Terms & Conditions
COMPUTER RESOURCES PTY LTD TERMS AND CONDITIONS
Computer
Resources Pty Ltd Terms & Conditions –
These Terms and Conditions are incorporated into every supply of goods and/or services to the
Customer by Computer Resources Pty Ltd ABN 44 153 261 299.
By instructing
Computer Resources Cairns to provide any goods or services after receiving a copy of these
Terms and Conditions (or after receiving a document into which these Terms and Conditions
are incorporated by reference), the Customer agrees to be bound by these Terms and
Conditions. IMPORTANT NOTES: While the Customer will be appointing Computer Resources
to carry out the Services to the customers computing equipment at the Service
Address(es), the Customer acknowledges that it must continue to monitor, clean and maintain
the use of the equipment in accordance with the requirements in accordance with the
manufacturers guidelines and these Terms and Conditions and the Service Guide.
These Terms and Conditions include important terms such as renewal of the contract term,
indemnities and limitations of liability.
DEFINITIONS Agreement means the Terms and Conditions, together with the Quotation, as
may be amended from time to time by Computer Resources.
Authorised Person means the individual(s) listed in the Quotation authorised by the Customer to
request changes or amendments to the agreed Services and Quotation.
Claim means any cost, expense, action, proceeding, claim, demand, remedy, damage or loss.
Customer means the individual or entity referred to in the Quotation.
Further Term is defined in clause 2(b).
Induction and Compliance Requirements means the requirements with which Computer
Resources personnel or representatives must comply in order to gain access to the
Service Address and perform the Services.
Computer Resources means Computer Resources Pty Ltd ABN 44 153 261 299.
Proof of Service Report means the record kept by Computer Resources of the
attendance on any Service Address in accordance with this Agreement and commonly provided
as details for each service provided within the invoice for that service.
Quotation means a quotation provided by Computer Resources to the Customer.
Service Address means each address of the Customer listed in the Quotation.
Service Frequency means the recommended service frequency set out in the Quotation.
Services means all services provided by Computer Resources to the Customer, including
any services described in the Quotation.
Term means 12 months, unless otherwise stated in the Quotation.
Terms and Conditions means this document.
1. QUOTATIONS AND AGREEMENT
(a) All Quotations are made on and subject to these Terms and Conditions.
(b) Unless expressly agreed by Computer Resources , previous dealings between
Computer Resources and any Customer will not vary or replace these Terms and
Conditions.
(c) Computer Resources may withdraw or vary a Quotation at any time before the
Customer accepts the Quotation in writing.
(d) In providing a Quotation to the Customer, Computer Resources will rely on the
accuracy and completeness of all information provided by Customer. If any such information is
or becomes inaccurate or incomplete, or otherwise changes, Computer Resources
reserves the right to vary a Quotation and the Customer agrees to be bound by any such varied
Quotation.
(e) This Agreement prevails over any terms and conditions of trade, purchase order, invoice or
any other document of the Customer whether or not any inconsistency arises.
2. TERM
(a) This Agreement will commence on the date that Computer Resources agrees to
provide the Services referred to in a Quotation accepted by the Customer, and will continue for
the Term and any Further Term unless otherwise terminated in accordance with this Agreement.
(b) At the end of the Term and any further term, this Agreement will automatically renew for
successive 12 month terms (each, a Further Term) until terminated in accordance with clause
13 of this Agreement (including under clause 13(a) which allows for termination on 30 days’
notice during any Further Term).
3. COMPUTER RESOURCES’S OBLIGATIONS
(a) Computer Resources will provide the Services in a proper and workmanlike manner
at each Service Address, or at its workshop.
(b) Computer Resources will use reasonable endeavours to provide the Services in
accordance with the Service Frequency.
4. CUSTOMER’S OBLIGATIONS
(a) The Customer must provide Computer Resources, its employees, agents and
contractors with full access to every Service Address and the relevant computer equipment
upon which the Services will be performed at the time set out in the Quotation.
(b) The Customer must provide Computer Resources with complete and accurate
information regarding the type and frequency of activities carried out at each Service Address.
The Customer acknowledges that Computer Resources Cairns will rely on this information in
recommending a Service Frequency for any required computer maintenance work at client
premises.
(c) While Computer Resources may recommend a frequency of Services, and send
reminders and other notifications to the Customer from time to time, the Customer is solely
responsible to arrange for the Services and to determine its obligations pursuant to all
occupational health and safety, fire safety and any other relevant requirements and obligations.
(d) The Customer, or the Customer’s agents, employees, or contractors must, on request by
Computer Resources, sign any document to verify that Computer Resources has
attended a Service Address on any date.
5. MONITORING AND SERVICE GUIDE
The Customer acknowledges that the computer equipment at each Service Address must be
regularly monitored, and have an up to date anti-virus and anti-malware system serviced in
accordance with the Service Guide to check that the Service Frequency at all times remains
appropriate for each Service Address.
6. SERVICES
(a) Computer Resources is entitled, acting reasonably, to refuse to perform the Services
if:
(i) Computer Resources cannot gain access to a Service Address; or
(ii) the Customer, its representatives or any other party denies or unreasonably delays
permission for Computer Resources to perform the Services; or
(iii) Computer Resources, or its employees, agents or contractors, decide, that it would
be unsafe to perform the Services on the Customer’s site.
(b) If, as a result of an act or omission by the Customer and Computer Resources
refuses to perform the Services under clause (a) above, the Customer must, without any, set off,
credit or reduction, make payment to Computer Resources in accordance with the
Quotation for the Services that would have been provided had the circumstances in clause (a)
above not arisen.
(c) If the Customer wishes to re-schedule the service date for Computer Resources to
perform any of the Services, then an Authorised Person must provide Computer Resources
with not less than 2 business days’ notice in writing of the proposed change. If the
Customer does not provide Computer Resources with 2 business days’ notice in writing,
the Customer will be deemed to have received the Services on the service date and the
Customer must pay Computer Resources in accordance with the Quotation, without any,
setoff, credit or reduction.
(d) The computer Services Frequency does not constitute a promise or representation by
Computer Resources as to intervals at which Computer Resources will provide
any Service to the Customer.
(e) If the Customer wishes to increase or decrease the Service Frequency, an Authorised
Person must submit a written request to Computer Resources Cairns.
7. CUSTOMER WARRANTIES.
The Customer warrants that:
(a) it has read and understood this Agreement;
(b) it has supplied Computer Resources with accurate and complete information about
the Induction and Compliance Requirements, if any;
(c) it has not relied on any representation or statement made by or on behalf of Computer
Resources, unless clearly and expressly stated in this Agreement; and
8. COMPUTERS
If the Customer requests supply of Computer Resources computers, the Customer
acknowledges that any computer supplied by Computer Resources will be covered by
either a manufacturer’s warranty or by Computer Resources warranty for a specified
period and will not cover physical damage to the computer due to the computer being dropped
or damaged by any action other than fair use of the computer supplied and only for the term of
any relevant warranty.
9. RECORDS AND NOTICES If requested by the Customer:
Computer Resources will provide the Customer with detailed invoices detailing the
services provided.
10. PAYMENT & RATES
(a) The Customer must pay for the Services at the rates set out in the Quotation, and as
otherwise required under this Agreement.
(b) If there is a cost to Computer Resources of complying with Induction and Compliance
Requirements during provision of the Services, Computer Resources reserves the right
to invoice the Customer for the cost of the Services on account of any such cost, and the
Customer agrees to make payment for such costs to Computer Resources.
11. GST
(a) On or after the provision of the Services, Computer Resources must issue the
Customer with a tax invoice for the computer Services.
(b) Each tax invoice must be in a form and substance that will constitute a tax invoice (as
defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(c) If GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is
imposed on any supply made under or in connection with these terms and conditions (a taxable
supply) the party obliged to pay for the taxable supply will pay additional consideration of an
amount equal to the GST payable on or for the taxable supply.
12. DISPUTES
If a dispute arises in connection with the supply of any computer Services or otherwise, the
Customer agrees to pay within seven days of an invoice being issued by Computer Resources, any undisputed amount in relation to the computer Services performed.
13. TERMINATION
(a) Either party may terminate this Agreement during any Further Term by giving the other party
30 days written notice.
(b) Without limiting or otherwise prejudicing any other rights under this Agreement or at law, the
Customer may immediately terminate this Agreement by notice in writing if:
(i) Computer Resources commits a material breach (other than a breach causing no
material harm) of any material provision of this Agreement and fails to remedy the
breach within 30 days of receiving written notice do so; or
(ii) Computer Resources becomes insolvent, enters into liquidation or receivership,
becomes subject to any form of external administration, or makes a composition or
arrangement with its creditors generally.
(c) Without limiting or otherwise prejudicing any other rights under this Agreement or at law,
Computer Resources may immediately terminate this Agreement by notice in writing and
refuse to supply the Services to the Customer if any of the following occur:
(i) circumstances entitling Computer Resources Cairns to refuse to provide Services under
clause 6(a) occur more than once;
(ii) any warranty given by the Customer is or becomes false or materially inaccurate;
(iii) Computer Resources does not accept any proposed changes to the Service
Frequency requested by the Customer, and the Customer refuses to continue with the
existing Service Frequency;
(iv) a payment is rejected under any authority for direct debit or credit card payment provided by
the Customer to Computer Resources;
(v) the Customer ceases, suspends or threatens to cease or suspend the conduct of its
business or disposes of or threatens to dispose of its computer assets other than in the
ordinary course of business;
(vi) the Customer is unable to, or states that it is unable, or fails to pay its debts as and when
they fall due;
(vii) the Customer is a company and passes a resolution to be wound up or otherwise is the
subject of a winding up application or liquidation or a receiver, manager, administrator is
appointed over the Customer or its assets;
(viii) the Customer commits an act of bankruptcy or has a controller or trustee appointed in
respect of the Customer’s estate or any part of the Customer’s property or assets; or
(ix) Computer Resources believes, acting reasonably, that any of the above will, or is
likely to, occur.
(d) If a party provides notice of termination for any reason, the Customer acknowledges that this
Agreement continues until such relevant notice period has expired and agrees that Computer
Resources is entitled to payment for the Services performed during that notice period, or
scheduled during that notice period but not performed through no fault of Computer Resources.
14. INDEMNITY
(a) Subject to clause
(b), the Customer will indemnify Computer Resources (and keep
Computer Resources indemnified) against all fines, penalties and Claims (including legal
and any other expenses) in connection with any breach of this Agreement by the Customer.
(b) The amount of the indemnity under clause 14(a) will be reduced to the extent that Computer
Resources could, by taking reasonable steps, have avoided or mitigated any loss or
damage for which Computer Resources claims an indemnity, provided that the amount
of the indemnity is also increased by the cost of the taking of any such reasonable steps.
(c) Without limiting the liability of the Customer under the indemnity above, Computer
Resources may at its sole discretion by itself or in conjunction with the Customer defend,
settle or compound any Claim brought or made against it by any person in connection with any
breach of this Agreement by the Customer and the Customer agrees that the indemnity extends
to any cost or expense incurred by Computer Resources in conducting that defence or in
settling or compounding the Claim.
(d) It is not necessary for any cost or expense to be incurred before an indemnity is enforced
under this Agreement.
15. LIMITATION OF LIABILITY
(a) Any representation, warranty, condition or undertaking that would be implied in this
Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest
extent permitted by law.
(b) If any statute implies any term, condition or warranty, and that statute prohibits provisions in
a contract excluding or modifying the application of, exercise of, or liability under, such a term,
condition or warranty, then that term, condition or warranty will be taken to be included.
However, the liability of Computer Resources for any breach of such a term, condition or
warranty will be limited, if permitted by the statute, at the option of Computer Resources,
to any one or more of the following:
(i) if the breach relates to goods:
(A) replacing the goods, supplying equivalent goods or repairing the goods; or
(B) to the extent
required by the relevant statute, paying the cost of replacing the goods, acquiring
equivalent goods or having the goods repaired; and
(ii) if the breach relates to
Services:
(A) re-supplying the Services; or
(B) to the extent required by the
relevant statute, paying the cost of re-supplying the services.
(C) The Customer is solely responsible for determining the appropriate frequency of Services
required at the Service Address, and Computer Resources will not be
liable to the Customer for any loss or damage suffered because or in relation to
the Service Frequency.
(D) Subject to this clause 15, a party will not liable to the other party for:
(i) any losses or damages of any kind caused by or resulting from any wrongful, wilful or
negligent act or omission of the other party, or any of its officers,
employees, agents or contractors; or
(ii) any indirect, incidental, special or consequential damages, including loss of profits or
anticipated loss.
(e) Subject to this clause 15, the maximum aggregate liability of Computer Resources for
all Claims or other liabilities arising under or in relation to this Agreement,
including liability for breach, in negligence or in tort or for any other common law
or statutory action, is limited to the sum of the amounts paid by the Customer to
Computer Resources under this Agreement.
16. CONSUMER GUARANTEES
(a) Consumer legislation contains certain guarantees for the supply of goods or services that
cannot be excluded, restricted or modified, such as:
(i) non-excludable guarantees that goods will be of acceptable quality and fit for the purpose for
which they are commonly acquired or for a purpose made known to Computer
Resources and based on which the goods are supplied; and
(ii) non-excludable warranties that services will be provided with due care and skill and will be fit
for the purpose for which they are commonly acquired or for a purpose made
known to Computer Resources and based on which the services are
supplied.
(b) Nothing in this Agreement is intended to exclude or restrict the
application of any guarantees provided under consumer legislation.
17. GENERAL
(a) (Whole Agreement) This Agreement is the entire agreement in relation to the computer
Services, and supersedes and excludes all prior and other discussions, representations
(contractual or otherwise) and arrangements relating to the supply of Services.
(b) (Delegation and Subcontracting) Computer Resources may delegate the
performance of the work necessary to complete the computer Services by engaging or
appointing employees or contractors suitably qualified to perform the computer Services.
(c) (Privacy) The Customer consents to the terms of the Privacy Policy of Computer Resources
available at www.computer-resources.com.au.
(d) (Notices) All notices and consents will be given in writing by personal service, post, facsimile
transmission or email at the addresses of the parties as set out in the Quotation or to such other
address as a party may designate by written notice.
(e) (Assignment) This Agreement is binding upon and for the benefit of the successors in title of
the parties but must not be assigned by the Customer without the prior written consent of
Computer Resources. Computer Resources may assign its rights and obligations
under this Agreement at its sole discretion.
(f) (Governing Law) This Agreement is governed and construed in accordance with the laws for
the time being in force in the state of Queensland where the computer Services are performed
and the parties agree to the jurisdiction of the Courts and Tribunals of Queensland.
(g) (Severance) To the extent that any provision of this Agreement is found by any court or
competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision will
be deemed not to be a part of this Agreement, it will not affect the enforceability of the
remainder of this Agreement nor will it affect the validity, lawfulness or enforceability of that
provision in any other jurisdiction.