Within these Standard Terms and Conditions the following words shall have the following meanings:
'Client' shall mean the individual or company to whom Bay sells or agrees to sell Product under these terms and conditions.
'Bay' shall mean Bay Technologies Pty Ltd A.C.N. 073 362 982. A.B.N. 60073362982
'Product' shall mean the Hardware, Software, Services and Training provided or to be provided by Bay under this Agreement.
'Hardware' shall mean all hardware components inclusive of related documentation supplied or to be supplied by Bay.
'Software' shall mean all application software inclusive of related documentation supplied or to be supplied by Bay.
'Services' shall mean Professional Services which includes consulting, design, integration, project management, implementation, non software related documentation or records and support provided or to be supplied by Bay.
'Training' shall mean Training provided or to be provide by Bay to the Client.
The headings to the clauses within this Agreement are for ease of reference only and shall not affect the interpretation or construction of this agreement.
Where practicable, Bay's staff providing Services are required to log hours worked and activities performed into Bay's Time Sheet Recording System. If required, a copy of the log can be periodically supplied to the client for authorisation. Signature of the log by a client's authorised representative signifies:
a) that the client is satisfied with the Services provided during the period covered by the time sheet; and
b) authorisation for Bay to invoice for those Services.
Payment of the applicable charges is due fourteen (14) days from the date of invoice. Services will be invoiced fortnightly in arrears, unless otherwise agreed. Unless otherwise agreed, Hardware and Software will be invoiced on delivery to the Client (FOB), and Training will be invoiced on delivery to the Client.
Charges for Services provided on a time and materials basis are firm for the fixed charge term agreed in the relevant contract or, if no fixed charge term is agreed, for a period of thirty (30) days from the date of quotation.
If Services are provided at the client's request but such services are outside the scope of any relevant fixed price or time and materials contract, those Services will be charged at Bay's then prevailing rates as specified in Bay's Fee Schedule.
Unless otherwise agreed in writing, prices are exclusive of, and the client is responsible for and shall pay all customs and import duties, sales tax, stamp duties, use tax, value added tax, consumption tax, goods and services tax (GST), and life levies or taxes at their assessed value. It is the client's responsibility to obtain exemption from duty or tax. Sales tax, if applicable, will be charged unless the client provides documentation enabling Bay to legally not charge.
Quotations for Product or variations to Product are valid for a period of thirty (30) days from the quotation date, errors and omissions excepted, unless otherwise stated on the quote. At the end of this period, prices may be adjusted by Bay in accordance with Bay's then prevailing rates as specified in Bay's Fee Schedule.
Orders will only be processed when received with a valid purchase order. Goods ordered in error will be subject to any supplier costs and penalties plus Bay's administration costs.
The stated warranties are contingent upon proper use of the Product and maintenance by the client of a safe and suitable environment for the Product.
Hardware and Software sold by Bay are subject to the terms of the relevant manufacturer's warranty.
Software Products manufactured by Bay are warranted for sixty (60) days with respect to media and software operation consistent with the supplied product documentation.
Bay warrants that Services will be performed in a good and workmanlike manner. If Bay accepts that a Service was not so performed then Bay will:
a) not charge for the activities performed to an unreasonable standard at the client's discretion; and
b) ensure that an alternative Bay's consultant to perform the contracted Services.
Products are not intended for the production of software and/or used for the direct control of nuclear facilities, air traffic, mass transit or life support applications. Bay requires additional contractual safeguards, which will be negotiated on a case by case basis for such applications. All other warranties expressed or implied are hereby excluded.
Unless otherwise agreed in writing, if Bay or its agents develop product, then copyright and title in such developed product is vested in Bay.
If such Software is developed by Bay on a time and materials or fixed price basis to suit the client's specific requirements, then the client has the right to make use of such Software within the client's organisation but may not provide it to, or make it available for access by, third parties.
All Software is sold subject to the terms and conditions of the relevant software licence. In the event of any conflict between these Terms and Conditions and the terms of any Software Licence, the terms of the Software Licence shall prevail. It is the sole responsibility of the Client to comply with the terms and conditions of the Software Licence.
Bay is entitled to sub-contract under this Agreement. The Client may not sub-contract without the prior written agreement of Bay.
Delivery dates agreed between the Client and Bay are estimates only and are not contractually binding. Delivery shall be deemed to have taken place upon the arrival of the Products at the Client's premises.
The Client shall inspect any Products on delivery and shall notify Bay in writing of any defects or failure to comply with requirements within three days of delivery or within a timeframe explicitly defined in the proposal or contract. Unless other wise agreed, failure to provide such a written communication shall imply that the Client has accepted the Products.
The Products shall remain the sole property of Bay until the Client has made the agreed payment on the goods and there are no sums from the Client to Bay under any other contract.
Until such payment, the Client shall hold the Products solely as bailee for Bay, in a fiduciary capacity and in a way which clearly identifies them as property of Bay.
Until the Products pass to the Client from Bay, the Client must produce the Products on request. Failure to do so entitles Bay to enter the Client's premises and repossess the Products.
The Client shall insure and keep insured all Bay property (the products) to their full price and against all risks until title passes from Bay to the Client.
The Client shall reimburse Bay for any reasonable expenses incurred whilst supplying the Products.
Documents, schematics, maintenance materials, tools, hardware, Site Management Guides, test equipment, diagnostic hardware and Software and associated media which are to be used by Bay's personnel at the client site and which have not been expressly sold or licensed to the client shall remain the exclusive property of Bay and shall be for the sole use of Bay.
With respect to the provision by Bay of on-site Services (being those services that Bay provides at the client's site), the client will:
a) provide at no charge to Bay a reasonable secure work space with adequate heat and light, suitable lockable storage facilities, access to a local telephone, operating supplies as required and a current backup copy of the operating system and other applicable programs, documentation and data, as may be reasonably required for the performance of services; and
b) have a representative present during the provision of Services; and
c) not impose any unreasonable restrictions or impose any liability provisions as to site access and equipment usage requirements.
Bay may terminate or refuse to provide on-site Services without penalty when, in the reasonable opinion of Bay, conditions at the service site represent a hazard to the safety or health of any Bay employee providing Services.
For services provided by Bay to the client via Remote Diagnostic or Dial-in facilities, the client will
a) allow Bay's personnel full and unrestricted access as may be reasonably required to all communications facilities, at no charge to Bay; and
b) provide and bear the cost of Bay's specified terminal ports and/or modems, when required.
If the client:
a) fails to perform its obligation under any contract or agreement; or
b) attempts to assign its rights and obligations under a contract or agreement; or
c) enters into a composition with its creditors, is declared bankrupt, goes into liquidation or a receiver or a receiver and manager is appointed in respect of it;
and this continues for a period of fourteen (14) days, Bay will have the right to immediately suspend or terminate without penalty to Bay any Services to be provided to the client and all amounts billed to the client shall; immediately become due and payable.
The client's right to recover costs of damages to property caused by Bay fault or negligence shall be limited to the value of services provided by Bay during the execution of the relevant contract. Bay will not be liable in any event for any damages resulting from loss of data, profits, use of products or for any incidental or consequential damages, even if advised of the possibility of such damage. This limitation of Bay's liability will apply regardless of the form of action, whether in contract or tort. Any action against Bay must be brought within twelve (12) months after the cause of action accrues.
This provision is subject to and shall not derogate from any mandatory legal provisions to the contrary.
The application of these Terms and Conditions shall be governed by and construed in all respects in accordance with the law for the time in force in the State of Queensland in Australia. Bay shall, however have the right to institute proceedings in any competent jurisdiction for the recovery of unpaid debts.
The respective addresses for service of notices under these Terms and Conditions ("the notice addresses") shall be the registered offices of Bay and the client or a substitute address advised in writing to the other party. Notices may be given by being sent to the notice address by telegram, facsimile, post or delivered by hand and left at the notice address. Any notice posted shall be deemed to have been received seven (7) business days after the date of posting and any notice given in any other manner shall be deemed to have been received at the time when in the ordinary course it may be expected to have been received.
If any provision of these Terms and Conditions is void or voidable or unenforceable or illegal but would not be void or voidable or unenforceable or illegal as aforesaid if it were read down and it is capable of being read down, it shall be read down accordingly.
If notwithstanding the previous sub-clause, a provision of these Terms and Conditions is still void or voidable or unenforceable or illegal:-
a) if the provision would be void or voidable or unenforceable or illegal as aforesaid if a word or words (as the case may be) were omitted, that word or those words are hereby severed; and
b) in any other case, the whole provision is hereby severed,
and the remaining Terms and Conditions have full force and effect.
Bay shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, government regulations super-imposed after the acceptance of these Terms and Conditions, fire, communication line failures, power failures, earthquakes or other disasters.
All rights and remedies conferred under a contract for Services of by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other term. The provisions of the contract are declared to be severable.