1 OVERVIEW OF AGREEMENT
1.1 Unless otherwise expressly agreed in writing, all Products, Services and Projects are supplied on the following terms and conditions which shall include: (a) The proposal or quote (“Quote”) provided by SwitchboardinaBox;
For the purposes of these terms a reference to “Agreement” shall mean the above documents in clauses 1.1(a) to 1.1(d).
1.2 If there is any conflict or inconsistency between the above documents the documents will rank in order of precedence with the order in which they are listed in clause 1.1 above. 1.3 Each Order issued by the Customer and accepted by SwitchboardinaBox will be accepted on these Terms and Conditions, to the exclusion of all other terms including any terms and conditions referenced or set forth on the face or reverse side of any Order or other document presented by the Customer.
1.4 No amendment or variation of the Agreement is valid or binding on a Party unless made in writing and signed by both Parties.
2.1 The following capitalised terms will be defined as follows:
Acceptance Tests means tests agreed between the Customer and SwitchboardinaBox which are based on agreed objective criteria.
Agreement has the meaning given to that term in clause
1.1 of these Terms and Conditions.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) as amended from time to time.
Australian Privacy Principles means the Australian Privacy Principles which are contained under schedule 1 of the Privacy Act.
Background IP means with respect to both parties Intellectual Property owned by that party existing at the date the Order is made including any modifications made during the course of the Agreement to such Background IP.
Confidential Information means any information of a
confidential nature which relates to the business, affairs or activities of a Party including information comprised in Intellectual Property Rights of any Party, process or operational information, calculations or analysis, financial and business information and information of third parties which is required to be kept confidential.
Credit Terms means the Credit terms and conditions
referred to in the Credit Application completed by the Customer with SwitchboardinaBox.
Customer means the party who SwitchboardinaBox will supply the Products, Services and Projects, as specified in the Order.
Date of Acceptance has the meaning given to that term in
clause 21.2 of the Addendum for the Supply of Projects.
Delivery Date has the meaning given to that term in
clause 21.1 of these Terms and Conditions.
Delivery Point has the meaning given to that term in
clause 4.2 of these Terms and Conditions.
Effective Date means the date of acceptance of an Order
by SwitchboardinaBox in accordance with clause 1.3 of these Terms and Conditions.
Energy Consulting Services means Services to support customers in managing financial risks purchasing energy and energy consumption and/or generation.
Fixed Price means the lump sum amount quoted by
SwitchboardinaBox for the supply of specified Products, Services and Projects.
Force Majeure has the meaning given to that term in
clause 16.2 of these Terms and Conditions.
GST Act means the A New Tax System (Products and Services) Tax Act 1999 (Cth).
Intellectual Property Rights means all and any rights in issued patents and patent applications, rights to inventions, design rights, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, moral rights, rights in confidential information (including know-how and trade secrets).
Law means any statute, regulation, order, rule,
subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation and includes a modification or re-enactment of it.
Order means the Quote submitted by SwitchboardinaBox
and the purchase order issued by the Customer and accepted by SwitchboardinaBox in accordance with clause 1.3 of these Terms and Conditions.
Party means a party to the Agreement. Personal Information means all information about a person that is “personal information” as defined in the Privacy Act, which is collected and/or handled by any of the Parties in connection with this Agreement. PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the aggregate amount payable by the
Customer to SwitchboardinaBox in relation to the Products, Services and Projects, as specified in the Order. Privacy Act means the Privacy Act 1988 (Cth) as amended from time to time.
Products means any SwitchboardinaBox Products or such
other third-party products, equipment, materials, supplies or items, as specified in the Order including Software.
Project means a set of activities including the
development, provision, modification, configuration, enhancement and integration of the Products and Services, by SwitchboardinaBox to meet the Specifications.
Project Deliverable means the Products and other
deliverables required to be developed or integrated by SwitchboardinaBox pursuant to a particular Project in accordance with agreed Specifications.
Quote means a proposal or quote provided by SwitchboardinaBox relating to the Products, Services and Projects referred to in the Order.
SwitchboardinaBox Products or SwitchboardinaBox Project Deliverables means SwitchboardinaBox’s proprietary products, including any and all products manufactured or developed by SwitchboardinaBox
SwitchboardinaBox Software means SwitchboardinaBox’s
proprietary software, including any and all software developed and owned by SwitchboardinaBox or its Affiliates.
SwitchboardinaBox means any of the following entities
which will be listed on the Order:
SwitchboardinaBox Pty Limited (ACN 620 718 336);
Services means any services SwitchboardinaBox agrees to
perform, as specified in the Order.
Site means the Customer’s site where the Products are
to be delivered and or installed, the Services are to be performed, or the Project is to be implemented as specified in the Order.
Software means machine readable computer programs that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer, or other machine, to perform a specific operation or series of operations;
Software Documentation means the printed materials supplied with the Software.
Specifications means the drawings, specifications and/or
plans for the Products, Services and Projects as specified in the Order or as otherwise agreed by the Parties in accordance with clause 18 of the Addendum for the Supply of Projects.
Terms and Conditions means these terms and conditions of Sale.
Timetable means the document setting out the dates
by which the Products, Services and Projects are to be supplied, as specified in the Order or as otherwise agreed between the Parties in accordance with clause 19.1 of the Addendum for the Supply of Projects.
Time and Materials means Services supplied in
accordance with the Order where (i) all labour time utilised and (ii) expenses incurred are payable by the Customer at the prices set out in SwitchboardinaBox’s schedule of rates and (iii) all products supplied are payable by the Customer in accordance with SwitchboardinaBox’s price list, unless indicated otherwise by SwitchboardinaBox in writing.
Use shall have the same meaning as set out in clause 6.2.
Variation has the meaning given to that term in clause
20.1 of the Addendum for the Supply of Projects.
Warranty Period means:
3 QUOTES AND ORDERING
3.1 Any quotes provided by SwitchboardinaBox are subject to the Products, Services and Projects being available at such time when the Customer places an Order.
3.2 Unless indicated otherwise by SwitchboardinaBox in writing, all Prices referred to in any Quotes are based on the quantity of Products, Services, Software, Projects and delivery timetable described in the Quote and will only be valid for thirty (30) days from the date the Quote is submitted. In the event the Customer changes the time required for delivery or the volume or scope of Products, Services and Projects required or places an Order more than thirty (30) days after the Quote is submitted, SwitchboardinaBox reserves the right to vary its Prices.
3.3 Unless otherwise indicated in an Order or Quote in writing, an Order will not be considered binding on SwitchboardinaBox or come into force until SwitchboardinaBox has received from the Customer a cash deposit or a bank guarantee or other security acceptable to Schneider 4.6
Electric for 10% of the Price set out in the Order.
4 DELIVERY, RISK AND TITLE
4.1 SwitchboardinaBox agrees to supply the Products, Services and Projects in accordance with the terms of the Agreement and in consideration of payment of the Price by
the Customer. 4.7
4.2 Unless specified otherwise it will be presumed that delivery
4.3 SwitchboardinaBox will deliver the Products to the Delivery Point. Risk of any loss or damage to the Products passes to the Customer upon delivery to the Customer at the
Delivery Point. 4.8
4.4 Title in the Products (excluding Software) does not pass to the Customer until the Customer has made payment in full for the Products and, further, until the Customer has made payment in full of all the other money owing by the Customer to SwitchboardinaBox (whether in respect of money payable under a specific contract or on any other account whatsoever). Whilst the Customer has not paid for the Products supplied in full at any time, the Customer agrees that property and title in the Products will not pass to the Customer and SwitchboardinaBox retains the legal and equitable title in those Products supplied and not yet sold.
4.5 Until payment in full has been made to SwitchboardinaBox:
The Customer must:
5 PROVISION OF SERVICES
5.1 SwitchboardinaBox will provide suitably qualified, experienced and competent personnel to carry out the Services and related tasks in accordance with these Terms and Conditions and any Specifications in a professional manner with due skill and care.
5.2 SwitchboardinaBox will follow all reasonable directions provided by the Customer when delivering the Services which are necessary and incidental to the performance of the Services under this Agreement.
5.3 SwitchboardinaBox will ensure the Services are provided in accordance with all applicable laws and regulations and general industry practice.
5.4 If an Order indicates that SwitchboardinaBox is to perform Services at the Site, then:
5.5 If the Customer is ordering Energy Consulting Services, the following additional conditions will apply:
5.6 If SwitchboardinaBox is providing the Customer Services which are cloud based and hosted by SwitchboardinaBox then the following terms and conditions will apply in addition to any terms and conditions of use which the
Customer may be required to agree to when accessing the cloud based services:
6 SOFTWARE LICENCE
6.1 If SwitchboardinaBox has agreed to provide Software which has an end user licence agreement (EULA), the Software will be licensed on the terms of the EULA applying to that Software.
6.2 For all other SwitchboardinaBox Software which is not supplied with a EULA, SwitchboardinaBox grants the Customer a non-exclusive, non-transferable license to “Use”, in object code form, the version or release of the Schneider Software described in the Order. For the purposes of this clause “Use” means to install, store, load, execute, and display one copy of the Software on one device at a time for the Customer’s internal business purposes. The Customer’s Use of such Software is subject to the following restrictions:
6.3 For non-SwitchboardinaBox Software, the third party supplier’s license terms that may accompany that Software will solely govern its Use.
7.1 SwitchboardinaBox warrants that:
7.2 If the Customer makes a claim during the Warranty Period it will be handled as follows:
7.5 Certain legislation, including the Australian Consumer Law, may imply warranties or conditions or impose guarantees or obligations upon SwitchboardinaBox which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. Any Order and these terms including this clause 7.5 must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which SwitchboardinaBox is entitled to do so, SwitchboardinaBox limits its liability in respect of any claim under the provisions to:
8 PRICE AND PAYMENT
8.1 The Customer must pay the Price mutually agreed by the Parties in the Order.
8.2 Unless specifically set out in the Order, SwitchboardinaBox will issue all invoices for the Products, Services and Projects as follows:
9 INTELLECTUAL PROPERTY
9.1 Each party will retain all Intellectual Property Rights in their respective Background IP. Subject to payment in full for the Products, Services and Projects, SwitchboardinaBox will grant to Customer a royalty free, non-exclusive, irrevocable and perpetual license to use SwitchboardinaBox’s Background IP necessary for Customer to enjoy the benefit of the Products, Services and Projects for the purposes of or in connection with Customer’s business.
9.2 The Customer acknowledges that SwitchboardinaBox retains ownership of the Intellectual Property Rights of SwitchboardinaBox used or created under the Agreement. SwitchboardinaBox acknowledges that the Customer retains ownership of the Intellectual Property Rights of any Customer Background IP. To enable each party to perform their obligations under each Order and for the Customer to enjoy the benefit of the Products, Services and Projects for the purpose of or in connection with its business, each party grants to the other Party a non-exclusive, royalty free, irrevocable and perpetual licence to use its Intellectual Property Rights for that purpose.
9.3 In the event that any claim is made against the Customer for infringement of any person’s Intellectual Property Rights arising of the Customer’s use of SwitchboardinaBox
Products supplied under the Agreement, SwitchboardinaBox will, at its own expense, conduct any ensuing litigation and all negotiations for a settlement of the claim. SwitchboardinaBox will bear the costs of any payment made in settlement, or as a result of an award in a judgment provided that:
9.4 Notwithstanding any other provision of the Agreement, SwitchboardinaBox will not be liable in any case whatsoever where the claim is based on:
10.1 Each Party agrees to hold in strict confidence all Confidential Information and not to disclose or permit or cause the disclosure of any Confidential Information to any person except and solely to the extent necessary for the performance of that Party’s obligations under the Agreement, unless that Party has obtained the prior written consent of the other Party.
10.2 Clause 10.1 does not apply to:
11 COMPLIANCE WITH PRIVACY LAWS
11.1 Each Party agrees to comply with its obligations under the Privacy Act in respect of Personal Information obtained by or disclosed to it pursuant to this Agreement.
11.2 Each Party must only collect, use and disclose Personal Information for the purpose of fulfilling its obligations under this Agreement unless otherwise permitted under this Agreement or the Australian Privacy Principles.
11.3 A Party must notify the other Party as soon as possible when it becomes aware of:
12 LIMITATION OF LIABILITY
12.1 Notwithstanding any other term of the Agreement, whether express or implied, SwitchboardinaBox’s total liability under the Agreement arising out of or in connection with the Agreement, whether in contract, tort (including negligence of any kind), strict liability, indemnity or otherwise arising out of SwitchboardinaBox’s performance or non-performance of the Agreement, will not exceed in the aggregate the Price actually paid to SwitchboardinaBox pursuant to the Order giving rise to such liability. This limitation shall continue to apply notwithstanding fundamental breach, breach of a fundamental term, rescission, repudiation or termination for any reason or frustration, whether unintentional or by operation of law.
12.2 Notwithstanding any other term of the Agreement, whether express or implied, to the maximum extent permitted by law, in no event will either Party, its affiliates, or their officers, directors, employees or their subcontractors be liable for any form of indirect, special or consequential loss or damage (including loss of profits, revenue, loss of use and data, loss production, loss of overheads, costs of capital, costs of financing, loss of business opportunity, loss of contracts, loss of anticipated savings or any increase in operating costs), howsoever caused, irrespective of fault, negligence or strict liability.
13.1 Unless otherwise stated, all amounts referred to under or in connection with the Agreement are exclusive of GST or any other value added or withholding taxes. In relation to any GST payable for a taxable supply (under GST Law) by a Party, the recipient of the supply will pay the GST subject to the supplier providing a tax invoice (as defined under GST Law). Terms used in this clause 13 which are defined in the GST Act have the same meaning as in the GST Act.
14 SUSPENSION AND TERMINATION
14.1 If the Customer fails to pay any sum due under the Agreement by the due date, SwitchboardinaBox may by notice, in addition to any other rights it may have, suspend supplying the Products, Services and Projects until all overdue amounts are paid. The Customer will be liable to SwitchboardinaBox for all expenses, including reasonable legal fees, relating to the collection of overdue amounts.
14.2 A Party may terminate the Agreement by providing notice to the other Party if any of the following events or circumstances occurs:
14.3 If Schneider suspends the Agreement under clause 14.1 or terminates the Agreement under clause 14.2, the Customer must pay Schneider for all monies due (including an allowance for profit) under the Agreement which may include but shall not be limited to:
(i) payment for the Products and Services provided or performed to the date of the suspension or termination; (ii) Products or materials wholly or partially procured by Schneider for the performance of the Agreement; (iii) costs of demobilisation from Site.
15 DISPUTE RESOLUTION
15.1 The parties will attempt in good faith to resolve all disputes, disagreements or claims between the parties relating to an Order. The preferred method of determination of unresolved disputes shall be by amicable agreement at the senior management level of the Customer and SwitchboardinaBox.
15.2 If the parties cannot resolve the dispute themselves they may agree to appoint an expert or mediator to help them resolve the dispute. In such event both parties agree to jointly bear the costs of such mediator or expert and be bound by the determination of such person.
15.3 In the event the parties cannot resolve the dispute and:
16.1 Nothing contained or implied in the Agreement will create a relationship of partnership or agency between the Parties and neither Party has any authority to bind the other Party to any obligations.
16.2 A Party will not be liable to the other if performance of its obligations to the other Party is delayed, impeded or prevented by any act or event beyond the control of a Party, whether foreseen or not, which delays, interrupts or prevents such Party from performing its obligations under the Agreement (Force Majeure). If SwitchboardinaBox is delayed in the supply of Products, Services and Projects due to Force Majeure which continues for more than one (1) month, either Party may terminate the Order by written notice to the other Party. For the purposes of this clause Force Majeure may also include but not be limited to hostilities, revolution, acts of war or terrorism, civil commotion, epidemic, accident or quarantines or regional medical crisis, fire, flood, wind, earthquake or storms, strikes and lockouts or shortage of materials or transport facilities or any other acts of god or act of any government or governmental agency including laws regulation or ordinance and proclamation affecting the parties or the Products or Project Deliverables.
16.3 The Customer agrees that during the term of any Order and for a period of six months after expiry of that Order it will not solicit or hire directly or indirectly any employees that SwitchboardinaBox used to provide any Services or Project under that Order to the Customer.
16.4 Neither Party may assign its rights and obligations under the Agreement without the prior written approval of the other Party (such approval not to be unreasonably withheld) provided that either Party may assign its rights and obligations to a related body corporate within the meaning of the Corporations Act 2001 (Cth) provided that the related body corporate is of similar financial standing and has the ability to discharge its obligations under the Agreement.
16.5 Each Order will be governed by and will be construed in accordance with the laws of the State of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of New South Wales and its appellate courts and waives any right to object to proceedings being brought in those courts for any reason.
16.6 If any provision of the Agreement, or the application thereof to any person, place or circumstance, will be held by a court or tribunal of competent jurisdiction to be invalid, unenforceable, or void, the remainder of the Agreement and such provisions as applied to other persons, places or circumstances will remain in full force and effect.
16.7 For the purposes of each Order, the Order together with these Terms and Conditions and the Credit Terms will form the entire agreement between the parties and as such both parties exclude all statements, representations, warranties, conditions, promises, undertakings, covenants and other provisions, express or implied (and whether implied by law including Act of Parliament or otherwise) relating to that Order.
17.1 Neither party shall comply with any foreign boycott laws or requirements, which are in violation of any federal or state law, rule, or regulation of Australia.
17.2 Customer acknowledges that each Product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively “Items”), is subject to export controls of the U.S. government. Software is licensed for use in the specific location identified in the Orders and licences attached. Customer may not export the “Items” to another country without Seller’s written permission and payment of any applicable country specific surcharges. Customer agrees to comply fully with all relevant export laws and regulations of the United States and foreign nations in which the “Items” will be used (“Export Laws”) to ensure that neither the “Items” nor any direct product thereof are
17.3 Each party shall execute and deliver to the other any documents as may be required to effect or evidence compliance.
Addendum for the Supply of Projects 18 AGREEMENT ON SPECIFICATIONS AND PROVISION OF INFORMATION
18.1 If the Products, Services and Projects involve preparing and agreeing the Specifications with the Customer, SwitchboardinaBox will prepare the necessary Specifications in conjunction with the Customer in accordance with the Timetable, or if there is no Timetable, within thirty (30) days of acceptance of the Order or such other time as is agreed between the Parties. The Customer will review and either provide amendments or approve the Specifications within five (5) working days of receipt of the Specifications. In the absence of any written comments within five (5) working days the Customer will be deemed to have approved the Specifications. Any changes to the approved Specifications will be considered a Variation in accordance with clause 20.
18.2 The Customer will respond to any requests for further information or instructions from SwitchboardinaBox within five (5) working days after the receipt of such request for further information or instructions by the Customer. If the Customer does not respond within that period (or such other period identified by SwitchboardinaBox), Schneider will have the right to claim an extension of time relating to such failure to provide the necessary information.
19 DELAY AND EXTENSION OF TIME
19.1 Unless there is a Timetable specified in an Order, SwitchboardinaBox will, if so requested by the Customer, submit a Timetable to the Customer for approval prior to commencing the supply of the Products, Services and Projects.
19.2 Any Timetable submitted by SwitchboardinaBox pursuant to clause 19.1 as requiring the Customer’s approval will be approved or commented on in writing by the Customer within five (5) working days after the receipt of such Timetable by the Customer. If the Customer does not respond within that period (or such other period agreed with SwitchboardinaBox), it will be deemed to have approved the Timetable.
19.3 SwitchboardinaBox will, at all times, take all reasonable steps to ensure that the Products, Services and Projects are supplied in accordance with the Timetable. If the supply of the Products, Services and Projects will be delayed by an act or omission of the Customer or by an event beyond SwitchboardinaBox’s reasonable control, and the delay was not contributed to by SwitchboardinaBox, SwitchboardinaBox will promptly submit a claim to the Customer for an extension of time to the Timetable setting out the details of the cause of the delay, the activities affected and the extension of time needed. The Customer will, acting reasonably, consider SwitchboardinaBox’s claim and grant the extension of time requested or such other mutually acceptable period of time as an extension to the Timetable.
19.4 Any changes to the approved Timetable including those pursuant to clause 19.3 will be considered a Variation in accordance with clause 20.
20.1 If the Customer wishes to alter, amend, omit, add to or otherwise vary an Order or Timetable including suspend the delivery of the Order, it will issue SwitchboardinaBox with a written Variation request (Variation). SwitchboardinaBox will review the Variation request and provide a quote to the Customer setting out the cost of the Variation and the impact on the Timetable.
20.2 As soon as practicable after receipt of the quote from SwitchboardinaBox, the Customer will either accept the quote by signing and returning it to SwitchboardinaBox or reject the quote in writing. If the Customer and SwitchboardinaBox are unable to agree upon the amount of the difference in cost or impact on the Timetable the provisions of clause 20.3 shall apply.
20.3 If the parties can agree upon the variation to the Timetable and the only outstanding item is pricing, the Customer may direct SwitchboardinaBox to proceed with the Variation request on a Time and Materials basis in accordance with SwitchboardinaBox’s standard schedule of rates. Unless SwitchboardinaBox reaches agreement with the Customer under clause 20.2 or it receives a direction under this clause, SwitchboardinaBox will not be required to proceed with the Variation request.
21 TESTING AND ACCEPTANCE
21.1 For Products, the Customer will be deemed to have accepted the Products on the date that the Products are delivered to the Customer at the Delivery Point (Delivery Date).
21.2 For all Project Deliverables, the following provisions will apply:
(Date of Acceptance).