Terms and Conditions
These Terms and Conditions apply to the Products and Services provided by Adaptive Solutions (Aust) Pty Limited (‘AS’) to Client under the Proposal to the exclusion of any other agreement, unless AS has agreed in writing to vary such Terms and Conditions.
1. Scope of Agreement
Client has engaged AS to provide the Products or to perform the Services specified in the Proposal. The Terms and Conditions will continue in force until the provision of the Products or completion of the Services referred to in the Proposal, or, until otherwise terminated.
2. Validity of Quotation
2.1 All quotations for Products or Services are valid for a period of 14 days from the date of the quotation subject only to any price changes from the distributors and manufacturers of the Products.
2.2 Quotations are based on the work being carried out during normal working hours. Should Client wish to have any work performed outside of normal working hours, the ‘After Hours Work Premium Rate’ will apply. The current After Hours Work Premium Rate is 1.5 times the AS standard rate for personnel specified in the Proposal.
3. Service fees and charges
3.1 AS’s rates are specified in the Proposal.
3.2 Consulting onsite at Client’s premises will be charged at a minimum of 2 hours and thereafter in 15 minute intervals. Telephone and remote access support will be charged in 15 minute intervals.
3.3 Time to travel to Client’s premises in the Sydney CBD from AS’s premises will be charged at the appropriate hourly rate, in 15 minute intervals.
3.4 Travel to Client’s premises outside the Sydney CBD will additionally incur all airfare, accommodation and incidental expenditure, at cost.
3.5 If Client requests in writing, AS may provide other products and services in addition to the Products and Services and may make an additional charge for providing such additional Products and Services.
4. Terms of payment
4.1 Payment for Products will be made as follows:
(a) 25% on acceptance of the quotation; and
(b) 75% on delivery of the Products.
4.2 Payment for Services will be made as follows:
(a) Client will pay AS fees billed for Services progressively at the rates or on the basis quoted by AS in the Proposal.
(b) Payment must be made within 7 days after the date of presentation of AS’s invoice relating to such Services.
4.3 Client must advise AS when accepting the quotation if lease finance is required, otherwise clause 4.1 and 4.2 apply. If lease finance is required then AS reserved the right to deliver the Products an/or commence providing the Services once the lease finance is approved.
4.4 AS fees and charges are exclusive of any taxes, GST, duties and charges imposed or levied in Australia or overseas in connection with the Products or Services and Client is liable for any such taxes, GST, duties or charges upon request.
4.5 Should any amount not be paid on the due date then the entire balance then outstanding in relation to all Products and Services will immediately become due and payable without notice to Client.
4.6 A service charge of 0.05% per day on fees that are due but not paid may be charged to Client’s account at the discretion of AS.
5. Freight Charges
Freight will in all cases be charged at cost.
6. Access to Client Equipment
6.1 Client must provide AS with access to its equipment required for provision of the Services or installation of the Products.
6.2 All quotations are based on Client’s existing equipment being in sound working order and being 100% compatible with recognised mainstream industry standards.
6.3 If problems arise during installation of any Product due to an incompatibility or a fault then AS reserves the right to charge an additional fee. AS will in all cases inform Client before additional charges are made.
6.4 Client is to make available full workable copies of all drivers and software for work performed on existing machines or for existing applications installed on new machines.
7. Exclusions and Client responsibility
7.1 AS will not be responsible for resolving problems that arise due to modems not functioning correctly using voice grade telecommunications phone lines.
7.2 AS does not include power points or power extension cables for the Products supplied. It is also Client’s responsibility to ensure the supply of adequate electrical power, as required.
7.3 The transfer of applications and data from an existing system to a new or other system must be specifically defined in all proposals; otherwise it is assumed that it will be performed by Client.
7.4 For existing cabling, a site inspection and integrity check of cabling may be necessary. AS is not responsible for any additional charges or arrangements made directly between Client and AS’s cabling subcontractors.
7.5 Client is responsible for thoroughly testing all deliverables at the conclusion of each project.
7.6 AS is not responsible for delays incurred by third parties outside of its control, including Telstra, UUnet and other suppliers of Products and Services.
7.7 Should any additional time and costs be incurred by AS as a result of the actions of Client or a third party outside the control of AS, then AS reserves the right to charge Client an additional fee.
8. Nominated Personnel
8.1 The Services will be provided by employees or contractors of AS nominated to Client in advance (‘Nominated Personnel’).
8.2 If Nominated Personnel become unavailable for any reason AS may utilise replacement personnel of at least the same of level of competence and experience. These replacement personnel will be included in the Nominated Personnel.
8.3 Client will not throughout the period during with the Products or Services are provided and for 6 months thereafter, employ, offer to employ or directly or indirectly any of the Nominated Personnel without the prior written consent of AS.
8.4 Should Client engage a person that was Nominated Personnel, directly or indirectly, within 6 months of the person terminating his/her engagement with AS, Client will pay AS a placement fee of 25% of the person’s Gross Annual Salary.
9. Status of AS
9.1 AS is an independent contractor without authority to bind Client by contract or otherwise and neither AS nor its personnel are agents or employees of Client.
9.2 AS acknowledges that it has sole responsibility in relation to payment of any and all superannuation, workers compensation and taxes incidental to employment in respect of its own personnel and that neither it nor any of its personnel have any entitlement from Client in relation to any form of employment or related benefit.
10. Intellectual Property Rights
10.1 The copyright and all other intellectual property rights in all works, items, materials or information of whatever nature produced or developed by AS exclusively for Client in the course of providing the Products or Services, will pass to Client on payment of AS’s final account for fees for the Products or Services.
10.2 Notwithstanding 10.1 AS will continue to own and have the right to use in any way that it thinks fit, any skills, techniques, templates and programming modules acquired or used by AS in providing the Products or Services.
10.3 Upon payment of AS’s final account for fees for the Products or Services, AS grants to Client a non exclusive and non-transferable licence to use works, items, materials and information not assigned in accordance with 10.1 for such purposes as AS and Client reasonably contemplate.
AS and Client will each treat as confidential and keep secret all information which by its nature or by the circumstances of its disclosure might reasonably be regarded as confidential in relation to the other party. Any such disclosure may only be made with the prior consent in writing of the other party or if required by law or legal process.
12. Warranties by AS
12.1 AS does not warrant the equipment sourced from third parties as part of the Products and Client acknowledges that the warranties on such new equipment are provided by the manufacturer of the equipment. Labour is not included on supplied new equipment warranty claims. AS will charge a fee for any labour required to reinstall the hardware or software.
12.2 AS warrants that the Services will be provided with due care and skill and that any materials supplied in connection with these Products or Services will be reasonably fit for the purpose for which they are supplied.
12.3 Where Client has made known to AS any particular purpose for which the Products or Services are required AS further warrants that the Products and Services supplied and any material supplied in connection with them will be reasonably fit for that purpose or of such a nature and quality that the might reasonably be expected to achieve that result.
12.4 Subject to clause 12.5, except as expressly provided to the contrary all terms, conditions and warranties, undertakings, inducements or representations whether expressed or implied, statutory or otherwise relating in any way to the Products or the Services or to the agreement for the provision of them are excluded. Without limiting the generality of the preceding except in relation to liability for personal injury (including sickness and death) AS will not be under any liability to 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 failure or omission on the part of AS and its employees, contractors and agents to comply with it’s obligations.
12.5 Where, by law, any term, condition or warranty may not be excluded or modified such term, condition or warranty will be deemed to be included in these Terms and Conditions.
12.6 The liability of AS for any breach of the Terms and Conditions including a term, condition or warranty referred to in this clause 12, will be limited, at the option of AS, to either supplying the Products or Services again, or, paying the cost of supplying the Products or Services again, or, to refund the money paid for such Products and Services.
13.1 Client indemnifies AS from any actual, implied or potential business loss caused from data loss or corruption resulting from: virus attacks, network intrusion, incomplete or un-restorable data backups, hardware failure, software corruption or errors, or consulting advice.
14. Ownership and Risk
14.1 Products supplied by AS to Client will be at Client’s risk upon delivery to Client or into Client’s custody (whichever the sooner), and Client must insure the product thereafter against theft and damage.
14.2 Ownership of the Products supplied by AS will not pass to Client and will remain with AS until such time as all the debts owing by Client to AS from any cause, have been paid in full.
15. Force Majeure
15.1 Force Majeure means a circumstance beyond the reasonable control of either AS or Client which results in either party being unable to observe or perform on time an obligation under this agreement. Such circumstances include:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and strikes; and
(c) delays induced by third parties beyond the control of Client or AS.
15.2 Neither AS nor Client will be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to Force Majeure.
15.3 If a delay or failure of either AS or Client to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
15.4 If a delay or failure by either AS or Client to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the agreement on providing notice in writing to the other party.
15.5 If this agreement is terminated pursuant to clause 15.4, AS will refund monies previously paid by Client pursuant to this agreement for Products or Services not yet provided by AS to Client, subject to AS retaining any money paid to a third party supplier of products until such moneys are refunded to AS.
These Terms and Conditions for provision of the Products and Services may not be assigned or dealt with in any way by either party without the other party’s prior consent in writing.
AS may subcontract for the provision of the Products or the Services.
18. Normal Business Hours
Normal Business Hours are 9:00am to 6:00pm Monday to Friday, excluding Public Holidays, NSW time zone.
19. Service fees and charges
These Terms and Conditions are governed by and construed according to the laws of State of New South Wales.