Terms and Conditions

GENERAL

PLEASE READ CAREFULLY: UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT WITH DAVID BIRCHALL OR ITS SUPPLIERS WHICH TERMS APPLY TO THE SPECIFIC SERVICE PURCHASED FROM DAVID BIRCHALL t/a BIRCKO BUSINESS SYSTEMS (BIRCKO BUSINESS SYSTEMS), OR UNLESS OTHER BIRCKO BUSINESS SYSTEMS TERMS OR ADDITIONAL TERMS ARE SPECIFIED ON ANY PROPOSAL FOR A SPECIFIC SERVICE, THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (TERMS) (WITH ANY ADDITIONAL TERMS IF SO SPECIFIED) WILL APPLY AND GOVERN ALL SALES OF BIRCKO BUSINESS SYSTEMS TECHNOLOGIES SERVICES.

Any dispute that may arise between you and Bircko Business Systems will be governed by the law of New South Wales. You agree to submit to the non-exclusive jurisdiction of its courts. You will not object to the exercise of jurisdiction by those courts, either for forum non conveniens or on any other basis.

Unless otherwise agreed, the client will be charged 50% of the project total at engagement. Final payment of the remaining 50% is required within 14 days of the completion of the agreement. Completion is defined according the terms of the specific engagement.

You agree to pay any fees owing to Bircko Business Systems in Australian currency at exchange rates current at time of payment.

Payment must be in the manner prescribed on the invoice.

Prices are exclusive of GST.

Final prices for services will be fixed at the time Bircko Business Systems sends out the invoice for services.

You must notify Bircko Business Systems promptly of any errors or omissions of any kind contained in the invoice.

Bircko Business Systems reserves the right to correct the price prior to payment where there has been a typographical error or other error in the price.

Payments must be made within 30 days, or as per the payment terms written on the invoice, whichever is the earlier. After the expiration of the term days, all unpaid balances relating to that invoice will attract a late payment fee of either 3% of net outstanding amount calculated monthly or $10 per invoice, whichever is the higher. This late payment fee is compounded and payable monthly. Bircko Business Systems reserves the right to alter this fee in the future.

Bircko Business Systems reserves the right to terminate services and/or pursue legal action if full payment is not received for invoices within 45 days of issue.

The Customer agrees that each order it places will be and be deemed to be a representation by it at that time that it is solvent and able to pay all its debts as and when they fall due.

The client irrevocably authorises Bircko Business Systems, its servants and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the client from time to time, including the making of enquiries with persons nominated as trade references, the bankers of the client, any other credit provider or a credit reporting agency.

The client hereby authorises the information sources to disclose to Bircko Business Systems such information concerning the client which is within their possession and which is requested by Bircko Business Systems. The client agrees that the information provided on any credit application concerning the client may be disclosed to a credit reporting agency or any other interested person

If Bircko Business Systems, from time to time, grants any credit facility or nominates any credit limit, Bircko Business Systems can vary or withdraw such credit facility or limit at any time at its complete discretion and without any liability whatsoever to the Customer or any party claiming through the Customer.

TERMINATION OF A WEB DEVELOPMENT AGREEMENT

Either party may terminate an agreement for web development by giving seven (7) days notice in writing to the other party, if any of the following occurs:

The other party commits a breach of these terms which is not rectifiable.

The other party fails to rectify a breach of this agreement which is rectifiable for 7 days after receiving a written notice from a party specifying the breach and requiring the other party to rectify it.

Should such a termination arise, that is at the request of the client, any monies paid to Bircko Business Systems in accordance with this agreement shall not be fullyrefunded to the client.

Bircko Business Systems will refund the deposit amount less costs for any work (including engagement costs) that we have performed up to the time the refund is requested.

In the event of any termination of the agreement by Bircko Business Systems, payment by the client for completed development work that has been successfully delivered as per the project plan will be required. This will include but not be limited to Wireframes, Specifications, documentation, creative design and project management. Payment for work not completed will be refunded in full by Bircko Business Systems to the client. In the event the termination is initiated by the client, the first x%(typically 50%) upfront payment will not be fully refunded and any additional work over and above that included in the first x% upfront payment, a further payment will be required.

TERMINATION OF HOSTING & OTHER SERVICE AGREEMENTS

The client must provide 1 (one) months notice to Bircko Business Systems in the form consistent with these Terms to terminate the services provided by Bircko Business Systems. Upon termination, the following termination fees are payable. Termination fees are subject to the payment terms specified in this document.

Web hosting - $49

ADSL (excluding powertel) - $49 plus any payments owing in order to pay out the initial 6 month contract.

ADSL (powertel only) - $49 plus any payments owing in order to pay out the initial 12 month contract.

EXCESS DATA CHARGES FOR INTERNET SERVICES

Where data limits have been specified either by Bircko Business Systems or by the wholesale provide e.g. Powertel, the client agrees to pay excess data charges at $0.08 per MB download. Bircko Business Systems will endeavour to provide completed information about such limits however, it is incumbent on the client to request this information if it is not clear on Bircko Business Systems's documentation.

LIMITATION OF LIABILITY

Bircko Business Systems will not be liable in any event in any way whatsoever for any contingent, consequential, direct, indirect, special or punitive damage arising in any way whatsoever in relation to the products and the client acknowledges this express limit of liability and agrees to limit any claim accordingly.

Any term, condition, agreement, warranty, representation or understanding whatsoever, whether express or implied, in any way extending to or otherwise relating to or binding upon Bircko Business Systems, other than these Terms, is hereby expressly negatived and excluded.

HARDWARE LIABILITY

Title to and risk of hardware products is the responsibility of the customer from the point of dispatch. Liability for bundled software products or pre-load Bircko Business Systemsed software packages remains in effect as per the standard Bircko terms and conditions for software based products and services.

In cases where Bircko is acting in a channel or sales only capacity, and no handling of hardware has occurred by Bircko, liability is transferred to the manufacturer or group responsible for dispatch. In such cases the customer agrees not to hold Bircko liable for any equipment damage or defect.

The customer understands and agrees that the final purchase forms a contract for warranty and liability with the hardware manufacturer and/or their distributors, not Bircko. As such the customer agrees to hold Bircko immune to any resulting warranty claims, damage or loss.

ONLINE SERVICES LIABILITY

Bircko will make every reasonable effort to ensure quality and security in the delivery of its online services. This involves the regular review and auditing of our handling and distribution processes. Additionally, we will ensure that security methods are as comprehensive and controlled as reasonably possible. There are, however, some circumstances under which Bircko cannot extend this control. In such cases the customer agrees to hold Bircko Business Systems and its representative immune to any liability or damage that may arise.

These circumstances include, but are not limited to:

A deliberate and successful attack upon Bircko Business Systems security or data storage facilities resulting in data loss, partial corruption, electronic virus transmission through our systems or exposure of customer information. An illegal or malicious act that results in data loss, electronic virus transmission through our systems or exposure of customer information.

Any accident outside Bircko Business Systems's reasonable control that results in data loss, electronic virus transmission through our systems or exposure of customer information. Any act of war, act of terrorism, civil disturbance, natural event or legal enforcement that negatively impacts the customer’s dealings with Bircko Business Systems. Third party negligence that results in data loss, electronic virus transmission through our systems or exposure of customer information. Any violation of a customer’s privately held third party contracts or agreements.

Any uncontrollable system failure that results in data loss, electronic virus transmission through our systems or exposure of customer information.

Any act that through dealing with the customer unknowingly associates Bircko Business Systems with an illegal outcome, as defined under current Australian law.

Bircko Business Systems will test and review all developments to ensure the highest possible standard of quality control. We will take every reasonable effort to ensure the product you receive is the one that matches your requirements.

In the case of web sites and other web based applications Bircko Business Systems will warrant all work for a period of 45 days after handover in a staging environment. In the event that a product is defective or does not function according to specification Bircko Business Systems will promptly rectify the problem. Our focus is on ensuring you receive the best possible experience and gain maximum benefit from your purchase, and we will make every reasonable effort to help you do so. The customer agrees that all out of scope work requested will be paid for over and above the price quoted.

OBLIGATIONS

Bircko Business Systems will carry out all development, installation and maintenance work under any agreement in a professional and responsible way. It will only use the services of people who have the required ability and expertise. It will ensure that the work is appropriate for achieving the results expected by the client. We will not subcontract or otherwise arrange for another person or entity to perform any part of the work that is required to be done under any agreement without the written consent of the client.

WARRANTIES, INDEMNITY ETC

Bircko Business Systems warrants each of the following:

Our services will not infringe the Intellectual Property Rights of any third party. All materials supplied by Bircko Business Systems are free of any lien or encumbrance, and their use by the client will not infringe the Intellectual Property Rights of any third party. We are able to perform our obligations under all agreements entered into by an authorised person on behalf of Bircko Business Systems

We have evaluated the technical aspects of the specifications and have the technical expertise and resources to develop, install and maintain the services offered.

The Client warrants each of the following:

That the payment information provided to Bircko Business Systems, including but not limited to billing address or credit card details, is true and accurate.

It shall be a condition of the contract that the parties there to undertake for the duration of the project and for twelve months after its termination not, without the written consent of the other, to permit employment by itself or any associated person or company of former employee of the other who shall have taken part in the performance of this project.

Should circumstances arise during the project, or within twelve months of its termination, whereby the client offers employment to a Bircko Business Systems staff member, and Bircko Business Systems gives its written consent, and the consultant accepts the offer of employment, then the client agrees to pay a recruitment fee to Bircko Business Systems. The recruitment fee to be billed by Bircko Business Systems to the client will be calculated at thirty per cent (30%) of the relevant staff member’s gross salary package.

The attached proposal shall remain open for acceptance for fourteen days from the date of its submission. Thereafter, acceptance shall be subject to reconfirmation by Bircko Business Systems.

Confidentiality, intellectual property

A party must not use or copy the other party’s Confidential Information for any purpose except for the purpose of this agreement. It must ensure that none of its officers, employees or agents does anything that, if the party did it, would breach this clause. A party must take reasonable precautions to prevent any of the other party’s Confidential Information from being disclosed to a third party. A party must not disclose any of the other party’s Confidential Information unless one or more of the following applies:

The disclosure is necessary in connection with performing obligations under this agreement or under another agreement between the parties. The disclosure is required by law. The disclosure is reasonably made to a professional legal advisor or professional auditor. The other party consents in writing to the disclosure. Bircko Business Systems agree to provide, at the request of the Client, a written undertaking not to disclose the Client’s Confidential Information. Bircko Business Systems will ensure that this undertaking is given promptly and in the form specified by the Client. The Client owns or is the licensee of any Content provided to Bircko Business Systems in connection with the performance of this agreement.

Disclaimers & Third Party Policy

Any Bircko Business Systems specified warranties, disclaimers or third party policies associated with your purchase are deemed to be in effect at all times.

In the event a third party policy appears to contradict a Bircko Business Systems policy, you must not make assumptions about the policy intention or which condition has supremacy. In this case you must contact Bircko Business Systems for clarification.

You agree to abide by these at all times. You agree to hold Bircko Business Systems immune to any liability or damage you may suffer from third party policy, negligence or action.

Technical Support Services

All standard and enterprise support services that do not include a direct onsite delivery, are considered to be 'best effort' services. This means that Bircko Business Systems will make every reasonable effort to provide timely, accurate and helpful support advice. Free support programs are limited to advice concerning our product range. Issues that move significantly into areas such as Operating System support or hardware support will generally be refereed back to your appropriate supplier.

Because Bircko Business Systems personnel are not present at your location at the time the support advice is given, we do not have direct control or confirmation that our instructions are being carried out exactly as prescribed. For this reason Bircko Business Systems accepts no liability, expressed or implied, for any damages that may arise from such advice or any subsequent action you may choose to take as a result of your interpretation of our technical advice.

The decision to act upon our technical advice, how our advice is interpreted and how it is ultimately implemented, is the final responsibility of the customer. In purchasing any product form Bircko Business Systems or accepting any remote offsite support, the customer agrees to these conditions and agrees to hold Bircko Business Systems immune to any damage that may occur as a result of such advice.

Onsite support, including training, carries some degree of liability. Bircko Business Systems accepts responsibility for advice given when directly onsite and in such circumstances where the customer has made Bircko Business Systems aware of all relevant issues. In such cases Bircko Business Systems limits its financial responsibility to the cost of replacement of any software based component that may fail in the implementation of any support action. Hardware failures are not covered by this extension of liability, except in cases when liability is clearly implied by Australian Federal Law. Laws of all other countries, states or territories are rescinded in such cases and the customer agrees to abide by these terms in accepting any onsite support services from Bircko Business Systems.

Any covenant or agreement herein, being a whole clause or part of a clause, will be capable of severance without affecting any other of these Terms.

In the event of any default or breach hereof by the client, Bircko Business Systems may retain all monies paid on account of products and/or cease further deliveries and recover from the client any loss of profits arising there from and/or at its discretion take immediate possession of any product not paid for without prejudice to any other rights of Bircko Business Systems, without the client being liable in any way to any party whatsoever.

The Customer will pay to the Supplier the costs and expenses incurred by it or its solicitors, legal advisers, mercantile agents or other parties acting on the Supplier's behalf in respect of any action or attempted action instituted or being considered against the Customer, whether for debt, possession of the products or otherwise.

The Customer agrees that it will be deemed to have notice of any change to these Terms immediately when they are adopted by Bircko Business Systems and posted on the www.bircko.com website. Bircko Business Systems will use best endeavours to notify our customers of any significant changes to the terms.

OFFERS AND PROMOTIONS

David Birchall trading as Bircko Business Systems reserves the right to withdraw or modify special offers and promotions without notice.