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Terms & Conditions
Purchase of goods and services from ONYXTEL
Pty Limited are subject to the following terms and conditions. By
agreeing to purchase or receive goods or services from ONYXTEL,
you accept the following terms and conditions, without limitation or
qualification.
1.0 Definitions
In these conditions:
"Conditions" means these Conditions of Provision of Goods and Services;
"Customer" means a person, firm or corporation, jointly and severally if
there is more than one, that requests goods or services from ONYXTEL;
"Services" means all services supplied by ONYXTEL
to the Customer;
"ONYXTEL" means ONYXTEL
Pty Limited (ABN: 43 124 178 623, ACN: 124 178 623);
"Party" and "Parties" means severally and not jointly ONYXTEL
and/or the Customer as the context requires.
2.0 Basis of Contract
2.1 Unless otherwise agreed by ONYXTEL in
writing, these Conditions apply exclusively to every contract for the
sale of goods or the provision of services by ONYXTEL to the Customer
and cannot be varied or supplanted by any other terms or conditions
without the prior written consent of ONYXTEL.
2.2 Any written quotation provided by ONYXTEL
to the Customer concerning the proposed supply of goods or services is
valid for 30 days and is an invitation only to the Customer to place an
order based upon that quotation. These Conditions may be supplemented by
additional terms in ONYXTEL's quotation which are not inconsistent with
these Conditions.
3.0 Charges and Payment
3.1 Payment for goods and services must be made by cash, cheque, PayPal,
Bpay or online banking on or prior to the completion of the provision of
goods or services unless the Customer has a credit account with ONYXTEL.
3.2 All ONYXTEL visits are chargeable and
are charged in hour units after the first hour. Any part thereof is
chargeable at the same rate as the first full hour.
3.3 All goods supplied by ONYXTEL are
charged separately from the services.
3.4 Where there is any change in the costs incurred by ONYXTEL
in relation to the goods or services, ONYXTEL
may vary its price for goods or services on order to take into account
of any such change, without giving notice to the Customer.
3.5 Call-out fees may be applied at rates dependent on the Customer's
location and time of the call.
4.0 Payment Default
4.1 If the Customer defaults in payment by the due date of any amount
payable to ONYXTEL, or if any cheque drawn
by the Customer is dishonoured, then all money which would become
payable by the Customer to ONYXTEL at a later date on any account,
becomes immediately due and payable without the requirement of any
notice to the Customer, and ONYXTEL may,
without prejudice to any other remedy available to it:
(a) Charge the Customer interest on any sum due at the rate of 2% above
the corporate reference rate of ONYXTEL's principal banker. This
interest shall be calculated daily and compounded every 30 days for the
period from the due date until the date of payment in full;
(b) Charge the Customer for all expenses and costs (including legal
costs on a solicitor/own client basis and dishonoured cheque fees)
incurred by it resulting from the default and in taking whatever action
it deems appropriate to recover any sum due;
(c) Cease or suspend supply of any further goods or services to the
Customer for such a period as ONYXTEL sees
fit;
(d) By notice in writing to the Customer, terminate any contract with
the Customer so far as unperformed by ONYXTEL; without effect on the
accrued rights of ONYXTEL under any contract.
4.2 Clauses 4.1(c) and 4.1(d) may also be relied upon, at the option of
ONYXTEL:
(a) where the Customer is an individual, he or she becomes bankrupt or
enters into any scheme of arrangement or any assignment or composition
with or for the benefit of his or her creditors or any class of his or
her creditors generally; or
(b) where the Customer is a corporation, it enters into any scheme of
arrangement or any assignment or composition with or for the benefit of
its creditors or any class of its creditors generally, or has a
liquidator, provisional liquidator, administrator, receiver or receiver
and manager appointed, or any action is taken for, or with the view to,
the liquidation (including provisional liquidation), winding up or
dissolution without winding up of the Customer.
5.0 Passing of Property
5.1 Until full payment in cleared funds is received by ONYXTEL for all
goods supplied by it to the Customer, as well as all other amounts owing
to ONYXTEL by the Customer:
(a) Title and property in all goods remain vested in ONYXTEL and do not
pass to the Customer;
(b) The Customer must hold the goods as fiduciary bailee and agent for
ONYXTEL;
(c) The Customer must keep the goods separate from its goods and
maintain the labelling and packaging of the goods; the Customer is
required to hold the proceeds of any sale of the goods on trust for
ONYXTEL in a separate account however failure to do so will not affect
the Customer's obligation to deal with the proceeds as trustee;
(d) ONYXTEL may without notice, enter any premises where it suspects the
goods may be and remove them, notwithstanding that they may have been
attached to other goods not the property of ONYXTEL, and for this
purpose the Customer irrevocably licenses ONYXTEL to enter such premises
and also indemnifies ONYXTEL from and against all costs, claims, demands
or actions by any party arising from such action.
6.0 Risk and Insurance
The risk in the goods and all insurance responsibility for theft, damage
or otherwise in respect of the goods shall pass to the Customer
immediately upon delivery of the goods to the premises nominated by the
Customer.
7.0 Performance of contract
Any period or date for delivery of goods or provision of services stated
by ONYXTEL is intended as an estimate only and is not a contractual
commitment. ONYXTEL will use its reasonable endeavours to meet any
estimated dates for delivery of the goods or completion of the services.
8.0 ONYXTEL Warranties
8.1 If ONYXTEL is not able to diagnose the cause of any hardware or
software problem, then no charge will apply to the Customer. ONYXTEL
does not warrant that it will be able to fix all problems that it
diagnoses.
8.2 All goods and services supplied shall be free from defects in
materials and workmanship for a period of 10 days from the date of
delivery.
8.3 Nothing in this clause 8 is intended by the parties to be, and shall
not be construed or interpreted to be, a representation, term, warranty
or condition that the operation, use or functionality of any goods or
products supplied by ONYXTEL (including any software) will be
uninterrupted or error free. Customer understands and accepts that all
such goods and products (and information technology and communications
products generally), may have errors (or "bugs") and may encounter
unexpected problems, and accordingly the Customer may experience
downtime and errors in the use of the goods and products. Without
limiting the obligations set out in clause 9, Customer will put in place
reasonable internal procedures and processes to enable it to minimise
any inconvenience and any adverse impact of any such downtime or error.
8.4 ONYXTEL will comply with its
obligations under the Privacy Act 1988 and in accordance with its
Privacy Policy. Customer
must read and shall be deemed to have read the Privacy Policy. Customer
agrees and consents irrevocably to ONYXTEL's use of Customer's personal
information in accordance with the Privacy Policy.
9.0 Customer's Responsibilities
9.1 Customer shall be solely responsible for all data inputs, the manner
of use of the goods by all those to whom it provides access and all
outputs derived, and all other results of such processing.
9.2 Customer shall comply, at its own expense, with any recommendations
and guidelines with respect to the use of the goods, including any
adjustments or replacements required in respect of equipment and
software that is incidental or collateral to the use of the goods.
9.3 Customer shall ensure that its operators are adequately trained and
informed as to the use of the goods and shall comply with guidelines and
procedures supplied by ONYXTEL and/or any third party manufacturer from
time to time.
9.4 Customer shall promptly report errors or faults in the operation of
any aspect of the goods or any provision of the services in accordance
with applicable fault reporting procedures from time to time.
9.5 Customer shall perform general "housekeeping", testing, adjustment
and/or maintenance as recommended by ONYXTEL in respect of any goods
supplied by ONYXTEL in order to maximise the availability of and
performance of the goods or permit performance by ONYXTEL of any of its
obligations hereunder.
9.6 Customer agrees to exercise due care and carry out such precautions
which may be recommended by ONYXTEL or otherwise required as a matter of
prudence in connection with the performance by ONYXTEL of any of its
obligations hereunder, for example, but without limiting the generality
of the foregoing, advising its staff of system restarts or scheduled
downtime, recording of error information, and will co-operate with other
system administration activities such as, but not limited to, running
diagnostic tests and operational readiness tasks.
9.7 The Customer shall as a fundamental term of these Conditions back up
all software, data and files that are stored on its computer and/or on
any other storage devices it may have prior to the arrival of the
ONYXTEL technician. ONYXTEL and/or its third party service provider
shall not be responsible at any time for any loss, alteration or
corruption of any such software, data or files.
10.0 Liability
10.1 To the full extent permitted by applicable law, all conditions,
warranties, representations, indemnities and guarantees with respect to
the goods and/or the services, or other goods or services that may be
provided by ONYXTEL under these Conditions, that may otherwise be
implied by statute, law, equity, trade custom, prior dealings between
the Parties or otherwise (including, but not limited to, any implied
warranty of merchantability, fitness for particular purpose, quiet
enjoyment or non-infringement) are hereby expressly excluded.
10.2 Except to the extent specifically provided in these Conditions,
ONYXTEL's sole liability to Customer for any and all breaches of any
term or terms of these Conditions, whether express or implied, shall be
limited to:
10.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of
the fees and charges paid by the Customer under these Conditions as at
the date of the breach;
10.2.2 in relation to goods if supplied to Customer as a consumer (as
defined in the Trade Practices Act 1974):
(a) the replacement of the goods or the supply of equivalent goods; or
(b) payment of the cost of replacing the goods or acquiring equivalent
goods; or
(c) the repair of the goods or payment of the cost of having the goods
repaired; and
10.2.3 in relation to services if supplied to Customer as a consumer (as
defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again, as in
each case ONYXTEL may elect.
10.3 In no event shall ONYXTEL be liable to Customer or to any third
party under or in connection with these Conditions or in respect of the
use of (or failure or performance of) the goods or the supply of the
services for:
10.3.1 Malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) actions of ONYXTEL that were expressly or impliedly authorised by
Customer, or by Customer's employees or agents;
(c) accident, misuse or abuse by anyone other than the ONYXTEL;
(d) alteration or modification of the goods by anyone other than the
ONYXTEL;
(e) products (including any hardware or software) not licensed or
supplied by ONYXTEL that are attached to or used with the goods;
(f) Customer�s failure to provide a proper operating and working
environment for the goods;
(g) damage during any movement, relocation or re-installation of the
goods;
(h) power surge or failure,
(i) acts of God or acts outside ONYXTEL's control;
(j) any other condition not arising under normal operating conditions;
or
(k) normal wear and tear; or
10.3.2 Any loss or damage of any nature arising or caused directly or
indirectly by any breach of the Customer�s obligations or
responsibilities set out in these Conditions.
10.4 Any replacement of parts under warranty will be carried out at the
premises nominated by ONYXTEL. The cost and risk of transport of any
defective part to the nominated premises is the responsibility of the
Customer.
10.5 In no event will ONYXTEL be liable to Customer or to any third
party under or in connection with these conditions or in respect of the
use of (or failure or performance of) the goods or the supply of the
services for:
10.5.1 any loss of profit, business interruption, loss of or damage to
goodwill, and/or any expectation benefit;
10.5.2 Customer's liability to any third party; or
10.5.3 incidental, consequential, special, exemplary or punitive damages
of any nature, howsoever arising or caused, including without limitation
the breach of these Conditions or any expiration or termination of these
Conditions, whether such liability is asserted on the basis of statute,
contract, tort (including negligence or strict liability), equity or
otherwise, even if ONYXTEL has been advised of the possibility of such
loss or damage.
10.6 ONYXTEL will not be liable for any loss or damage suffered by the
Customer where ONYXTEL has failed to meet any delivery date or cancels
or suspends the supply of goods or services.
10.7 Nothing contained in these Conditions excludes, restricts or
modifies any:
10.7.1 implied condition, warranty or other implied obligation in
relation to these Conditions or the software and services where pursuant
to applicable law to do so is unlawful or void; or
10.7.2 liability for fraud or deceit; or
10.7.3 liability for death or personal injury caused by the negligence
of either Party.
11.0 Copyright in Software
11.1 ONYXTEL will not be responsible to the Customer or any third party
for any breach of any software licence in respect of software provided
to ONYXTEL by the Customer to be installed on a Customer's computer.
11.2 The Customer hereby warrants that it has a valid licence in respect
of such software and shall indemnify ONYXTEL against any loss, damage,
costs, harm or other expense whatsoever arising either directly or
indirectly as a result of ONYXTEL installing software at the request of
the Customer.
12.0 Cancellation
12.1 If, through circumstances beyond the control of ONYXTEL, ONYXTEL is
unable to effect delivery or provision of goods or services, then
ONYXTEL may cancel the Customer's order (even if it has already been
accepted) by notice in writing to the Customer.
12.2 If the Customer gives less than 4 hours notice to ONYXTEL to cancel
any request for on-site service, then ONYXTEL may charge a cancellation
fee of $80 for the loss and damage caused.
13.0 Same Day On-Site Computer Service...or it's FREE!
"Same Day On-Site Computer Service' Or It's FREE!"; is only available in
select areas. This guarantee applies exclusively to service scheduled
with ONYXTEL through our service hotline 03
9013 4369 for Windows-based
systems. Same day service must be requested over the phone no later than
10am Monday through Friday, excluding holidays. ONYXTEL may assign
specific appointment times at its discretion, either for its own
purposes or as a courtesy to customers, but the company only guarantees
that a technician will arrive by midnight. Customer requests for
specific appointment times are not covered by this guarantee in any way.
This guarantee only applies to the initial visit by an ONYXTEL
technician and does not ensure that all necessary work can be completed
on the same day. Any changes made by a customer to a same day service
request that is already scheduled void this guarantee in its entirety.
In the event ONYXTEL is unable to provide same day service to a
customer, our only liability is to provide a credit of up to $150
maximum toward labour charges on the next available appointment
scheduled by the customer through our service hotline as listed above.
This offer is limited to one per register customer. Additional
restrictions may apply. ONYXTEL may cancel this offer at any time.
14.0 No representation or reliance
14.1 The Customer acknowledges that neither ONYXTEL nor any person
acting on behalf of ONYXTEL has made any representation or other
inducement to it to enter into these Conditions, except for
representations or inducements expressly set out in these Conditions.
14.2 The Customer acknowledges and confirms that it does not enter into
these Conditions in reliance on any representation or other inducement
by or on behalf of ONYXTEL, except for representations or inducements
expressly set out in these Conditions.
14.3 Without limiting the generality of clauses 14.1 and 14.2, Customer
understands and hereby confirms that:
(a) its decision to enter into these Conditions was, and is, not based
on any promise, representation, statement, warranty or undertaking made
or given by ONYXTEL or any person on its behalf in relation to the
capacity, uses or benefits that might or would be derived or obtained
from the goods or services, except as expressly set out in clause 8, and
(b) Customer has relied on its own skill and judgement in deciding to
purchase and acquire the goods and services.
15.0 Entire Agreement
15.1 To the extent permitted by law, in relation to its subject matter,
these Conditions:
15.1.1 embody and constitute the entire legal and contractual
relationship of the Parties, including the entire terms agreed by the
Parties; and
15.1.2 supersede, replace and terminate by mutual consent any prior
written or oral representations, negotiations, understandings,
agreements or contracts between the Parties.
16.0 Governing law
16.1 This Agreement is governed by and must be construed according to
the law applying in Victoria. The Parties hereby irrevocably submit to
the exclusive jurisdiction of the courts of Victoria.
Here at ONYXTEL, each and every one of our computer technicians has been
carefully selected before they join our ranks; we make sure that they
have the appropriate technical accreditation, experience and, above all,
a great personality. So, if you need same day, onsite computer repairs
in Melbourne, Adelaide, Launceston, Hobart, Burnie or Perth�if you are
experiencing computer problems, wireless network issues, need data
recovery services or you just need computer service and maintenance,
then book your computer support online or contact us today. |
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