Definitions

These general Terms and Conditions (T&C’s) apply to all offers, Agreements and legal relationships Litams Australia Pty Ltd of Australia and her subsidiaries and authorised representatives, hereinafter collectively referred to as "Litams", and the customer and / or user of the products and services, hereinafter referred to as "Client". Exceptions to these general conditions can only be agreed to by Litams in writing.

Besides these Ts&Cs Litams may also declare the terms and conditions of Suppliers to Litams applicable. In such case Litams will explicitly advise so and make those additional terms and conditions available to Client prior to the closing of the (additional) contract. By reaching an Agreement with Litams, Client declares to be also bound by the additional terms and conditions of the Supplier. In those cases where the Ts&Cs of Litams and the additional terms and conditions of the Supplier relating to the same situation and in the same framework are in conflict, the Ts&Cs of Litams have preference, unless otherwise specified.

"Client" in these Ts&Cs means the customer and / or the end-user of the products and services of Litams, or any other party with whom Litams enters into a contractual Agreement, or to whom Litams provides a tender or any delivery or service. The meaning of “Client” also includes the (legal) successor of any of the aforementioned parties.

"Supplier" in these Ts&Cs means the person or company directly or indirectly provides services, products and / or knowledge, which comprises part of the Agreement between Client and Litams.

"Subscription" means the provision of software as a service and general support services for Client on an agreed basis

“In writing” or “written” does explicitly include electronic mail communications.

All other conditions remain in force if any provision of these Ts&Cs turns out to be invalid or not applicable, for whatever reason. Litams will consult Client about new provisions to replace any invalid provision, with the purpose and intent to replace it such that the original provision remains as much as possible preserved.

Offers and information

Prices and product data, provided in price lists, brochures, other print, email and/or on Litams’ website(s). are subject to change. The offers made by Litams, including tenders and quotations, in whatever form, are non binding, until confirmed in writing by Litams.  

Litams is not liable for any direct or indirect damages, in whatever form and from whatever reason, resulting from information and / or counselling, designs, drawings, and product data or any information derived therefrom.

All prices are provided by Litams exclusive of GST and other levies.

Litams reserves the right to refuse requests for Subscriptions or products, or demand prepayments without giving any reason.

Agreements.

An Agreement is made after an application for a Subscription is acknowledged by Litams in writing to Client

Additions and changes to a contract are only binding on Litams when they are confirmed in writing by Litams.

Litams is authorised, if deemed necessary or desirable for the proper performance of its services, to engage third parties.

Client and Litams expressly agree that the use of electronic communications (including internet) shall constitute valid Agreements, once the conditions specified in this article are met. In particular, the lack of an ordinary signature does not affect the binding of (i) the offer (ii) acceptance of the offer and (iii) the acknowledgement thereof. The electronic files as kept by Litams serve as compelling evidence, to the extent permitted by law.

Conformity

Statements of Litams with respect to colour, size, weight, performance, features, etc. are approximate only and are non-binding.

Images, descriptions, photographs, catalogues, advertisements, promotions and on the websites of information contained Litams, in whatever form, shall not bind Litams.

The products ordered by Client are for use inside the territory agreed between the parties.  The use of the products and compliance with the rules outside the agreed territory is the risk of Client.

Implementation of the Agreement

Litams shall perform its services under the contract to its best insight, expertise and ability and use its best endeavours to carry out its work.

Litams ensures confidentiality of the information made available by Client to Litams.

Litams is not liable for damage of any kind resulting from inaccurate or incomplete information provided by Client, unless such inaccuracy or incompleteness results from intent or gross negligence of Litams.

Client shall provide Litams all the proper and necessary data or information and full cooperation which is required or useful for the execution of the Agreement in a timely fashion.

Client is responsible for the proper and timely use and application of the equipment in its organisation and the control of associated security procedures.

If Litams staff needs to perform work at Client site, Client shall provide free of charge such facilities as reasonably required to Litams staff, such as, if applicable, a workspace with internet facilities. Client shall indemnify Litams from claims of third parties, including Litams staff, who suffer injury resulting from the execution of the contract which results from the acts or omissions of Client or from unsafe situations in its establishment.

The implementation of the Agreement uses telecommunications facilities, including the Internet. Client is responsible for the correct choice of such facilities and its availability in a timely and adequate manner, except for facilities for equipment which is provided by Litams. Litams is never liable for damages or costs due to transmission errors, malfunctions or non-availability of such equipment and facilities, unless such costs or damages resulting from intent or gross negligence of Litams.

Prices, Rates, Periods

The Subscription consists of a monthly or annual fee which allows the use of Litams software.

The annual invoice is a fixed amount. When Client opts for a monthly invoice, the amount to invoice is determined per the first day of each month.

Unless otherwise stated, all prices and tariffs in Australian dollars excluding GST, shipping and any other charges imposed by governments. Where possible, Litams will provide prices and/or invoices in the local currency.

Subscriptions are entered into and silently renewed for 12 month periods. (“Term”).

Client acknowledges that it is required to give 3 months written notice to Litams if it is decided to end the subscription at the end of the Term.  The written notice requires acknowledgement from Litams for it to come into effect.

Litams is entitled by written notification to adjust the subscription at the end of the Term in line with local Consumer Price Index (CPI) rates that have accrued over the commitment period.

Payments

Subscription fees are required to be paid strictly within 7 days of executing this agreement unless otherwise confirmed in writing by Litams.

If it becomes necessary to issue Client a formal reminder to pay, such reminder will incur an administration fee of $50, - per reminder or final notice.

In the event of liquidation, bankruptcy, seizure or receivership of Client, any and all claims of Client to Litams become immediately payable.

Delivery, Title of Goods

Delivery is dependent on specification and current orders in hand.  Typically, 3-6 weeks on standard systems from receipt of order.  Solutions where customization is involved typically 12-16 weeks from receipt of order and deposit.

All goods quoted ex-works from place of business of Litams, unless otherwise stated. All freight, insurance, inspection, custom duties, taxes or charges are charged to Client’s account.

Cancellation of orders requires written acceptance by an authorised officer of Litams.  In the event of cancellation, Client continues to be wholly liable for the cost of any special works or customised equipment, customised software, carried out to the point of acceptance of cancelation.

All goods delivered to Client shall be held by Client for Litams as owner until all monies owing in respect of the supply of such goods and all associated costs have been paid in full to Litams. Title to the goods shall remain Litams’ and shall not pass to Client until payment has been made in full. Until all such monies and costs have been paid, Client agrees to return the goods to the company on demand and if demand is made by Litams Client agrees that Litams shall have free unrestricted right of access to the premises where the goods are located for the purpose of exercising their right as owners of the goods and to uplift them.

Supply and Transport

Unless agreed otherwise, delivery takes place by or on behalf of Litams to the address given by Client. From the moment of delivery, all risks of loss, corrosion, damage, etc., whatever the cause, passes to Client.

In case of partial deliveries Litams is entitled to invoice each partial delivery separately.

If the goods after the expiry of the delivery date are available but not taken by Client, Litams will store the goods at their disposal, at Client’s expense and risk. In this case Litams has the choice to demand to fulfil the Agreement or to terminate the contract, without prejudice to its rights to compensation for damages and lost profits, including the costs of storage.

Litams determines the mode of transport, shipping, packaging and such. Client is required to check each shipment immediately upon receipt for completeness, defects, damaged goods and completeness of fulfilment of the order, or delivery of erroneous goods, including surplus. In case of damage or missing packages, this should always be noted on the bill of lading of the carrier. Any divergence with the ordered goods should be reported to Litams. Damaged or missing packages should be reported within a period of three (3) working days after delivery is made to the carrier. The complaint must contain the delivery number or invoice number of the shipment.

Acknowledgment of receipt is deemed approval of the shipment by Client. From the time of receipt, all risks of loss, decay, damage, etc., whatever the cause, is transferred on Client.

When and if a complaint is found justified Litams will, at its discretion and within reasonable time, either repair the defect or replace the defective goods, without Client being entitled to any compensation.

The filing of a complaint does not relieve Client from its obligations to pay Litams.

Litams reserves the right to set different or additional conditions for shipments outside the agreed territory.

Complaints as to service

Complaints about the service should be filed by Client within two weeks after the discovery of the reason for a complaint and should be reported to Litams in writing. The notice must give as detailed a description as possible of the shortcoming, enabling Litams to respond adequately.

Subscription, Providing Equipment

All and any equipment supplied to Client as part of the Subscription remains the property of Litams. Client is not entitled to sell, pledge or encumber to third parties the equipment, software and other products and delivered goods proprietary to Litams unless the parties expressly agree otherwise. Client shall notify Litams as soon as may be reasonably expected and not later than 2 (two) days after third parties (intent to) seize the Litams proprietary equipment.

Client is obliged to ensure careful treatment of the Litams proprietary equipment. Client must immediately notify Litams in case of any missing and / or damaged equipment. The cost of repair or replacement due to loss or improper use shall be borne by Client.

Client undertakes to insure and keep insured the Litams proprietary equipment against fire, explosion, water and theft and the policy of this insurance is made available to Litams on first request for inspection.

All rights of intellectual property relating to software products and the underlying source code remain with Litams at all times. Client will neither remove nor alter any signs of the property owner.

Client is not allowed to delete or modify indications of patents, copyrights, trademarks, trade names, serial numbers or other intellectual or industrial property rights from or through the Litams proprietary products.

Installation, Maintenance and Terms of Use

Client shall, immediately after the occurrence of a fault on the equipment, notify Litams with a detailed description of the malfunction issued by an appropriately qualified employee of Client. Client will provide the Litams or designated third party access to the location of the equipment and make available all other necessary equipment and to cooperate with Litams for maintenance work on Clients’ site.

At the request of Litams an appropriately qualified employee of Client will be present for consultation during maintenance.

Client is NOT authorized to connect other than by or on behalf Litams supplied equipment and systems to Litams proprietary equipment. Client is NOT authorized to install software other than by or on behalf of Litams supplied on Litams proprietary equipment. The cost of investigating and remedying malfunctions resultinfrom connecting third party equipment or installing and / or use of third party software, are always borne by Client, including the costs incurred by Litams, as determined against its usual rates.

When Litams and or designated third parties are required on Client site the base installation rate of $1,120 per day applies. Subsequent maintenance work is at standard published rates.   

The base install rate is applicable on a standard business days as defined by local government and/or federal authorities of Client. The base rate includes 10 site hours per day.  Overtime installation rates may apply outside any of these parameters.  Weekend rates are double the base rate. Public holiday rates are triple the base rate.

Client is responsible for travel and accommodation expenses, power supplies and technical facilities, necessary for the equipment to function. Maintenance shall expressly not include the aforementioned facilities and supplies.

Litams accepts no maintenance obligations for equipment outside the agreed territory, unless otherwise agreed in writing.

Warranty

All software is guaranteed for 12 months.  Hardware is guaranteed for 6 months from the installation date.  Warranty does not include on-site repairs except at Litams’ discretion. 

Goods under warranty should be forwarded freight paid to a Litams branch at Litams’ discretion.  Under no circumstances will Litams be liable for any consequential or contingent damage due to the performance of equipment supplied or serviced by it or for services performed by Litams staff. OEM equipment carries original manufacturer warranty only.

Warranty terms may be modified by specific requirements undertaken within Maintenance Agreements

Force Majeure

If force majeure prevents Litams to carry out the Agreement, permanently or temporary, Litams shall be entitled to wholly or partially suspend or dissolve the Agreement, by written notice to that effect without judicial intervention and without obligation to pay compensation. Client shall compensate Litams for services already performed by Litams, before the existence of force majeure, or the (further) implementation of the Agreement following a suspension period. In case of suspension Litams will still be entitled to dissolve the Agreement wholly or partially.

Litams also has the right to invoke force majeure if the circumstance rendering (further) fulfilment occurs after Litams should have fulfilled its obligations.

Force majeure shall include all circumstances, which renders Litams or its Suppliers unable to reasonably fulfil its obligations, temporarily or permanently, such as strikes, transport difficulties, fire, earthquakes and government measures, including also import and export prohibitions, and quota restrictions.

Liability

Litams is never required to pay direct or indirect damages resulting from or arising from defects in goods or services or resulting from not or not timely or correct functioning of its supply of goods and / or services, except in case of intent or gross negligence by Litams. Any liability for consequential loss (business failure, loss of income etc.), data loss and / or consequential damages from any cause whatsoever, including delay in the delivery of goods and services, is expressly excluded.

Litams is not liable for its employees and / or its Suppliers hired to Client or third party damage, for whatever reason or any cause, except in cases of intent or gross negligence attributable to Litams. In no case extends the liability beyond the coverage of the insurance taken by Litams.

Litams is not liable for damages of any kind whatsoever which arises or is caused by improper, careless or improper use, or use for purposes other than normal.

Client shall indemnify Litams and its employees against claims by third parties for compensation for material and immaterial damage, which are directly or indirectly caused by (the use of) Litams delivered equipment, unless the damage is caused by intent or gross negligence of Litams staff

The liability for Litams under the Agreement with Client is limited to the amount of the contract over the last twelve months, excluding GST in all circumstances.

Dissolution / Termination / Arrears

Client is deemed in default and the remaining charges of the subscription period will be payable immediately if:

Client fails to meet its obligations of the Agreement in particular the non or late payment;

Client is in arrears more than 30 days from an invoice due date;

Litams has reasonable cause to fear that Client shall fail to perform and does not comply with a written notice stating the grounds for the notice within a reasonable period set by declaring willingness to meet obligations;

Client files for bankruptcy, is declared bankrupt, files for an application for suspension of payment, or assets are seized and such seizure is not lifted within ten (10) days after seizure;

In the cases referred to in 16.1 Litams is entitled without any liability for damages and without relinquishing its due rights, including rights in respect of charges already due or interest and the right to compensation, and without notice or judicial intervention, to:

Dissolve the Agreement entirely or partially by a written notice to Client and / or;

Suspend services and obligations under the Agreement in whole or in part, to and / or;

To claim any amount payable in full for the entire contract length immediately by Client and / or

To have returned any Litams proprietary equipment and/or software immediately.

Client shall at the first request of Litams return Litams proprietary equipment in case of termination of a subscription for reasons described above in this article or because of the end of the contractual term of the Subscription.

If the Agreement is terminated or dissolved in any way the provisions on confidentiality, termination, applicable law and litigation remain fully applicable. Litams also remains entitled to claim damages suffered by it.

Applicable law and disputes

All Agreements between the parties and resulting legal relations are subjected to the laws of the jurisdiction in which Litams is registered.

All disputes arising from or related to the contract to which these conditions apply whether the conditions themselves and their interpretation or implementation will be settled by the competent court in the jurisdiction where Litams subsidiary holds its official place of business, at the choice of Litams, unless otherwise agreed.

Litams is entitled to change from time to time these Ts&Cs.