1.1 Customer/Client means any person or entity who has placed an order for services with Barrasons or requests a Quotation from Barrasons;
1.2 Barrasons means Barrason’s Engineers Pty Ltd. ABN 98 635 681 300;
1.3 Services means the scope of work specified in the Contract and includes all variations and remedial work.
1.4 Terms and Conditions mean these terms and conditions of sale, as may be amended from time to time by Barrasons
1.5 Procurement is the process of acquiring goods and services. It begins when a need has been identified and a decision has been made on the procurement requirement.
2. QUOTATIONS AND ORDERS
2.1 Any quotation made by Barrasons is an invitation to treat and not an offer to sell services.
2.2 Prices quoted by Barrasons are in Australian Currency (unless noted otherwise); subject to changes necessary to correct errors and are otherwise valid for a period of 30 days only.
2.3 The Customer offers to enter into an agreement with Barrasons for the supply of services in accordance with these Terms and Conditions by placing an order for services with Barrasons. No order for services is binding on Barrasons until Barrasons formally accepts that order.
2.4 Barrasons’ formal acceptance of an order, any relevant terms on the quotation made by Barrasons and these Terms and Conditions alone, will constitute the entire agreement of the parties (Contract) in relation to the supply of services, and may only be varied in writing, signed by the parties or as permitted by these Terms and Conditions.
2.5 The Contract sets out the entire agreement and understanding between Barrasons and the Customer in respect to the relevant services and supersedes all prior agreements, understandings and representations (whether expressed or implied).
2.6 Barrasons is not bound by any supply agreement, terms or conditions, purchase order or other document issued by a Customer (Customer Document). The Contract prevails over any terms of a Customer Document, which terms will have no contractual effect.
2.7 No order may be cancelled after acceptance by Barrasons without Barrasons’ consent. The Customer indemnifies Barrasons in respect to all direct and indirect costs, expenses and losses incurred as a result of the cancellation of an order.
2.8 Contract continues through the processes of risk assessment, seeking and evaluating alternative solutions, and the awarding and reporting of a contract.
3.1 Unless otherwise agreed by Barrasons in writing, the price to be paid by the Customer for services will be:
(a) Barrasons’ then prevailing price in Australian Currency, for the supply of such Products to the Customer; and
(b) any applicable taxes or charges (including any goods and services or similar taxes) levied by any government authority upon the supply or use of the services.
(a) a service provider raises its prices, or imposes a surcharge on Barrasons; or
(b) any tax is imposed or increased in connection with the supply of any services by Barrasons;
(c) Barrasons otherwise incurs an increase in costs in supplying services to the Customer, Barrasons reserves the right to increase applicable prices and the Customer agrees to accept such price increases.
3.3 Deliveries of any documentation will incur a delivery charge unless otherwise agreed by Barrasons.
3.4 Conducting a procurement, parties must consider the relevant financial and non-financial costs and benefits of each submission including, but not limited to the:
a. quality of the goods and services;
b. fitness for purpose of the proposal;
c. potential supplier’s relevant experience and performance history;
d. flexibility of the proposal (including innovation and adaptability over the lifecycle of the procurement);
e. environmental sustainability of the proposed goods and services (such as energy efficiency, environmental impact and the use of recycled products)
i. recognising the Australian Government’s commitment to sustainable procurement practices, entities are required to consider the Australian Government’s Sustainable Procurement Guide where there is opportunity for sustainability or use of recycled content 4;
ii. the Sustainable Procurement Guide is available from the Department of Agriculture, Water and the Environment’s website; and
f. whole-of-life costs, including:
i. the initial purchase price of the goods and services;
ii. maintenance and operating costs;
iii. transition out costs;
iv. licensing costs (when applicable);
v. the cost of additional features procured after the initial procurement;
vi. consumable costs, including the environmental sustainability of consumables; and
vii. decommissioning, remediation and disposal costs (including waste disposal).
4.1 Payment for Products must be made by the Customer to Barrasons within 30 days from the last day of the month in which the invoice for those products was issued.
4.2 Payment must be in a form acceptable to Barrasons and without any deduction, withholding, set-off or counter claim of any nature.
4.3 Barrasons reserves the right to charge the Customer for reimbursement of all credit card charges, bank charges (including currency exchange charges), merchant fees etc.
5. DELIVERY OF SERVICE
5.1 Barrasons will make all reasonable efforts to deliver the service to the Customer by the date(s) applicable under a Contract, but shall be under no obligation or liability to the Customer for failing to do so.
5.2 Any delay in engineers information request or receiving reviews and comments must take account in submissions.
5.3 Barrason’s Engineers is not responsible for following up and reminding any parties in order to receive requested information.
5.4 If third parties delayed the project and Barrason’s Engineers progress goes on hold due to other party delay, new program will be submitted by Barrason’s Engineer to retrieve the time lost period.
5.5 Clients and customers should consider Barrason’s Engineers is committed projects program and delay in other projects should not effect our commitment on delivery of other projects. In case of delay in one project, Barrason’s Engineers will compensate the delay effects by new schedule or new element rates.
6. RISK OF LOSS
6.1 The benefit and the risk of the engineering documentation shall pass to the Customer with its delivery.
6.2 Customers must provide documents and information necessary for services. Accuracy of provided information risk is with customers and Barrason’s Engineers is not responsible for inaccurate designs or out-dated customer input,
6.3 The scale and scope of the business requirement must be agreed at beginning of the contract and any extra requested services requested by client will be variation and charged the engineer hourly rate.
6.4 the relevant entity’s resourcing and budget should be agreed and committed by Barrason’s Engineers and all parties involved in the contract/agreement.
6.5 Obligations and opportunities under other existing arrangements that affect Barrason’s Engineers scope must be discussed with the engineer;
6.6 The Barrason’s Engineers’ capacity to competitively respond to a procurement must be agreed.
6.7 Any delay risk due to lack of information requested by information or third party not involve in the contract, but effected Barrason’s Engineers progress is with Client/Customer.
6.8 Risk management comprises the activities and actions taken by a relevant entity to ensure that it is mindful of the risks it faces, that it makes informed decisions in managing these risks, and identifies and harnesses potential opportunities
7. BREACH AND INSOLVENCY
(a) the Customer fails to comply strictly with the terms of a Contract;
(b) an application or order is made, a resolution is made or proposed or other steps are taken for the winding up, dissolution, official management or voluntary administration of the Customer (other than a voluntary liquidation for the purpose of amalgamation or reconstruction): or
(c) the Customer enters into any arrangement, compromise or composition or assignment for the benefits of its creditors or any class of them;
(d) a receiver, a receiver and manager, administrator or other officer is appointed to the Customer or any part of its property, or a third party attempts to levy execution against the Customer`s property or the goods;
(e) the Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of business;
(f) the Customer is or is deemed (including under any applicable law) unable to pay its debts as and when they fall due, or stops or suspends the payments of its debts;
(g) in the case of the Customer being a natural person, the Customer commits an act of bankruptcy; or
(h) Barrasons is of the view, acting reasonably, that any of the above will or are likely to occur, Barrasons may (without limiting or otherwise prejudicing any other rights it may have) at any time terminate any and all Contracts between Barrasons and the Customer and refuse to supply any and all services to the Customer. The Customer agrees to indemnify Barrasons (and keep Barrasons indemnified) against loss, cost or expense and other liability (including but not only legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Barrasons in connection with any breach of a Contract by the Customer.
8. CUSTOMER WARRANTIES
8.1 The Customer:
(a) warrants to Barrasons that it has read and understood these Terms and Conditions:
(b) warrants to Barrasons that all information supplied by or on behalf of it to Barrasons in connection with the supply of services is true and accurate and not misleading;
(c) warrants that it has not relied on any representation or statement made by or on behalf of Barrasons in connection with the supply of services that has not been clearly and expressly stated in the Contract;
(d) acknowledges that Barrasons has relied on the information supplied by or on behalf of the Customer to it in supplying the services; and 8.2 The Customer indemnifies Barrasons and holds Barrasons harmless against all fines, penalties, damages, loss, costs or expenses (including but not only legal expenses of any nature and payable to or on behalf of any person) suffered or incurred by Barrasons in connection with any breach of the warranties of the Customer set out in these Terms and Conditions.
8.3 Without limiting the liability of the Customer under the indemnity above, Barrasons may at its sole discretion by itself or in conjunction with the Customer defend, settle or compound any action, suit, proceeding, claim or demand brought or made against it by any person in connection with any breach of the warranties given by the customer under these Terms and Conditions and the Customer agrees that the indemnity extends to any cost or expense incurred by Barrasons in conducting that defense or in settling or compounding the action, suit, proceeding, claim or demand.
8.4 Barrasons reserves the right to refuse to do or to omit to do anything, or refuse to comply with any request or direction of the Customer, which in the reasonable opinion of Barrasons would constitute or result in a breach of any warranty given by the Customer under these Terms and Conditions or a breach by the Customer of a Contract.
9. INTELLECTUAL PROPERTY
9.1 All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or industrial or intellectual property disclosed or otherwise provided to the Customer by Barrasons or otherwise subsisting in the Products and all rights therein (collectively Intellectual Property) will remain the property of Barrasons and will be kept confidential by the Customer. The Customer shall have no claim to, nor ownership interest in, any Intellectual Property. The Customer acknowledges that no license or rights of any sort are granted to the Customer in respect of any Intellectual Property, other than the limited right to use services from Barrasons for the purpose they are supplied by Barrasons.
9.2 The Customer warrants that any services supplied by Barrasons which are based in whole or in part upon designs, drawings, specifications or information supplied by Barrasons by or on behalf of the Customer shall not infringe any letters, patents or registered designs or any other industrial or intellectual property rights of any person.
10. CONFIDENTIAL INFORMATION
10.1 All information furnished or made available by Barrasons to the Customer in connection with the subject matter of these Terms and Conditions or the supply of services shall be held in the strictest confidence by the Customer. The Customer agrees not to use such information or disclose such information to others without Barrasons’ prior written consent. The obligations in this paragraph will not apply to any information which:
(a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Customer or any obligation herein;
(b) the Customer can show by written records, was in the Customer`s possession prior to disclosure by Barrasons; or
(c) is legally made available to the Customer by or through a third party having no direct or indirect confidentiality obligation to Barrasons with respect to such information.
11. (a) Examination of the services shall be made by or on behalf of the Customer, and unless within 7 business days of delivery of the services, the Customer gives written notice that the services do not comply with the applicable Contract, the services shall be deemed to have been in all respects supplied in accordance with the relevant Contract, and the Customer shall be bound to accept and pay for the services accordingly.
(b) Claims by the Customer in respect of services which have not been supplied in accordance with the relevant Contract will only be considered by Barrasons if: (a) the claim is made within 7 business days of the date of delivery of the services;
(b) representatives of Barrasons have been afforded a reasonable opportunity to review the services.
(c) The Customer shall not deduct the amount of any anticipated credit from any payment due to Barrasons, nor delay
such due payments, but must await receipt of a credit note.
(d) If the Customer is a Consumer for the purposes of the Australian Consumer Law (as contained in Schedule 2 of the Competition
and Consumer Act 2010 (cth), nothing in the Contract (including this clause 11 and clause 12) will be construed as being
contrary to the provisions of the Australian Consumer Law and Barrasons acknowledges that:
Barrasons’ services come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is
entitled to a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage,
limited to the extent of the contracted amount.
12. LIMITATION OF LIABILITY
12.1 Barrasons will not be responsible for any failure to supply services on the date agreed between the parties and the Customer
is not entitled to cancel any order as a result of that failure.
12.2 Except as expressly provided to the contrary in writing by Barrasons in a Contract: (a) Barrasons gives and makes no warranty or
indemnity in respect of the services; and (b) all conditions and warranties implied at law ( whether by statute, common law, equity
or otherwise) are (to the extent permitted by law) expressly excluded from the Contract.
12.3 If any statute implies any term, condition or warranty into a Contract, the statute prohibits provisions in a contract excluding or
modifying the application of, exercise of, or liability under, such a term, condition or warranty, then that term, condition or
warranty will be taken to be included in the Contract. However, the liability of Barrasons for any breach of such a term,
condition or warranty will be limited, if permitted by the statute, at the option of Barrasons, to any one or more of the
following if the breach relates to services:
1. The supplying of the services again; or
2. To the extent required by the relevant statute, the payment of the cost of having the services supplied again.
12.4 To the extent permitted by law, and except as otherwise expressly agreed in writing by Barrasons as part of a Contract, Barrasons
will not be liable for any personal injury, incidental damages, consequential losses, loss of profit, cost of business interruption, loss
of opportunities or any other loss, damage, cost, expense or liability whatsoever arising from any use of, or incidental to, the
services or their use, or arising out of Barrasons’ negligence or breach of a Contract.
12.5 Barrasons shall be under no liability to the Customer for any loss occasioned by the failure of the Customer to comply with any
instructions given by Barrasons whether written or oral in respect of the service or as a result of the misuse of the service by the
Commented [PB1]: The Australian Consumer Law beats our Terms & Conditions – I suspect detailing a panel would not meet the fitness for purpose exemption for qualified engineers as the output can be more clearly defined than the
output of a complex engineering project – which is the intent behind the exemption (personal opinion).
Commented [PB2]: The condition that best describes what you were asking. I have included condition 12.6 to be more specific – but would the inclusion of 12.6 weaken this clause?
12.6 Barrasons total aggregate liability in connection with this Contract shall in no event exceed 25% of the sum of this Contract price.
12.7 The Customer agrees that any legal costs incurred by Barrasons (on a solicitor and own client basis) in the recovery of any monies due by the Customer shall be recoverable in full from the Customer.
13. EXCUSABLE DELAYS
When a contract does not specify an end date it must allow for periodic review and subsequent termination of the contract by the relevant entity, if the relevant entity determines that it does not continue to represent value for money.
(a) Barrasons shall not be liable for any failure to comply with a Contract when such failure is caused by or arises out of any of
the following: (1) fire, storm, tempest, earthquake, inevitable accident or other act of God; (2) any act of public enemy; (3) any act of any government or any government authority or instrumentality; (4) an act of any person engaged in subversive activity or sabotage; (5) epidemics or quarantine restrictions; (6) strikes, slow-downs, lockouts, or labour stoppages or disputes of any
kind or freight embargoes; (7) any shortfall, delay or failure to supply by any of Barrasons’ suppliers; or (8) any other cause or event whatsoever which is beyond the control and without the fault or negligence of Barrasons.
(b) In the event of a failure by Barrasons to comply with a Contract, unless Barrasons advises the Customer that it is able to make alternative arrangements, the Customer shall be entitled to obtain the services contracted for elsewhere for the duration of such failure.
14. CUSTOMER`S TRUST
If the Customer enters into this Agreement as trustee of a trust (“Trust”), the Customer:
(a) Confirms that it enters into this Agreement as trustee of the Trust both for its beneficiaries and for itself and in this Agreement, each reference to the Customer is a reference to it in each capacity; and
(b) Warrants to Barrasons that:
(1) It is the only trustee of the Trust;
(2) No action has been taken or proposed to remove it as trustee of the Trust;
(3) It has power under the trust deed relating to the Trust to enter into and observe the Customer`s Covenants;
(4) It has a right to be fully indemnified out of the trust fund of the Trust in respect of its obligations to perform and observe the Customer`s Covenants;
(5) The assets of the Trust are sufficient to satisfy Barrasons’ right of indemnity out of the Trust Fund;
(6) It is not in default under the terms of the Trust; and
(7) Barrasons’ Rights rank in priority to the interest of the beneficiaries of the Trust.
15. GOVERNING LAW
These Terms and Conditions are governed by and construed in accordance with the laws of the State of Victoria, Australia (regardless of the place in which the services are to be provided). The Customer submits to the jurisdiction of the courts of the State of Victoria and of the courts competent to hear appeals from the courts of that State.
(a) The Customer acknowledges that these Terms and Conditions are available through Barrasons Engineers and may change without notice.
(b) The Customers continued purchase of services will evidence consent to the new terms and conditions as amended in accordance with clause 16 (a).