The warranty on any Device:
- deemed by LX (acting reasonably) to have been modified or dismantled, without the prior consent of LX; or
- damaged through misuse or the Customer's abuse (including misuse or abuse by the Customer or a third party), will be void.
(f) The warranty on any Device does not apply to:
- consumable parts, such as batteries or protective coatings designed to diminish over time, unless failure has occurred due to a Defect;
- cosmetic damage, including scratches, dents and broken plastic on parts unless failure has occurred due to a Defect;
- damage caused by accident, abuse, misuse, failure to take reasonable care, loss of parts, fire, liquid contact, impact or other external cause;
- damage caused by improper installation, operation of the Device outside LX’s published guidelines (including the conditions in this Schedule) or in breach of any Agreement between the Customer and LX;
- a Device that has been modified to alter functionality or capability without the written permission of LX;
- a Device that has been purchased from a person other than LX or an authorised LX reseller;
- damage caused by normal wear and tear or otherwise due to the normal aging of the device;
- the Customer's licence to access Incyt Protect; or
- Devices that have been altered or opened contrary to the operating instructions (including without the use of any tool provided with the product for that purpose).
4. Non-excludable Terms
(a) Except as required by any Non-Excludable Terms and any express warranties in the Agreement, all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of LX’s obligations under, or any other services supplied by LX in connection with, this Agreement are excluded.
(b) Where any Non-Excludable Terms apply, the liability of LX for a breach of a Non-Excludable Term implied into this Agreement is limited to the maximum extent permitted by law.
(c) If the Customer is a consumer under the Australian Consumer Law, certain guarantees and rights may be conferred on the Customer which cannot be excluded, restricted or modified. If so, the Parties agree that, to the maximum extent permitted by law, LX’s liability under those guarantees and rights is limited to the re-supply of the relevant goods or services or the payment of the cost of re-supplying the relevant goods or services.