Terms and Conditions

Terms of Service and Sales

Barnewall Industries Pty Ltd Terms of Service and Sales Agreement (“Agreement”)

GENERAL

1.        The terms of this proposal defined above will take precedence and prevail over the terms of the Barnewall Industries’ Sales Agreement terms and conditions defined herein, to the extent of any perceived or actual inconsistency. However, to the extent that any third party provides hardware, software or support services, then the terms of the Barnewall Industries’ Sales Agreement will prevail over the proposal.

ORDERS

2.        Orders are subject to acceptance by Barnewall Industries. Barnewall Industries may accept an order by shipping Products or commencing to perform Services. Accepted orders will be deemed to incorporate and be subject to this Agreement. All other terms and conditions contained in any Customer purchase order or other document not expressly referenced in this Agreement will have no effect.

DELIVERY AND INSTALLATION

3.        Delivery and In-Service Dates. The ‘Delivery Date’ means the date on which Barnewall Industries delivers (i) Barnewall Industries-Products to Customer’s premises; or (ii) other Products to a carrier for shipment. The ‘In-Service Date’ means the date on which Barnewall Industries notifies Customer that the Barnewall Industries-installed Products are installed in good working order in accordance with applicable documentation.

4.        Provision of Installation Services. Installation Services specified in an accepted order will be provided in accordance with Barnewall Industries’ then current Services offer description or a mutually agreed upon statement of work.

RISK OF LOSS/TITLE

5.        Risk of loss will pass to Customer on the Delivery Date. Title to Barnewall Industries-installed hardware will pass to Customer on the In-Service Date. Title to all other hardware and software will pass to Customer upon full payment.

INVOICING AND PAYMENT

6.        Invoicing. Barnewall Industries will invoice Customer for Products and Services as follows:

(i) For Purchase Orders relating to Products and Services less than $50,000 (excluding GST) in total value, payment for Products is 100% on Invoice Date of Products by the Customer site, and payment for Services is 100% on completion of work

(ii) For Purchase Orders relating to Products and Services over $50,000 (excluding GST) in total value, payments are agreed as follows unless otherwise stipulated in a payment milestone schedule in an applicable statement of work:

a.        For Products:

i)         100% on the Invoice date for Products to the Customer; and

b.        For Services:

i)         40% on signing of a schedule and receipt of an order;

ii)        50% upon commissioning into a production environment or completion of work, whichever comes first; and

iii)       10% upon final Customer acceptance of hand over documentation.

c.        For Installation works including cabling:

i)         40% on acceptance of quote or proposal

ii)        30% on install of works to rough in stage

iii)       30% upon completion

7.        Payment. Payment on invoices is due within fourteen (14) days from the date of Barnewall Industries’s invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with any bank wire transfer or other means of payment. Any overdue payments will be subject to a late payment charge of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is less.

8.        Taxes. Unless Customer provides Barnewall Industries with a tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the sale, transfer of ownership, license, installation or use of the Products, except for any income tax assessed upon Barnewall Industries. Customer will pay all shipping, handling, rigging and other destination charges relating to the shipment and delivery of the Products to the location specified on the applicable order.

9.        Barnewall Industries reserve the right to re-quote should the USD exchange rate vary by plus or minus 2 cents from the date of quotation

10.      Payments by credit card will incur a merchant fee of 1.215% for Mastercard and Visa payments and 2.53% for American Express Payments.

11.      Receipt of customer purchase order signifies the customers intention to purchase and is legally binding.

CUSTOMER RESPONSIBILITIES

12.      Customer will cooperate with Barnewall Industries as reasonably necessary for Barnewall Industries’s performance of its obligations under an order, including doing such things as:

(i) providing Barnewall Industries with full, free and safe access to its premises and facilities reasonably necessary for the installation and servicing of the Products;

(ii) ensuring that prior to the Delivery Date the premises are ready for installation, including, without limitation, installation of necessary power and climate control facilities and meet any other requirements described in the specifications and statement of work;

(iii) ensuring prior to the Delivery Date it has obtained all necessary permissions or consents relating to the installation and connection of the Products to any public or private telecommunications network;

(iv) providing Barnewall Industries with designated points of contact;

(v) providing necessary telephone numbers and passwords to enable remote access to the Products; and

(vi) providing Barnewall Industries with interface and other information regarding access to third party products in Customer’s network and necessary third party consents and licenses to enable Barnewall Industries’s performance hereunder. All items to be provided by Customer are at Customer’s expense. Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorised intrusion or attack and regularly backing up its data and files in accordance with good computing practices.
 

CONFIDENTIAL INFORMATION

13.      The term’ Confidential Information’ means either party’s business and/or technical information, any pricing and discounts and any other information or data, regardless of whether in tangible, electronic or other form if it is marked or otherwise expressly identified as confidential in writing. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarised in writing within thirty (30) days after verbal disclosure. Confidential information does not include materials or information that:

(i) is generally known by third parties as a result of no act or omission of the receiving party;

(ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure;

(iii) was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality;

(iv) was independently developed by the receiving party without use of Confidential Information of the disclosing party; or

(v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving party promptly notifies the disclosing party of the pending disclosure in writing so that the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection

(vi) above, the receiving party will provide reasonable assistance to the disclosing party where the disclosing party attempts to obtain a protective order. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information except as permitted in this Section or for the purpose of performing obligations under this Agreement. The confidentiality obligations of each party will survive expiration or termination of this Agreement. Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party’s possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a party will certify in writing its compliance with this Section.

LIMITATION OF LIABILITY

14.      Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services or to this Agreement are excluded to the fullest extent permitted by the law. Without limiting the generality of the preceding sentence, BARNEWALL INDUSTRIES shall not be under any liability to the Client in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Services.

15.      Where such liability cannot be excluded by law, our liability to you will be limited at our choice, to, if the breach relates to goods, the replacement or repair of the goods or, if the breach relates to services, the supply of those services or the payment of the cost of those services supplied again. This clause applies despite anything else contained herein or incidental to the Agreement and to the fullest extent permitted by law.

16.      The Client warrants that it has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of the Service Provider which has not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by the Service Provider.

17.      It is acknowledged that whilst the Service Provider and the Key Person agree to exercise all due skill care and diligence in providing the Services, the Service Provider does not provide expert, legal, financial or business advice and takes no responsibility for the actions of the Client and consequences flowing therefrom.

18.      The Service Provider accepts no responsibility whatsoever and howsoever related to the accuracy of information provided to it by the Client or withheld by it for the purposes of the Services and all such responsibility is that of the Client absolutely.

19.      The Client irrevocably indemnifies and releases the Service Provider, the Key Person and any of its employees, contractors, representatives, or agents in respect of any claim or demand made or action commenced by any person against the Client, Service Provider or the Key Person or for which the Client is liable in connection with any loss or damage suffered in connection with this Agreement or the Services, including but not limited to any legal costs as between solicitor and client. This indemnity is continuing in full force and effect during and after the term of this Agreement.

GOVERNING LAW AND DISPUTE RESOLUTION

20.      Governing Law. This Agreement and any disputes arising out of or relating to this Agreement (‘Disputes’) will be governed by the laws of Victoria Australia, excluding:

(i) conflict of law principles; and

(ii) the United Nations Convention on Contracts for the International Sale of Goods.

21.      Injunctive Relief. Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions from any court of competent jurisdiction in order to protect its rights pending mediation.

22.      Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within two years after the cause of action arises.

MISCELLANEOUS

23.      Barnewall Industries may assign this Agreement and any order hereunder to any of its affiliated entities or to any entity to which Barnewall Industries may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with the performance hereunder. Barnewall Industries may subcontract any or all of the obligations to be performed by it hereunder but will retain responsibility for the work. Neither party will be liable for any delay or failure in performance to the extent such delay or failure is caused by events beyond the party’s reasonable control, such as fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities. The failure of either party to assert any of its rights under this Agreement will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of this Agreement in accordance with its terms. This Agreement constitutes the entire understanding of the parties with respect to the subject matter thereof and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. All notices under this Agreement and any modifications or amendments to this Agreement must be in writing.

EMPLOYEES OF THE SERVICE PROVIDER

24.      Upon acceptance of this offer and during the engagement period and up to 1 year after the engagement has ceased, the Client, its employees, its related body corporates or assigns must not either directly or indirectly solicit, endeavour to entice away or otherwise interfere with any person who was an employee of the Service Provider during the period in which the Service Provider provided the Client with the Services (“restricted activity”).

25.      Should the Client or any of its employees, related body corporates, or assigns engage in the restricted activity, and without limiting the rights of the Service Provider as a result of such breach, the Client will pay the Service Provider a re-hiring fee equivalent to thirty per cent (30%) of the said staff member’s then current gross salary with the Service Provider.