IncytProtect Terms and Conditions

1. Definitions and Interpretation

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1.1 Definitions

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In this Plan, unless the context requires otherwise:

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‍Accidental Damage means material failure of the Device to function in accordance with its original specifications due to accidental damage from handling resulting from an unexpected and unintentional external event;

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‍Agreement means the contract between LX and the Customer in relation to the Device(s), as specified in the Order;

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‍Battery Depletion means the point at which the Device's battery ceases to have any electrical charge;

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‍Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales, Australia;

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‍Claim means actions, suits, causes of action, proceedings, claims or demands;

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‍Commencement Date means the commencement date of this Plan, as specified in the Order; 

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‍Corporations Act means the Corporations Act 2001 (Cth);

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‍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;

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‍Device means the device, equipment, hardware or tool provided by LX to the Customer pursuant to the Agreement;End Date means the end date of this Plan, as specified in the Order;

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‍Fees means the Plan Fees and Service Event Fees; 

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‍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;

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‍GST means any tax, levy, charge or impost implemented under the GST Act;

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‍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;

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‍Interest Rate means the then-current Commonwealth Bank of Australia business overdraft index rate; 

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‍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;

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‍Order means the document setting out the Commencement Date, End Date, Fees and other details of this Plan;

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‍Party means a party to this Plan and Parties means both of them; 

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‍Personnel means in respect of a Party, that Party's employees, officers, contractors and agents; 

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‍Plan means these terms and conditions, together with the Order;

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‍Plan Fees means the fees payable by the Customer for the Plan, as specified in the Order; 

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‍Service Event means any of the events specified in clause 3.2(a);

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‍Service Event Fees mean the fees payable by the Customer for the Services, as published on LX's website or otherwise provided to the Customer from time to time;

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‍Services means the supply of repair, service and replacement services in relation to the Device by LX in accordance with clause 3.2; and Term means the period between the Commencement Date until the End Date, unless terminated earlier in accordance with clause 7.

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1.2 Interpretation

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The following apply in the interpretation of this Plan, unless the context otherwise requires: 

(a) clause and sub-clause 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;

(k) 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; 

(l) 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

(m) a reference to dollars or $ means Australian dollars.‍

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1.3 Inconsistency 

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The Plan governs the provision of the Services by LX to the Customer.  If there is an inconsistency between the body of the Plan and the Order, the Order will prevail to the extent of the inconsistency.

2. Term

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(a) The Plan is effective for the Term. The Customer acknowledges and agrees that any request for Services by the Customer after the Term will not be covered by this Plan. (b) The Term will automatically renew for successive one-month periods unless terminated by either Party in accordance with clause 7. (c) In the event LX is no longer able to service the Device, LX will provide the Customer with at least 30 days' prior written notice of non-renewal of the Term.

3. Plan Coverage

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3.1 Acknowledgement

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(a) The Customer acknowledges and agrees the benefits set out in this Plan are additional to any rights under applicable laws, the hardware warranty set out in the Agreement, and/or any complimentary technical support (if any). 

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(b) The Plan covers:

• the Device(s); 
• the accessories contained inside the original packaging of the Device(s); and 
• any replacement Device(s) provided to the Customer by LX in accordance with this Plan, provided that: 
• in the case of clauses 3.1(b)(i) and (ii) above, the Customer entered this Plan within seven days of purchasing or obtaining the Device(s) from LX;
• the installation of the Device(s) and any accessories by the Customer was approved in writing by LX; and 
• in the case of clauses 3.1(b)(i) and (ii) above, the Device(s) was purchased from LX or provided by LX on a hardware as a service basis.

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3.2 Inclusions

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(a) The following Service Events are covered under this Plan:

• a Defect has arisen in the Device that is not covered by the hardware warranty set out in the Agreement; 
• the Device is subject to Battery Depletion that is not covered by the hardware warranty set out in the Agreement; or
• the Device is subject to Accidental Damage.

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(b) Subject to clause 4.1 and 5.1(a), if a Service Event has occurred, LX will either:

• repair the Defect using new parts or previously used genuine LX parts that have been tested and pass LX functional requirements; or
• exchange the Device with a replacement product that is new or comprised of new and/or previously used genuine LX parts that have been tested and pass LX functional requirements.

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(c) All replacement Device(s) provided under this Plan will at a minimum have the same or substantially similar features as the original Device(s). 

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(d) If LX exchanges the Device, coverage of that Device is effective for the remainder of the Term. 

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3.3 Exclusions

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LX will not provide the Services:

(a) to protect against normal wear and tear; 

(b) to repair cosmetic damage not affecting the functionality of the Device; 

(c) to conduct preventative maintenance;

(d) to repair damage caused by reckless, abusive, wilful, unlawful or negligent conduct, or any use of the Device in a manner not normal or intended by LX;

(e) to install, remove or dispose of the Device provided to the Customer while the Device is being serviced;

(f) to repair damage caused by a product that is not a product of LX;

(g) to repair any damage to a Device (regardless of the cause) that has been opened, serviced, modified or altered other than by LX or its authorised representative;

(h) to repair pre-existing conditions of the Device if the Plan was purchased after the Device;

(i) to repair any damage to a Device with an altered, defaced or removed serial number;

(j) repair damages caused by Force Majeure Events;

(k) other than covered losses specifically stated in this Plan, for the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate any electronic hardware or software, or components thereof, that are used to store, process, access, transmit, or receive information within the Device as a result of any cause or loss, including any unauthorized access or unauthorized use of such system, a denial of service attack, or receipt or transmission of malicious code; or 

(l) for the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate any electronic data stored within the Device, including any such loss caused by unauthorised access or unauthorised use of such data, a denial of service attack, or receipt or transmission of malicious code.

4. Claims

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4.1 Claims

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(a) The Customer must promptly (and in no event longer than five Business Days after becoming aware of the Service Event with the following information:

• the Plan reference no.;
• a copy of the Device’s original proof of purchase; and
• information about the symptoms and causes of the Service Event.

(b) LX may request further information from the Customer to make an assessment of the Service Event.

(c) The Customer must, as a condition of receiving the Services, return the Device and any original parts or replacement components to LX. The Customer acknowledges that installation of third party parts or components may affect this Plan.

(d) If LX agrees (acting reasonably) that a Service Event has occurred, LX may either:

• provide the Customer with a pre-paid parcel and, if necessary, packaging material, in which case:
  • the Customer will send the Device to LX's nominated premises in accordance with LX’s instructions; and
  • on completion of the service, LX will return the Device to the Customer at LX's cost; or
• LX will send the Customer the replacement Device at LX's cost, in which case:
  • if LX requires return of the Device:
    • LX may require a credit card authorisation to serve as security for the applicable shipping costs until the Customer returns the Device; and 
    • if the Customer fails to return the Device as instructed, or returns a Device that is ineligible for service, LX may charge the credit card for the authorised amount; or
    • if LX does not require return of the Device, LX will send the Device to the Customer at LX's cost, as well as any applicable instructions or requirements for disposal of the Device; or
  • provide reasonable direction to the Customer for the return, replacement or repair of the Device.
• The Customer acknowledges and agrees that the provision of the Services will be subject to part availability and may be affected by shipping or post delays, and as such response times may vary.

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4.2 Customer responsibilities

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The Customer will:

(a) promptly respond to requests for information required for the diagnosis or service to the Device;

(b) follow the reasonable instructions of LX; and

(c) update software to currently published releases prior to seeking the Services.

5. Fees and Payment

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5.1 Fees

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(a) The Customer will pay the Fees specified and invoiced by LX in accordance with the Order and this Agreement, where applicable.

(b) The Parties agree that:

• LX may revise the Plan Fees at any time by providing at least 30 days written notice to the Customer, provided that the Customer may terminate this Agreement at any time during that notice period by notice in writing; and 
• LX may revise the Service Event Fees at any time by publishing the updated Service Event Fees on LX's website, provided that such updated Service Event Fees will not come into effect until 30 days after such publication.

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5.2 Invoicing and payment

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(a) LX will issue invoices for the Fees and the Customer must pay all undisputed invoices within 14 days from the date of invoice. 

(b) LX will invoice the Customer for:

• the Plan Fees, monthly in advance; and
• the Service Event Fees, at the end of each month in arrears. 

(c) 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 8. 

(d) Subject to clause 5.2(c), 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. 

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5.3 Taxes

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(a) Unless expressly stated otherwise, all amounts payable under this Plan exclude GST. 

(b) If GST is imposed on any supply made under or in accordance with this Plan, 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 Plan.

(c) If this Plan 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.

6. Liability

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6.1 Limitation on liability 

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To the maximum extent permitted by applicable law: 

(a) LX and its Personnel will not be liable to the Customer or any transferee of the Device for any indirect or consequential damages, including, but not limited to, the costs of recovering, reprogramming, or reproducing any program or data or the failure to maintain the confidentiality of data, any loss of business, profits, revenue or anticipated savings, resulting from LX’s obligations under this Plan; and

(b) LX's and its Personnel's maximum liability to the Customer and any transferee will be limited to:

• the Fees paid under this Plan 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. 

(c) Nothing in this Plan limits or excludes either Party’s liability for:

• death or personal injury caused by negligence where such limitation or exclusion is unlawful; or 
• fraud.

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6.2 Non-Excludable Terms

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(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 Plan are excluded.

(b) Where any Non-Excludable Terms apply, the liability of LX for a breach of a Non-Excludable Term implied into this Plan 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.

7. Termination

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7.1 Termination for convenience

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The Customer may terminate this Plan at any time by giving at least 30 days' prior written notice to LX. 

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7.2 Termination by LX

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(a) LX may terminate this Plan if the Fees are not paid in full when due and payable.

(b) LX may terminate this Plan for the Customer's fraud or misrepresentation, or if service parts for the Device are not available, on at least 30 days' notice in writing to the Customer.  In the event LX terminates this Plan pursuant to this clause 7.2(b), the Customer is not entitled to any refund under clause 7.4.

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7.3 Termination of Agreement 

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This Plan automatically terminates in the event the Agreement is terminated for any reason. 

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7.4 Consequences of termination

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Subject to clause 7.2(b), upon expiry or termination of this Plan in accordance with this clause 7:

(a) where this Plan is terminated within 30 days of the Commencement Date, LX will refund the Customer any amount paid to LX in advance less the value of any Services provided to the Customer under this Plan; 

(b) where this Plan is terminated more than 30 days after the Commencement Date, LX will provide the Customer a pro-rata refund based on the percentage of the Term remaining, less the value of any Services provided to the Customer under this Plan; and

(c) the Customer acknowledges that it cannot enter into a new Plan with LX for the same Device(s) as the terminated Plan.

8. Dispute resolution

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8.1 Dispute Notice 

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If any dispute or difference arises between the Parties with respect to the construction, effect or operation of this Plan, or with respect to any matter connected with this Plan 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 8 (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.‍

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8.2 Mediation 

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If the Dispute is not resolved in accordance with this clause 8 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. 

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8.3 Commencing proceedings 

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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 8.

9. General

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9.1 Relationship of the Parties

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Nothing in this Plan is intended to create a partnership, joint venture, or agency relationship between the Parties, and the Parties agree that they are entering into this Plan as independent contractors. 

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9.2 Force Majeure

(a) LX will not be liable to the Customer for any delay or failure to perform its obligations under this Plan as a result of a Force Majeure Event. If a Force Majeure Event arises, LX:

• will notify the Customer of the extent to which LX is unable to perform its obligations; 
• will use reasonable endeavours to mitigate the effect of the Force Majeure Event; and 
• will not be liable to the Customer for any Claim that the Customer suffers or incurs as a result of that Force Majeure Event.

(b) 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.

(c) If the Force Majeure Event continues for a period of more than 30 days, either Party may terminate this Plan by written notice to the other Party. 

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9.3 Notices

Any notice given in connection with this Plan 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: (a) in the case of being hand delivered, on the date on which it is delivered; (b) 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 (c) 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.

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9.4 Governing Law

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This Plan 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. 

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9.5 Counterparts 

This Plan may be executed in any number of counterparts, all of which taken together are deemed to constitute the same agreement. 

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9.6 Waiver

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A provision of this Plan or a right created under it, may not be waived or varied except in writing, signed by the Party or Parties to be bound.

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9.7 Costs

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Each Party musty bear its own costs arising out of the negotiation, preparation and execution of this Plan.

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9.8 Severability 

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If any part or provision of this Plan is judged invalid or unenforceable in a jurisdiction, it is severed for that jurisdiction, and the remainder of this Plan will continue to operate in full force.

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9.9 Assignment and novation

The Customer may not assign or transfer its rights and obligations under this Plan without the prior written consent of LX.  LX may assign, transfer or novate its rights and obligations under this Plan without the prior written consent of the Customer. 

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9.10 Remedies 

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The rights of a Party under this Plan are cumulative and not exclusive of any rights provided by Law. 

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9.11 Amendments 

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LX may vary the terms and conditions of this Plan 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 LX's website. 

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9.12 Survival 

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Clauses 1, 5.3, 6, 7, and 9 survive termination of this Plan. 

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9.13 Entire agreement

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This Plan constitutes the entire agreement between the Parties about its subject-matter and supersedes any previous understandings or agreements on that subject-matter, provided that the Agreement continues in full force and effect.