a. Product(s): mean hardware and software which are resold by Oxygen subject to manufacturer’s specifications, software licenses and warranties as set out in a SOW.
b. Service(s): mean consulting work, warranty, support, time and materials work to be provided by Oxygen and as set out in a SOW.
c. Statement of Work (SOW): means a quote issued by Oxygen describing Product and/ or Services deliverables, acceptance testing, payment schedules, service levels and any other relevant terms and conditions.
d. Oxygen: means Oxygen Business Solutions Pty Ltd ABN: 80 117 187 738 as set out in a SOW.
2. Charges and Payment: Charges for Products and Services are Oxygen’s then current published rates or as agreed in a SOW. Services charges commence on delivery of Products. Recurring license, support and/or maintenance charges are billed in advance.
3. Payment and Credit Terms: Upon application, Oxygen may grant credit terms otherwise payments of invoices are due on delivery of Services and/or Products. If credit terms are exceeded, Oxygen may suspend all work / deliveries and all monies become immediately due and payable. Overdue payments attract an interest charge of 12% per annum applied daily.
4. Quotes and Variations: Quotes are valid for 30 days. All orders are subject to acceptance by Oxygen. For Services, Oxygen may revise its charges each 12 months but such variations will not exceed the changes in the Australian Consumer Price Index (CPI) – National All Groups. Product(s) and Services sourced from overseas are subject to foreign exchange rate changes.
5. Term and Renewals: Each SOW commences on the earlier of when Oxygen signs it or commences to deliver Product or Services. Services automatically renew for successive twelve-month terms unless terminated by either party by giving at least 60 days written notice prior to the next renewal date.
6. Taxes: Charges are inclusive of any local taxes and customs duties but are exclusive of GST. Oxygen may revise its pricing to cater for changes in or new taxes or duties.
7. Amendments: No terms in a customer invoice or purchase order amend or override this Agreement and shall be deemed to be null and void. Any amendments to these Terms or a SOW must be in writing signed by both parties.
8. Delivery and Installation charges: Charges, unless otherwise stated in a SOW, exclude delivery and installation fees. Any non-standard delivery requirements (eg stairs, hoists, difficult or narrow access) will require a site inspection and additional charges may apply. Travel charges may apply outside of capital cities.
9. Acceptance: Products are accepted on delivery. Services are accepted on completion of the relevant milestone or if on a time and materials basis, on signature of the relevant timesheets. Any defects shall be advised to Oxygen in writing with a reasonable period of time to allow Oxygen to remedy the same under warranty.
10. Customer Obligations: Customer shall in a timely manner a) provide competent and experienced resources, facilities and conduct reviews and approvals as set out in the SOW; b) be responsible for all site approvals (including landlord and council applications if any), cabling, power and/or environment preparation; and c) be responsible for data security and backups and will maintain suitable antivirus protection measures.
11. Termination: Either party may terminate this Agreement in whole or in part if the other party is in breach or default of its obligations and fails to remedy the same within 30 days of written notice. No termination for convenience is permitted. Either party may immediately and without notice terminate this Agreement in the event the other party enters into any form of receivership, administration or liquidation.
12. Warranties: Services will be performed using all requisite care and skill and workmanship. Products will be as new and may contain refurbished components. Oxygen assigns to Customer any end user warranties provided by the manufacturer. Warranty uplift service is an additional Service provided by Oxygen to supplement the manufacturer’s warranty and Customer assigns to Oxygen the right to claim under that manufacturer’s warranty. Oxygen does not warrant that Products are error free or will not fail in operation.
13. Site Safety: Customer shall ensure that all work site(s) are safe and comply with all relevant occupational health and safety laws and regulations. Oxygen may suspend or refuse service if conditions at the site are in its reasonable opinion unsafe.
14. Limit of Liability: Notwithstanding any other provisions in this agreement or implied by law, Oxygen’ cumulative liability during the term (and any renewals) for all actions, claims and defaults including negligence will be limited in aggregate as follows:
(i) For injury to or death of natural persons or damage to or loss of tangible property is limited to its insurances;
(ii) For any other damage or loss, is limited to the lesser of either i) the amount of actual direct damage or loss, or (ii) the amount paid by you to Oxygen in the last 12 month period in relation to actual the Services and/or Products that gave rise to the claim.
15. In no event shall OXYGEN be liable for any special, incidental, indirect, economic or consequential damages or for loss of profit, revenue or data howsoever caused, regardless of whether Oxygen could foresee or was advised of the possibility or likelihood of such loss or damage.
16. Products and Services supplied by Oxygen are not designed to be used in high risk and/or life support environments where errors or failures could lead to injury or death without adequate fail safe and redundancy systems.
17. Statutory Rights: If Oxygen is in breach of a condition or warranty implied by the Australian Consumer Law (ACL), then Oxygen’s liability, to the extent permitted by law, is limited at its option, to the repair or replacement of the goods or paying the cost of having the goods repaired or replaced.
18. ACL Consumer Notice: The following applies to a “consumer” as defined under the ACL – “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure’
19. Delays: Oxygen shall not be liable for and time for performance shall be extended because of any delays or inability to perform caused by circumstances or events beyond the reasonable control of Oxygen or its suppliers.
20. Service Exclusions: Services exclude
i. Supply or service of items which are not listed in an Oxygen invoice or Schedule;
ii. Service for items that are not at the minimum hardware and software versions and/or configuration;
iii. Upgrades, modifications or refurbishment;
iv. Supply of new versions or releases of software and any configuration, integration or data migration required to use the same;
v. Supply and installation of consumables (including user replaceable items);
vi. Services required due to:
a) user misuse or abuse
b) damage or errors caused by fire, smoke, heat, water, flood, storm, lightning, brownouts, electrical failure and any other act of God,
c) repairs by others;
d) use other than as per manufacturer’s instructions and recommended operating environment;
e) moves by any person who has not complied with manufacturer’s instructions
f) use in excess of rated life or Products which become unserviceable;
g) manufacturer recalls including product or parts replacement or substitution;
vii. suppliers refusal to provide services or spares, including under any warranty that assigned to Oxygen.
21. Where the above exclusions apply, Oxygen may offer to provide continue to provide service on a chargeable time and materials basis.
22. Title and Risk: Risk passes on delivery of the Products. Title is retained by Oxygen and passes to you when Oxygen receives payment in full for each Product and until then, Customer holds Products and any proceeds of sale as trustee for Oxygen. For spares provided under Services, title in the exchanged spares will pass and vest upon exchange.
23. Intellectual Property Rights (IPR): All IPR existing, created or developed during the course of a SOW shall remain with Oxygen or its licensor. Upon payment in full of the relevant SOW, Oxygen grants you a non-exclusive, non-transferable license to use Oxygen owned IPR that has been incorporated in any deliverables for your internal business purposes only. You retain all IPR in any data or other materials you may provide to Oxygen. Deliverables may require the Customer to obtain additional third party software to make use of the same.
24. Third Party Products and Services: Third Party Products and Services are resold by Oxygen as non-returnable, sold “as is” subject to manufacturer’s specifications and warranty is return to base. All software is licensed and subject to the original licensor terms and conditions generally supplied with the software or available on request. Any intellectual property indemnity, support and warranty is as offered by the manufacturer.
25. Change Control: The parties agree to follow a documented change control process to ensure that all changes are requested and performed in a controlled and audited manner. The party requesting the change will provide detailed requirements and specifications to allow the responding party to properly access and quote on the change. If the change is within scope and is a minor variation, the responding party will perform the analysis at no additional charge. If the change is a major variation or out of scope, the responding party may provide an indicative order of magnitude and estimate the additional costs of preparing a formal change request, and if requested to proceed, the costs are payable by the requesting party regardless of whether the actual change proceeds or not.
26. Confidentiality: Each party agrees to keep confidential information which is marked or by its nature confidential and shall protect, not disclose or use such for its own benefit except as permitted by a SOW.
27. Publicity: The parties agree reasonably consent to the other party using their name, relationship and generic details of services provided for promotional purposes.
28. Assignment: Oxygen may assign this Agreement and any SOW to any related subsidiary.
29. Poaching: For the term of each SOW plus 12 months, neither party will directly or indirectly employ or engage as an employee or contractor nor solicit the employment of each others’ employees or contractors, that are or were connected with or have come into contact with the other as a result of the SOW, unless the others party’s prior written approval is obtained.
30. Export Laws: Products, including technical information, software and services of overseas origin may be subject to export and re export control laws and Customer agrees to comply with their use and re-export.
31. Governing Law: These terms are to be construed subject to the laws and courts of Victoria. If any provisions are held invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.