In these terms:
Act means the Corporations Act 2001 (Cth);
Terms means these terms and conditions;
Customer or you means a person, firm or corporation, jointly and severally if more than one, that requests goods or services from us;
Goods means all products and other goods (including any software) supplied by us to you or on your behalf;
Insolvency Event means, for a person, being in liquidation or provisional liquidation or administration, having a controller (as defined in the Act) or similar appointed to it or its property, being taken under s459F(1) of the Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or becoming incapable of managing its affairs fro any reason, taking any step that could result in becoming insolvent under administration (as defined in the Act), entering into a compromise or arrangement with, or assignment for the benefit of, its members, creditors or any analogous event;
Managed Services means services which are provided to you and managed by us.
Order means an order placed by you to purchase Goods and/or Services from us.
Services means all services performed by us for you or on your behalf;
Supergeek or we or us or our means Davey SG Pty Ltd ABN 65 164 555 677, and Supergeek Corporate Service Pty Ltd ABN 81 604 728 752 ; and
Party and Parties means (severally and not jointly) Supergeek and/or the Customer as the context requires.
- We agree to supply Goods and/or the perform Services and you agree to accept the Goods and/or Services in accordance with these Terms. These Terms are deemed to be incorporated into all Orders for Goods and/or Services by us to you unless otherwise agreed by us in writing.
- If you place an Order for Goods and/or Services, or enter into a contract with us for Goods and/or Services and those Goods and/or Services are provided by us to you or you pay for those Goods and/or Services, you are taken to have accepted these Terms.
3. Quotes and Orders
- Any written quotation provided by us to you concerning the proposed supply of goods or provision of Services is:
- not an offer by us and it may be withdrawn or altered without notice. Unless the quote is withdrawn by us it remains valid for 30 days; and
- an invitation only to you to place an order based upon that quotation and we are under no obligation to sell or offer those Goods and/or Services outlined in the quote and may choose to accept or reject any Order you place with us which may be based on that quote.
- Any order placed by you will constitute an offer by you to purchase the Goods and/or Services described in that order and will remain subject to our acceptance, in our sole discretion.
- Once we have accepted an Order, you will not be able to modify or cancel any part of or the whole of that Order, unless agreed by us in our sole discretion.
4. Charges and Payment
- Unless we agree otherwise and subject to any quote issued by us to you, the price for the Goods and/or Services will be the prices we normally charge for those Goods and/or Services.
- We will issue you an invoice for each Order. You must pay the invoice in the manner and before the time specified in each invoice.
- Payment of all invoices must be in Australian Dollars and may be paid by cash, credit card or business cheque on or prior to the supply of Goods or the provision of Services unless you have a credit account with us. Credit card payments will attract a Merchant Service Fee (MSF) of 2% for Visa or MasterCard.
- When we visit your Premises to supply the Goods or provide the Services to you, all our visits are chargeable and are charged in 20 minute increments after the first hour. Any part thereof is chargeable at the same rate as a full 20 minutes.
- For the avoidance of doubt, if during us providing Services, we supply Goods which were not originally in the Order, all costs associated with the supply of those Goods are recoverable from you and are in addition to the cost for us providing the Services.
- If you exceed your approved credit terms, you will be charged a $50.00 late payment fee without prior notice. A revised invoice will be sent to you to take into account the late payment fee.
5. Payment Default
- you do not pay an invoice in accordance with its terms;
- any cheque drawn by you is dishonoured;
- We consider that your creditworthiness has become unsatisfactory (acting reasonably);
- you suffer from an Insolvency Event; or
- you otherwise breach any part of these Terms,
then all money which is then due as well as all monies that are payable by you to us at a later date on any account, shall be due and payable immediately without notice to you.
- If clause 5(a) applies we may, without prejudice to any other right or remedy available to us:
- charge you interest on any sum due at the rate of 2% above the corporate reference rate of our principal banker. This interest shall be calculated daily and compounded every 30 days for the period from the due date until the date of payment in full;
- charge you for all expenses and costs associated with collective all overdue monies, including without limitation, legal fees on a full indemnity basis, debt collection costs, dishonoured cheque fees and reasonable administration costs suffered or incurred by us resulting from the default, including taking whatever action we deem appropriate to recover any amounts due; and
- cease or suspend for such period as we think fit, supply of any further goods or services to you; and
- by notice in writing to you, terminate any contract with you so far as unperformed by us; without effect on our accrued rights under this or any other any contract.
6. Title and risk
- Risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to you upon delivery of the Goods by us to the premises nominated by you (unless otherwise agreed in writing).
- Title in the Goods will not pass to you until you have paid us all amounts owing (all cheques or negotiable instruments have been paid) and you have met all other obligations due by you to us in respect of these Terms and all other contracts between you and us, and until the above obligations have been satisfied, you acknowledge and agree that you:
- hold the Goods as bailee only;
- must store the Goods supplied in a way that it is clear that they are our property; and
- irrevocably authoriss us to enter any premises where the Goods are kept and, if necessary, to use our name and to act on your behalf to recover the Goods.
7. Performance of Contract
- Any period or date for delivery of Goods or provision of Services stated by us is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the Goods or completion of the Services. You must accept delivery of Goods or completion of Services even in the event of a delay. Any failure of us to deliver the Goods or provide the Services within the original timeframe specified will not entitle you to cancel the balance of an Order.
- Whilst every attempt will be made to perform the repairs onsite, it may be necessary to return your system to our base or third party for diagnosis and repair.
- Subject to clause 8, we are not liable to you for any loss or damage (including consequential loss or damages) arising from late delivery of the Goods.
- Subject to clause 8, you must indemnify us against any claim, loss or damage suffered by us, or as a result of us becoming liable to any third party (directly or indirectly,) as a result of us or our employees, contractors or agents entering any premises for the purpose of delivering the Goods.
8. Implied terms
- We acknowledge that where the supply of Goods are “consumer” supplies, under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act), certain statutory express and implied guarantees and warranties (including, without limitation, the statutory guarantees under the Competition and Consumer Act will be implied into these Terms (Non- Excluded Guarantees).
- We acknowledge that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.
- Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, we make no warranty or other representations under any contract with you or these Terms. Your liability in respect of these warranties is limited to the fullest extent permitted by law.
9. Guarantee and Warranties
- Subject to clause 9(b), if we are unable to provide you with the Services we were contracted to provide you with, we will not charge you for those services in respect of that problem (SuperGeek’s Guarantee).
- If during us providing you with the Services, we advise you that in order for us to complete those Services you need to upgrade or replace your software or hardware, if you choose not to upgrade or replace your software or hardware, you acknowledge that we will be deemed to have provided those Services, regardless of whether or not you choose to implement our recommended solution.
- If you choose to not implement our recommended solution, you may forfeit your right to other Services which were to be provided by us under that Order.
- If the Services we provide to you are not performed to a satisfactory standard, and as a result in the problem for which we were engaged to address subsists or returns, we will work to provide a solution to your problem quickly and at no additional cost to you. However, this will not include us compensating you for any other service fees paid by you to another service provider engaged by you for the same purpose.
- You acknowledge that we will not assume responsibility for any pre-existing damage to your property which causes or contributes to our Services not resolving the issue for which we were engaged to correct.
- When we sell you equipment, hardware or software, we may be selling such equipment, hardware or software on behalf of a third party manufacturer or licensor. We do not warrant that the operation of any software we install or service will be uninterrupted or error free. You acknowledge that software (and information technology and communications products generally), including your software, may have errors and may encounter unexpected problems, and accordingly, you may experience downtime and errors in the use of software. You also acknowledge that your use of such software may be subject to a third party licence.
10. Your responsibilities
- Prior to us supplying the Goods or providing the Services, you must back up all software, data and files that are stored on your computer and/or on any other storage devices you may have.
- While we are providing the Services at your home or other location (Premises) requested by you, you must:
- ensure that a person of at least 18 years of age is present at the Premises at all times;
- provide our technicians with:
- access to the areas of your Premises necessary for our technicians to provide the Services;
- necessary passwords to your computer;
- a safe working environment and working space;
- electrical power and internet access (where applicable); and
- licensed software and the installation disks for your operating system along with a product key for this software (if applicable).
- Following the supply of the Goods and/or the provision of the Services, you must:
- promptly report errors or faults in the operation of any aspect of the Goods or any provision of the Services in accordance with applicable fault reporting procedures from time to time;
- ensure that your operators are adequately trained and informed as to the use of the Goods and shall comply with guidelines and procedures supplied by us and/or any third party manufacturer from time to time;
- perform general “housekeeping”, testing, adjustment and/or maintenance as recommended by us in respect of any Goods supplied by us in order to maximise the availability of and performance of the Goods or permit performance by us of any of our obligations hereunder; and
- comply, at your own expense, with any recommendations and guidelines with respect to the use of the Goods, including any adjustments or replacements required in respect of equipment and software that is incidental or collateral to the use of the Goods.
- You acknowledge and agree that:
- we and/or our third party service providers will not be responsible at any time for any loss, alteration or corruption of any software, data or files as a result of you failing to back up all software, data and files prior to us supplying the Goods or providing the Services;
- you will be solely responsible for all data inputs, the manner of use of the goods by all those to whom it provides access and all outputs derived, and all other results of such processing;
- you will exercise due care and carry out such precautions which may be recommended by us or otherwise required as a matter of prudence in connection with the performance by us of any of our obligations hereunder, for example, but without limiting the generality of the foregoing, advising your staff of system restarts or scheduled downtime, recording of error information, and will co-operate with other system administration activities such as, but not limited to, running diagnostic tests and operational readiness tasks; and
- any replacement of parts under warranty will be carried out at a premises nominated by us and we will not be liable for the cost and risk of transport of any defective part to the nominated premises.
- You represent and warrant to us that you are the owner of, and/or have the right to be in possession of and make decisions regarding, all data, media or equipment (Data) provided to Supergeek, and that you have obtained all necessary consents required under the Privacy Act 1988 (Cth) in relation to the disclosure of personal information by you to Supergeek and to the use of that personal information by us, and that your collection, possession, processing and transfer of such Data is in compliance with data protection and privacy laws to which you are subject. You indemnify us from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of this warranty.
- Other than as expressly provided for in clause 9 and subject to the limitations in clause 8, we and our employees, contractors and/or agents will not be liable for any loss or damage (including consequential loss or damage, which includes without limitation, loss of profits and loss of revenue) of any kind whatsoever, even if such loss or damage is due to our failure to meet our obligations under these Terms or our negligence of us, our employees, contractors and/or agents.
- Subject to clause 9 and so far as the law permits, the liability of us for a failure to comply with the Non-Excluded Guarantees, will be limited to: subject to this clause 11(a)and to clause 11(d), the aggregate amount of the fees and charges paid by you under these Terms as at the date of the breach;
- in relation to goods if supplied to you as a consumer (as defined in the Competition and Consumer Act):
- the replacement of the goods or the supply of equivalent goods; or
- payment of the cost of replacing the goods or acquiring equivalent goods; or
- the repair of the goods or payment of the cost of having the goods repaired,
at our election; and
- in relation to services if supplied to you as a consumer (as defined in the Competition and Consumer Act ):
- the supplying of the services again; or
- the payment of the cost of having the services supplied again,
at our election.
- Subject to clause 9, you acknowledge that you have not relied on any representation, description, or statement by us in relation to the Goods and/or Services, or the skill or judgement of us, its agents, contractors or employees, as to if the Goods and/or Services are fit for a particular purpose.
- You acknowledge that you have relied solely on your own inspection, skill and judgement in purchasing the Goods and/or Services.
- At no time will we be liable to you or to any third party in respect of the use of (or failure or performance of) the Goods or the provision of the Services for:
- malfunctions or failures caused directly or indirectly by:
- any third party;
- our actions that were expressly or impliedly authorised by you, or by your employees or agents;
- accident, misuse or abuse by anyone other than us;
- alteration or modification of the goods by anyone other than us;
- products (including any hardware or software) not licensed or supplied by us that are attached to or used with the goods;
- your failure to provide a proper operating and working environment for the goods;
- damage during any movement, relocation or re-installation of the goods;
- power surge or failure;
- acts of God or acts outside our reasonable control;
- any other condition not arising under normal operating conditions; or
- normal wear and tear,
except to the extent that we have been negligent;
- any loss or damage of any nature arising or caused directly or indirectly by any breach of your obligations or responsibilities set out in these Terms;
- any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
- your liability to any third party; or
- incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused, including without limitation the breach of these Terms or any expiration or termination of these Terms, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if we have been advised of the possibility of such loss or damage.
- malfunctions or failures caused directly or indirectly by:
12. Fair Use
- This policy applies to Services provided by Us and aims to ensure that we provide quality services to all of our customers and that no customer is disadvantaged by the conduct of others.
- In doing so, this policy ensures that all customers do not use our Services in an excessive or unreasonable manner.
- Unreasonable use of Services includes heavy usage patterns that cause significant service congestion, disruption or otherwise adversely affect other customer’s use of the Service.
- Use of a Service outside of what is typical of a ‘standard small to medium sized business’ is regarded as unreasonable use.
- If the Service is a Managed Service then any use greater than the 75th percentile of normal use on a three month rolling monthly average basis for each of the defined Managed Services by Managed Service users is defined as excessive or unreasonable use.
- If your use of the Service is found to be excessive or unreasonable, we will contact you and ask you to curtail your usage.
- If we consider that use of the Service continues to be unreasonable, or if the parties are unable to agree to the changes to the service, we may, in our sole discretion, without liability, restrict, suspend or cancel the Service.
13. Copyright in Software
- You warrant to us that you have all relevant licences in respect of any software you provide to us to install on your computer and that you are lawfully entitled to use the software you provide to us.
- In the event us installing such software on your computer results in a breach of a third party’s intellectual property rights, you indemnify us and hold us harmless against any loss, damage, costs, harm or other expense whatsoever that we suffer or incur, whether directly or indirectly, as a result of us installing the software on your computer at your request.
- If we determine that we are or may be unable to deliver the Goods within a reasonable time (or at all) the Order may be cancelled by us in our sole and absolute discretion by giving you 7 days’ notice in writing of our intention of doing so. Subject to clause 8, if an Order is cancelled, you will have no claim against us for any loss or damage (including consequential loss or damage) arising from the cancellation.
- If you propose to cancel any part of or the whole of an Order relating to:
- the supply of Goods, we will not accept such cancellation unless you agree to compensate us for our loss arising from the cancellation of part of or the whole of the Order; and/or
- the provision of Services on less than twenty-four (24) hours notice, we may charge a cancellation fee equal to the first hour of service at the rates quoted at the time of booking for the loss and expense caused.
15. No Representation or Reliance
- You acknowledge and agree that:
- neither we nor any person acting on behalf of us has made any representation or other inducement to it to enter into these Terms; and
- you do not enter into these Terms in reliance on any representation or other inducement by or on behalf of us,
except for representations or inducements expressly set out in these Terms.
- Without limiting the generality of clause 14(a), you understand and hereby confirm that:
- your decision to enter into these Terms was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by us or any person on its behalf in relation to the capacity, uses or benefits that might or would be derived or obtained from the goods or services, except as expressly set out in clause 9, and
- you have relied on your own skill and judgement in deciding to purchase and acquire the Goods and/or Services.
16. Entire Agreement
To the extent permitted by law, in relation to its subject matter, these Terms:
- embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
- supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
17. Governing Law
This Agreement is governed by and must be construed according to the law applying in Queensland. The Parties hereby irrevocably submit to the jurisdiction of the courts of Queensland.