1.1 The terms and condition set out below (Terms) govern all contracts for the sale or supply of products and services (Services) by FindaTechie Pty Ltd ACN 156 132 777 (Company) to each of its customers (Customer) and constitute the entire agreement between the parties. All other terms, conditions, warranties and representations express or implied and statutory or otherwise are excluded to the fullest extent permitted by law, including without limitation any term or condition put forward by the Customer.
1.2 Any agreement which modifies or amends these Terms, any supplement to these Terms and all terms and conditions of the Customer will only be valid if a director of the Company has consented in writing thereto and the Customer has received a signed notice from the Company entitled “Our Standard Terms Do Not Apply”.
1.3 The Company may at any time and from time to time alter these Terms, and the altered Terms will apply after the Company has notified the Customer of the altered Terms.
1.4 The Company’s representatives are not authorised to make declarations on behalf of the Company.
2 Request for Services (RFS)
2.1 RFS’s are binding on the Customer and any request made by the Customer will be taken to be an offer incorporating these Terms, notwithstanding any inconsistencies between these Terms and the terms of the RFS.
2.2 No RFS will be binding on the Company and a RFS will not come into existence until it has been accepted by an employee of the Company and confirmation has been provided to the Customer in writing.
2.3 A RFS may only be varied if the Customer requests a variation and the Company confirms the variation in writing.
2.4 A RFS may only be cancelled or varied a minimum of eight (8) hours prior to it’s scheduled start.
3 Fees and Terms of Payment
3.1 Fees are charged at;
a. the Company’s standard hourly rate or part thereof; or
b. a price quoted to the Customer based on the costs of the RFS on the date of quotation. If there is an increase in the cost of the RFS between the date of quotation and the date of delivery the Company may by notice to the Customer increase the prices to reflect such increase. If the Customer has not been notified prior to the time limit to cancel or vary a RFS the Customer will be charged as per quotation.
c. do not include freight, goods and services tax or other similar charges, which are the responsibility of the Customer.
3.2 All the Company’s visits are chargeable and are charged at a minimum of one hour and in quarter hour units after the first hour prorated at standard hourly rate excluding surcharges.
3.3 Surcharges may be applied on same day, outside business hours and/or visits outside the city metro area. You will be informed of any applicable surcharges prior to a representative’s dispatch.
3.4 The Customer is responsible for all costs associated with any variation or cancellation of a RFS not cancelled a minimum of eight (8) hours prior to its scheduled start.
3.5 Payment for RFS must be made by cash, cheque or credit card on completion of performance of the RFS. Credit card payments will attract a Merchant Service Fee (MSF) of 1.5% for Visa or MasterCard. The Company does not accept American Express, Diners Club or other credit cards.
3.6 The Company will issue an invoice within 24 hours of completion of the RFS.
3.7 If on completing a RFS a subsequent RFS is required the Company will issue a separate invoice for each RFS and the Customer will pay each one according to clause 3.5 above.
3.8 If any amount owing by the Customer to the Company is overdue:
a. The Company is entitled to charge interest on the overdue amounts at the rate of 2% per annum above the base rate of the Company’s bankers; and
b. The Customer will indemnify and keep indemnified the Company against all costs (including legal costs) associated with the recovery of payment of the outstanding amounts.
4 Delivery and Risks
4.1 Unless otherwise agreed in writing, any times quoted for delivery of items included in a RFS are to be treated as non-binding estimates only and the Company will not be liable for any failure to deliver within such time.
4.2 All risk passes to the Customer on the completion of each individual RFS.
5 Retention of Title
5.1 Title in the items included in the RFS will not pass to the Customer until the Company has received full payment for the RFS and all other outstanding monies owed to the Company by the Customer.
5.2 The Customer gives the Company, its agents and representative’s, leave and licence, without the necessity of giving any notice, to enter at any time on and into premises occupied by Customer, in the event of a receiver, liquidator or official manager or the like being appointed to manage the affairs of the Customer, to inspect, search for or remove the items included in a RFS.
5.3 If the Customer fails to make full payment for any RFS supplied by the Company, the Company is entitled to possession of the items included in the RFS and the Customer must place the items at the Company’s disposal.
6 Warranty and Liability
6.1.1 The Company warrants to perform a RFS with reasonable care and skill and will investigate any bona fide complaint that any RFS has been performed unsatisfactorily in breach of this warranty. If the Company is satisfied in its absolute discretion that the Customers complaint is justified, the Company’s sole liability to the Customer in respect of this warranty is to complete the RFS at no additional cost or to pay for the RFS to be completed by another party at no additional cost to the Customer.
6.1.2 The Customer acknowledges that technology problems can be more complicated than initially diagnosed. The Customer further understands that a subsequent problem with the technology after a RFS has been completed may be unrelated to the work performed for you and is therefore outside the scope of Our No Fix, No Fee Guarantee.
6.2.1 The Customer acknowledges that the back up all software, data and files that are stored on a computer, server and/or on any other storage devices is the responsibility of the Customer. The Customer further acknowledges that if a backup has not been done and tested then it is the Customers responsibility to advise the Companies representative of this and to allow time for the Companies representative to create one. The Customer further acknowledges that the Companies representative shall not be responsible at any time for any loss, alteration or corruption of any such software, data or files in the event of you choosing to not back up your own data. This service will be included with the items of a RFS.
6.2.2 The Customer shall promptly report errors or faults in the operation of any aspect of the items or any provision of the RFS in a timely and responsible manner.
6.2.3 The Customer acknowledges they are responsible to any third party for any breach of any software licence in respect of software provided to us by the Customer to be installed on your computer.
6.2.4 The Customer also acknowledges that the Customer has a valid licence in respect of such software and shall indemnify us and hold us harmless against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of us installing software at the Customers request.
6.3 To the extent permitted by law and subject to any quotations issued by the Company which state that a warranty applies to the items contained in a RFS, the Company excludes any express or implied condition of warranty other than those supplied by the manufacturer if any, implied by statute which cannot be excluded under the agreement.
6.4 The Customer agrees that the Company’s liability under any warranty referred to in a quotation issued by the Company is limited to the repair or at the Company’s sole discretion the replacement of the items and services contained in the original RFS.
6.5 Trade Practices Act Warranties
6.5.1 All other warranties and representations whether statutory or otherwise, express or implied, and/or oral or written, as to the state, quality or fitness of the Services are expressly excluded except any implied conditions and warranties which are expressed to be incapable of exclusion by the Trade Practices Act 1974 (Cth) (as amended) or any other statute. Where such statutory provisions apply, the obligation of the supplier is limited, to the extent permitted by law.
a. in the case of a supply of Goods
c.i. the replacement of the Goods or supply of equivalent Goods;
c.ii. the payment of the cost of replacing the Goods or acquiring equivalent Goods;
c.iii. The payment of the cost of having the Goods repaired; or
c.iv. The repair of the Goods; and
b. in the case of Services
a.i. the supply of the Services again; or
c.v. the payment of the cost of having the Services supplied again.
6.6 Without prejudice to clause 6.5, the Customer agrees that the Company’s aggregate liability in contract, tort (including negligence or breach of statutory duty) or caused by, resulting from, or in relation to the items contained in an RFS is limited (to the extent permitted by law) to the amount equal to the fee received by the Company for the RFS.
7 Force Majeure
The Company is not liable for delay in performing, or non performance of any of its obligations under these Terms caused by unforeseeable circumstances beyond the Company’s reasonable control (including without limitation, acts of God, civil or military authority, accidents, earthquakes, strikes, the elements, labour disputes, shortage of suitable parts or components or other materials, mechanical breakdown, fire, flood, tempest and war) and in such circumstances, the Company will be entitled to a reasonable extension of time for the performance of its obligations.
8.1 Waiver of a breach or of any right of election arising from a breach of this agreement must be in writing and signed by the party granting the waiver.
8.2 A breach or any right of election arising from a breach of this agreement is not waived by any failure to or delay in the exercise, or partial exercise, of that right of election or any other right.
9.1 The Company is entitled to subcontract or assign this agreement or all or any of its rights and obligations to a third party. The Company will provide the Customer with notice if it assigns all of its rights and obligations to a third party. Upon dispatch of such notice the Company will be relieved of any further obligations to Customer under this agreement.
9.2 The Customer may not assign or otherwise transfer this agreement or any of its rights or obligations under this agreement without the prior written consent of the Company.
All notices which are required to be given under these Terms must be in writing and must be sent to the registered business address of the recipient. Any such notice may be delivered personally by prepaid letter, email or facsimile transmission and will be deemed to have been served:
a. if by hand, when delivered;
b. if by post, 48 hours after posting; and
c. if by email or facsimile transmission, when dispatched.
If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law or unenforceable, in whole or in part, such provision or part will to that extent be deemed not to form part of these Terms but the remaining provisions of these Terms will remain in full force and effect to the maximum extent permissible.
12 Governing Law and Jurisdiction
These Terms are governed by and construed in accordance with the laws of New South Wales and the parties irrevocably submit to the jurisdiction of the courts of that state.