Terms and Conditions of Sale

 

 

 

 

Effective 1st January, 2011

DEFINITIONS

“Company” means

Micall Systems Pty Ltd ABN: 312 496 93734

“Customer” means the party to whom the invoice document is addressed.

“Equipment” means those items of equipment, which are the subject of the Quotation Schedule (as amended, if applicable).

“Contract Value” means the total price for the supply, installation and commissioning of the Equipment which is the subject of the Quotation Schedule.

“Quotation Schedule” means the schedule to this contract, which sets out the Equipment, and the Contract Value.

TERMS AND CONDITIONS OF SALE

The Equipment sold by the Company to the Customer is sold on the following terms and conditions, which shall prevail over all conditions of the Customer’s order to the extent of

any inconsistency.

1. WARRANTY

(a) Emergency Call, Nurse Call, Paging, Personal Security and Cordless Telephone Equipment is warranted for a period of twelve (12) months (“Warranty Period”)

commencing from the date of commissioning. During the Warranty Period, any central Equipment and/or portable units requiring repair must be returned at the

Customer's expense to the Company’s Service Department, (portable units are to be returned in pre-addressed containers). The Customer is responsible for dispatch of

equipment to the Company who will repair and arrange for dispatch back to the Customer. No responsibility is undertaken by the Company for loss or damage whilst in

transit. Other methods of dispatch can be arranged at the Customer's cost. All equipment repairs are warranted for a period of thirty (30) days against a re-occurrence

of the same fault. Repairs that become necessary, other than as a result of physical damage, liquid damage, loss, misuse or abuse, will be promptly carried out subject

to terms and conditions of the warranty at no cost where applicable. Should onsite service be required, the Customer will be charged for labour, travel time and

expenses, onsite service will be charged at the Company’s standard rates. The supply of replacement batteries, aerials, and accessories are not included.

(b) General Warranty Terms and Conditions

This warranty extends only to Equipment supplied by the Company that has been maintained by a person authorised by the company and interfaced in accordance with

the conditions specified by the Company.

2. LIABILITY

The liability of the Company under this contract or under any condition or warranty under the Trade Practices Act and relevant State Legislation, to the extent permitted,

shall be limited, at the Company’s option, to the repair or replacement of the Equipment or the supply of equivalent Equipment or the payment of the equivalent amount,

or to a refund of the purchase price, and in the case of services, to the supplying of services again or the payment of the cost of having the services supplied again. All

implied conditions and warranties, other than those implied by law without the option of contractual alteration are hereby excluded.

The Company shall not be under any liability for any Equipment, which has been maintained or tampered with by a person who is not an employee of the Company or

its authorised agent.

3. PASSING OF RISK

(a) Risk in the Equipment shall pass to the Customer upon delivery of the Equipment to the Customer for collection of the Equipment by the Customer’s agent or courier as

the case may be.

(b) The Customer is responsible for insuring the Equipment from the time of the passing of the risk in the equipment.

4, PASSING OF PROPERTY

(a) Title to the Equipment shall not pass to the Customer until payment in full is received by the Company from the Customer.

(b) The Customer shall be in default under this agreement and the purchase price shall become immediately due and payable if the Customer is a natural person and is

declared bankrupt or enters a scheme or any assignment for the benefit of creditors or if the Customer is a corporation or authority and it resolves to go into liquidation

or has a petition for winding up presented or enters into any scheme of arrangement with its creditors, or has a liquidator, receiver, receiver and manager, or official

manager appointed.

5. ACKNOWLEDGMENTS BY CUSTOMER

The Customer hereby acknowledges and agrees:

(a) That the Equipment must be used properly and with care at all times.

(b) That in certain instances, cabling and pre-installation works may form a substantial part of the quoted cost and form part of any compensation payable to the Company

on cancellation.

(c) That the Company will not accept Equipment returned for credit except after prior agreement with the Company prior to the return of such Equipment.

(d) That the Company will not accept Equipment returned for credit where such Equipment has been used.

6. CANCELLATION

(a) If the Customer cancels any order arising from a quotation after fourteen (14) days of placement of such order but before delivery, it shall be on the following basis (all

cancellation fees based on the Contract Value):

(i) Twenty percent (20%) cancellation fee for any cancellation; plus

(ii) Payment of the whole of the costs to which the Company has become and will become liable up to the date of cancellation.

(b) If the Customer cancels any order arising from a quotation after delivery of such order, it shall be on the following basis (all cancellation fees based on Contract Value)

(i) Payment in full for the Equipment as per the Quotation Schedule and the cost to the Company of any cabling or any other works done by the Company in

preparation for the delivery and installation of any part of the Equipment.

7. MAINTENANCE

(a) The Customer acknowledges and agrees that the sole obligation for proper maintenance of Equipment rests with the Customer, and that maintenance must be by

persons properly skilled and trained by the Company. The Customer further acknowledges that until a maintenance agreement is entered into with the Company in

writing, there is no implied agreement whatsoever arising placing any obligation upon the Company to maintain the Equipment.

(b) If a maintenance agreement is not already entered into, the Company will provide business hours maintenance for the system infrastructure and handsets immediately

after the end of the Warranty Period. The Company will invoice the Customer for a one (1) year maintenance agreement prior to the end of the Warranty Period.

(b) If a maintenance agreement is not required the Customer should notify the Company of this in writing not later than one (1) month before the end of the Warranty

Period

8. FREIGHT

All freight charges are FOB and shall be chargeable (as additional,) to the customer for the supply of equipment in addition to the contract value as and when

applicable, for complete or part shipments of equipment, as it becomes available ex store, warehouse or factory.

9 TERMS OF PAYMENT

(a) A non-refundable deposit of twenty percent (20%) is required with confirmation of orders for new installations and additional equipment over $10,000 (ex GST).

(c) orders requiring installation/commissioning, a progress payment of 30%of the Contract Value is invoiced within 30 days of commencement of the project, upon delivery

of equipment ready for installation to an address specified by the Customer, a further 40% is to be invoiced. If commencement of works or equipment delivery is delayed

by the Customer for whatever reason, 40% of the value of the Contract shall be invoiced on the date the Equipment is available for delivery, or 10 weeks from the order

date. The remaining 10% of the Contract Value falls due for invoicing on the actual completion installation/commissioning date.

(d) For orders, which are delivery only, the remaining 80% of the Contract Value will be invoiced upon delivery of equipment to an address specified by the customer.

In the event that the Company, during the progress of the contract work, is able and willing to complete the contract work, but is delayed in or prevented from so doing by

causes beyond the Company’s control (including but not limited to delays by other contractors of the Customer), or failure by the Customer to agree and make available

Equipment programming details to the Company or failure by the Customer to have any part of the site ready at the time specified in the contract or to allow the Company

unhindered and continuous access to the site, or any other act, neglect or default of the Customer so that the Company is requested by the Customer to delay the completion

of the contract work and if such prevention or request results in the contract work not being completed within 5 days of the agreed date, the Customer shall:-

(I) Pay forthwith to the Company the entire Contract Value.

(II) Re-negotiate with the Company the time when and the terms under which the contract work shall be completed. Such terms shall include but not be limited to the

payment by the Customer of all costs and expenses of the Company attributable to or resulting from such delays or prevention.

(e) Invoices fall due for payment thirty (30) days after the date of invoice

10 OVERDUE ACCOUNTS

(a) Interest on accounts overdue more than thirty (30) days from date of invoice will be charged from the day the amount became due.

(b) The Customer agrees to pay interest on any overdue accounts at the rate from time to time applied by Westpac Bank Ltd on overdrafts in excess of One Hundred

Thousand Dollars ($100,000) plus 2 percent (2%).

11. NON PAYMENT

(a) The Company reserves its right to render the Equipment inoperative if payment has not been received on the due date.

(b) The Customer expressly acknowledges and declares that it will not be entitled to make any claim whatsoever or howsoever arising against the Company for any

damages arising as a result of the Company rendering the Equipment inoperative in the event of non-payment.

(c) The Customer expressly acknowledges and declares that payment in full of the Contract Value shall be a condition precedent to any legal action whatsoever or

howsoever against the Company relating in any way to any part of the Equipment.

12. RADIO SHADOW

Based on the Company’s experience, the Equipment will provide adequate coverage for the purposes that have been described by the Customer. However, many factors such

as metal reinforcement, metal objects/structures, walls, water, foliage, stationary and/or moving objects can influence the radio environment and may cause areas of radio

shadow requiring extra transmitting equipment at a cost that will be charged in addition to the Contract Value. Building alterations and extensions carried out after the

lodgement of the quotation could change the radio coverage. If this occurs extra transmitting equipment may be required at a cost that will be charged in addition to the

Contract Value.

13. RECYCLING

The company’s corporate philosophy includes a commitment to act as a responsible corporate citizen, and is a strong proponent of recycling. If equipment supplied is replacing

existing equipment, the removal of said equipment will be to a licensed recycling plant. The costs for this service will be passed back to the customer at cost.

14. INSTALLATION

The Customer will provide the power requirements specified by the Company for the Equipment and shall be responsible in every respect for the cost of so providing power and

for the reliability of the power so provided. The installation element of the Contract Value assumes the provision of such power points and installation during normal working

hours at which time free access will be available to all necessary areas. Should additional visits be necessitated or additional costs incurred due to suspension of the work on

the Customer’s instructions, lack of instructions, interruptions, delays, unusual hours, mistakes, or work for which the company is not responsible, the charges for such extras

shall be added to the Contract Value and paid for accordingly. The Contract Value does not include the work of other trades such as cutting away, penetrations, firewall repairs

and making good wall surfaces, ceilings, floors etc. or any re-decoration.

15, LICENCE

All radio systems are subject to licence by The Australian Communications Authority under the Radio Communications Act and the supply and installation of the Equipment is

dependent upon the appropriate licences being granted.

16. TELEPHONE LINES – DECT SYSTEMS, MERLON NURSE CALL SYSTEMS & SMARTLINK MEDI-DIALLER’s

The Customer will make available, at the main distribution frame (MDF) an analogue or digital, as appropriate, extension for each DECT cordless telephone as required.

The customer will make available a dedicated telephone line for connection to Merlon systems. The customer will provide a direct telephone line for each Medi-Dialler installed.

17. TRAINING

Upon commissioning of any system, one (1) complimentary on-site staff-training seminar will be provided. The Customer acknowledges and agrees that any additional training

of operators or proposed operators of the Equipment shall be the Customer’s responsibility in all things and at the Customer’s cost.

18. FORCE MAJEURE

In the event of any delay or prevention in performance by the Company due to any cause arising from or attributable to any act of God or to any event beyond the reasonable

control of the Company (including but not limited to delays in obtaining statutory authority approvals, strikes, lockouts, civil commotion, war, terrorism, vandalism, fire,

explosions, storm, earthquake, failure of plant, compliance with governmental authority, inability to obtain suitable materials, components, labour, power or transportation) the

Company shall be under no liability for loss or injury suffered by the Customer thereby and any delivery date or dates herein provided shall be postponed during the period of

such delay or prevention.

19. TERMINATION OF CONTRACT

If the Customer is in default under this contract the Company may, in addition to any other right under this contract or at law, terminate the contract.

20. INCREASE IN DUTIES OR TAXES

Should there be any increase in duties or taxes from any cause subsequent to any quotation given and prior to the date of final invoicing, then the Company shall be entitled to

recover that increase from the Customer.

21 APPLICABLE LAW

This contract shall be governed and construed in accordance with the laws in force in the State of New South Wales and any dispute or litigation arising in relation hereto shall

be dealt with in the appropriate New South Wales Court nearest Sydney.

22. WAIVER

The Company may elect to waive in writing any of its rights hereunder but no such waiver shall affect the Company’s rights in respect to any further or continuing or recurring

breach or event.

23 RENT OR LEASE

If the Customer elects to rent or lease any part of the Equipment through a 3rd party such as a finance company or bank, it is hereby expressly agreed that the Customer will

first arrange for the 3rd party to purchase the Equipment. Any subsequent sale or lease back by the Customer shall be independent in every respect of any business

transaction between the Company and the Customer whatsoever or howsoever arising.

24. SEVERABILITY In the event that any part of these terms and conditions are void, Voidable, illegal or otherwise unenforceable it may be severed, there from and the

remaining provisions of these terms and conditions shall remain in full force and effect.

25. OWNERSHIP OF SOFTWARE The Company retains title to all software including sales and service documentation. Copyright is similarly retained and reproduction expressly

forbidden unless permission is given in writing. The Company shall extend a royalty free non-exclusive licence to the Customer for use of such software related to the

Equipment concerned for the period during which the equipment remains in the Customer’s direct control.

 

 

Micall Systems Pty Ltd ABN: 312 496 93734

Terms and Conditions of Sale, effective 1st January, 2011

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