Terms & Conditions
Purchase of goods and services from BMP
Projects Pty Ltd are subject to the following terms and conditions. By
purchasing or receiving goods or services from either entity, you accept the following
terms and conditions, without limitation or qualification.
1.0 Definitions
In these terms and conditions (where not
inconsistent with the context):
"Conditions" means these Terms and
Conditions;
"Customer" means a person, firm or
corporation, jointly and severally if there is more than one, acquiring
goods or services from BMP;
"goods" means goods supplied by BMP to the
Customer;
"services" means services supplied by BMP to
the Customer; and
"BMP" means the entity which has
invoiced the services and/or goods, namely BMP Projects Pty Ltd (ABN
58 081 145 815);
“Party” and “Parties” means severally and
not jointly BMP and/or the Customer as the context requires.
2.0 Basis of Contract
2.1 Unless otherwise agreed by BMP in
writing, these Conditions apply exclusively to every contract for the sale
of goods or services by BMP to the Customer and cannot be varied or
supplanted by any other conditions without the prior written consent of BMP.
2.2 Any written quotation
provided by BMP to the Customer concerning the proposed supply of goods or
services is valid for 7 days and is an invitation only to the Customer to
place an order based upon that quotation. The Conditions may include
additional terms in BMP's quotation which are not inconsistent with the
Conditions.
3.0 Charges and Payment
3.1 Payment for goods and services must be
made by cash, cheque, credit card or electronic transfer on or prior to the
completion of the provision of goods or services unless the Customer has a
credit account with BMP.
3.2 All BMP visits are chargeable and are
charged in half hour units after the first hour. Any part thereof is
chargeable at the same rate as a full half hour.
3.3 All goods supplied by BMP are charged
separately from the services.
3.4 Where there is any change in the costs
incurred by BMP in relation to the goods or services, BMP may vary its price
for goods or services on order to take account of any such change, without
giving notice to the Customer.
3.5 Call-out fees may be applied at rates dependent
on the Customer's suburb.
3.6 Escalated Onsite
Support charges may be applied at rates dependent on the support response
requested.
4.0 Payment Default
4.1 If the Customer defaults in payment by
the due date of any amount payable to BMP, or if any cheque drawn by the
Customer is dishonoured, then all money which would become payable by the
Customer to BMP at a later date on any account, becomes immediately due and
payable without the requirement of any notice to the Customer, and BMP may,
without prejudice to any other remedy available to it:-
(a) charge the Customer interest on any sum
due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983
plus 4 per cent for the period from the due date until the date of payment
in full;
(b) charge the Customer for all expenses and
costs (including legal costs on a solicitor/own client basis and dishonoured
cheque fees) incurred by it resulting from the default and in taking
whatever action it deems appropriate to recover any sum due;
(c) cease or suspend for such period as BMP
thinks fit, supply of any further goods or services to the Customer;
(d) by notice in writing to the Customer,
terminate any contract with the Customer so far as unperformed by BMP;
without effect on the accrued rights of BMP under any contract.
4.2 Clauses 4.1(c) and 4.1(d) may also be
relied upon, at the option of BMP:
(a) where the Customer is an individual and
becomes bankrupt or enters into any scheme of arrangement or any assignment
or composition with or for the benefit of his or her creditors or any class
of his or her creditors generally; or
(b) where the Customer is a corporation and,
it enters into any scheme of arrangement or any assignment or composition
with or for the benefit of its creditors or any class of its creditors
generally, or has a liquidator, provisional liquidator, administrator,
receiver or receiver and manager appointed, or any action is taken for, or
with the view to, the liquidation (including provisional liquidation),
winding up or dissolution without winding up of the Customer.
5.0 Passing of Property
5.1 Until full payment in cleared funds is
received by BMP for all goods supplied by it to the Customer, as well as all
other amounts owing to BMP by the Customer:-
(a) title and property in all goods remain
vested in BMP and do not pass to the Customer;
(b) the Customer must hold
the goods as fiduciary bailee and agent for BMP;
(c) the Customer must keep the goods
separate from its goods and maintain the labelling and packaging of the
goods; the Customer is required to hold the proceeds of any sale of the
goods on trust for BMP in a separate account however failure to do so will
not affect the Customer's obligation to deal with the proceeds as trustee;
(d) BMP may without notice, enter any
premises where it suspects the goods may be and remove them, notwithstanding
that they may have been attached to other goods not the property of BMP, and
for this purpose the Customer irrevocably licences BMP to enter such
premises and also indemnifies BMP from and against all costs, claims,
demands or actions by any party arising from such action.
6.0 Risk and Insurance
The risk in the goods and all insurance
responsibility for theft, damage or otherwise in respect of the goods will
pass to the Customer immediately upon delivery of the goods to the premises
nominated by the Customer.
7.0 Performance of Contract
Any period or date for delivery of goods or
provision of services stated by BMP is intended as an estimate only and is
not a contractual commitment. BMP will use its best reasonable endeavours to
meet any estimated dates for delivery of the goods or completion of the
services.
8.0 BMP Warranties
8.1 BMP does not warrant that it will be
able to fix all problems, which it encounters.
8.2 The only warranty which applies to
hardware and/or software supplied by BMP to the Customer is the
manufacturer’s warranty. Where warranty issues arise, BMP may assist the
Customer with warranty claims to the manufacturer and may charge the
Customer at the appropriate rate for this work.
8.3 Nothing in this clause 8 will be
construed as a warranty or condition that the operation of the software will
be uninterrupted or error free. Customer understands and accepts that
software (and information technology and communications products generally),
including the Customer’s software, may have errors and may encounter
unexpected problems, and accordingly Customer may experience downtime and
errors in the use of the software. Without limiting the obligations
set out in clause 9, Customer will put in place reasonable internal
procedures and processes to enable it to minimise any inconvenience and any
adverse financial impact of any such downtime or error.
9.0 Customer’s Responsibilities
9.1 The Customer shall as a fundamental term
of these Conditions back up all software and data that is stored on its
computer's hard disk drive(s) and/or on any other storage devices it may
have prior to the arrival of the BMP technician. BMP and/or its third party
service provider shall not be responsible at any time for any loss,
alteration or corruption of any such software, data or files.
10.0 Liability
10.1 All conditions, warranties,
representations, indemnities and guarantees with respect to the software
and/or the services, or other goods or services that may be provided by BMP
under these Conditions, that may otherwise be implied by statute, law,
equity, trade custom, prior dealings between the Parties or otherwise
(including, but not limited to, any implied warranty of merchantability,
fitness for particular purpose, quiet enjoyment or non-infringement) are
hereby expressly excluded.
10.2 Except to the extent
specifically provided in these Conditions, BMP’s sole liability to Customer
for any and all breaches of any term or terms of these Conditions, whether
express or implied, shall be limited to:
10.2.1 subject to sub-clauses 10.2.2 and
10.2.3, the aggregate amount of the fees and charges paid by the Customer
under these Conditions as at the date of the breach;
10.2.2 in relation to software if supplied
to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the software or the
supply of equivalent software; or
(b) payment of the cost of replacing the
software or acquiring equivalent software; or
(c) the repair of the software or payment of
the cost of having the software repaired; and
10.2.3 in relation to services if supplied
to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the
services supplied again, as in each case BMP may elect.
10.3 In no event will BMP be liable to
Customer or to any third party under or in connection with these Conditions
or in respect of the use of (or failure or performance of) the software or
the supply of the services for:
10.3.1 malfunctions or failures caused
directly or indirectly by:
(a) any third party;
(b) actions of BMP that were expressly or
impliedly authorised by Customer, or by Customer’s employees or agents;
(c) accident, misuse or abuse by anyone
other than the BMP;
(d) alteration or modification of the
software by anyone other than the BMP;
(e) products (including any hardware or
software) not licensed or supplied by BMP that are attached to or used with
the software;
(f) Customer’s failure to provide a proper
operating and working environment for the software;
(g) damage during any movement, relocation
or re-installation of the software;
(h) power surge or failure,
(i)
acts of God or acts outside BMP’s control;
(j) any other condition not arising under
normal operating conditions; or
(k) normal wear and tear; or
10.3.2 any loss or damage of any nature
arising or caused directly or indirectly by any breach of the Customer’s
obligations or responsibilities set out in these Conditions.
10.4 Any replacement of parts under warranty
will be carried out at the premises nominated by BMP. The cost and risk of
transport of any defective part to the nominated premises is the
responsibility of the Customer.
10.5 In no event will BMP be liable to
Customer or to any third party under or in connection with these conditions
or in respect of the use of (or failure or performance of) the software or
the supply of the services for:
10.5.1 any loss of profit, business
interruption, loss of or damage to goodwill, and/or any expectation benefit;
10.5.2 Customer’s liability to any third
party; or
10.5.3 incidental, consequential, special,
exemplary or punitive damages of any nature, howsoever arising or caused,
including without limitation the breach of these Conditions or any
expiration or termination of these Conditions, whether such liability is
asserted on the basis of statute, contract, tort (including negligence or
strict liability), equity or otherwise, even if BMP has been advised of the
possibility of such loss or damage.
10.6 BMP will not be liable for any loss or
damage suffered by the Customer where BMP has failed to meet any delivery
date or cancels or suspends the supply of goods or services.
10.7 Nothing contained in these Conditions
excludes, restricts or modifies any:
10.7.1 implied condition, warranty or other
implied obligation in relation to these Conditions or the software and
services where pursuant to applicable law to do so is unlawful or void; or
10.7.2 liability for fraud or deceit; or
10.7.3 liability for death or personal
injury caused by the negligence of either Party.
11.0 Copyright in Software
11.1 BMP will not be responsible to the
Customer or any third party for any breach of any software licence in
respect of software provided to BMP by the Customer to be installed on a
Customer's computer.
11.2 The Customer hereby warrants that it
has a valid licence in respect of such software and shall indemnify BMP
against any loss, damage, costs, harm or other expense whatsoever arising
either directly or indirectly as a result of BMP installing software at the
request of the Customer.
12.0 Cancellation
12.1 If, through circumstances beyond the
control of BMP, BMP is unable to effect delivery or provision of goods or
services, then BMP may cancel the Customer's order (even if it has already
been accepted) by notice in writing to the Customer.
12.2 If the Customer gives less than 4
business hours notice to BMP to cancel any request for on-site service, then
BMP may charge a cancellation fee of $74 for the loss and damage caused.
12.3 If the Customer gives less than 48
hours notice to BMP to cancel any full-day booking, then BMP may charge a
cancellation fee equal to the quote for that full-day booking for the loss
and damage caused.
13.0 No Representation or Reliance
13.1 The Customer acknowledges that neither
BMP nor any person acting on behalf of BMP has made any representation or
other inducement to it to enter into these Conditions, except for
representations or inducements expressly set out in these Conditions.
13.2 The Customer acknowledges and confirms
that it does not enter into these Conditions in reliance on any
representation or other inducement by or on behalf of BMP, except for
representations or inducements expressly set out in these Conditions.
14.0 Entire Agreement
14.1 To the extent permitted by law, in
relation to its subject matter, these Conditions:
14.1.1 embody and constitute the entire
legal and contractual relationship of the Parties, including the entire
terms agreed by the Parties; and
14.1.2 supersede, replace and terminate by
mutual consent any prior written or oral representations, negotiations,
understandings, agreements or contracts between the Parties.
15.0 Governing law
15.1 This Agreement is governed by and must
be construed according to the law applying in
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