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.
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.
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.
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.back to the top
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)).
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.
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.
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.back to the top
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
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
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.back to the top
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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/.