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Terms of Services

Jan 2012

1. Introduction

1.1 These Terms of Services apply to any Quote given by Broadreach, and to any Services undertaken by Broadreach whether or not a Quote has been prepared or agreed between Broadreach and a the client, and these Terms of Service apply regardless of any terms and conditions on any purchase order or other correspondence with the client.

2.1 All Quotes are valid for 30 days from the date of the Quote.

2.2 Quotes do not include GST unless otherwise specifically stated.  If any supply made by Broadreach is subject to GST, the client must pay to Broadreach an additional amount equal to the GST payable at the same time as the payment is made for the supply.

2.3 All Quotes include the following assumptions (unless specified otherwise in the Quote) and in the event any of these assumptions is incorrect, Broadreach may reissue a new Quote with changed details and pricing:

(a) the Quote sets out the complete and full scope of the Services and Deliverables to be provided;
(b) installation will occur during normal business hours;
(c) there are no delays or costs to access the site;
(d) Broadreach will not incur additional travel and accommodation costs;
(e) there is adequate access to power outlet and data points;
(f) cabling and electrical/data point work additional to that provided in the Quote are not required;
(g) the existing electrical and data (IP, ISDN, & POTS) outlets required for audio visual equipment will be operational;
(h) there is no requirement for the equipment to integrate with legacy AV equipment;
(i) assistance is available on-site to lift screens if required;
(j) a scissor lift is not required;
(k) there are standard plaster walls at the site;
(l) no building works are required, such as:

(1) core holes and penetrations, including any floor-box penetrations;
(2) access panels, wall reinforcement, and slots for projector screens;
(3) repairing wall or ceiling penetrations required for access.

2.4 Broadreach reserves the right to change the Quote in the event the cost of any products in the quotation increase beyond its reasonable control; or if there is any material error; or if any products are no longer available.

2.5 Any changes required to any Services or Deliverables must be dealt with by way of the issue by Broadreach of a revised Quote which must be accepted by the client before the changes are to take effect.

3.1 Broadreach must:

(a) use its best endeavours to provide the Services to the client;
(b) use all due care and skill in providing the Services; and
(c) comply with all reasonable industry and professional standards and codes relating to the provision of the Services;
(d) comply with all relevant Occupational Health & Safety legislation, safe working practices, all relevant legislation for the protection of the environment and if undertaking any work on the client’s premises, any the client health, safety, technical and environmental management policies and procedures, provided in writing to Broadreach;
(e) ensure that each of its Affiliates act in accordance with these Terms of Services.

4.1 The client must upon receipt of a tax invoice, pay the Fees to Broadreach on the payment terms stated in these Terms of Services.

4.2 Invoices will be issued by Broadreach as follows (unless otherwise specified in the Quote):

(a) Hardware: 100% upon delivery of the hardware to the client’s site or to Broadreach whichever is the sooner;
(b) Managed Services: 100% of the annual fee prior to the start of the Services;
(c) Maintenance: 100% upon delivery of the hardware to the client;
(d) Installation: if the Services are to be delivered over a period of less than 4 weeks, 25% prior to installation and the balance upon completion of the agreed work or upon the client using the system whichever is the sooner.  If the Services are to be delivered over a period greater than 4 weeks, monthly progress invoices will be issued;
(e) Training & Events: 100% payable prior the start of training workshop or event.  Cancellation fees apply;
(f) Project Management: if the project management Services are to be delivered over a period of less than 4 weeks, 25% prior to commencement of the project and the balance upon completion of the agreed project work.  If the project is to be delivered over a period greater than 4 weeks, monthly progress invoices will be issued;
(g) Consultancy Work: if the consultancy work Services are to be delivered over a period of less than 4 weeks, 25% prior to commencement of the agreed Services and the balance upon completion of the agreed Services.  If the work is delivered over a period greater than 4 weeks, monthly progress invoices will be issued.
(h) Other Services (not specified above): 100% prior to the Services commencing.

4.3 The client must pay the Fees for any hardware components specified in any Quote within 21 days of date of the invoice any other Fees must be paid within 30 days of the date of the invoice.  

4.4 If payment is not received by the due date interest may be charged at Broadreach's current bank overdraft rate plus four per cent on the sum outstanding for the period from the due date until the date payment is received by Broadreach. If at any time moneys are overdue and owing upon any invoice then outstanding, the whole of the amount of all invoices then outstanding becomes immediately due and payable.

4.5 Prices of any Services delivered over a period in excess of 12 months are subject to CPI increase by Broadreach every 12 months. In the event of any increase in labour or material cost to Broadreach, Broadreach may at any other time increase such prices by written notice to the client.

5.1 The date of delivery in the Quote is made in good faith and is subject to Broadreach not being delayed by instructions or lack of instructions from the client, or Act of God, war, government, award, industrial disturbance, delays or damage to goods in transit, shortage of materials or any other cause beyond Broadreach's control. In the event of a delay arising from, or contributed to, by any cause beyond Broadreach's reasonable control, the delivery time will be extended commensurately and such delay in delivery will not constitute a breach of contract, nor will it affect other provisions of the contract to Broadreach's disadvantage. Broadreach will accept no liability for loss of use or for any indirect or consequential damages arising from delays in delivery.

5.2 Should the client delay delivery of the equipment, Broadreach may store the equipment and to obtain payment as though the equipment had been delivered and to recover storage, insurance and handling costs incurred due to the delay.

5.3 Should the client delay the works for any reason, the client must continue to meet any previously agreed payment milestones dates if the delay is not caused by Broadreach.

6.1 The Quote together with these Terms of Services sets out the full scope of the Services and Deliverables to be provided by Broadreach to the client. Should either party wish to make any change, they must request the change in writing to the other.  Broadreach will consider the impact (if any) on any existing Quotes and it must prepare a new Quote or revise any existing Quote and deliver the new or revised Quote to the client for the client’s agreement for the change to be accepted by both parties.

6.2 Broadreach reserves the right to make reasonable modifications or substitutions to any Deliverable without notice to the client and to deliver revised designs or models of products against any Quote provided the revised designs or models provide the same functionality as that required by the client.

7.1 Clear title to any Deliverable passes to the client upon full payment by the client all Services. The client will act as a bailee of any Deliverable until full payment.

7.2 In the event of non-payment for any Deliverable or any Services, Broadreach has the right to retake possession of any or all Deliverables. To this extent, after giving forty eight (48) hours’ notice to the client, Broadreach may enter the Buyer's premises between 9:00am and 5:00pm to retake possession of the goods. The client shall be liable for all costs associated with the exercise of Broadreach 's rights under this clause, which costs shall be payable on demand.

7.3 Broadreach will be responsible for any damage or loss to any Deliverable up to the point the Deliverables are delivered to the client’s premises and at that point, all risk to any Deliverable will transfer to the client. 

7.4 The client will insure the Deliverables until paid for in full against loss or damage and will receive and hold the proceeds of any such insurance in trust for Broadreach.

8.1 Broadreach and the client agree and acknowledge that:

(a) The client (or its licensors) owns all Intellectual Property Rights in any materials supplied to Broadreach;
(b) All Intellectual Property Rights held by either party (or its licensors) prior to delivering any Services or Deliverables will remain with that party;
(c) Broadreach hereby grants to the client a perpetual, non-exclusive licence to use and modify any Intellectual Property Rights referred to in clause 8.1(b) held by Broadreach to the extent required for the client to receive the full intended benefit of the Services and Deliverables.  Broadreach must ensure that its employees and sub-contractors, consent to the infringement of all moral rights in and to the Services and Deliverables to the full extent permitted by law (of each and every country) for the benefit of the client, its successors, assigns and licensees, to give full effect to such licence;
(d) The client is granted a perpetual, non-exclusive licence to use (within the usual course of its business) any new Intellectual Property Rights in the Services or Deliverables which arise as a result of Broadreach's appointment under these Terms of Services or that are created in the course of Broadreach (or any Affiliate) providing the Services or Deliverables. Broadreach must ensure that its employees and sub-contractors, consent to the infringement of all moral rights in and to the Services and Deliverables to the full extent permitted by law (of each and every country) for the benefit of the client, its successors, assigns and licensees, to give full effect to such licence;
(e) All new Intellectual Property Rights in the Services or Deliverables and any other materials which arise as a result of Broadreach's appointment under these Terms of Services or are created in the course of Broadreach (or any Affiliate) performing the Services, will vest in Broadreach on creation. The client must do all things and execute such documents as Broadreach may require to vest those Intellectual Property Rights in Broadreach including (to the extent necessary to give effect to this clause) licensing Broadreach to use and modify any Intellectual Property Rights referred to in clause 8.1(a) or (b).  The client must, and must ensure that its employees and sub-contractors, consent to the infringement of all moral rights in and to such Intellectual Property Rights to the full extent permitted by law (of each and every country) for the benefit of Broadreach, its successors, assigns and licensees.

8.2 Broadreach may refer generally to its relationship and work with the client in Broadreach’s marketing and may use the client’s logo for this purpose.

9.1 Other than as required by law, no warranty is given in relation to any Deliverables where Broadreach is not the manufacturer of the Deliverables other than the warranty offered by the manufacturer of the goods supplied.

9.2 Broadreach warrants that it will provide the Services with due care and skill and will ensure that its employees and Affiliates use all possible care and skill that can be reasonably be expected of an organisation providing similar services.

9.3 In the event of any defective labour, materials or performance, Broadreach’s liability shall (other than as required by law) be limited to, at its discretion, re-performing the Services, fixing or replacing the hardware, or refunding of the payments made to Broadreach or any combination thereof.

9.4 Subject to clause 8.2, in no event will Broadreach’s liability to the client under these Terms of Services or at law:

(a) include any liability for any loss of profits or consequential loses; and
(b) for any one event or series of events exceed more than the total of Broadreach’s Fees received for the relevant engagement in the immediately preceding 12 months.

10.1 A party who has access to any Confidential Information of the other must:

(a) keep that Confidential Information confidential; and
(b) not use or attempt to use that Confidential Information for its own purposes unconnected with the Services, or for the purposes of any other person, or do or omit to do any thing involving the use of the Confidential Information which may injure or cause loss to the other party.

10.2 The party receiving the Confidential Information must:

(a) confine the distribution of the Confidential Information to those of its employees, officers, agents or independent contractors who need access to it for the purposes of the providing the Services and who have given an undertaking of confidentiality to the disclosing party in terms similar to this clause;
(b) where Broadreach is granted access to the client corporate networks, systems and/or applications, including remote access, comply with the client security policies and procedures;
(c) be responsible for the acts and defaults of its employees, officers, and Affiliates in respect of any Confidential Information disclosed to them and take all reasonable measures to enforce the obligations;
(d) return all Confidential Information and copies of it immediately upon the client's request.

11 Dispute Resolution

11.1 Subject to clause 11.4, if a dispute arises in relation to these Terms of Services, the parties must first endeavour to, settle the dispute by conference and negotiations, and failing any resolution of the dispute within 21 days, the matter must be referred to each party’s General Manager for resolution within a further period of 10 days (“Escalation Period”).

11.2 If the parties are unable to resolve the dispute within the Escalation Period, then the matter must be referred within the next 10 Business Days for mediation to be conducted by the Australian Commercial Disputes Centre Limited in accordance with its then current mediation rules and guidelines; and if the dispute remains unresolved 3 months after the referral to the Australian Commercial Disputes Centre Limited in Sydney, then either party may commence court proceedings in relation to the dispute.

11.3 This clause will not prevent either party from seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of the first-named party’s Intellectual Property Rights.

11.4 Pending the settlement or determination of any dispute or difference, the parties must fulfil all of their respective obligations under these Terms of Services including, in the case of Broadreach, in so far as it is reasonably practicable to ensure that all obligations will be completed within the time stipulated or within such extended time as may be allowed under these Terms of Services, and, in the case of the client, the obligation to make any payment due to Broadreach under these Terms of Services unless, in either case, the particular obligation is the subject the dispute between the parties.

12.1 Nothing in these Terms of Services constitutes a relationship of agent, employer and employee or partnership between the client and Broadreach (or any of Broadreach's employees, associates or Affiliates).

12.2 Broadreach has no right to bind the client in contract or otherwise.

12.3 Broadreach may engage Affiliates to provide the Services but Broadreach will remain solely responsible to deliver the Services under these Terms of Services.

13.1The failure of either party to insist on performance of any provision of these Terms of Services is not a waiver of its right to insist on performance of that or any other provision.

13.2 Part or all of any clause which is illegal or unenforceable will be severed from these Terms of Services and will not affect the continued operation of the remaining parts or clauses.

13.3 The terms of these Terms of Services supersede all prior representation or understandings between the parties. 

13.4 These Terms of Services is governed by the laws of the State of New South Wales.

14. Definitions and Interpretation

 

14.1 Definitions

In these Terms of Services, unless the context requires otherwise:

"Affiliate" means an independent contractor of Broadreach who is involved in providing the Services;

"Confidential Information" means all information which is disclosed by one party to the other relating to any proposed or existing products, services, business or affairs of the disclosing party or its Related Bodies Corporate and includes both verbal and written information and may include but is not limited to any commercial, financial or technical information.  Confidential Information does not include information which:

(a) is now or becomes generally available to the public other than through a breach of these Terms of Services; or
(b) has become or becomes available to either party without that party being aware of an obligation of confidence; or
(c) is required by any law or by any regulatory body with the requisite authority to be disclosed.

“Deliverable” means any goods or property to be delivered by Broadreach to the client as specified in a Quote;

“Fees” means the fees stated in the Quote.

"Hardware" includes any operating system or other third party software allowing the hardware to function;

"Intellectual Property Rights" means all intellectual property rights including but not limited to rights in designs, plans, inventions, discoveries, formulae, processes, specifications, software, object codes, drawings, prototypes, products, samples, improvements, developments, applications, engineering and manufacturing and marketing data, customer names,logos, copyright, Trade Marks, trade names and trade secrets whether or not the same are or may be patents, registered or otherwise publicly protected;

“Quote” means the quote in relation to any specific work or project provided by Broadreach to the client that details the nature and parameters of any specific Services and Deliverables;

"Related Body Corporate" has the meaning given in the Corporations Act;

"Services" means the services of the kind provided by Broadreach as stated in Quote, which may be varied by the parties by the issue of a revised Quote;

"Trade Marks" means any trade mark, business name or domain name used by, registered by or licensed to a party, or any other trade mark specified by a party from time to time.

14.2 Interpretation

In these Terms of Services, unless the context otherwise requires:

(a) headings are for convenience only and must be ignored in construing these Terms of Services;
(b) words importing the singular include the plural and vice versa;
(c) references to a person include references to an individual, body corporate, partnership or other legal entity;
(d) a warranty, representation or obligation of more than one person binds them jointly and severally;
(e) references to any person include their successors or permitted assigns;
(f) these Terms of Services includes any Quote.

 

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