Terms and Conditions
Last Updated on 10th July, 2006
Dataca Pty Ltd (ABN 30 120 580
912) provides goods and services subject to the
following terms and conditions. By purchasing or receiving goods or services
from Dataca, the Customer acknowledges that it has read, understood, and
agreed to be bound by the following terms and conditions, without limitation or
qualification.
1. Definitions
1.1 Unless the contrary intention
appears, the following words have these meanings in this Agreement:
Agreement means any agreement or contract, incorporating all
of the documents referred to in 2.3 (each as amended from time to time), entered into for the provision of goods and/or
services by Dataca to the Customer;
Customer means a person, firm, corporation or other legal
entity, jointly and severally if there is more than one, acquiring goods or
services from Dataca;
Customer’s Equipment means all the
computer, network, other equipment, hardware, hard disk drive, tape or other
data storage media or device of the Customers that Dataca will supply any goods
or services for.
Data means all the software, files, data and any other information
stored on the Customer’s Equipment.
Dataca means Dataca Pty Ltd (ABN
30 120 580 912) and its related companies, its employees, contractors or
agents;
Goods means the goods (including any equipment,
hardware, software or peripheral products) supplied by Dataca to the Customer. The
goods shall also include any part or component of them;
GST means
the Goods and Services Tax as defined in A New Tax System (Goods and
Services Tax) Act 1999 (Cth);
Services means the provision of services supplied by Dataca to the Customer; and
Terms means these Terms and Conditions.
1.2 In this Agreement, unless the contrary intention appears:
(a) a reference to:
(i) this Agreement, another instrument or any schedule or annexure includes
any variation or replacement of any of them; and
(ii) a statue, ordinance, code or other law includes regulations and other
instruments made under it and any consolidations, amendments, re-enactments or
replacements of any of them; and
(iii) the singular includes the plural and vice versa; and
(iv) one gender includes the others; and
(v) a person includes a reference to the person’s executors, administrators,
successors and permitted assigns and substitutes (including persons taking by
novation); and
(vi) a day is to be interpreted as the period of time commencing at midnight
and ending 24 hours later; and
(vii) any thing (including any amount) is a reference to the whole and each
part of it, and a reference to a group of persons is a reference to all of them
collectively, to any two or more of them collectively and to each of them
individually; and
(b) an agreement, representation or warranty in favour of two or more
persons is for the benefit of them jointly and severally; and
(c) if a period of time is specified and dates from a given day or the day
of an act or event, it is to be calculated exclusive of that day; and
(d) the words “including”, “for example” or “such as” are not to be used as,
nor interpreted as, words of limitation.
1.3 Any headings that have been used in this Agreement are for convenience
only and shall not be construed as forming part of this Agreement or be used in
the interpretation of any provision of this Agreement.
2. Basis of Agreement
2.1 Unless otherwise agreed to in
writing by Dataca, these Terms apply exclusively to every quotation and sales
contract (express or implied) for the supply of goods or services by Dataca to
the Customer and cannot be varied or supplanted by any other terms, including
the Customer's terms and conditions of purchase (if any).
2.2 Any quotation provided by Dataca
to the Customer concerning the proposed supply of goods or services is:
(a) valid
for fourteen (14) days;
(b) an
invitation to treat only; and
(c) subject to the Customer offering to enter into an Agreement
and accepting these Terms.
2.3 This Agreement incorporates these
Terms and may include additional terms and conditions provided:
(a) in
Dataca's quotation, which are not inconsistent with these Terms; and
(b) by
Dataca in relation to any specific services, which are in addition to those
covered by these Terms, whether or not they are contained in a schedule.
2.4 To the extent of any inconsistency between the documents referred to in
2.3, the following rules shall apply:
(a) Dataca’s
terms and conditions for specific services prevail over these Terms; and
(b) These
Terms prevail over the remaining documents.
2.5 An order or an offer to purchase goods or receive services can be made
by the Customer in writing, electronically or verbally. This Agreement is
accepted by Dataca when Dataca confirms its acceptance of an offer from the
Customer in writing or electronic means or provides the Customer with the goods
or services.
2.6 Dataca in its absolute discretion may refuse to accept any offer.
2.7 It is the Customer's responsibility to provide Dataca with its specific
requirements in relation to the goods and services.
2.8 Dataca may vary or amend these Terms by notice in writing to the
Customer at any time. Any variations or amendments will apply to orders made by
the Customer after the date of notice.
3. Customer’s Obligations
3.1 The Customer agrees to comply with, and pay all applicable fees that
apply to it in relation to this Agreement.
3.2 The Customer agrees that as an essential term of
this Agreement, that it is the Customer’s sole responsibility to backup all
the Data that is stored on the Customer’s Equipment or goods, prior to Dataca providing
any services whatsoever (including onsite, remote, back to base and warranty services)
on the Customer’s Equipment or goods.
4 Description of Services
4.1 Dataca provides services by:
(a) visiting
the Customer’s requested location (On-Site Services)
(b) helping
the Customer over the phone and/or through remote computer access (Remote
Services)
(c) servicing
the Customer’s Equipment at its Service Centre (Back To Base Services).
4.2 Remote Services
(a) Dataca
will attempt problem diagnosis and a solution over the phone and/or through
remote computer access for an applicable fee.
(b) Dataca
may need remote access to the Customer’s computer in order to diagnose the
problem further or provide a solution. Dataca is unable to access the
Customer’s computer unless the Customer has:
(i) given its permission to do so; and
(ii) downloaded the required software; and
(iii) met certain minimum specifications such as a working internet connection
and other requirements as provided by Dataca at the time of providing the
service.
4.3 On-site Services
(a) Dataca
will visit the Customer’s requested location (Customer’s Premises). In order to
receive On-site Services, the Customer must:
(i) ensure that the Owner’s consent has been given for Dataca to enter the
Customer’s Premises and that Dataca is:
· met promptly by the Customer or its authorised member; and
· accompanied at all times, while on the Customer’s Premises by the
Customer or its authorised member who must be at least 18 years of age and
familiar with the Customer's Premises and safety procedures.
(ii) provide Dataca with:
· full, safe and prompt access to the areas and equipment
necessary; and
· the necessary passwords and/or administrator privileges required;
and
· adequate working space, electrical power and make available to
Dataca, free of charge, all facilities (including telecommunication) and
services reasonably required by Dataca to properly provide its services under
this Agreement.
(b) The
Customer agrees that if Dataca arrives at the Customer’s Premises and if Dataca
reasonably believes that the Customer has not met the conditions of 4.3(a),
then services may be denied and a $99 cancellation fee will be assessed.
4.4 Back To Base Services
(a) In
cases where Dataca is unable to adequately or economically perform Remote or
Onsite Services, or where the Customer requires Data Recovery Services, Dataca
may ask the Customer to deliver the Customer’s Equipment to Dataca’s Service
Centre. At the Service Centre, Dataca can solve complex problems, perform
upgrades, configure servers, recover data and test equipment before it is
returned.
(b) In
order to receive our Back to Base Services, the Customer must:
(i) agree to and sign our Computer Release Form or where applicable Data
Recovery Service Request Form.
(ii) take out the necessary insurance(s) required to adequately protect the
Customer’s Equipment and Data from loss or damage.
4.5 Discontinuation of Services
(a) Dataca
reserves the right (and without liability) at any time to discontinue providing
any or all services if, in its opinion:
(i) the Customer’s minimum system requirements are not met or the technical
needs (including wiring or overcoming physical or technical barriers) or other
requirements are unusual or extensive and beyond the scope of the services;
(ii) the Customer’s Equipment is beyond reasonable service repair;
(iii) it is otherwise not practicable or expedient to complete the Services;
(iv) Dataca does not have the necessary access or cooperation to perform its
services;
(v) Dataca is concerned for its safety;
(vi) the Customer has not meet any of the requirements under this Agreement,
or
(vii) any other factor or event beyond Dataca’s reasonable control that prevents
it providing the services.
5 Customer’s Equipment
and Data
5.1 The Customer authorises:
Dataca to undertake any
work to the Customer’s Equipment requested; and
receive and
transport the Customer’s Equipment to, from, and between Dataca facilities and
affiliates.
5.2 When Dataca provides the Customer with services, sometimes access to,
and incidental copying of, the Customer’s personal and confidential data is
unavoidable. Dataca will always attempt to limit its interaction with the
Customer’s files to minimum.
5.3 The Customer warrants:
(a) it is the legal
owner, representative, or otherwise has a legitimate right to the Customer’s
Equipment or act on the Owner’s behalf and all Data contained therein;
(b) that no material
contained on the Customer’s Equipment subject to any services by Dataca is
illegal or illicit in nature;
(c) that it holds
title to any Data that is required to be copied or transferred, and the
Customer hereby indemnifies Dataca from any claim for breach of ownership
rights, and from any other claim whatsoever that may arise from Dataca copying
or transferring the Customer’s Data.
5.4 When Dataca provides the Customer with certain services such as repair
or data recover, it may be necessary for Dataca to open the Customer’s
Equipment. The Customer acknowledges and authorises the opening of the relevant
Customer’s Equipment and in doing so may void any warranty in relation to it.
The Customer will not hold Dataca liable for voiding any warranty in relation
to the relevant Customer’s Equipment, or for any subsequent loss, damage or
destruction, however caused.
6 Privacy and Confidentiality
6.1 Dataca respects the Customer’s privacy and confidentiality. Dataca has a
Privacy Policy that describes how Dataca collects, uses and safeguards the
Customer’s personal information and the choices the Customer can make about the
way its personal information is collected and used. The Privacy Policy forms
part of this Agreement and can be viewed at http://www.dataca.com.au/privacy/.
The Customer should review the Privacy Policy before it provides any personal
information to Dataca.
6.2 Dataca guarantees the strict privacy and confidentiality of all the data
and agrees not to disclose any and all information or data files supplied with,
stored on, or recovered from the Customer’s Equipment except:
(a) to
Dataca’s personnel subject to confidentiality agreements; or
(b) as
stated in Dataca’s Privacy Policy; or
(c) as
required by law.
7 Pricing
7.1 Unless otherwise stated, all prices quoted or that appeared in Dataca’s
price list for the supply of goods and services are in Australian dollars and inclusive
of GST but exclusive of any other taxes, duties, levies, exchange rates, freight,
handling or insurance charges all of which the Customer must pay in addition to
and at the same time as the price for the goods or services.
7.2 If the Customer requests any
variation to the Agreement, Dataca may increase the price to account for the
variation.
7.3 Where there is any change in
the costs incurred by Dataca in relation to goods or services, Dataca may vary
its price for the goods or services to take account of any such change, by notifying
the Customer.
7.4 All goods supplied by Dataca are charged separately and in
addition to services.
8 Payment
8.1 Unless otherwise agreed to in writing
by Dataca, payment for goods and services must be made on or prior to
the supply of goods or completion of services unless the Customer has a credit
account with Dataca. Where a credit account is in place, the amount due shall
be paid by the Customer within the due date specified on the invoice (which
unless stated otherwise, means fourteen (14) days from the date of invoice
issue).
8.2 Payment terms may be revoked or
amended at the sole discretion of Dataca immediately upon giving notice to the
Customer.
8.3 Dataca offers payment by credit card, funds transfer to Dataca’s bank
account, cheque or money order (“Payment Methods”), subject to eligibility and
at its sole discretion. No payment shall be considered made until it is
received in full cleared funds by Dataca.
8.4 The time for payment shall be of the
essence in any Agreement.
8.5 If any part of an invoice is in dispute, the balance will remain payable
and must be paid when due. The Customer has no right to set-off any claim
against Dataca from moneys owing to Dataca.
9 Payment Default
9.1 If the Customer defaults in payment
by the due date of any amount payable to Dataca, then all money which would
become payable by the Customer to Dataca at a later date on any account,
becomes immediately due and payable without the requirement of any notice to
the Customer, and Dataca may, without prejudice to any other remedy available
to it:
(a) charge
the Customer interest on any sum due at the rate of four percent (4%) per month
or the highest rate permitted by law, whichever is less, for the period from
the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify Dataca
from, all costs and expenses (including without
limitation all legal costs and expenses, dishonoured payment fees) incurred by
Dataca resulting from the default or in taking whatever action it deems
appropriate to enforce compliance with these Terms or to recover any goods or
sum due;
(c) retain the Customer’s Equipment in its possession
or withhold delivery, or performance until arrangements as to payment or credit
have be established which are satisfactory to Dataca.
(d) be entitled to
a general lien on all Customer’s Equipment or goods belonging to the Customer
in Dataca’s possession for any outstanding amount owing by the Customer to
Dataca;
(e) has the
right to offset the amounts outstanding in all accounts and the net balance
will become due and payable immediately;
(f) cease or suspend for such period as Dataca thinks
fit, supply of any further goods or services to the Customer;
(g) by notice to the Customer, terminate any agreement with
the Customer so far as unperformed by Dataca;
without effect on the accrued rights of Dataca under any agreement.
9.2 Clauses 9.1(f) and (g) may also be
relied upon, at the option of Dataca:
(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.
9.3 If any method of payment the Customer uses to pay Dataca is declined or
otherwise dishonoured or rejected (other than through the default of Dataca),
Dataca reserves the right to charge the Customer, and it agrees to pay an
administration fee on each and every occasion where this occurs to cover
Dataca’s time and expense according to the following schedule:
(a) for cheque payments a $45 (excluding GST) charge;
(b) for credit card payments a $15 (excluding GST) charge;
(c) any other payment method a $25 (excluding GST) charge.
10 Passing of Property
10.1 Until full payment in cleared funds
is received by Dataca for all goods and services supplied by it to the
Customer, as well as all other amounts owing to Dataca by the Customer:
(a) title and property in all goods remain vested in Dataca
and do not pass to the Customer;
(b) the Customer
must hold the goods as fiduciary bailee and agent for
Dataca;
(c) the Customer must store the goods separate from
its own goods and in a manner that shows clearly they are the property of
Dataca, maintain records relating to the goods, secure the goods from risk,
damage and theft and ensure that the goods are kept in good and serviceable
condition;
(d) the Customer may sell the
goods, in the ordinary course of its business, but only as fiduciary agent of
Dataca. The Customer must not represent to any third party that that the
Customer is acting in any capacity for or on behalf of the Dataca and the
Customer has no authority to bind Dataca to any contract or otherwise assume
any liability for or on behalf of Dataca. The Customer receives all proceeds
(including any proceeds from insurance claims) in trust for Dataca and must
keep the proceeds in a separate bank account until all liability to Dataca is
discharged. Failure to maintain separate accounts does not affect the
Customer’s obligation to deal with the proceeds as trustee;
(e) if the Customer uses the goods in some manufacturing or construction
process of its own or of a third party, the Customer must hold in trust for
Dataca that part of the proceeds of the manufacturing or construction process
as is equal to the amount owing by the Customer to Dataca at the time of
receipt of the proceeds.
(f) Dataca 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 Dataca, and for this purpose the Customer
irrevocably licences Dataca to enter such premises
and also indemnifies Dataca from and against all costs, claims, demands or
actions by any party arising from such action.
10.2 All rights, title or interest in respect of the intellectual property
rights in the software shall remain with the applicable licensor(s) at all
times.
11 Risk and Insurance
11.1 The risk of loss or damage to the
Customer’s Equipment and Data, including whilst under Dataca’s custody or
control, remains with the Customer at all times.
11.2 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 on the goods being dispatched or taken from Dataca's premises.
11.3 The goods are sold
to the Customer on the basis that the Customer has obtained all necessary
licenses or permits under all relevant laws and regulations in relation to the
goods.
12 Delivery and Collection
12.1 The Customer is responsible for
delivering the Customer’s Equipment to Dataca’s premises.
12.2 The Customer must pay all charges in
connection with delivery, collection, transportation, special packaging and insurance
of the Customer’s Equipment and Data (including whilst in transit).
12.3 Dataca will, at its discretion, arrange for the delivery of the
goods to the Customer and designate the route and the means of transportation
for the delivery of goods. In the event that the Customer requires a more
expensive route or means of transportation the Customer will reimburse Dataca for the extra cost involved.
12.4 Dataca reserves the right to deliver
the goods or services by installments and in any sequence. Where the
goods or services are so delivered by installments:
(a) each installment shall be deemed to be the subject of a separate Agreement;
and
(b) Dataca will be entitled to invoice the Customer for the goods or
services delivered; and
(c) no default or failure by Dataca in respect of any one or more
installments shall invalidate the Agreement in respect of goods or services
previously delivered or undelivered goods or services.
12.5 If the Customer’s
Equipment or goods are not picked up, or Dataca does not receive forwarding
instructions sufficient to enable it to dispatch the Customer’s Equipment or goods
within fourteen (14) days of notification that the Customer Equipment or goods
are ready, the Customer shall be liable for storage and similar charges payable
monthly on demand.
13 Performance of
Agreement
13.1 Any period or date
for delivery of goods or provision of services stated by Dataca is intended as
an estimate only and is not a contractual commitment. Dataca will use its
reasonable endeavours to meet any estimated dates for
delivery of the goods or completion of the services but will, in no circumstances whatsoever, be liable for any loss or damage suffered by the Customer or
any third party for any delay or failure to meet any estimated date. The
Customer agrees that delivery or completion dates are not to be treated as an
essential condition of the Agreement.
14 Software
14.1 All software provided by Dataca to the Customer is subject to the terms
and conditions of the licence agreement relating to that software. The Customer
acknowledges its obligations to abide by such licence agreements.
14.2 Any software supplied by the Customer to Dataca for installation will
required the Customer to provide Dataca with the necessary installation disks,
product serial numbers and/or activation codes for the software.
14.3 Dataca will not be responsible to the Customer or any third party
for any breach of any software licence in respect of software provided to
Dataca by the Customer to be installed on a Customer's computer.
14.4 Dataca does not warrant that the operation of any software it supplies,
installs or services will be effective, compatible, uninterrupted or error
free. The Customer acknowledges that software (and information technology and
communications products generally), including its software, may have errors and
may encounter unexpected problems, and accordingly, the Customer may experience
downtime and errors in the use of software. Without limiting the obligations set out in clause 3, the 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.
15 Service Guarantees
15.1 No Fix No Fee - If Dataca is unable to diagnose the cause of the
Customer’s hardware or software problem or provide a solution, then no charge
will apply. However in some cases, the solution to the problem may require the
Customer to upgrade or replace its hardware or software. If Dataca advises the
Customer of a solution to the problem, the Customer acknowledges that Dataca
has met its commitment in providing a solution to the problem, whether or not the
Customer chooses to implement that solution. Dataca does not warrant that it
will be able to fix all problems which it diagnoses, or that a solution will be
provided in any particular time, or for any particular amount of money.
15.2 Service Guarantee - Dataca guarantees the provision of its
services from the date of delivery according to the following schedule:
(a) five (5) days for Remote Services;
(b) fourteen (14) days for data recovery;
(c) thirty (30) days for On-site and other Back-To-Base Services.
If the Customer has a problem
with the service Dataca provided, and the Customer notified Dataca within the above
stated time period and, Dataca’s diagnosis of the problem indicates that the service
was not performed satisfactorily then Dataca will work to remedy the problem quickly
and at no additional cost.
16 Disclaimer of Warranties
16.1 All terms, conditions, warranties, statements, guarantees, undertakings,
or representations (whether express or implied) under statue, common law,
equity, trade usage, custom, prior dealings or otherwise in relation to any
goods or services provided by Dataca are hereby expressly excluded unless:
(a) they are expressed in these Terms;
(b) they are contained in any warranty statement provided with the goods or
services;
(c) they are necessarily implied under any applicable law having
jurisdiction over the supply of the goods or provision of the services;
(d) they are contained in any other terms and conditions to which Dataca
agrees, in writing, to be bound.
16.2 In the event that the Dataca is supplying goods which have been
manufactured or licensed by a third party, the Customer shall be entitled to
the benefit of any manufacturer's or licensor’s warranty in respect of such
goods (including software).
16.3 Any warranty provided by
Dataca in the Terms or elsewhere does not
apply in circumstances where:
(a) the goods or services are not defective;
(b) the goods were used or services required for a purpose
other than for which they were intended;
(c) the goods were repaired, modified or altered by any person
other than Dataca or its authorised personnel;
(d) the defect has arisen due to misuse, neglect, malpractice or
accident;
(e) the goods have not been used, installed, stored or maintained
as recommended by Dataca or the manufacturer instructions;
(f) the defect has arisen due to normal wear and tear on the
goods; or
(g) the Customer is in breach of the Terms.
16.4 Any replacement under warranty will be carried out at the premises
nominated by Dataca. The cost and risk of transport of any defective part to
the nominated premises is the responsibility of the Customer.
17 Indemnity
17.1 The Customer agrees to indemnify and hold Dataca, harmless from any
claim, demand, injury, damage, loss, expense, cost or liability, (including
without limitation legal fees on a full indemnity basis) made against or
suffered by Dataca, whether directly or indirectly, arising out of or in any
way connected to:
(a) the Customer’s
Equipment, or the Customer’s use of the goods or services;
(b) Dataca installing
software at the request of the Customer;
(c) Dataca entering
the Customer’s Premises in accordance with clause 4.3 and 10.1(f);
(d) any breach of these
Terms by the Customer or any of its agents or representatives;
(e) any wilful
default, negligence, fraud act or omission by the Customer or any of its agents
or representatives relating to this Agreement;
(f) of any
infringement by the Customer or its agents or representative of another
person’s intellectual property or other rights;
(g) any warranty
that the Customer made under this Agreement is untrue;
17.2 This indemnity survives termination of this agreement. If the Customer
has any liability to Dataca under this agreement, Dataca may set off that
liability against any liability Dataca has to the Customer.
18 Liability
18.1 To the extent permitted by law and subject to clause 18.6, Dataca's
total liability herein in respect of each event or series of connected events
shall not exceed the total price paid for the purchase of goods and/or services
under these Terms.
18.2 Except as specifically provided for in these Terms, and to the fullest
extent permitted by law, under no circumstances will Dataca be liable to the
Customer or any other party, under any theory of contract, tort (including
negligence) or otherwise, for any direct, indirect, consequential, special,
punitive loss or damages or any loss or damages whatsoever, including (but not
limited to), loss of use, data, profits, goodwill, or any other liability (even
if Dataca has been advised of the possibility of such damages) arising out of,
or in connection with:
(a) the Customer’s
Equipment, or the goods or services supplied by Dataca; or
(b) any failure or
omission on the part of Dataca to comply with its obligations under these Terms
including where Dataca has:
(i) failed to deliver the Customer’s Equipment, goods or services; or
(ii) fails to meet any delivery date, completion or response times, or
(iii) cancels or suspends the supply of goods or services; or
(iv) lost, corrupted, deleted or altered, the Customer
Data whether on the Customer’s Equipment or otherwise.
18.3 The Customer accepts all risk and responsibility for consequences
arising from the use of the goods or services whether singularly or in
combination with other goods or services.
18.4 To the extent permitted by law, any typographical, clerical or other
error or omission in sales literature, quotation, price list, acceptance of
offer, invoice or other documents or information issued by Dataca shall be
subject to correction without any liability on the part of Dataca.
18.5 The Customer acknowledges
that:
(a) it has not
relied on any service involving skill and judgement, or on any advice,
statement, promise, recommendation, information or assistance provided by
Dataca in relation to the goods or services or their use or application.
(b) it has the sole
responsibility of satisfying itself that the goods or services are suitable for
the use of the Customer or any contemplated use by the Customer, whether or not
such use is known by Dataca.
(c) any description
of the goods provided in a quotation or invoice is given by way of
identification only and the use of such description does not constitute a
contract of sale by description.
(d) all photographs,
weights, illustrations, performance specifications and any other particulars
given in or accompanying a quotation, or contained in descriptive literature
are approximate only and deviations therefrom shall not invalidate this Agreement
or be made the basis of any claim made against Dataca.
18.6 Nothing in the Terms is to be
interpreted as excluding, restricting or modifying or having the effect of
excluding, restricting or modifying the application of the Trade Practices Act
(Cth) and any other State or Federal legislation applicable to the sale of
goods or supply of services which cannot be excluded, restricted or modified. These
Terms must be read subject to those statutory provisions. If those statutory
provisions apply, notwithstanding any other provision of this Agreement, to the
extent to which Dataca is entitled to do so, Dataca limits its liability in
respect of any claim under those provisions to:
(a) in the case of
goods supplied or offered by Dataca: (i) the replacement of the goods or the
supply of equivalent goods, (ii) the repair of such goods, (iii) the payment of
the cost of replacing the goods or acquiring equivalent goods, or (iv) the
payment of the cost of having the goods repaired; and
(b) in the case of
services supplied or offered by Dataca: (i) the supply of the services again,
or (ii) the payment of the cost of having services supplied again.
18.7 Nothing in these Terms excludes or modifies any liability either party
may have to the other for fraud or deceit or for death or personal injury
caused by the negligence or the wilful misconduct of either party.
19 Cancellation
19.1 If, through circumstances
beyond the control of Dataca, Dataca is unable to effect delivery or provision
of goods or services, then Dataca may cancel the Customer's order (even if it
has already been accepted) by notice in writing to the Customer.
19.2 Subject to 19.3, If the Customer does not provide Dataca with at
least three (3) business hours prior notice to cancel any scheduled performance
of services the Customer will be charged, at Dataca’s option, a cancellation
fee for the loss and damaged caused according to the following schedule:
(a) for
On-site Services a fee of $50;
(b) for Remote
Services a fee of $25.
19.3 If the Customer does not provide Dataca with at least forty-eight
(48) hours prior notice to cancel any full-day booking of services, the
Customer will be charged, at Dataca’s option, a cancellation fee equal to the
quote for that full-day booking for the loss and damaged caused.
19.4 No purported cancellation or
suspension of an order or any part of it by the Customer is binding on Dataca
after that order has been accepted.
19.5 If the Customer purports to
cancel an order and Dataca agrees to the cancellation, any deposit paid by the
will be forfeited.
19.6 Dataca, in its absolute
discretion may review, alter or terminate the Customer's credit limit or
payment terms without notice. Dataca may request additional information or the
provision of further security to a credit facility and may suspend or cancel a
credit facility if the information or security requested is not provided within
a reasonable time.
20 Returns and Exchanges
20.1 Subject to clause 20.2, Dataca will not
be liable for any defects, shortages, damage or non-compliance with the
specifications in the Agreement unless the Customer notifies Dataca with full
details, including the item, invoice number, date and brief description of the
defect(s) within seven (7) days of delivery.
20.2 When any defects, shortages, claim for
damage or non-compliance with the Agreement specifications is accepted by
Dataca, Dataca may, at its option, replace the goods, or refund the price of
the goods.
20.3 If the Customer fails to give the notice as required in clause 20.1, it is deemed to
have accepted the goods.
20.4 Dataca will not under any circumstances
accept goods for return that:
(a) have been specifically produced, imported or
acquired to fulfil any contract;
(b) are discontinued goods or no longer stocked by
Dataca;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.
20.5 If Dataca accepts goods for return, the
Customer will receive a credit for the returned goods equal to the price
charged by Dataca less a 20% deduction for handling and restocking charges.
20.6 The Customer must:
(a) obtain Dataca's prior written approval for
return of goods; and
(b) pay all freight charges and costs associated with return of
goods.
21 Offers and Concessions
21.1 From time to time Dataca may use special or trial offers and concessions
to promote goods or services for a limited period only. These offers may be
subject to additional terms and conditions that will be published along with
the offer as they are made available.
21.2 Where more than one promotion is offered on the same goods or services
at the same time, Dataca reserves the right to offer the Customer the best deal
available. Only one promotion can be claimed at any one time.
21.3 Dataca reserves the right to cancel any or all of the offers and
concessions without notice, or to withdraw or limit their use by a specific
individual or individuals.
22 Subcontractors
22.1 Dataca, in its absolute discretion, may subcontract the delivery of the
Customer’s Equipment or goods, or the performance of all or any services to be provided
to the Customer.
22.2 The Customer agrees that these Terms will operate to the benefit of any
person delivering the Customer’s Equipment or goods, or providing any part of
the services whether contractor, sub-contractor, agent or sub agent and/or its
delegates or otherwise and any such person shall be deemed a party to every
contract, agreement or arrangement incorporating any part of these Terms and
Dataca holds the benefit of these Terms in trust for all interested parties.
22.3 The Customer acknowledges and agrees that these Terms shall also be
available to and extend to protect any person who is or might be vicariously
liable for the acts or omissions of anyone referred to in clause 22.2 and any
such person shall be deemed a party to every contract or arrangement
incorporating any part of these Terms.
22.4 The Customer agrees that no claim or allegation shall be made against
any servant, agent or contractor of Dataca that attempts to impose any
liability whatsoever in connection with the performance, manner or
nonperformance of Dataca’s obligations under these Terms.
23 Force Majeure
23.1 Dataca shall have no liability
whatsoever under or in any way related to the sale and purchase of the goods or
services or otherwise for any failure or delay to fulfil any obligation
hereunder to the extent that such fulfilment is prevented by circumstances
beyond its reasonable control including but without limitation to industrial
disputes, strikes, lockouts, accident, breakdown, import or export
restrictions, acts of God, acts of terrorism, or acts of war. Should an event
of force majeure occur, Dataca may, at its option:
(a) be
entitled to perform the Agreement of the unfulfilled portion thereof within a
reasonable time from the removal of the cause preventing or delaying
performance; or
(b) rescind
unconditionally and without liability, this Agreement or the unfulfilled
portion thereof.
24 Miscellaneous
24.1 This Agreement will be governed by, construed and enforced in
accordance with the laws of New South Wales, Australia, and the parties
irrevocably and unconditionally submit to the non-exclusive jurisdiction of the
courts of New South Wales, Australia and courts of appeal from them.
24.2 The failure by Dataca to exercise, or any delay in exercising,
any right, power or privilege available to it under these Terms will not
operate as a waiver thereof or preclude any other or further exercise thereof
or the exercise of any other right or power.
24.3 If any of the Terms are unenforceable
it shall be read down so as to be enforceable or, if it cannot be so read down,
the term shall be severed from these Terms without affecting the enforceability
of the remaining Terms.
24.4 A notice must be: (a) in writing; and (b) given personally; or (c)
sent by prepaid post; or (d) sent by facsimile; or (e) sent by email to the
address or number (where applicable) last advised. A notice takes effect from the time it is delivered unless a
later time is specified in it. The Customer must immediately advise Dataca of
any change of its address or contact details and Dataca shall endeavour to do
likewise.
24.5 A notice is taken to be received: (a) for notices sent by post,
on the 3rd business day after posting; (b) for notices sent by facsimile, on
production of a transmission report by the transmitting machine that indicates
that the whole facsimile was sent; and (c) for notices sent by email, within 12
hours of sending the email, provided that the sender: (i) has keyed in the
correct email address (as advised by the recipient to the sender under 24.4(e);
and (ii) has not been informed, by way of an email alert, that the message has
failed to reach its intended destination.
24.6 The Customer shall not assign or otherwise transfer this
Agreement or any of its rights and obligations hereunder whether in whole or in
part without the prior written consent of Dataca. Any such unauthorised
assignment shall be deemed null and void.
24.7 Dataca is allowed at its sole discretion to assign this Agreement or any
rights, obligations or interests hereunder, in whole or in part, to any person,
firm or corporation, without prior notice.
24.8 Dataca reserves the right to seek all remedies available by law and in
equity for any violation of the Terms. Any rights not expressly granted herein
are reserved.
Effective from 10th July 2006
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