Terms and Conditions of Business

BWES shall deliver the Services in accordance with the agreed service levels to the Client (you). These agreed levels may form part of a fixed service level agreement or be made on a project basis prior to commencement and agreed in principle by both BWES and the Client and documented in writing.

To ensure BWES meets the agreed service levels, representative samples, instructions, technical documents, marking information, packaging information and special requirements must be provided in a timely manner when requested by BWES.

The timeframes for completion specified by BWES and any estimated completion dates provided are indicative only. Whilst BWES shall use reasonable endeavours to complete the work by the estimated completion date or within the specified timeframe, it shall not be liable for any delay beyond the estimated completion date/indicative timeframe, or any resulting circumstances, for any reason whatsoever. The estimated completion dates and indicative timeframes only apply where the Client provides the necessary product samples and any requested information when required. Indicative timeframes may not apply where multiple projects are submitted simultaneously, or during periods of excessive workloads.

In the delivery of a total compliance solution, from time to time BWES may engage in the service of specialists on the Clients behalf, however BWES will not accept responsibility of poor, late or non-delivery of such service, but will attempt to remedy this situation with an agreeable cost effective and time-based solution.

The Client has the right to check the Services delivered to the Client within 21 days of receipt and may reject the Services if they do not comply with the agreed specifications. The Services are deemed to be accepted if BWES does not receive a notification within 21 days after delivery to the Client. BWES shall be given the opportunity to rectify or amend any of the Services rejected by the Client within a reasonable and mutually agreed timeframe of receipt of a notice of rejection.

Verbal advice may be given from time to time in good faith. If the Client intends to rely on any verbal advice, it is his responsibility to seek confirmation from BWES in writing. BWES does not accept liability for verbal advice for which insufficient information is provided, which is not in proper context and/or is not confirmed in writing.

Draft Reports

The Client agree that no reliance shall be placed on draft reports, draft conclusions or draft advice, whether oral or written, issued by BWES as they may be subject to further work, revision and other factors which may mean that such drafts are substantially different from any final report or advice issued. The Client agrees to destroy all copies of such drafts on receipt of the final version.

Use and purpose of advice and reports

Any advice given, or report issued by BWES is provided solely for the use and benefit of the Client and only in connection with the purpose for which the Services are provided.

Intellectual Property

Intellectual property rights in all BWES materials and methodologies utilized in the Services or incorporated into a report or any other material created or provided in the course of performing the Services remain vested in BWES.

Responsibility for information provided

BWES assumes no responsibility and makes no representation with respect to the accuracy or completeness of any information or material provided by the Client or on the Client’s behalf. To the extent that any such information is inaccurate or incomplete, this could have a material effect upon reports issued or advice provided based upon such information.

Ownership

Any reports or documentation prepared by BWES remain the property of BWES until such time as payment for Services provided has been made in full.

Product Re-evaluation, Re-issuing of Reports and Modifications

Unless otherwise specified, the prices quoted in the Schedule exclude the re-evaluation of products and/or re-issuing of reports arising from product modification, incorrect Client instructions or any other reason. Where the re-evaluation of products and/or re-issuing of reports is required, any additional costs incurred shall be borne in full by the Client. Re-evaluation of products and/or re-issuing of reports by BWES shall only be conducted at the discretion of BWES and upon written authorisation of the Client.

Samples submitted to BWES may be damaged during the course of their evaluation and may be unsuitable for further use at the project’s completion. BWES shall not be liable for any damage to test samples or other equipment submitted to BWES for any reason whatsoever. Samples will be disposed of without notification after a period of one month from the completion of the project unless other arrangements are made by the Client. Where the Client requests that the samples be returned any costs will be borne in full by the Client.

The Client will pay BWES for all Services rendered in accordance with the rates specified in this Schedule. Unless otherwise agreed, prices shall exclude insurance, freight charges, bank fees, GST and associated expenses.

If BWES has approved a credit facility for the Client, BWES shall invoice the Client indicating the Services performed in AUD$ with reference to the Schedule and payments will be due in Australian dollars within 30 days after the date the invoice is issued. If BWES has not approved a credit facility for the Client, payment will be required, in full, prior to the commencement of work. If BWES has approved a credit facility for the Client, and work is conducted over an extended period, progress invoices may be issued to cover the work conducted to that date and payment of such invoices will be due in accordance with the previous clause. If BWES has approved a credit facility for the Client, it may at its discretion require payment in full for associated expenses such as freight and testing fees prior to commencement of work. BWES may, in its sole discretion, require payment for any previously issued invoice prior to the provision of any further Services to that Client.

BWES may also, at its sole discretion and without liability, withhold any reports or samples or suspend the provision of Services, pending payment of any invoice which has not been paid in full by the due date or if the Client commits an act of bankruptcy as defined in the Bankruptcy Act 1966.

The Client shall make all payments due under these terms and conditions without set-off or deduction of any kind.

Where the supply of Services by BWES is a taxable supply for the purposes of any legislation in respect of goods and Services tax (“GST”), GST at the appropriate rate will be added to all prices quoted in the Schedule and will be separately detailed on all invoices.

BWES shall be entitled to charge the Client a late fee of 2% per month of the total outstanding amount, on any invoices not paid by the agreed due date, as BWES is contractually obligated to promptly pay its affiliated entities and suppliers, all costs it incurs on the Client’s behalf.

BWES may at its discretion add an administration charge to all invoices, which may be discounted on prompt payment of the same. BWES also reserves the right to charge a premium for urgent or unscheduled projects.

BWES will add a $30 international transfer fee to all invoices to clients outside of Australia to cover the costs it incurs from receiving these monies.

BWES may, at its sole discretion, refer overdue invoices to the agency of its choice for debt recovery. The Client is liable to BWES for all costs and expenses incurred by BWES in recovering money or in connection with the exercise of any of its rights or remedies under these terms and conditions, including commissions, debt collection agency fees and legal costs on a solicitor and client basis.

BWES will strive to maintain the cost structure as outlined in the Schedule however, reserves the right to increase its pricing in accordance to the Consumer Price Index (CPI: 6401.0). This review shall occur annually at the commencement of the financial year and use the latest published ‘percentage change’ calculated by the ABS based on the weighted average of 8 cities for all groups for the previous twelve months found on the ABS website. Should the index used be renamed, varied or discontinued, an equivalent appropriate index or price adjustment mechanism based on ABS data shall be used. BWES’s full trading terms and conditions in relation to payment and pricing are detailed in the Credit Application form. Acceptance of this agreement by the Client will be taken as acceptance of these terms and conditions.

If the Client cancels a project after its commencement, a cancellation fee for work completed shall be paid by the Client, with the fee based on the stage of project completion and any non-refundable third-party costs paid for by BWES. The fee will not exceed 100 percent of the total project cost.

For agreed work BWES will on-charge associated expenses such as additional freight and testing fees at cost. Associated expenses typically include courier charges, testing laboratory fees, regulatory approval fees, travel expenses and special tools. BWES also reserves the right to charge a handling fee at its discretion. The minimum courier charge will be $40.

Any reports, recommendations, and approval certificates provided by BWES are applicable only to the sample(s) evaluated and BWES shall not be liable for any variance between reported results and the characteristics of other product samples.

BWES shall not be liable for any damages, loss or injury suffered, including consequential loss and non-compensatory damages (including punitive, aggravated, multiple, exemplary or liquidated) and whether suffered by the Client or another person, as the result of using or relying upon any Services or information provided by BWES.

The Client shall indemnify BWES and its directors, employees and sub-contractors against all claims and losses of any kind whatsoever and however caused or arising brought by any person in connection with any matter, act, omission or error by BWES, its agents or employees in connection with the Services provided.

The Australian Competition and Consumer Act 2010 and other Acts of Parliament imply warranties or conditions or impose obligations on BWES which cannot (or only to a limited extent) by law be excluded or modified. In regard to any such implied warranties, conditions or obligations, BWES’s liability shall, where it is permitted, be excluded or, if not able to be excluded, only apply to the minimum extent required by the relevant statute.

No claim relating to the supply of Services shall be considered unless made within 21 days of dispatch of BWES’s final communication/report to the Client. Neither the Client nor BWES may bring against the other party any action in any country involving any dispute arising out of or in relation to this Agreement or breach thereof without first:

Both parties agree to cooperate reasonably with respect to the resolution of disputes pursuant to this Clause. This clause shall survive the termination of this Agreement.

Except with respect to a breach of the confidentiality clause, neither the Client nor BWES shall be liable for any special, incidental, indirect and/or consequential damages of any kind, resulting from either party’s performance or failure to perform pursuant to the terms of this Agreement or any of the attachments or exhibits hereto unless caused by intentional or gross negligence.

BWES’s liability to the Client under any provision of this Agreement shall be limited to the amounts actually paid by the Client to BWES for the disputed service. The existence of more than one claim shall not enlarge or extend the limit.

The Client releases BWES from all obligations, liability, claims or demands related to the Services supplied under this Agreement in excess of the limitation provided for in this clause.

The Client and BWES acknowledge that the limitations set forth in this section are integral to the amount of fees charged for the Services provided under this Agreement and recognize that if BWES were to assume any further liability beyond that set forth in this section, such fees would be substantially higher.

In no circumstances is BWES liable for any indirect or consequential losses or expenses, howsoever caused, and including, without limitation, loss of anticipated profits or savings, goodwill, reputation, business receipts, or contracts, or losses or expenses resulting from third party claims.

Furthermore, BWES shall not be liable for the Client’s product, but shall be accountable for the quality of any refurbishment or repairs conducted by itself or its affiliates for a period of three months after the sale of the product to a consumer. The Client will remain responsible for its products for the remainder of their lifecycle.

Neither BWES nor the Client shall be liable to the other for any delay or failure to fulfil obligations caused by circumstances outside their reasonable control. If such reasons continue to prevent performance of either party’s duties and obligations for a period of more than sixty days, they will consult each other for the purpose of agreeing what action should be taken.

As per the signed ‘Mutual Confidentiality Agreement’ both parties shall take reasonable precautions to preserve in strict confidence any confidential or proprietary information obtained by them, their agents or employees concerning the business, products, equipment or Services of the other party, including without limitation, trade secrets. Such reasonable precautions shall include exercising precautionary measures designed to preserve the secrecy of such information and to prevent its disclosure to third parties, except following prior consent of the other party, with such precautions being at least equivalent to those taken by each party with respect to its own confidential information.

As per the signed ‘Mutual Confidentiality Agreement’ BWES will not be bound to keep information confidential that is required to be disclosed by a government or regulatory body or court of comparable and competent jurisdiction. In the event that BWES is required to disclose the Client’s confidential information by law, it will first inform the Client and provide them the opportunity to provide the information directly.

The Client notes that the content of this document and all other documents created by BWES are intended for the Client only and must not be disclosed to any third party without written authority from BWES.

BWES will not be prevented or restricted by anything in these Terms and Conditions from providing services to other clients.

The Client warrants to BWES that BWES will not infringe or contribute to the infringement of any patents, trademarks, designs or copyrights by providing Services to the Client. The Client shall indemnify and keep indemnified BWES against any loss or damage (including legal fees and costs) arising from breach of this warranty. BWES reserves the right to deny Services to Clients if it believes the provision of the same will infringe upon the patents, trademarks, designs or copyrights of another person, company or entity or damage their goodwill or reputation. Completion of approbation by BWES does not imply that any searches on patents, copyrights, designs or trademarks have been made unless agreed otherwise.

BWES and the Client agree not to use the name of the other party or any member of its staff in sales promotion, or advertising, or in any other forms of publicity without the written approval of an authorized representative of the said other party, except as required by law and then only with prior notice as soon as possible to the said other party.

So far as is permitted by the relevant legislation, the Client authorises BWES to collect, retain and use any information about the Client to assess the Client’s creditworthiness, to enforce rights under this contract or to market Services to the Client and the Client authorises BWES to disclose any information obtained to any other person for these purposes.

This Agreement is governed by the law of New South Wales and the Parties submit to the exclusive jurisdiction of the courts in Sydney.

Whilst BWES shall take due care to ensure the security of the Client’s property under its care, custody or control, it will not be responsible for any losses or damages that occur to the Client’s property whilst stored on its premises, or during its transit between the Client and BWES.

The Client shall at its own expense obtain and maintain with an insurer, adequate insurance coverage in respect of any of the Client’s property whilst under the care, custody or control of BWES.

BWES shall immediately notify the Client in writing of any theft, loss or damage to any of the Client’s property.