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Thu, Mar 11 2010

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Standard Terms and Conditions

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	Terms and Conditions: PREAMBLE. Control Gadgets is a company that provides technical expertise and services. We are highly experienced and educated. However, in a world governed by lawyers, we are inhibited as to the level of service that we can provide without conditions to protect us. We want to provide the best service possible to you (and your clients) at the best price. This document sets the conditions under which we operate. How does Control Gadgets charge for work? There are two ways Control Gadgets quote work. The first is “Do and Charge”. “Do and Charge” is the cheapest and simplest way but you accept the risk. Think of it as if we were one of your staff. If there are any problems or issues with the work done, you have to pay to have it fixed. We will endeavour to complete the task without any issues, but can offer no guarantee unless we build it into the price. Testing is a time consuming task and therefore very expensive. To further reduce costs, testing is optional as it might be more cost effective for you to test in-house and get us back to fix any problems found. If you elect to use the “Do and charge” method, we can provide timesheets detailing the work done including any problems encountered on request. The second method that Control Gadgets can quote work is “Fixed Quote”. “Fixed Quote” is fraught with difficulty as it is rare that the “scope of works” can be completely defined. Fixed quote is higher because we bear risks we don’t bear if it is “do and charge”. You need to be more organised, but the result is guaranteed to conform to your “scope of works”. Any additional requirements need to be documented and will charged accordingly. 1. Software Modules: To speed up the process of writing programs, Control Gadgets has written a number of reusable “Program modules”. Unlike many other programming companies, we use modules to construct the actual program. Other companies generally only use modules for interfacing with equipment “Interface modules” and custom write the actual program. A custom written program can take many hours to test and perfect, whereas a program constructed with “Program modules” is quick to produce and the results are more predictable. In addition to this a program constructed with “Program modules” will be far easier to maintain and modify. Developing modules consumes many hours and some modules take years of testing to perfect. Instead of charging the development time to the first person that needs a module, we absorb the cost and share it over many projects. The modules can require maintenance or additional features; ongoing charges help us provide reliable modules at a fair price to everyone. The fee entitles you to use the module on the system that it was installed on or a replacement system (If the system has to be replaced). The licence fee you pay to include a module does not include access to the source code of the module. Nor should you need it as the function of “Programming modules” is determined by external parameters. We can, and do provide control system programming without locked modules if requested. In these cases the results can be less reliable and at a greater cost. Generally “Interface modules” created by Control Gadgets are provided open source where possible unless limited by licensing or non-disclosure agreements. Some of the complex “Interface modules” are key locked and encrypted to prevent unauthorised re-use. 2. CHANGES/VARIATIONS. Quotations Control Gadgets provide are based on information supplied by your company. Changes to “scope of works” may involve variations and additional charges. 3. ADDITIONAL CHARGES. Additional charges will be made at the standard hourly rate plus licence fees for use of modules. Contact Control Gadgets for a full list of charges. 4. LICENCE AGREEMENT. All “Programming modules” are provided subject to the license agreement. Contact Control Gadgets for a copy. 5. RELEASE OF SOURCE CODE. Provided no payments are outstanding, we will release everything required to allow another programmer to maintain and support your system. We will supply an open source copy “Custom control system code”, open source copies of any simple “Interface modules”, locked copies of any “Programming modules” and locked copies of any complex “Interface modules” used in the project. If you choose to keep the source code or request a copy of the source code, we will delete it from our server and you will be responsible for providing current versions if modification is required. We have to do this because having multiple copies of source code causes versioning problems. 6. PAYMENT No confidential information, including but not limited to control system program source code, will be released until full payment is made. The control system program executable may be automatically disabled if the full payment of invoices is not received by the due date. No work will be undertaken on any of your projects if there are any overdue invoices or accounts. A 2.5% late fee will be added to outstanding balances not paid in full by the due date. 7. ADDITIONAL CHARGES. Additional charges at the standard rate may apply for, but not limited to: a) Cancellation of onsite appointments with less than 24 hours notice. b) Provision of labour for where installation is not complete. - E.g. wiring of RS232 ports. c) Code changes due to problems with design. d) Hardware faults - a report will accompany the invoice. e) Excessive labour in attempting to resolve compatibility issues regarding integration of 3rd party products. E.g. Products without discreet control commands. f) Inability of 3rd parties to provide compatible infrastructure. E.g. Incompatible network access point. Each of these will be invoiced separately to this quote in order to assist your company in attempting to recover these costs. 8. CONTROL SYSTEM SOFTWARE AND/OR FIRMWARE ISSUES. If a system or feature of a system fails to operate as would be reasonably expected and the failure is suspected to be because of a problem with Control System software or firmware, the following will occur: a) Control Gadgets will ensure that the hardware is loaded with the latest appropriate versions of the Control System firmware and the control system programming is compiled using the latest appropriate versions of the Control System software available at the time of the works. b) Control Gadgets shall contact the Control System distributor’s technical support team for guidance. If after speaking to tech support, the issue is found to be a Control system Software and /or firmware related issue, Control Gadgets will advise tech support to notify the Control System distributor’s manager about the issue, and that there may be a claim from our client as a result of this issue. c) Control Gadgets will invoice the time associated with this issue on a separate invoice. Accompanying the invoice will be a written report which will include as much detail on the issue as possible to assist your company in recovering these costs. Any invoice which is raised as a result of Control System software and/or firmware issues is not negotiable, and is payable in full whether the Control System distributor has paid this amount or not. 9. TIME AND APPOINTMENTS. Time slots will be allocated to complete your project. Should your project be delayed, additional contiguous time slots may not be available when required. We may not be able to complete the project within your time limits. 10. CALLOUT CHARGE AND SERVICE CALLS A minimum callout charge of 3 hours may apply for any changes required. This includes but is not limited to changes to any control system programming provided. Please understand that in most case it is not as simple as driving to a site and starting work. Before we attend to your job we may need to retrieve a copy of the software from our server or research your problem. The 3 hour minimum charge does not mean 3 hours onsite, travelling time is also counted in this time. 11. ONGOING WORK If after a service call additional visits are required, actual time taken to complete the task may be charged. 12. QUOTATION VALIDITY Quotations are valid for up 30 days from the Quotation date. Changes in supplier pricing will affect quote pricing. 13. WARRANTY. All goods and services are provided on an "as is" basis and all warranties, expressed or implied, including but not limited to warranties that the goods and services are free of defects, fit for a purpose or of merchantable quality are denied. Your company is assuming the entire risk as to its quality and performance. It is your company’s responsibility to verify the results obtained from the use of Control Gadgets Software. 14. LIMITED WARRANTY. In the case where Control gadgets has provides a fixed written quotation for a system, Control Gadgets warrants that: (a) the Software will perform substantially in accordance with the published specifications for a period of one (1) year from the date of invoice, free from defects in materials and workmanship under normal use. This warranty shall cover any defects in control system programming that can be reproduced or definitively described to Control Gadgets. (b) All claims against this warranty will be rectified within twenty-four (24) hours in the case where VPN access to the product is achievable and the problem can be rectified offsite, or a maximum of fourteen (14) days where site access is required. This warranty does not cover changes required to control system programming which could be as a result of changes to third party products. Some third party products are "online" and changes to their firmware could result in control of such device becoming inoperable, unreliable or defective. This warranty does not cover in any way changes to or faults to control system hardware or software environments. This warranty shall be the sole and exclusive remedy to your company and end user of the software written by Control Gadgets. In no event shall Control Gadgets be liable for incidental, consequential, special or punitive damages of any kind (property or economic damages inclusive), even if Control Gadgets has been advised of the possibility of such damages or of any claim by any third party. Control Gadgets makes no warranties, express or implied, as to the title or infringement of third-party rights, merchantability or fitness for any particular purpose, or any other warranties, nor authorizes any party to offer any warranties, including warranties of merchantability for this software. This warranty statement supersedes all previous warranties. 15. LIABILITY. Control Gadgets neither assumes nor accepts any liability for any loss, damage, theft, misuse, malfunction, etc. regardless of the cause or reason for any such event. Control Gadgets will not be liable for any damages (including but not limited to damages for loss of profits, business interruption or loss of information) arising out of the use of or inability to use the system. In the event that any of the above limitations or exclusions is held to be unenforceable, Control Gadgets’ total liability shall not exceed the amount of the invoices paid/quoted or estimated for the job in question. 16. HOLD HARMLESS. By engaging Control Gadgets, you agree to hold Control Gadgets harmless against any claim whatsoever arising from any event relating to services or software by Control Gadgets. 17. ACCEPTANCE. Engaging the services of Control Gadgets constitutes acceptance of all of the above terms and conditions. 18. DATA STORAGE Although our server is regularly backed up we cannot guarantee the security of your program and therefore will not be liable for the loss of any software written by us. If you choose to keep the source code or request a copy of the source code, we will delete it from our server and you will be responsible for providing current versions if modification is required. We have to do this because having multiple copies of source code causes versioning problems. 19. DEFINITIONS. “3rd Party” means hardware and or software which is installed, maintained or produced by manufacturers or integrators other than Control Gadgets. “As is” means no warranty to the performance or quality of the product delivered and any additional works regardless of nature attract an additional charge. “Compiled” means custom control system code which has been made into a control system program executable by control system software for specific use with control system hardware. “Compiler” means software generally supplied by others that converts custom control system code into a control system program executable. “Control Gadgets” means Control Gadgets Pty Ltd, its directors, shareholders, officers, employees, representatives, contractors, programmers, agents and assigns. “Control system” means the combination of hardware and operating system running a Control Gadgets control system program executable. “Control system program executable” means the compiled control system code that runs on the control system. “Control system software” means the software used by Control gadgets to write (and Compile) the control system program executable. “Custom control system code” means control system programming written for a specific system. “Custom code” means control system programming written for a specific system. “Firmware” means the operating system used by the hardware written by the manufacturer of the hardware which the control system program executable runs on. “Interface module” means a software module that connects the program to a 3rd Party device (such as a receiver). “Key locked” means a unique hardware number is used which will allow usage of a module only with a correct Control Gadgets software key. “Hardware” means control system components produced by the control system manufacturer. “Latest appropriate version” means the latest and most appropriate version available to the best of Control Gadgets’ knowledge. “Licence agreement” means a document detailing all information regarding the agreement between Control Gadgets and your company for the usage of Control Gadgets modules. “Licence fee” means the fees charged by Control Gadgets for the usage of a particular instance of a module. “Modules” means the block of reusable programming written by Control Gadgets that is not editable. “Open source” means an unrestricted listing of the program. “Program” means the combination of custom code, Program modules and Interface modules. “Program module” means a module used to construct the program (see also Interface module) “Program executable” means the compiled control system code that runs on the control system. “Programming” means writing the program. “Project” is the works involved in producing a system. “Services” means any work done by Control Gadgets. “Scope of Works” is a document that details the entirety of the work required to be completed with a specific designated outcome. “Source code” means the un-compiled version of a module or program which is editable. “Standard hourly rate” means the charge rate charged by Control Gadgets per half hour or part thereof. “System” means control system. “Variation” means a change to a scope of works which will attract additional charges. “VPN” means virtual private network “Virtual private network” includes the control system allowing two or more networks to be connected regardless of their location.
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