1. definitions

1.1 “Consultant” means  Perth  IT  Care,  its  successors  and  assigns  or  any person acting on behalf of and with the authority of  Perth IT Care.

1.2 “Client” means the person/s or any person acting on behalf of and with  the  authority  of  the  Client  requesting  the  Consultant  to provide  the  Services  as  specified  in  any  proposal,  quotation, order, invoice or other documentation, and:

(a)if there is more than one Client, is a reference to each Client jointly and severally; and

(b)if  the  Client  is  a  part  of  a  Trust,  shall  be  bound  in  their capacity as a trustee; and

(c)includes  the  Client’s  executors,  administrators,  successors and permitted assigns.

1.3 “Services” means all Goods (which includes any files, information, printed or virtual material, data or software, models) or Services (which  includes  any  advice  or  recommendations,  technical service and support and training, etc.) supplied by the Consultant to the Client at the Client’s request from time to time (where the context  so  permits  the  terms  ‘Goods’  or  ‘Services’  shall  be interchangeable for the other).

1.4 “Website” means a location which is accessible on the Internet through  the  World  Wide  Web  and  which  provides  multimedia content via a graphical User Interface.

1.5 “Prohibited Content” means any content on any advertising media that:

(a)is, or could reasonably be considered to be, in breach of the Broadcasting  Act  1989;  the  Fair Trading Act 1986; or  any other applicable law or applicable industry code; or

(b)contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or

(c)is, or could reasonably be considered to be, in breach of any person’s  Intellectual  Property  Rights  (including,  but  not limited to, the distribution of music files or any other material in which the Client does not own the copyright).

1.6 “Price” shall mean the cost of the Services (plus any GST where applicable)  as  agreed  between  the  Consultant  and  the  Client subject to clause 6 of this contract.  

1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.8 "CloudLinux" refers to server-side software designed to monitor and maintain resource usage within predefined limits.

1.9  “Monthly Downtime” is calculated over a 31 day month.

2.0 Planned Maintenance Schedule refers to the online notification system. Online at https://status.synergywholesale.com

2.1 “Website Availability” refers to the percentage of time during a calendar month when the Service was accessible to third parties via HTTP (port 80) and/or HTTPS (port 443), as assessed through both Synergy Wholesale's internal and external monitoring systems.

2.2 "Partner" means our wholesale hosting provider.

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2. acceptance

2.1 The  Client  is  taken  to  have  exclusively  accepted  and  is immediately  bound,  jointly  and  severally,  by  these  terms  and conditions if the Client places an order for, or accepts Services provided by the Consultant.

2.2 These  terms  and  conditions  may  only  be  amended  with  the consent of both parties in writing, and shall prevail to the extent of any  inconsistency  with  any  other  document  or  agreement between the Client and the Consultant.

2.3 These  terms  and  conditions  may  be  meant  to  be  read  in conjunction with the Consultant’s Hire Form, and:

(a)where the context so permits, the terms ‘Goods’ or ‘Services’ shall include  any  supply  of  Equipment, as defined therein; and

(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.

2.4 None of the Consultant’s agents or representatives are authorised to  make  any  representations,  statements,  conditions  or agreements not expressed by the manager of the Consultant in writing  nor  is the  Consultant  bound  by  any  such  unauthorised statements.

2.5 Once accepted by the Client, the Consultant’s quotation shall be deemed  to  interpret  correctly  the  Client’s  instructions,  whether written or verbal. Where verbal instructions only are received from the Client, the Consultant shall not be responsible for errors or omissions  due  to  oversight  or  misinterpretation  of  those instructions.

2.6 Any advice, recommendations, information, assistance or service provided  by  the  Consultant  in  relation  to  Services  provided  is given  in  good  faith,  is  based  on  information  provided  to  the Consultant,  and  the  Consultant’s  own  knowledge,  and experience. Whilst it shall  be  the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which  the Client makes  or intends to  make of the Services, human  error  is  possible  under  these  circumstances,  and  the Consultant shall make all effort to offer the best solution to the Client.

2.7 The Client accepts and acknowledges that copyright is retained by the Consultant on all design work and other Services provided by the Consultant including text, images, ideas, models, visuals and illustrations unless specifically released in writing and after all costs have been settled.

2.8 Where applicable, the Client acknowledges and accepts that the Price stated on any fixed term contracts will remain fixed for an initial period as stated from the date of this contract and will then be  subject  to  revision  on  the  basis  of  the  movement  in  the Consumer Price Index (CPI).

2.9 These terms and conditions are meant to be read in conjunction with  the  Terms  and  Conditions  posted  on  the  Consultant’s website  and/or  in  the  Consultant’s  Service  Maintenance Agreement  Form  and/or  Service  Maintenance  Agreement Appendix Form. If there are any inconsistencies between these documents  then  the  terms  and  conditions  contained  in  this document shall prevail.

2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the  Electronic  Transactions  Act  2011  or  any  other  applicable provisions of that Act or any Regulations referred to in that Act.

2.11 The  Client  acknowledges  and  accepts  that  the  Consultant’s support Services and calls are:

(a)conducted Monday to Friday between 9:00 am and 5:00 pm (excluding Public Holidays);

(b)in the  event that  the Consultant is  required to  provide the Services urgently, that may require the Consultant’s staff to work  outside  the  aforementioned  normal  business  hours (including but not limited to working, through lunch breaks, weekends  and/or  Public  Holidays)  then  the  Consultant reserves  the  right to  charge  the Client  a  premium  charge unless  otherwise  agreed  between  the  Consultant  and  the Client; and

(c)support Services are not guaranteed outside the Consultant’s normal  business  hours  unless  part  of  a  contracted arrangement.

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3.errors and omissions

3.1 The Client acknowledges and accepts that the Consultant shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a)resulting  from  an  inadvertent  mistake  made  by  the Consultant  in  the  formation  and/or  administration  of  this contract; and/or

(b)contained  in/omitted  from  any  literature  (hard  copy  and/or electronic)  supplied  by  the  Consultant  in  respect  of  the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause

3.1 , and is not attributable to the negligence and/or wilful misconduct of the Consultant; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

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4. change in control

4.1 The Client shall give the Consultant not less than fourteen (14) days prior written notice of any proposed change of ownership of the  Client  and/or  any  other  change  in  the  Client’s  details (including  but  not  limited  to,  changes  in  the  Client’s  name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Consultant as a result of the Client’s failure to comply with this clause.

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5. authorised representatives

5.1 Unless otherwise limited as per clause 5.2, the Client agrees that should the Client introduce any third party to the Consultant as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services, and/or to request any variation thereto, on the Client’s behalf  (such  authority  to  continue  until  all  requested  Services have  been  delivered,  or  the  Client  otherwise  notifies  the Consultant in writing that said person is no longer the Client’s duly authorised representative).

5.2 In the event that the Client’s duly authorised representative, as per  clause  5.1, is to  have  only limited  authority  to  act  on  the Client’s behalf then the Client must specifically and clearly advise the Consultant in writing of the parameters of the limited authority granted to their representative.  

5.3 The Client specifically acknowledges and accepts that they will be solely liable to the Consultant for all additional costs incurred by the  Consultant  (including  the  Consultant’  profit  margin)  in providing any Services, or variation/s thereto, requested by the Client’s  duly  authorised  representative  (subject  always  to  the limitations imposed under clause 5.2 (if any)).

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6. price and payment

6.1 At the Consultant’s sole discretion the Price shall be either:

(a)as indicated on any invoice provided by the Consultant to the Client; or

(b)the Consultant’s current price at the date of provision of the Services as indicated on the Consultant’s pricelist; or

(c)the Consultant’s quoted price (subject to clause 6.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. The scope of the Services is to be confirmed in writing.

6.2 A copy of the written quotation is to be signed and dated by the Client  to  indicate  acceptance  and  should  be  returned  to  the Consultant.  As  an  alternative,  the  Client  may  send  an  official order for the Services via email in reply to the quotation which will imply  the  Client’s  acceptance  of  the  Consultant’s  terms  and conditions. The Client accepts that no work will be commenced until acceptance has been supplied to the Consultant as per this clause.

6.3 Additional and/or Varied Services:

(a)The  Consultant agrees that there  will be  no  charge in the preparation  of the initial quotation  (however  any site  visits may be chargeable), which may include Client discussions, project scoping, research, testing and business analysis, etc. However,  in  some  instances  the  aforementioned  services may be charged to the Client additionally (at the Consultant’s sole  discretion).  In  the  event  the  Client  requires  proofs, mock-ups,  layouts,  samples  or  dummies  or  printed, typewritten  or  other  good  copy  and/or  edits,  this  shall  be invoiced  at  the  Consultant’s  hourly  rate  unless  specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (d).

(b)All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.

(c)Where  the  performance  of  any  contract  with  the  Client requires the  Consultant to obtain  products and/or  services from a third party, the contract between the Consultant and the  Client  shall  incorporate,  and  shall  be  subject  to,  the conditions of supply of such products and/or services to the Consultant, and the Client shall be liable for the cost in full including  the Consultant’s  margin  of  such  products  and/or services.

(d)The Consultant reserves the right to amend the Price where there  is  any  variation  to  the  accepted  plan  of  scheduled Services, or instructions/specifications, which will be charged for  on the  basis  of  the  Consultant’s  standard  hourly  rates (and double such rate for any Services provided outside the Consultant’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

(e)Any  variation  due  to  a  result  of  any  increase  to  the Consultant in the cost of materials (including but not limited to  overseas  transactions  that  may  increase  as  a consequence  of  variations  in  foreign  currency  rates  of exchange and/or international freight and insurance charges) and  labour)  will  be  charged  for  on  the  basis  of  the Consultant’s quotation and will be shown as variations on the invoice.

6.4 Variations  will  be  charged  for  on  the  basis  of  the  Consultants quotation, and will be detailed in writing, and shown as variations on  the  Consultant’s  invoice.  The  Client  shall  be  required  to respond to any variation submitted by the Consultant within five (5) working days. Failure to do so will entitle the Consultant to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.5 At the Consultant’s sole discretion a non-refundable deposit may be required.

6.6 Time for payment for the Services being of the essence, the Price will  be  payable  by  the  Client  on  the  date/s  determined  by  the Consultant, which may be:

(a)on completion of the Services;

(b)before delivery of the Goods/Services;

(c)by way of instalments/progress payments in accordance with the Consultant’s payment schedule; or

(d)the date specified on any invoice or other form as being the date for payment; or (e)failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Consultant.  

6.7 Publication  and/or  release  of the work done by  the Consultant shall  only  be  released  once  the  funds  have  been  cleared  or honoured.

6.8 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Consultant.

6.9 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Consultant nor to withhold payment of any invoice because part of that invoice is in dispute.

6.10 Unless  otherwise  stated  the  Price  does  not  include  GST.  In addition to the Price, the Client must pay to the Consultant an amount  equal  to  any  GST  the  Consultant  must  pay  for  any provision of Services by the Consultant under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the  Price.  In addition, the Client must  pay  any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

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7. hosting services

7.1 “Live Date” means the date in which the Consultant provides the Hosting  Services  as  per  initial  acceptance  of  the  Consultant’s quotation.

7.2 Hosting  services  shall  only  be  used  by  the  Client  for  lawful purposes.  Any  use  which  violates  any  applicable  national  or international laws is strictly prohibited (e.g. posting or transmitting any  unlawful,  threatening,  abusive,  libellous,  defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to,  any  transmission  constituting  or  encouraging  conduct  that would constitute a criminal offense or give rise to civil liability).  

7.3 The Consultant will, at its sole cost and expense:

(a)host  the  Website  on  the  Consultant’s  or  other  third  party webservers;

(b)ensure that from the Live Date:

(i)sufficient  capacity  is  maintained  on  the  Consultant’s webserver to enable users access to the Website in a timely manner;  

(ii)the Website is accessible to users in accordance with the  agreed  service  levels  (subject  to  reasonable downtime  for  server  maintenance  which  has  been notified to the Client prior to the commencement of the downtime  or  (where  applicable)  Maintenance  in accordance with clause 8.7); (c)provide the Client with reasonable access to the Website to perform maintenance services.  

7.4 The  Consultant will make  best  efforts  to  ensure  that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this agreement, however the  Consultant  does  not  in  any  way  warrant  or  otherwise guarantee the availability of the Services, which shall be subject to  regularly  scheduled  maintenance  cycles,  and  many events/circumstances beyond the control of the Consultant. In no event,  though,  shall  the  Consultant  be  liable  to  the  Client  for damages (including loss of income) resulting from or in relation to any  failure  or  delay  (including  server  downtime,  programming errors, lack of connection or slow connection) of the Consultant to provide  Services  under  this  agreement,  or  any loss  of  data,  if such  delays  or  failures  are  due  to  circumstances  beyond  our control. Such a failure or delay shall not constitute a default under this agreement.

7.5 The Consultant may, at their sole discretion, limit or deny access to  the  Services  is,  in  the  judgement  of  the  Consultant,  such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.

7.6 Where  the  Client  engages  a  third  party  hosting  provider,  the Consultant shall not be held liable should the Client’s Website be affected  by  any  viruses,  trojan  horses,  worms,  time  bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Website.  

7.7 Website Maintenance Services:

(a)subject to clause

(b), the Consultant will provide the Website Maintenance Services in accordance with the maintenance terms set out in the Consultant’s maintenance schedule.

(c)the Client will procure all necessary authorisations, licences and consents to enable the Consultant to have access to the Website in order to provide the Maintenance Services.

(d)should the Client maintain the Website, then the Consultant shall not be held responsible or liable for any interruption or non-performance  of  the  Website  and  shall  be  entitle  to charge the Client for any remedial work that may be required to store the function of the Website.

7.8 Client’s Obligations:

(a)the Client will, at its sole cost and expense:

(i)subject to any contract with the Consultant for Website Development, develop and maintain the Website;

(ii)provide the content to the Consultant, in such form as reasonably  prescribed  by the  Consultant  from time to time, and hereby grants the Consultant a non-exclusive, worldwide, irrevocable  licence to use  such content  for the purposes of hosting the Website;

(iii)do  all  things  reasonably  necessary  to  enable  the Consultant  to  host  the  Website  on  the  Consultant’s webserver;

(iv)change the type of hosting account used if that account is  deemed  by  the  Consultant  to  be  unacceptable because  of  poor  service,  lack  of  bandwidth  or  in  any other way insufficient to support the Website;

(v)is responsible for any fees payable and due to previous hosting organisations engaged by the Client;

(vi)ensure that content supplied  to the Consultant  do  not contain  Prohibited Content,  a link to any Website that contains  Prohibited  Content,  or  any  viruses,  trojan horses,  worms, time bombs, cancel bots or  any  other software program or routine designed for or capable of interfering with the operation of the Hosting Services. (

b)the Client will not:

(i)logon to an account that the Client is not authorised to access;

(ii)access  data  or take  any  action to  obtain services not intended for the Client;

(iii)attempt  to probe, scan or test the  vulnerability of any system, subsystem or network;

(iv)tamper,  hack,  modify  or  otherwise  corrupt  or  breach security  or  authenticity  measures  without  proper authorisation; (v)transmit any material outlined in clause 8.10(a)(vi); (vi)do anything that prevents or hinders the Consultant from providing Hosting Services to any other person.

(c)the Client acknowledges that spamming (i.e. the sending of unsolicited  email),  email  address  cultivation,  or  any unauthorised  collecting  of  email  addresses  without  prior notification of the email address owner is strictly prohibited.  

7.9 Limitation of Liability for Hosting Services

(a)in  consideration  of  clause  13.8,  in the event  the  Hosting Services provided to the Client are disrupted or malfunction for  any  reason, the Consultant’s liability shall be limited to damages  which  under  no  circumstances  shall  exceed  the amount due and payable by the Client to the Consultant for the  Hosting  Services  during  the  period  of  disruption  or malfunction.

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8. search engine optimisation

8.1 Although  the  Consultant  shall  use  their  knowledge  and experience to gain the best results possible, the Consultant gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Website, or warranty that the Website will be effective in promoting  the Client’s  business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of the Consultant.

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9. email hosting

9.1 It  shall  be  the  Client’s  responsibility  for  the  set-up  and configuration of the Client’s email on any business computer or mobile devices, etc. Should the Client prefer, the Consultant can provide remote support at an additional cost

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10. backups

10.1 The  Client  is  responsible  for  maintaining  their  own  e-mail  and other  backups on their  own  systems, unless  otherwise  agreed; the Consultant does not provide any sort of compensation for lost or  incomplete  data  in  the  event  that  backups  do  not  function properly.

10.2The Consultant will use their best endeavours to ensure complete and  accurate  backups  of  hosted  data,  but  assume  no responsibility for this duty. It is recommended by the Consultant that the Client always keeps a backup of their website whenever possible.  The  Consultant  makes  no  guarantees  about  the availability of backups

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11. domain registration

11.1 Where the Consultant is to register a domain name on the Client’s behalf,  the  Consultant  cannot  guarantee  the  availability  of  the domain  name,  nor  assume  a  successful  registration  of  such  a name.

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12. risk and limitation of liability for client data

12.1 Risk of damage to or loss of the Goods passes to the Client on Delivery  and  the  Client  must  insure  the  Goods  on  or  before Delivery.

12.2 If any of the Goods are damaged or destroyed following Delivery but  prior  to  ownership  passing  to  the  Client,  the Consultant  is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Consultant is sufficient  evidence  of  the  Consultant’s  rights  to  receive  the insurance proceeds without the need for any person dealing with the Consultant to make further enquiries.  

12.3 If the Client requests the Consultant to leave Goods outside the Consultant’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

12.4 The Client acknowledges and agrees that the Consultant shall not be held responsible or liable for:

(a)anything related to the Client’s website or any other Services provided;

(b)any  supplied  content  breaching  any  Acts,  legislation  or regulations, unless due to the negligence of the Consultant;

(c)any loss, corruption, or deletion of files or data (including, but not  limited  to  software  programmes)  resulting  from  illegal hacking or Services provided by the Consultant. Whilst the Consultant will endeavour to restore the website, files or data (at the Client’s cost), it is the sole responsibility of the Client to  back-up  any  data  which  they  believe  to  be  important, valuable, or irreplaceable  prior to the  Consultant providing the  Services.  The  Client  accepts  full  responsibility  for  the Client’s software and data and the Consultant is not required to  advise  or  remind  the  Client  of  appropriate  backup procedures (unless included as part of the Services);

(d)any  loss  or  damage  to  the  Client’s  software  or  hardware caused by any ‘updates’ provided for that software.

12.5 The  Consultant,  its  directors,  agents  or  employees  will  not  be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by the Consultant to the Client.

12.6 The Services are provided on an “as is, as available” basis. The Consultant specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.

12.7 The Client understands that by placing information on a website, such  information  may  be  accessible  to  all  internet  users.  The Consultant does not (unless expressly requested by the Client) limit  or  restrict  access  to  such  information,  nor  protect  such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness  and  usefulness  or  all  opinions,  advice,  services, and other information, and the quality and merchantability of all Services provided by the Consultant, or on the internet generally.

12.8 Furthermore, the Consultant shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited  to  legal  fees  and  commissions),  damages  suffered  or incurred by the Consultant, or indirect and/or consequential loss and/or  expense  (including  loss  of  profit)  suffered  by  the Client arising  out  of  a  breach  by  the Consultant  of  these terms  and conditions, caused by any failure by the Client to comply with their obligations  under  this  agreement,  or  that  arise  from  any  claim relating to the Services by any person that the Client authorises to use  the  Services,  or  where  due  to  server  downtime  or programming errors (alternatively the Consultant’s liability shall be limited to damages which under no circumstances shall exceed the Price). Perth IT Care – Terms and Conditions Please note that a larger print version of these terms and conditions is available from the Consultant on request.    © Copyright - EC Credit Control 1999 - 2022 - #3646913.9The Client acknowledges that the Consultant is only responsible for parts that are replaced by the Consultant and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found  to  be  the  source  of  the  failure,  the  Client  agrees  to indemnify  the  Consultant  against  any  loss  or  damage  to  the Goods, or caused by the Goods, or any part thereof howsoever arising.

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13. title

13.1 The Consultant and the Client agree that the Client’s obligations to the Consultant for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:

(a)the Client has paid the Consultant all amounts owing to the Consultant for the Services; and

(b)the Client has met all other obligations due by the Client to the  Consultant  in  respect  of  all  contracts  between  the Consultant and the Client.

13.2 Receipt by the Consultant of any form of payment other than cash shall not be deemed to be payment until that form of payment has been  honoured,  cleared  or  recognised,  and  until  then  the Consultant’s ownership or rights in respect of the Services, and this agreement, shall continue.

13.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 16.1:

(a)the Client is only a bailee of the Goods and must return the Goods to the Consultant on request.  

(b)the Client holds the benefit of the Client’s insurance of the Goods  on  trust  for  the  Consultant  and  must  pay  to  the Consultant the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c)the  Client  must  not  sell,  dispose,  or  otherwise  part  with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Consultant and must  pay  or  deliver  the  proceeds  to  the  Consultant  on demand.

(d)the  Client  should  not  convert  or  process  the  Goods  or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of  the  Consultant  and  must  sell,  dispose  of  or  return  the resulting product to the Consultant as it so directs.  

(e)the Client irrevocably authorises the Consultant to enter any premises where the Consultant believes the Goods are kept and recover possession of the Goods.

(f)the  Consultant  may  recover  possession  of  any  Goods  in transit whether or not delivery has occurred.  

(g)the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Consultant.  

(h)the Consultant may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.

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14. personal property securities act 2009 ("PPSA")

14.1 In this  clause financing statement,  financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

14.2 Upon assenting to these terms and conditions in writing the Client acknowledges  and  agrees  that  these  terms  and  conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Consultant for Services –  that  have  previously  been  supplied and that will be supplied in the future by the Consultant to the Client.

14.3 The Client undertakes to:

(a)promptly  sign  any  further  documents  and/or  provide  any further  information  (such  information  to  be  complete, accurate and up-to-date in all respects) which the Consultant may reasonably require to;

(i)register  a  financing  statement  or  financing  change statement  in  relation  to  a  security  interest  on  the Personal Property Securities Register;  

(ii)register any other document required to be registered by the PPSA; or

(iii)correct  a  defect  in  a  statement  referred  to  in  clause 14.3(a)(i) or 14.3(a)(ii);

(b)indemnify, and upon demand reimburse, the Consultant for all expenses incurred in registering a financing statement or financing  change  statement  on  the  Personal  Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c)not  register  a  financing  change  statement  in  respect  of  a security  interest  without  the  prior  written  consent  of  the Consultant;

(d)not register, or permit to be registered, a financing statement or  a  financing  change  statement  in  relation  to  the  Goods and/or collateral (account) in favour of a third party without the prior written consent of the Consultant;

(e)immediately advise the Consultant of any material change in its business practices of selling the Goods which would result in  a  change  in  the  nature  of  proceeds  derived  from  such sales.

14.4 The Consultant and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7 Unless otherwise agreed to in writing by the Consultant, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8 The  Client must unconditionally ratify any actions  taken by the Consultant under clauses 14.3 to 14.5.

14.9 Subject to any express provisions to the contrary (including those contained in this clause 17) nothing in these terms and conditions is intended  to  have  the  effect  of  contracting  out  of  any  of  the provisions of the PPSA.

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15. security and charge

15.1 In  consideration  of  the  Consultant  agreeing  to  provide  the Services,  the  Client  charges  all  of  its  rights,  title  and  interest (whether  joint  or  several)  in  any  land,  realty  or  other  assets capable of being charged, owned by the Client either now or in the  future,  to  secure  the  performance  by  the  Client  of  its obligations under these terms and conditions (including, but not limited to, the payment of any money).  

15.2 The  Client indemnifies the Consultant from  and  against all the Consultant’s costs and disbursements including legal costs on a solicitor  and  own  client  basis  incurred  in  exercising  the Consultant’s rights under this clause.

15.3 The Client irrevocably appoints the Consultant and each director of  the  Consultant  as  the  Client’s  true  and  lawful  attorney/s  to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

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16. defects, warranties and returns, competition and consumer act 2010 (CCA)

16.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Consultant in writing of any evident defect/damage, shortage in quantity, or failure to comply with  the description  or  quote.  The Client must notify  any  other alleged defect in the Goods as soon as reasonably possible after any  such  defect  becomes  evident.  Upon  such  notification  the Client must allow the Consultant to inspect the Goods.

16.2 Under  applicable  State,  Territory  and  Commonwealth  Law (including, without limitation the  CCA),  certain  statutory implied guarantees  and  warranties  (including,  without  limitation  the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).  

16.3 The  Consultant  acknowledges  that  nothing  in these  terms  and conditions  purports  to  modify  or  exclude  the  Non-Excluded Guarantees.  

16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Consultant makes no  warranties  or  other  representations  under  these  terms  and conditions including but not limited to the quality or suitability of the  Goods.  The  Consultant’s  liability  in  respect  of  these warranties is limited to the fullest extent permitted by law.  

16.5 If the Client is a consumer within the meaning of the CCA, the Consultant’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.6 If  the  Consultant  is  required  to  replace  the  Goods  under  this clause or the CCA, but is unable to do so, the Consultant may refund any money the Client has paid for the Goods.

16.7 If the Client is not a consumer within the meaning of the CCA, the Consultant’s liability for any defect or damage in the Goods is:

(a)limited to the value of any express warranty or warranty card provided to the Client by the Consultant at the Consultant’s sole discretion;

(b)limited to any warranty to which the Consultant is entitled, if the Consultant did not manufacture the Goods;

(c)otherwise negated absolutely.

16.8 Subject to this clause 19, returns will only be accepted provided that:

(a)the Client has complied with the provisions of clause 15.1; and

(b)the Consultant has agreed that the Goods are defective; and

(c)the  Goods  are  returned  within  a  reasonable  time  at  the Client’s cost (if that cost is not significant); and

(d)the  Goods  are  returned  in  as  close  a  condition  to  that  in which they were delivered as is possible.

16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, the Consultant shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a)the Client failing to properly maintain or store any Goods;  

(b)the Client using the Goods for any purpose other than that for which they were designed;  

(c)the Client continuing the use of any Goods after any defect became  apparent  or  should  have  become  apparent  to  a reasonably prudent operator or user;  

(d)the  Client  failing  to  follow  any  instructions  or  guidelines provided by the Consultant;

(e)fair wear and tear, any accident, or act of God.

16.10 In  the  re-conditioned  Goods,  unless  the  Client  is  a  consumer under  the  CCA,  the  Client  acknowledges  that  it  has  had  full opportunity to inspect the reconditioned Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Consultant as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Consultant has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 16.10.

16.11 Notwithstanding  anything  contained  in  this  clause  if  the Consultant  is  required  by  a  law  to  accept  a  return  then  the Consultant will only accept a return on the conditions imposed by that law.

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17. intellectual property and confidentiality

17.1 Where  the  Consultant  has  designed,  drawn  or  developed Services  for  the  Client,  the  Consultant  retains  full  intellectual property ownership of the Services, including the copyright in any designs and drawings and documents, and the Consultant hereby grants  to  the  Client  an  irrevocable,  non-exclusive  and  non-transferable licence to use the Services solely in relation to the operation of the Client’s own business, conditional upon the Client fulfilling their obligations under this agreement (including, but not limited to, the full payment of the Price).

17.2 Subject  to  the  Copyright  Act  1968  (Cth)  and  the  conditions therein, where the Consultant or their sub-contractor has provided the  Client  with  a  licence for  use  on  any  design,  copy,  writing, drawing, image, illustration, idea or code created for the Client, the licence shall be for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express permission of the Consultant and any of its relevant sub-contractors.

17.3 All design work where there is a risk that another party makes a claim,  should  be  registered  by  the  Client  with  the  appropriate authorities prior to publishing or first use or searches and legal advice  sought  as  to  its  use.  The  Consultant  shall  not  be  held responsible for any or all damages resulting from such claims.  

17.4 The Client hereby authorises the Consultant to utilise images of the Services created by the Consultant in advertising, marketing, or competition material by the Consultant including, but not limited to:

(a)the Client permitting the Consultant to place a small credit on printed  material,  exhibition  displays,  advertisement  and/or link to the Consultant’s own Website on the Client’s Website, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;  

(b)allowing the Consultant to place Websites and other designs, along with a link to the Client’s Website on the Consultant’s own  Website  for  demonstration  purposes  and  to  use  any designs in the Consultant’s own publicity.

17.5 The Client shall indemnify the Consultant against any claims by third  parties  for  patent,  trademark,  design  or  copyright infringement,  directly  or  indirectly  arising  out  of  the  design, workmanship,  material,  construction,  or  use  of  the  Services  or any  other  deficiency  therein.  Where  the  Client  has  supplied drawings, sketches, files or logo’s to the Consultant, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify the Consultant against any action taken by a third party against the Consultant.

17.6 Notwithstanding anything herein, the Intellectual Property Rights in the Consultant’s Services do not vest in the Client and there is no assignment of these Intellectual Property Rights to the Client. The Consultant hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this agreement only, and solely for the operation of the Client’s business however, the Client shall not  use  nor  make  copies  of  such  Intellectual  Property  in connection  with  any  work  or  business  other  than  the  work  or business  specified  in  writing  to  the  Consultant  unless  express approval  is  given  in  advance  by  the  Consultant.  Such  license shall terminate on default of payment or any other terms of this agreement by the Client.

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18. default and consequences of default

18.1 If  the  Client  owes  the  Consultant  any  money  the  Client  shall indemnify  the  Consultant  from  and  against  all  costs  and disbursements incurred by the Consultant in recovering the debt (including  but  not  limited  to  internal  administration  fees,  legal costs on a solicitor and own client basis, the Consultant’s contract default fee, and bank dishonour fees).

18.2 Further to any other rights or remedies the Consultant may have under  this  contract,  if  a  Client  has  made  payment  to  the Consultant,  and  the  transaction  is  subsequently  reversed,  the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Consultant under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or  in contravention to  the Client’s  obligations under this agreement.

18.3 Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the  Consultant  shall, whether  or  not  due for  payment,  become immediately payable if:

(a)any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to make a payment when it falls due;  

(b)the Client has exceeded any applicable credit limit provided by the Consultant;

(c)the Client becomes insolvent, convenes a meeting with its creditors  or  proposes  or  enters  into  an  arrangement  with creditors,  or  makes  an  assignment  for  the  benefit  of  its creditors; or

(d)a receiver, manager, liquidator (provisional or otherwise) or similar  person is  appointed in  respect of  the Client or  any asset of the Client.

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19. cancellation and termination

19.1 Without  prejudice  to  any  other  remedies  the  Consultant  may have,  if  at  any  time  the  Client  is  in  breach  of  any  obligation (including those relating to payment, whether or not the payment is  due  to  the  Consultant)  the  Consultant  may  suspend  or terminate the provision of Services to the Client, (this includes but is  not  restricted  to,  withholding  domain  codes,  passwords  and Goods, and/or blocking or restricting public and Client access to the Website, or removing the Website from the web completely) and any of its other obligations under the terms and conditions. The  Consultant will  not  be  liable  to  the  Client  for  any  loss  or damage the Client suffers because the Consultant has exercised its rights under this clause.

19.2 The Consultant may cancel these terms and conditions or cancel provision  of  the  Services  at  any  time  before  the  Services  are provided  by  giving  written  notice.  The  Consultant  shall  not  be liable  for  any  loss  or  damage  whatever  arising  from  such cancellation.

19.3 At the Consultant’s sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by the Consultant (including, but not limited to, loss of profit) up to the time of cancellation.

19.4 If  the  Client  fails  to  comply  with  any  of  the  provisions  of  this agreement  and  does  not  rectify  such  non-compliance  within seven (7) days of the Consultant giving notice either in writing, via fax or email, then the Consultant may without prejudice to any other rights or remedies, and without being liable to the Client for any  loss  or  damage  that may  result,  give  notice to  the Client terminating their right to use the Website, Software and Services. Upon termination of the agreement, the Client shall lose all right to use the Website and products, and shall forthwith deliver the Goods to the Consultant and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.

19.5 In the event the Services are terminated as per clause 19.4, the Services can be re-instated under a new contract at the prevailing rates;  however  no  credits  or  discounts  will  be  granted  and reinstatement costs shall apply.

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20. unpaid seller's rights

20.1 Where the Client has left any item with the Consultant for repair, modification, exchange or for the Consultant to perform any other service in relation to the item and the Consultant has not received or  been  tendered  the  whole  of  any monies  owing to  it  by  the Client, the  Consultant  shall have,  until all monies owing to  the Consultant are paid:

(a)a lien on the item; and

(b)the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

20.2 The  lien  of  the  Consultant  shall  continue  despite  the commencement  of  proceedings,  or  judgment  for  any  monies owing to the Consultant having been obtained against the Client.

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21. service of notices

21.1 Any written notice given under this contract shall be deemed to have been given and received:

(a)by handing the notice to the other party, in person;

(b)by leaving it at the address of the other party as stated in this contract;

(c)by sending it by registered post to the address of the other party as stated in this contract;

(d)if  sent  by  facsimile  transmission  to the  fax  number  of  the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e)if sent by email to the other party’s last known email address.

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

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22. trusts

22.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Consultant may have notice of the Trust, the Client covenants with the Consultant as follows:

(a)the contract extends to all rights of indemnity which the Client now  or  subsequently  may  have  against  the  Trust  and  the trust fund;

(b)the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust  do  not  purport  to  exclude  or  take  away the  right  of indemnity of the Client  against the Trust or the trust  fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c)the Client will not without consent in writing of the Consultant (the  Consultant  will  not  unreasonably  withhold  consent), cause,  permit,  or  suffer  to  happen  any  of  the  following events;

(i)the removal, replacement or retirement of the Client as trustee of the Trust;

(ii)any alteration to or variation of the terms of the Trust;

(iii)any advancement or distribution of capital of the Trust; or

(iv)any resettlement of the trust property.

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23. general

23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid,  void,  illegal  or  unenforceable  the  validity,  existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the State in which the Consultant has its principal place of business, and are subject to the jurisdiction of the Perth Courts in Western Australia.

23.3 The Consultant may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

23.4 The Client cannot licence or assign without the written approval of the Consultant.

23.5 The  Consultant  may  elect  to  subcontract  out  any  part  of  the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and  understands  that  they  have  no  authority  to  give  any instruction to any of the Consultant’s sub-contractors without the authority of the Consultant.  

23.6 The Client agrees that the Consultant may amend these terms and conditions at any time. If the Consultant makes a change to these terms and conditions, then that change will take effect from the  date  on  which  the  Consultant  notifies  the  Client  of  such change via email. The Client will be taken to have accepted such changes if the Client makes a further request for the Consultant to provide Services to the Client.  

23.7 Neither  party  shall  be  liable  for  any  default  due  to  fires, explosions,  severe  weather,  industrial  disputes,  insurrection, requirements or regulations, or any civil or military authority, acts of  war  (whether  declared  or  not),  civil  unrest,  acts  of  God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.

23.8 Both parties warrant that they have the power to enter into this agreement  and  have  obtained  all  necessary  authorisations  to allow  them  to  do  so,  they  are  not  insolvent  and  that  this agreement creates binding and valid legal obligations on them

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24. definition of maintenance changes

24.1 If you have maintenance changes included in your web hosting. These include changes to website text and images with content being provided by the customer. Images and text must be provided in the correct size as not to affect the overall design. Any changes other then these are considered design work and are billed separately.

24.2 Any Google tags, SEO or similar are web development, not web maintenance and are billed separately

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25. web hosting 99.9% uptime guarantee exceptions

25.1 Conditions outside the reasonable control of Perth IT Care or our partner, encompassing, but not limited to, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike, or other labor disturbance, interruption or delay in transportation, unavailability or disruption of telecommunications or third-party services, Denial of Service attacks, or failure of third-party software (including, but not limited to, cPanel, Installatron, RVSiteBuilder, Synergy Wholesale management system, ecommerce software, payment gateways, statistics, or free scripts).

25.2 Planned maintenance or upgrades, and emergency maintenance or upgrades, in accordance with the terms outlined in Section 26 of this agreement.

25.3 Challenges related to DNS propagation beyond the direct influence of Perth IT Care or their partner.

25.4 Problems with cpanel or FTP.

25.5 The Service becoming inaccessible as a result of CloudLinux due to excessive resource consumption.

25.6 Service interruptions caused by outages elsewhere on the internet, DNS caching, browser caching, or any other factors that impede access to your Service while others can still access it.

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26. hosting server maintenance

26.1 Perth IT Care or its partners will conduct scheduled maintenance at a time determined to be appropriate by them. In the event that it necessitates any Service(s) to be offline for a duration exceeding thirty (30) minutes, Perth IT Care's partners will provide details of the scheduled maintenance at least two (2) days in advance. These periods are not factored into the website availability calculations. These can be seen at https://status.synergywholesale.com/.

26.2 As needed, Perth IT Cares partners will conduct unscheduled maintenance, and if any Service(s) are offline for more than thirty (30) minutes, Synergy Wholesale will share details of the maintenance along with updates until its completion. These periods are not considered in the website availability calculations. These can be seen at https://status.synergywholesale.com/.

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