3.11. Global General Terms and Conditions of Trade Agreement
- “XSTRA” – XSTRA Group Pty Ltd (Australia) (ABN: 95 104 881 843) – Registered office at 7/2 Benson Street, TOOWONG, QLD 4066 (Ph.: 1300 555 920 or +61 7 3123 4111) or its independent foreign entities or authorized agents as listed in our publicly available Global Contact Information and Global Company Information pages.
- “Client” – is “you” being any entity who rent, use, purchase or consume the “Equipment”. Also referred to as the “Customer” from time to time.
- “Equipment” – includes XSTRA and 3rd party sourced products and services supplied by XSTRA to the “Client”. References to “Equipment” in these General Terms and Conditions of Trade may refer to the “Equipment” “in the whole” or where applicable, “in part”.
- “Supplier” – any company or individual providing products or services to XSTRA or Clients of XSTRA
- “Minimum Contract Period” – refers to the minimum amount of time the Client must pay XSTRA for the provision of all or any particular sub-component of the Equipment supplied to the Client
- “Offer” – an offer made by XSTRA to the Client, to supply “Equipment” to the Client. An Offer will be in writing and may take the form of an electronic shopping cart process, proposal, quote, email, or technical recommendation.
- “CIS” – Critical Information Summary – sets out the Terms and Conditions for Equipment (like the service features, call charges, and maintenance commitments that apply to that service).
- Schedule 1 – contains a list of XSTRA’s standard rates and charges that will be charged to the Client.
XSTRA and the Client agree to the following:
1.1 These General Terms and Conditions, shall hereafter be referred to as the “Agreement”.
1.2 The Equipment is offered to the Client conditional on the Client’s acceptance without modification of the Agreement. Your use and or request to use the Equipment constitutes your acceptance of this Agreement and acceptance of the conditions specified in the Agreement.
1.3 References to clauses and schedules are references to clauses of and schedules to this Agreement.
1.4 References to any law include any consolidations, amendments, re-enactments or replacements of that Law.
1.5 Words in the singular include the plural and vice versa.
1.6 Headings have been inserted for convenience and are not to be interpreted as a part of this Agreement.
1.4 The indemnities bestowed upon XSTRA provided under this Agreement survive the termination or expiration of this Agreement.
1.5 Any provision of this Agreement which is declared void, voidable, or unenforceable by a court of competent jurisdiction may be severed from the Agreement and the remainder of the Agreement will continue unaffected.
1.6 As it applies to standard Telecommunications legislation, this Agreement is XSTRA’s “Standard Form of Agreement”. Under the legislation:
a) the Client and XSTRA must comply with this Agreement unless the Client and XSTRA agree differently;
b) if XSTRA changes this Agreement and it would cause detriment to the Client, XSTRA must first publish an advertisement or tell the Client directly; and
c) if XSTRA change this Agreement and it does not cause detriment to the Client, XSTRA can make the change without having to first publish an advertisement or tell the Client directly.
1.7 This Agreement shall be construed and governed by the laws of the State of Queensland Australia, and the parties hereby agree to submit themselves to the nonexclusive jurisdiction of the courts of that State.
1.8 XSTRA may terminate this Agreement with the Client at XSTRA’s discretion by giving 45 days’ notice in writing to the Client.
1.9 This Agreement takes precedence is there is any conflict with XSTRA’s other policies including but not limited to XSTRA’s:
2. Client’s Obligations
2.1 The Client must comply with this Agreement.
2.2 If the Client is in breach of this Agreement, XSTRA will notify the Client of the specified breach in writing.
2.3 This Agreement describes the Client’s and XSTRA’s obligations in relation to the provision of Equipment by XSTRA to the Client.
2.4 This Agreement shall be binding on all successors, heirs, and assignees of the parties. The Client shall not give or transfer any rights or obligations under this Agreement without XSTRA’s prior written approval.
2.5 XSTRA and or the Client does not waive its rights under this Agreement unless the waiver is in writing and signed by an authorized representative of XSTRA
2.6 XSTRA may need the Client’s consent to do certain things. XSTRA can rely on the authority of any of the Clients employees who tells XSTRA they have the authority to give consent on behalf of the Client, as long as XSTRA acts in good faith.
2.7 To ensure the operational integrity of the Equipment, the Client must maintain and repair any item or service at the Clients premises that do not belong to XSTRA that XSTRA asks the Client to undertake.
2.8 The Client is responsible for and must pay, for any use of the Equipment, whether authorized by the Client or not.
2.9 If the Client does not arrange with XSTRA to disconnect the Equipment at any premises when the Client leaves that premises, the Client must pay for the provision of the Equipment and any use of the Equipment by later occupants or others.
2.10 The Client must not use the Equipment to commit an offense or allow anybody else to do so.
2.11 The Client must ensure that all cabling used in conjunction with the Equipment is fully tested and certified and that, if there is existing network infrastructure in place, that it is performing correctly and to normal performance levels. For example, latency between hosts on any local network should be less than 2 milliseconds and have 0% dropped packets. (hmm)
3. Liability Disclaimer
3.1 Offer & Acceptance: XSTRA provides Clients with an Offer to provide, to the Client, the Equipment listed on the Offer. The Client must indicate their acceptance in written form either physically or electronically and the acceptance must be made by a person authorized to represent the Client and all Offers are subject to the contents and terms made in the Offer by XSTRA. However, XSTRA reserves the right to retract any Offer, under any circumstances, at any time, without cause or reason, prior to the Offer being accepted by the Client.
3.2 Changes are periodically made to XSTRA Systems and Equipment and to the information therein. XSTRA and/ or its Agents may make improvements and/or changes to the Equipment at any time and if the Client is expected to be impacted by these changes, and where possible, the Client will be provided with 24 hours’ notice prior to any changes taking place. Critical updates and security fixes may be made at any time. If access to a Client’s premises is required and protocols/checks are required, XSTRA will ensure that they and any 3rd party vendors comply with the Client’s requirements as XSTRA deems reasonable, before attending sites.
3.3 XSTRA and/or its Agents make no representation or direct warranty about the reliability, safety, availability, or timeliness of the Equipment supplied to the Client.
3.4 Equipment Performance – With the exception of specific Service Level Agreements that may be offered directly to Clients or specifically mentioned in relation to particular Equipment components, all Equipment is provided on a “Best Effort” basis. In addition, XSTRA will not be liable for any delay or failure to provide the Equipment to any party if the delay is due to a Force Majeure event (i.e., an event which is outside the control of XSTRA such as power failure, strike action, etc.) and/or Act of God.
3.5 If the Client requires specific information regarding any Equipment, the Client may request this information in writing and XSTRA will provide the requested information at XSTRA’s discretion.
3.6 In the event the Client is dissatisfied with any part of this Agreement or the Equipment, XSTRA provides the Client with the ability to discontinue using the Equipment, and to pay any:
a) Minimum Contract Period obligations associated with the Equipment; and
b) any outstanding debts to XSTRA
3.7 Where the Clients’ equipment causes a fault with the Equipment, XSTRA can charge the Client reasonable charges at the rates as specified in Schedule 1 to rectify the fault.
3.8 XSTRA does not promise to monitor your Equipment for excessive or unusual usage. XSTRA can suspend or cancel your Equipment if it is used in an excessive or unusual way, but do not promise to do so. The Client must pay any charges incurred for any excessive or unusual usage and any re-connection costs as applicable or as specified in Schedule 1.
3.9 If the Client uses the Equipment to access a service provided by someone else, and XSTRA is charged for that other service, you must pay us for that service and any fees and any costs XSTRA incurs as specified in Schedule 1.
3.11 The Client must:
a) do what XSTRA instructs it to do if the Clients use of the Equipment interferes (or threatens to interfere) with the efficiency of our network, general performance, risk, and/or is likely to affect other Clients of XSTRA or 3rd parties
b) ensure no-one interferes with the operation of the Equipment or makes it unsafe
c) accept responsibility for all equipment at the Client premises (including any that belongs to XSTRA). The Client must pay XSTRA for any loss or damage to XSTRA’s Equipment at your premises, except for fair wear and tear.
d) arrange and pay for any electricity supply needed for the Equipment at the Clients premises. The Equipment may not work if the electricity supply is cut.
e) use its best efforts to ensure it only uses communications, electrical, and other equipment that complies with relevant technical standards and other relevant requirements. For example, the Client must ensure all communications equipment complies with Australian standards (see the Australian Communication Authority’s website at http://www.acma.gov.au)
f) make any changes to its equipment as requested by XSTRA to avoid any danger or interference it may cause
g) tell XSTRA about any relevant changes to your equipment
3.12 The Client indemnifies XSTRA against (and must pay XSTRA for) any loss or damage XSTRA suffer, relating to:
a) the use (or attempted use) of the Equipment;
b) the use of other equipment used in connection with the Equipment supplied by XSTRA.
3.13 The Client indemnifies XSTRA against (and must pay XSTRA for) any costs (including legal costs) relating to the Clients’ breach of this Agreement.
3.16 Certain laws imply terms into contracts for the supply of goods or services that cannot be excluded (e.g. that services are provided with due care and skill and goods are reasonably fit for their purpose and of a certain quality). If those terms are implied in this Agreement and XSTRA breach them, then XSTRA accepts liability for the breach, and XSTRA’s liability is limited to resupplying, repairing, or replacing the relevant Equipment where it is fair and reasonable to do so.
Installing the Equipment
3.17 Unless the Equipment is purchased outright, the Client agrees to provide XSTRA with access to the Client’s premises and reasonable assistance so that XSTRA may gain access to the Equipment, connect and disconnect the Equipment, perform maintenance and generally ensure that the Client complies with the Agreement. XSTRA is to attempt to provide the Client with reasonable notice in writing when access is required based on the urgency of access required.
3.18 The installation, inspection, and maintenance of the Equipment by XSTRA may cause damage to the Client’s property but XSTRA will endeavour to prevent such damage in accordance with best practice and procedure principals. The Client releases XSTRA from any claims arising out of such damage and indemnifies XSTRA against any losses or costs in relation to the Client’s property.
3.19 XSTRA reserves the right to charge the Client for non-standard pre-installation, system integration work, re-installation at a new address, or any other similar non-standard work, at the rates as specified in Schedule 1. In addition, any re-installation or retrofit work required because of inaccurate information provided by the Client will be charged to the Client at the rates set out in Schedule 1.
3.20 If the Client does not own the premises in which the Client is situated, the Client represents and warrants to XSTRA that the Client has notified the relevant owner and/or obtained its permission prior to XSTRA entering the premises, to install the Equipment and to make physical modifications to the premises in order to install or remove the Equipment. Furthermore, the Client agrees to indemnify XSTRA against any claim made against XSTRA by another person or a third party, in connection with XSTRA performance in providing, modifying, or removal of the Equipment.
3.21 Any labour to supply, install, configure and test the Equipment for a Client, whether supplied by XSTRA or not, that requires the attendance to the site of an XSTRA technician or Agent, irrespective of any Support plan or agreement in place between the Client and XSTRA, will be charged to the Client at the rates set out in Schedule 1 unless the Client has a written formal exemption from XSTRA for such work to be carried out at no charge or at a rate less than or more than the rates set out in Schedule 1.
3.22 XSTRA is only liable to the Client in the cases set out in this clause when mentioned explicitly. Otherwise, XSTRA is not liable to the Client in contract, tort (including negligence) or otherwise for any loss or damage. For example, XSTRA is not liable for loss of profits or anticipated savings, economic loss, lost data, or any indirect or consequential damage.
4. General Physical Equipment Warranty or General Return of Goods
4.1 XSTRA provides a Warranty on any Equipment of a physical nature supplied by XSTRA. This Warranty commences from the date of the invoice for the provision of the physical Equipment or if not applicable, on the date of installation or supply. The Warranty period end date is provided by XSTRA on its invoices sent to the Client. If the Warranty is not mentioned, then the Warranty is deemed to be 90 days from the invoice date. If the Client notifies XSTRA of a fault with the physical Equipment within the XSTRA Warranty period, XSTRA will repair or replace the faulty item within 30 days of receiving the Equipment from the Client with the cost of freighting the Equipment to XSTRA to be paid by the Client, with the cost of freighting the Equipment back to the Client to be paid by XSTRA. However, if the fault was caused by:
a) non-XSTRA equipment (such as the Client’s Network Device, software or data)
b) interference with or modification to the physical Equipment without prior consent from XSTRA and/or general damage to the physical Equipment including but not limited to damage by 3rd parties
c) failure to use the physical Equipment in accordance with any instructions that could have reasonably been acquired by the Client
d) power interference, including lightning strike, power surges/spikes or brownouts
then the Warranty is void. Furthermore, XSTRA is not obligated to provide loan physical Equipment to the Client while the affected physical Equipment is being replaced or repaired.
4.2 In honouring any warranty, service, or support obligations, XSTRA may repair or replace the faulty Equipment with similar functioning equipment at its discretion.
4.3 Outside of the warranty period, the operation of the Equipment, and any repairs to it will be the Client’s responsibility. If XSTRA repairs such Equipment, XSTRA will charge the Client a fee for doing so at the rates set out in Schedule 1.
4.4 XSTRA can provide support on physical Equipment supplied by XSTRA. Any such support required by the Client in relation to the Equipment or its function will be charged at the rates set out in Schedule 1 unless such support is covered under a different arrangement with the Client approved by and agreeable to XSTRA.
4.5 Warranty Returns Condition: Physical Equipment supplied by XSTRA may have tamper-proof bar-code stickers attached to it for identification. The absence of this bar-code sticker or signs of tampering to the same shall void any warranty claim.
4.6 General Return of Goods: At XSTRA’s discretion, the Client may return any tangible Equipment to XSTRA within 7 working days from the date of the invoice upon which the Equipment is listed or from the date the Client received the Equipment, whichever date is earlier, for a conditional refund of the purchase price, less a 40% restocking fee provided the Equipment is complete and returned in a saleable condition in the original packaging. The refund will take the form of an XSTRA issued Credit Note. All refunds are subject to XSTRA approving of the return in writing to the Client and by providing a Return Authorization (RA) number to the Client prior to the Client sending the Equipment to XSTRA. Any refunds are at the full discretion of XSTRA and subject to review when the Equipment is received by XSTRA from the Client. The Client must bear all freight costs for the Equipment to be returned to a location specified by XSTRA.
5. Payment, Taxes & Direct Debit Agent
5.1 In return for the provision of the Equipment to the Client by XSTRA, the Client is required to pay to XSTRA the charges specified in Schedule 1 (“the Charges”) and/or any other charges shown on an invoice naming the Client.
5.2 Except as expressly stated, prices quoted are tax exclusive.
5.2.1 Any tax exemption status claims must be made to XSTRA in writing and such claims will be considered and approved or denied by XSTRA in writing to the Client after XSTRA has sought its own advice on such claims. Any tax shown on an invoice charged to the Client is payable always, regardless of the Client’s tax exemption claim, and any un-remitted tax from XSTRA, paid by the Client, will be refunded to the Client upon successful application to XSTRA for a tax exemption.
5.3 XSTRA will use a third party Direct Debit Payment Agent to receive payments from the Client to pay for invoices assigned to the Client by XSTRA when they fall due. The Client agrees to authorize XSTRA to establish a facility with the Direct Debit Payment Agent for the purposes of collecting money from the Client and the Client agrees to nominate a suitable funding source (Bank Account, Sub-Account or Credit Card) during the establishment of this Direct Debit Payment facility and to inform XSTRA directly of any changes to the funding source that could prevent the Direct Debit Payment Agent from deducting money from the nominated funding source.
5.4 The Client will be liable for setup, variation, credit card surcharges, and merchant fees and processing fees associated with the use of the Direct Debit Payment Agent’s services or facilities as prescribed on the Direct Debit Payment Authority application form that will be supplied to the Client by XSTRA on behalf of the Direct Debit Payment Agent and updated from time to time or as shown in Schedule 1.
5.5 Any regular supply of Equipment to the Client on a periodical basis will be invoiced “periodically in advance” meaning the Client must pay for access or consumption, to or of, the Equipment prior to the Equipment being accessed or consumed.
5.6 Equipment Change Request – Where the Equipment is provided to the Client in units and billed on a regular basis, there will be no pro-rata reduction in charges for changes made to the number of billable units of Equipment for any 1 period. E.g.: if Equipment is billed to a Client per user and the number of users is reduced mid-way through a billing period then the highest number of users for the period will be the number selected for billing purposes. For clarity, XSTRA will charge the Client for the highest number of units of Equipment consumed in any one period. This includes cancellations and Equipment type variations, and in such circumstances, the highest value of all Equipment within the billing period will be the charge shown on the invoice to the Client. Furthermore, new or additional Equipment subject to this section 5.6, that is added to a Clients account and invoiced will have the amount for such Equipment pro-rated from the start date to the end of the billing period in which such Equipment was added, plus any subsequent periods and periods in advance subject to section 5.5. All Client Equipment Change Requests must be made in writing from the Client to XSTRA. For clarity, XSTRA will not refund the Client for any Equipment cancellations or unit reductions where the Equipment was invoiced in-advance.
5.7 For Clients who do not have a Direct Debit facility in place with XSTRA, their account status will be “CBD – Cash Before Dispatch” meaning payment terms are strict “cash before dispatch” or as indicated on the invoice provided to the Client by XSTRA.
5.8 If full payment is not made within this period, XSTRA reserves the right to suspend access to the Equipment or specific service(s) or item(s) in dispute until payment is made. A re-connection or resumption charge will apply if the Client requests to have the Equipment re-instated after full payment. Any costs incurred by XSTRA in recovering outstanding debts from Clients will be charged to the Client. XSTRA reserves the right to pass any debt outstanding to a third-party collections agent. The Client may dispute the contents of the invoice and XSTRA at its discretion may credit the Clients’ account or make any adjustments necessary on a future invoice as settlement.
5.9 Title overall Equipment of a tangible nature or not, sold to a Client, does not revert to the Client until XSTRA has received full and cleared payment for such Equipment.
5.10 XSTRA will remain the owner of or maintain full charge and responsibility for the supply of, all Equipment supplied to or accessed by the Client unless legal ownership of the Equipment is legally able to, and was intended to, be transferred to the Client in whole under this agreement, then that component of the Equipment shall become the legal property of the Client after XSTRA has received full and cleared payment from the Client for that component of the Equipment. XSTRA may reclaim and re-purpose any Equipment still owned by it if payment is not received in full within 90 days after the due date.
5.11 XSTRA may need to wait for an invoice from a 3rd party in relation to Equipment supplied to a Client by XSTRA or on XSTRA’s behalf. This may mean that a Client may not be billed for Equipment for a prolonged period after the Equipment was supplied. XSTRA will invoice the Client for the applicable components of the Equipment once it has received details of the Equipment delivered to the Client and work done by the 3rd party. As a result, an invoice for the Equipment supplied from XSTRA to the Client may be delayed. XSTRA will try to ensure this delay is kept to a minimum.
5.12 XSTRA’s records are proof enough that an invoice, charge, or fee is payable to XSTRA by the Client unless XSTRA agrees that its records are incorrect, and in such circumstances, XSTRA will remedy the situation by correcting its records and any subsequent charges affected by such correction.
5.13 The Client must make any claim that charges on an invoice are incorrect within 12 months of the invoice date and furthermore, all claims must be made in writing with supporting documentation, which will be considered by XSTRA in its determination on whether the claim is valid, and if XSTRA agrees that the claim is valid in full or in part, then XSTRA will remedy the situation within 45 days.
5.14 XSTRA makes no promise to the Client that all charges for any billing period will occur on a single invoice.
5.15 XSTRA can round charges up or down to the nearest whole cent (0.5 cents is rounded up). If the Client pays an invoice by cash, XSTRA may round the amount payable by the Client to the nearest multiple of five cents.
5.16 XSTRA may use any credits owed to a Client to settle any debts owed to XSTRA by the Client. If the Client becomes, or is suspected to be, bankrupt or insolvent, XSTRA may use any and all lawful means at its’ disposal to settle any debt owed to XSTRA by the Client as deemed owing by XSTRA, even if such amounts are not yet due. The Client must pay all debts to XSTRA without any set-off, counter-claim, or deduction.
Special Equipment – “pass-through components” from 3rd party suppliers
5.17 Some components of the Equipment are defined as “pass-through components” supplied to XSTRA by 3rd party suppliers and subsequently passed through for use by the Client (e.g. telephone service usage charges, licensing costs, etc.). These are contracts, standard business arrangements, or agreements struck by or charged against XSTRA on the Clients’ behalf or are as a result of the Clients’ use of the Equipment (like international calls) and usually come with minimum term supply commitments. If the 3rd party suppliers charge XSTRA more than we charge you for the service, XSTRA at its discretion can charge the Client the difference in addition to XSTRA’s charge. At all times, irrespective of disputes the Client may have regarding these “pass-through components” directly or any other disagreements with XSTRA or a 3rd-party supplier of XSTRA’s, the Client guarantees and agrees to pay all of the invoices from XSTRA including any “pass-through components” of the Equipment on the standard payment terms in full, to ensure continuity of services to the Client and other Clients of XSTRA and to ensure XSTRA meets its’ obligations to the 3rd party suppliers. Withholding of payment for “pass-through components” by the Client is strictly forbidden under all circumstances. Items on an XSTRA issued invoice to the Client that contain “pass-through components” will be labelled as such and their applicable % of value attributable stated as such as well as any minimum term commitments. The establishment of all “pass-through components” by XSTRA for the Client and subsequent adjustments/deletions, if permitted by the 3rd party supplier, need to be made by the Client in writing to XSTRA. Any disputes arising from the Client, regarding “pass-through components” will be managed by XSTRA in a timely manner in consultation with the Client and the 3rd party supplier, with the outcome of such matters passed through to the Client and where there is a financial outcome, this will be reflected in the Client’s invoice from XSTRA. Significant or protracted disagreements with 3rd parties may require a coordinated response by both XSTRA and the Client and if the Client demands that XSTRA undertake an action that would give rise to a penalty from the 3rd party against XSTRA, then this request must be made to XSTRA in writing, and at XSTRA’s discretion, will work with the Client to formulate a plan to take action against the 3rd party supplier, however, the Client hereby agrees to indemnify XSTRA and cover any of XSTRA’s costs in relation to such action including but not limited to legal and administrative costs deemed reasonable by XSTRA. If the Client for any reason seeks to stop using the Equipment, the “pass-through component” costs will continue until the underlying contract between XSTRA and the 3rd party supplier expires and the Client shall continue to be liable for all associated costs incurred by XSTRA or until the Client settles on XSTRA’s behalf all applicable obligations between XSTRA and the 3rd party supplier. The Client may request copies of any agreements, terms or other details regarding any 3rd party pass-through arrangements including but not limited to, contracts, product information, terms and conditions and these will be provided to the Client at XSTRA’s discretion or not.
5.18 The Client hereby agrees to receive general correspondence from XSTRA, including invoices, by email by default. The Client may request in writing to XSTRA, to receive correspondence in another form agreeable by XSTRA and additional charges may apply in such circumstances. Where the Client is hereby agreeable to receiving general correspondence from XSTRA via email, The Client must:
a) provide XSTRA with at least one valid nominated email address to be used by XSTRA as the “To:” field in any correspondence sent to the Client “From:” XSTRA
b) accept full responsibility for their ability to receive correspondence by email to the nominated email address(s)
c) immediately contact XSTRA if they did not receive an “expected” invoice from XSTRA via email. An “expected” invoice is an invoice that the Client would normally expect to receive. The Client may wish to first check their junk email folder to see if their invoices have been delivered there instead of their Inbox.
d) accept that not receiving an invoice by email, or by any method for that matter, is not a valid excuse for not paying any invoice on or before the due date
e) accept that XSTRA at its discretion may change the Clients billing preference to a Paper Invoice or some other format, and the Client hereby accepts charges for the new method of delivering correspondence as deemed reasonable by XSTRA to cover XSTRA’s costs
f) keep their contact details and nominated email address up to date with XSTRA
g) ensure they have enough space available in their email mailbox to receive general correspondence and invoices
h) keep their email account and mobile phone secure to protect the privacy of their personal and credit information contained in invoices and general correspondence from XSTRA
5.19 Where XSTRA makes an invoice available “on-line” or in a portal for a Client to access, XSTRA may attempt to provide the Client with a courtesy email, SMS or other forms of notification to alert the Client to the existence of the new invoice “on-line”. However, it is always the Clients responsibility to obtain their invoice and to contact XSTRA if they are having trouble receiving invoices or have not yet received an invoice that may have gotten lost in delivery to the Client. XSTRA recommends the Client regularly (preferably weekly) login to any such “on-line” portals to check for new invoices.
5.20 Due to the complexity of the IT and Communications industry that XSTRA participates in, the Equipment on invoices from XSTRA to the Client may include the following additional Equipment classification information that helps describe the types of Equipment listed on the invoice. An “Equipment Classification Legend” and other information may also appear in the invoice to assist Clients and XSTRA in understanding the Equipment listed on an invoice. Therefore, the following information may appear on an invoice from XSTRA sent to the Client:
a) “Direct Debit” status, showing whether the product requires the Client to have a current Direct Debit facility with XSTRA – Example (DD)
b) “Supported Pass-Through Component” status and contributing % of the Equipment sell price as set by XSTRA – Example (SPTC – 49%)
c) “Non-Supported Pass-Through Component” status and contributing % of the Equipment sell price as set by XSTRA – Example (NSPTC – 100%)
d) “Equipment Procurement Service Policy” component status as the result of XSTRA’s Equipment Procurement Service Policy – Example (EPSP)
e) “Minimum Contract Period” status, showing the start and end dates except if the contract has expired in which case this information may be absent – Example (MCP: 20180512-20200511)
f) “Warranty Period” showing the start and end dates – Example (WP: 20190313-20200312)
g) “Billing Period” showing start and end dates – Example (BP: 20191101-20191130)
h) “Recurring Period” – E.g.: daily, weekly, monthly, bi-annually, annually, etc – Example (RP: MONTHLY)
I) “Rental” status of the item, cost, frequency, term or if a term is not mentioned then the rental period is on-going with no end date (R: $29.66, MONTHLY) or (R: $29.66, MONTHLY, 20190515-20210514)
j) “Price Change Notice” showing a future change to Equipment sale or rental price, effective 14 days from the invoice date – Example (PCN: +$2.67)
k) Records of any “Security Deposits” held by XSTRA
l) Records of any “Credit Notes” and associated balances
m) is also possible that from time to time XSTRA will highlight any changes to these “General Terms and Conditions of Trade” being this Agreement, on any invoice to alert the Client of changes to this Agreement and it will be the Clients responsibility to ensure they are aware of these changes and the Clients continued use of the Equipment infers Agreement with the stated changes to these “General Terms and Conditions of Trade”
n) The Internet URL link to a copy of this Agreement may also be included on invoices
o) Legal terms, which if present, do not replace the contents or effectiveness of this Agreement in any way should they conflict
p) A statement or similar that reads “The Client’s use of the Equipment and or payment by the Client of this invoice, constitutes the Client’s acceptance of XSTRA’s “General Terms & Conditions of Trade”“
5.21 At any time, XSTRA can require the Client to provide some form of security (e.g. a security deposit, a charge, or bank guarantee) or pay some or all the charges for the Clients Equipment in advance. If the Client does not meet XSTRA’s financial security requirements, XSTRA can refuse to provide the Client with the Equipment or terminate the Clients’ access to or use of the Equipment.
5.22 Price Changes – currency exchange rates, supplier cost variances and the fast moving nature of the IT & Communications industry requires XSTRA to continually monitor the rates at which it sells and rents Equipment to the Client. Where XSTRA must make a change to the Equipment pricing to the Client, and a fixed price contract term is not cause for a price variation exclusion, XSTRA will provide the Client with 14 days notice. In most cases, notice of price variations will be made on the Clients invoice – see Section 5.20 (j) above.
5.23 If the Client terminates all of the Equipment, XSTRA will return any security deposit or advance payment to the Client, less any outstanding charges.
6. Disputes and Public Statements
6.1 The Client may complain about the Equipment or seek support, by writing to XSTRA or by calling one of the XSTRA representatives. XSTRA will endeavour to resolve the Client’s complaint or seek to provide a solution to the Client’s problem(s). If XSTRA is not able to resolve the Client’s complaint or problem to the Client’s satisfaction, the Client may refer the complaint to the Australian Commercial Disputes Centre.
6.2 The Client may not mention the Equipment or XSTRA, in a negative way, in any press releases, public statements, social media postings, etc of any kind, hereafter referred to as the “statement”, regarding any dispute, complaint, problem or issue, hereafter called the “matter”, outside of the forums provided by XSTRA, unless:
a) The Client has first brought the “matter” to the attention of XSTRA in writing and XSTRA has responded (“first response”) in writing to the Client. It is agreed XSTRA will have 10 business days to provide the “first response”.
b) The Client has given XSTRA 60 business days (the “mediation period”) to remedy the “matter” with the Client, starting from the date of the “first response”
c) If after the “mediation period”, the Client and XSTRA are unable to reach an amicable agreement regarding the “matter”, XSTRA will provide the Client with a written formal summary of the matter within 14 days from the end of the “mediation period” (the “mediation summary”). The Client agrees to include the entire contents of the “mediation summary” in any public or private “statement” the Client wishes to make about the “matter”
d) The Client agrees, in the interests of fair and balanced public reporting, that if it makes a public “statement”, it shall make it under their own name as the source of the “statement” and that the relevant “mediation summary” from XSTRA will be made easily accessible and available alongside the “statement” for clarity and accuracy of XSTRA’s position on the “matter”
7. Confidentiality and Intellectual Property Rights
7.1 Confidentiality: In the course of discussion and work between the Client and XSTRA, certain information and material which is confidential to both parties may be disclosed to both parties. This information may relate to Client information, invoices, quotations, designs and licenses of computer software, research, development, distribution, and marketing of programs for software and hardware, data contained within the parties, the parties’ marketing and business methodology and financial conditions of the parties. Everything disclosed to the Client or XSTRA (whether of a competitive nature, just mentioned) has been developed or acquired at considerable cost to XSTRA and the Client and would be likely to disadvantage both or either party or advantage their respective competitors or potential competitors if disclosed. XSTRA and the Client, therefore, regards all the information as highly confidential to both parties and shall not disclose any information to anyone besides both parties unless instructions to the contrary are received in writing from one party to the other detailing any exceptions to this agreement as granted by the sender.
7.2 Intellectual Property Rights: All documentation related to the supply, installation, configuration, operation, and access to the Equipment by the Client, not limited to work instructions, network schematics, configurations, are deemed to be the sole property of XSTRA. Access to the same is at the sole discretion of XSTRA.
8. Equipment Suspension, Cancellations & Change Requests
8.1 XSTRA may suspend or cancel the Equipment at any time, without notice, for any Emergency or to comply with any law or an order of an emergency service or government authority or subject to the terms of this Agreement, due to a breach of this Agreement. When XSTRA anticipates or has advanced knowledge of a suspension or cancellation of the Equipment, XSTRA may attempt to notify the Client of this suspension or cancellation.
Cancellations: Cancellation Period and Effective Cancellation Date
8.2 Subject to section 5.17, the Client may make a request in writing, to XSTRA, to cancel some or all of the Equipment. XSTRA provides Clients with a 45 day Cancelation Period, which begins from the date XSTRA confirms to the Client in writing, receipt, and acceptance of the Client’s written request to cancel. The Effective Cancellation Date may vary for different components of the Equipment that are to be cancelled within the Cancellation Period. Charges for each component of the Equipment will be individually payable up until the time each component has an Effective Cancellation Date confirmed. However, if the Client requests the Equipment to be terminated before the end of any applicable “Minimum Contract Period”, the Client must pay-out the remainder of the “Minimum Contract Period” in full before the Equipment concerned can begin to be cancelled subject to this section.
8.3 Subject to section 5.17, and section 8.2 and any Minimum Contract Terms, if the Client cancels the Equipment before we have provided it to the Client, XSTRA can charge the Client any costs XSTRA incurred in preparing to provide the Equipment to the Client and the Client hereby accepts such costs, charges, penalty and/or fees inclusive of any restocking fees (see section 4.6) whether the Equipment has been sent to the Client or not.
8.4 If the Equipment is terminated or suspended, the Client must still pay charges incurred prior and up to the date of termination. The provisions relating to liability and indemnity also continue unaffected.
8.5 XSTRA may charge the Client a re-connection charge before XSTRA re-connects or re-enables any Equipment that has been terminated or suspended.
“Port Away” Event or Similar
8.6 If the Client undertakes any actions or changes that would reduce the value of Equipment XSTRA invoices to the Client and the Client requires any assistance from XSTRA in the execution of those changes then XSTRA will charge the Client for any effort expended by XSTRA and its partners in assisting the Client or any other party involved in the change and the Client hereby guarantees to pay all of XSTRA’s costs at XSTRA’s regular rates as set out in Schedule 1.
8.7 Cancellation of the Equipment may remove discounts and special pricing previously provided to the Client, or, discounts and special pricing options available to the Client in the future. XSTRA reserves to right to alter pricing at anytime subject to Section 5.22.
9.1 Unless a license component of the Equipment has been purchased outright by the Client, any such component of the Equipment is supplied to the Client wholly in Title, only if required as a condition of the license use until XSTRA determines the license is no longer to be accessible by the Client at which time, title and ownership of the license reverts to XSTRA.
10.1 Unless the Equipment has been purchased outright, the Client must not resell or transport the Equipment or permit any other person to do so unless authorized by XSTRA.
10.2 XSTRA may pay a commission to a person who introduces the Client to XSTRA.
10.3 Title over any Equipment loaned or rented to a Client shall always remain with XSTRA and shall not form part of any “Contract of Sale”.
10.4 All work performed on the Equipment at the Clients premises, is billed at the rates set out in Schedule 1. If the Equipment is removed from the Clients premises and work is carried out on the Equipment at another location, then any work performed on the Equipment will be billed to the Client as if the work was carried out at the Clients premises.
10.5 All Offers to supply the Client with the Equipment are valid for 14 days unless specified otherwise on the Offer.
10.6 If a Client requests XSTRA to remove Equipment or assist the Client in removing the use of or access to the Equipment in any of the following circumstances or similar circumstances as deemed applicable by XSTRA:
a) A site visit outside of the initial setup or arrangement of the Equipment
b) If the Client exits the agreement and requires handover support
c) If the Client changes the operational environment or infrastructure in a way that is not covered under the agreement then any labour or costs to perform the request will be charged to the Client at the rates set out in Schedule 1.
10.7 Where the Client is billed per person for the provision of the Equipment, only those people listed in XSTRA records as being able to access the Equipment can obtain support in relation to the Equipment. Any other person that requests access to the Equipment or any support regarding the use of the Equipment will be denied both access and support.
10.8 XSTRA may record phone conversations between itself and others. XSTRA’s primary phone systems and operations are based in Queensland, Australia. In Queensland, you can record a phone conversation with the consent of only one party.
(See : https://www.globalcallforwarding.com/learn/call-recording-laws-australia)