Bay
Technologies Pty Ltd.
Standard Terms
and Conditions
1 Definitions
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.
2 Payments
and Charges
2.1 Verification of Hours Worked - Time and
Materials Contracts
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.
2.2 Payment Terms
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. Hardware,
Software and Training will be invoiced on
delivery to the Client, unless otherwise agreed.
2.3 Firm Price Duration
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.
2.4 Additional Services
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.
2.5 Taxes
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.
2.6 Quotation Validity
Quotations for 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.
2.7 Product Orders
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.
3 Warranty
3.1 General
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.
3.2 Hardware and Software Warranty
Hardware and Software sold by Bay are subject to
the terms of the relevant manufacturer's
warranty including Year 2000
readiness/compliance.
3.3 Services Warranty
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.
3.4 Fitness for Purpose
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.
4 Software
4.1 Ownership
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 unlimited use of such
Software within the client’s organisation but
may not provide it to, or make it available for
access by, third parties.
4.2 Licence
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.
5
Assignment of Work
Bay are entitled to sub-contract under this
Agreement. The Client may not sub-contract
without the prior written agreement of Bay.
6 Delivery
and Acceptance
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 description
within three days of delivery. Failure to
provide such a written communication shall imply
that the Client has accepted the Products.
7 Title
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.
8 Expenses
The Client shall reimburse Bay for any
reasonable expenses incurred whilst supplying
the Products.
9 Bay’s
Property
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.
10
Provision of On-Site Services
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 and
scratch media (including spare tapes and disk
packs) 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.
11
Termination
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.
12
Limitation of Liability
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.
13
Governing Law
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.
14 Services
of Notices
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.
15
Severance
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.
16 Force
Majeure
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.
17 General
Provisions
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.