DIGITAL HOME SYSTEM PTY LTD (DHS)

THESE TERMS AND CONDITIONS SUPERSEDE ANY TERMS AND CONDITIONS THAT ARE ATTACHED OR PART OF ANY ORDER FORM OR PURCHASE ORDER UNLESS SPECIFICALLY ALLOWED OR SUPERSEDED BY WRITTEN CONTRACT WITH DIGITAL HOME SYSTEMS PTY LTD (DHS). ALL ORDERS ARE SUBJECT TO THESE TERMS AND CONDITIONS UNLESS THERE IS A WRITTEN CONTRACT BETWEEN RESELLER AND DHS, IN A FORM ACCEPTABLE TO DHS, INCORPORATING THE TERMS AND CONDITIONS APPLICABLE TO ALL PURCHASE ORDERS.

1. INTERPRETATION

1.1 In these Conditions: Reseller means the person whose application form to become DHS reseller was accepted by DHS and who later on accepts a quotation of the DHS for the sale of the Goods or whose order for the Goods is accepted by DHS; Conditions means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Reseller and the DHS; Contract means any Resellers’ purchase order accepted by DHS; Goods means the goods and services (including any instalment of the goods and services or any parts of them) which the DHS is to supply in accordance with these Conditions; INCO terms means the international rules for the interpretation of trade terms of the International Chamber of Commerce at the date when the business relationship is made ; Intellectual Property Rights means patents, trademarks, service marks, registered designs, applications for any of the foregoing, copyright, know-how, confidential information, trade secrets, trade or business names and any other similar protected rights in any country; DHS means Digital Home Systems Pty Ltd. (registered in Australia under ACN 144750434) or any of its subsidiaries like agents or resellers with whom the Reseller enters into or proposes to enter into a Contract); Writing includes confirmed electronic mail; Business to Business (B2B) is the electronic wholesale procurement system managed by DHS on www.digitalhomesystems.com.au website; Z-Wave Framework means home automation technology manufactured and distributed by Sigma Designs Inc. (Milpitas, CA 95035 USA) and their partners.

1.2 In these Conditions words importing the singular number shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa and references to the whole shall include the part and vice versa.

2. PLACING ORDERS

2.1 All orders for Goods and/or Services must be placed electronically via B2B website.
2.2. Reseller will be provided by DHS with the secured, individual access to B2B website after accepting this DHS Reseller Application Form. 2.3. Order placing, its confirmation and delivery shall be managed electronically via B2B systems.

3. BASIS OF THE SALE

3.1 The DHS shall sell and the Reseller shall purchase the Goods in accordance with account type which is accepted by the Reseller, or any written order of the Reseller which is accepted by the DHS (whether orally or in writing), subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Reseller. 3.2 Unless otherwise agreed in writing these Conditions shall prevail over any inconsistent term implied by law or by trade custom, practice or course of dealing and any such inconsistent terms are hereby expressly excluded. No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Reseller and the DHS.

3.3 The DHS’s employees or agents are not authorized to make any representations concerning the Goods including but without prejudice to the generality of the foregoing the fitness of the Goods for a particular purpose of the Reseller or their compatibility with any other products unless confirmed by the DHS in writing. In entering into the Contract the Reseller acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. 3.4 Any advice or recommendation given by the agents to the Reseller to the storage, application or use of the Goods which is not confirmed in writing by the DHS is followed or acted upon entirely at the Reseller’s own risk and accordingly the DHS shall not be liable for any such advice or recommendation which is not so confirmed. 3.5 It shall be the Reseller’s responsibility to ensure that the Goods correspond and conform to the requirements of any statute or regulation from time to time in force and affecting the manner in which the Reseller carries on their business or uses the Goods or with practices carried on by prudent persons carrying on the same or similar business as the Reseller. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the DHS shall be subject to correction without any liability on the part of the DHS.

4. NON DISCLOSURE OF CONFIDENTIAL INFORMATION

4.1 The term “Confidential Information” shall mean any and all proprietary information belonging to DHS, whether tangible or intangible, including, without limitation, this Trade, pricing, future plans, R&D projects, financial agreement, any data, products, inventions, patents, copyrights or trademarks (or any application therefor), knowhow, data, process, technique, design, drawing, program, formula or test data, work in process, engineering, manufacturing, marketing, financial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic, electronic form or other communication which is either conspicuously marked “confidential”, known or reasonably known by the DHS to be confidential, or is of a proprietary nature, and is learned or disclosed in the course of discussions, studies, or other work undertaken between the parties.

4.2 In respect of the Confidential Information the Reseller will:
(i) use his best endeavours to keep any Confidential Information which he may acquire;
(i) use his best endeavours to keep confidential any Confidential Information which he may acquire;
(ii) Not store, copy, or use the Confidential Information in any place or in any electronic form which may be accessible to any other person;
(iii) Not use or disclose Confidential Information except to such extent as is necessary for the purposes of this agreement, or with the consent of the DHS;
(iv) Explain to all relevant employees’ agents and sub-contractors about the provisions of this paragraph and will take appropriate steps to ensure compliance with these provisions by their employees agents and sub-contractors;
(v) From today until the expiry of three years from the termination of this business relationship, keep the Confidential Information secret and not divulge or make it known to anyone nor use it for the benefit of himself or any other person.

5. TERMS OF PAYMENT

5.1 The DHS shall be entitled to invoice the Reseller for the ordered Goods to confirm any order before its delivery.
5.1.1 In the case where shipments are made outside of Australia the Reseller will also be responsible for all Bank and Customs charges incurred.
5.1.2 Payment via Credit Cards or PayPal will incur transaction fees in accordance to the current fee schedule. These fees will be calculated and provided to Reseller prior confirming any order. Payments via direct bank transfer are free of transaction fees.
5.2 The terms of payment shall be:
5.2.1 For Australian orders: 100% in advance in case of Small Value Order which is less than $50,000; Deposit of 70% of the total price is required to confirm orders for the Goods value more than $50,000. Final payment for the Goods delivered in Australia, within 10 days from the delivery date. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request;
5.2.2 In the case of all export sales, payment of 100% of the total price is required to confirm any order irrespective of its value.
5.3 If the Reseller fails to make any payment on the due date then the whole of the balance of the price of the Goods then outstanding shall become due and payable forthwith and, without prejudice to any other right or remedy available to the DHS, the DHS shall be entitled to:
5.3.1 Cancel the Contract or suspend any further deliveries of Goods (whether in transit or ordered under the same contract or not) to the Reseller;
5.3.2 Appropriate any payment made by the Reseller to such of the Goods (or the Goods supplied under any other contract between the Reseller and the DHS) as the DHS may think fit (notwithstanding any purported appropriation by the Reseller);
5.3.3 charge the Reseller interest (both before and after judgement) on the amount outstanding, at the rate of 6 per cent per annum above the base rate of ANZ (or such other Australia clearing bank as the DHS may nominate) from time to time, from the due date until payment in full is made;
5.3.3 Make a storage charge for any undelivered Goods at its rates current from time to time;
5.3.4 a general lieu on all Goods and property belonging to the Reseller and such lieu shall be exercisable in respect of all sums lawfully due from the Reseller to the DHS; and the DHS shall be entitled on the expiration of 14 days’ notice in writing to dispose of such Goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding. 5.4 No deduction shall be made by the Reseller in respect of any set-off or counterclaim however arising.

6. WARRANTIES AND LIABILITY

It is solely the Reseller’s obligation before placing an order to ensure that the goods set out in the order confirm with any specification issued for project in which the goods are to be installed by licensed electricians and/or trained custom installers who clearly understood installation procedures and read all manuals provided in advance.
6.1 Subject to the conditions set out below the DHS warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months for Hardware from date of delivery or in the case of Software for a period 90 days from the date of delivery.

6.2 The above warranty is given by the DHS subject to the following conditions:
6.2.1 The DHS shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Reseller;
6.2.2 The DHS shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the DHS’s instructions (whether oral or in writing), misuse alteration or repair of the Goods without the DHS’s approval or use of the Goods with other incompatible products;
6.2.3 The DHS shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
6.2.4 The above warranty does not extend to parts, materials or equipment not manufactured by the DHS, in respect of which the Reseller shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or third party to the DHS.
6.3 Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
6.4 Any claim by the Reseller which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Reseller) be notified to the DHS within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Reseller does not notify the DHS accordingly, the Reseller shall not be entitled to reject the Goods and the DHS shall have no liability for such defect or failure, and the Reseller shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
6.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the DHS in accordance with these Conditions, the DHS shall at their option be entitled to repair or replace the Goods free of charge or, at the DHS’s sole discretion, refund to the Reseller the price of the Goods (or a proportionate part of the price), but the DHS shall have no further liability to the Reseller.
6.6 Except in respect of death or personal injury caused by the DHS’s negligence, the DHS shall not be liable to the Reseller by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused the negligence of the DHS, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Reseller, except as expressly provided in these Conditions.
6.7 The DHS shall not be liable to the Reseller or be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform any of the DHS’s obligations under the Contract where such delay or failure is due to any cause beyond the DHS’s reasonable control and the DHS shall be entitled to a reasonable extension of time for performing such obligations. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the DHS’s reasonable control Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade Disputes (whether involving employees of the DHS or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery, material breach of Contract or other default of the DHS’s suppliers or sub-contractors.
6.8 Specifically there can be no assurance whatsoever those Goods supplied to operate with a control system based upon the Z-Wave Framework and related software (comprised of hardware, software or Licensed Materials) will protect Reseller, its customers, or any individual or his, her or their respective property from harm. Appropriate safety precautions must always be taken when operating or maintaining equipment connected to the Z-Wave Framework. DHS assumes no responsibility or liability for any injury or damage to any persons or property resulting from the use by Reseller or its customers of Goods for use with the Z-Wave Framework. Further, Reseller additionally represents and warrants that it shall take all appropriate precautions, establish appropriate procedures and post appropriate notices to ensure that persons and property are not harmed in the event of an error malfunction or unexpected operation of Goods supplied to operate with the Z-Wave Framework. Unless DHS has provided its express written consent, neither the Hardware nor Licensed Materials may be, and Reseller shall make reasonable business efforts to ensure that they are not, used in any application in which the failure of the Hardware and/or Licensed Materials could lead to death, personal injury or severe physical or property damage (collectively, “High-Risk Applications”) including but not limited to the operation of nuclear facilities, mass transit systems, aircraft navigation or aircraft communication systems, air traffic control, weapon systems and direct life support systems. DHS expressly disclaims any express or implied warranty or condition of fitness for High-Risk Applications.
6.9 Disclaimer of Software Warranty.
DHS FORWARDS MANUFACTURER’S LICENSE FOR ANY GOODS TO OPERATE WITH THE Z-Wave FRAMEWORK “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND. DHS SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DHS, OR ITS AGENTS OR EMPLOYEES SHALL CREATE OR FORM THE BASIS OF ANY WARRANTY OF ANY KIND.

7. INDEMNITY

7.1 If any claim is made against the Reseller that the Goods infringe or that their use or resale infringes the Intellectual Property Rights of any other person, the DHS shall indemnify the Reseller against all loss, damages, costs and expenses awarded against or incurred by the Reseller in connection with the claim, or paid or agreed to be paid by the Reseller in settlement of the claim, provided that:

7.1.1 The DHS is given full control of any proceedings or negotiations in connection with any such claim;
7.1.2 The Reseller shall give the DHS all reasonable assistance for the purposes of any such proceedings or negotiations;
7.1.3 Except pursuant to a final award, the Reseller shall not pay or accept any such claim, or compromise any such Proceedings without the consent of the DHS (which shall not be unreasonably withheld); any policy of insurance or insurance cover which the Reseller may have in relation to such infringement, and this indemnity shall not apply to the extent that the Reseller recovers any sums under any such policy or cover (which the Reseller shall use its best endeavours to do);
7.1.4 the DHS shall be entitled to the benefit of, and the Reseller shall accordingly account to the DHS, for all damages and costs (if any) awarded in favour of the Reseller to take such steps as the DHS may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the DHS is liable to indemnify the Reseller under this Condition.
7.2 If any claim of whatsoever nature is made against the DHS by any other person as a result of any defect in the Goods arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the DHS instructions (whether oral or in writing) or any statutory, regulatory or industry requirement or guideline, misuse, alteration or repair of the Goods without the DHS’s approval or use of the Goods with other incompatible products, the Reseller shall indemnify the DHS against all loss, damages, costs and expenses awarded against or incurred by the DHS in connection with the claim.

8. INTELLECTUAL PROPERTY

8.1 Unless otherwise agreed in writing with the DHS the DHS shall retain the exclusive property and reserve the copyright in all documents supplied or produced to the Reseller in connection with the business relationship and it shall be a condition of such supply or production that the contents of such documents or any part thereof shall not be communicated either directly or indirectly to any other person, firm or company without the prior consent of the DHS in writing.
8.2 The Intellectual Property Rights in or relating to the Goods shall (subject to any existing rights of any third party in any design or invention incorporated or used in the design of the Goods) remain exclusively the property of the DHS and neither the Reseller nor any agent contractor or other person authorized by the Reseller shall at any time make any unauthorised use thereof.

9. TERMINATION OF BUSINESS RELATIONSHIP

9.1 The DHS and The Reseller may terminate this mutual business relationship:
(i) By giving one months’ notice in writing to the other;
(ii) Immediately if the other of them fails to pay any money due within 28 days of it becoming due; (iii) Immediately, if the other of them has committed a serious breach of this agreement.

10. GENERAL

10.1 Any notice required or permitted to be given by either party to the other under this business relationship shall be in writing and may be given either personally, by registered post with signature on delivery or by confirmed electronic mail.
10.2 No waiver by the DHS of any breach of the business relationship by the Reseller shall be considered as a waiver of any subsequent breach of the same or any other provision.

10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.4 The Contract shall be governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties agree that any dispute arising from it shall be litigated only in the State of Victoria, Australia.