1. Definitions & interpretation
In this Agreement, the following terms which are capitalised words and expressions have the following meaning:
Agreement means this document, including any annexures, schedules or attachments.
Anticipated Delivery Date means the date specified in the Order Form for delivery of Goods or Services.
Cancellation Fee means the amount of $AUD 100.00.
Company means TechSwich Pty Ltd ACN 617 054 716 as Trustee for ABN 75 101 663 936, trading as TechSwich.
Consumer Guarantee means any of the consumer guarantees provided in part 3-1, Division of the Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Customer means a person who has purchased Goods and Services from the Company using an Order Form.
Invoice means an invoice issued by the Company to the Customer upon acceptance of an Order Form.
Order Form means the document provided to the Company by the Customer, specifying the Goods and Services to be purchased from the Company and any Special Conditions.
Parties means the Customer specified on the Order Form and the Company.
Personal Information has the meaning given to it by the Privacy Act 1988 (Cth), as amended from time to time.
Premises means the premises of the Company located at 58 Matthew Street, Rosewood, QLD, 4340.
Purchase Price means the amount specified in the Order Form.
Refund Policy means the policy on the Website identified as such.
Services means any services provided by the Company, to a Customer by a Service Provider.
Service Provider means a person authorised by the Company to provide the Services.
Special Conditions means any terms specified as such in an Order Form.
Website means the website located at the URL www.techswich.com.au.
Work Product means anything developed or created by the Company in performing the Services.
In this Agreement:
(a) a reference to:
(i) one (1) gender includes the others;
(ii) the singular includes the plural and the plural includes the singular;
(iii) a person includes a body corporate;
(iv) a document or instrument includes the document or instrumented as novated, altered, supplemented or replaced from time to time;
(v) a Party includes the Party’s executors, administrators, successors and permitted assigns;
(vi) a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
I. that Statutory Provision as amended or re-enacted from time to time; and
II. a statute, regulation or provision enacted in replacement of that Statutory Provision;
(vii) an amount of money is to an amount in Australian dollars ($AUD);
(viii) time is to Australian Eastern Standard Time; and
(ix) a Schedule refers to a Schedule contained in this Agreement:;
(b) including and similar expressions are not words of limitation;
(c) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(d) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
(e) where a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day; and
(f) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
2. Incorporation of Special Conditions
(a) This Agreement applies every time the Customer purchases Goods and Services from the Company.
(b) The version of this Agreement that applies is the version available on the Website on the earlier date of:
(i) the Invoice; or
(ii) the date that Company otherwise communicates its acceptance of the Customer’s order to the Customer.
(c) Each purchase of Goods and Services constitutes a separate agreement between the Customer and the Company which is governed by the terms and conditions contained herein.
2.2 Special Conditions
(a) Any Special Conditions specified in an Order Form apply in addition to this Agreement.
(b) In the event that a Special Condition is inconsistent with a term of this Agreement, the Special Condition will apply to the extent of the inconsistency.
3.1 Payment of Purchase Price
(a) The Customer must pay the Purchase Price for all Goods and Services upon receipt of the Invoice.
(b) Payment of the Purchase Price must be made using the payment methods specified in the Order Form.
3.2 Customer entitled to use payment method
(a) The Customer warrants that they are legally entitled to charge the Purchase Price to the payment method used.
(b) The Customer indemnifies the Company against any loss or damage, including without limitation legal costs on a full indemnity basis, suffered or incurred by the Company arising out of or in connection with a breach of this clause 3.2 by the Customer.
3.3 Retention of title
Notwithstanding that the Company may have delivered the Goods or Services to the Customer, the Company retains title to the Goods and any Work Product until all monies owed to the Company under this Agreement have been received.
All payments to be made by the Customer to the Company are inclusive of GST, unless expressly stated otherwise.
4.1 Delivery of Goods
(a) The Company will deliver the Goods to the address specified in the applicable Order Form.
(b) Unless specifically stated otherwise, delivery of the Goods will be at the Customer’s risk and expense.
4.2 Delivery of Services
The Company will deliver the Services at the address specified in the applicable Order Form.
4.3 Terms of delivery
The Customer acknowledges and agrees that:
(a) the Anticipated Delivery Date is indicative only and the Company is not liable for failing to meet that date for reasons beyond its reasonable control, including without limitation supplier shortages; and
(b) in completing delivery of Goods or Services, the Company relies on the accuracy of the information supplied by the Customer in the Order Form and is not liable for any loss or damage suffered by the Customer where incorrect information was supplied in the Order Form.
5.1 Manufacturer’s warranty on Goods
(a) Goods purchased from the Company may be subject to a warranty from their manufacturer (Manufacturer’s Warranty).
(b) Where Goods are covered by a Manufacturer’s Warranty, the Company will use reasonable endeavours to enable the Customer to access it.
(c) Notwithstanding the above, to the maximum extent permitted by law, the Company is not responsible for any Manufacturer’s Warranty.
5.2 Company warranties
(a) With respect to any Goods, the Company warrants that:
(i) they are free of any encumbrances;
(ii) they are, having regard to the nature and price of the Goods:
I. fit for their advertised purpose;
II. acceptable in appearance and finish;
III. free from defects;
IV. safe; and
(iii) they are fit for any specific purpose the Company represents to the Customer they are fit for;
(iv) they will correspond with the description provided by the Company; and
(v) they will correspond with any sample provided by the Company.
(b) With respect to any Services, the Company warrants that:
(i) they will be provided with due care and skill;
(ii) they will be reasonably fit for the disclosed purpose; and
(iii) subject to any Special Conditions, will be provided within a reasonable time.
5.3 Exclusion of warranties
To the maximum extent permitted by law, all warranties not expressly provided in this Agreement are excluded.
6. Refunds and cancellations
6.1 Refund Policy
Subject to clause 8.2 and to the maximum extent permitted by law, the Company does not issue Customers with refunds for Goods and Services, except for in accordance with its Refund Policy.
6.2 Cancellations by the Customer
(a) Where the Customer has booked Services with the Company in advance, the Customer may cancel such booking by providing the Company with at least twenty-four (24) hours’ notice (Cancellation Notice).
(b) Where the Customer:
(i) cancels Services with the Company without providing the Cancellation Notice, or
(ii) fails to attend the Premises to receive the Services,
the Company may, in its discretion, charge the Customer the Cancellation Fee.
(c) Where the Customer has paid for any Services in advance, and the Company is exercising its rights to charge the Customer the Cancellation Fee under clause 6.2(b), the Customer acknowledges and agrees that the Company may deduct the amount of the Cancellation Fee from any amount already paid to the Company.
6.3 Cancellations by the Company
In the event that the Company is required to cancel the provision of Goods and Services to the Customer prior to the Anticipated Delivery Date, the Company will refund any amounts paid in satisfaction of the relevant Invoice by the Customer in full.
7. Third party obligations
In the event that any Goods, Services or Work Product purchased from the Company by the Customer are subject to compliance with any third party agreements, the Customer acknowledges and agrees that:
(a) unless specifically stated otherwise, the Company is not a party to any such agreement; and
(b) they are solely responsible for such compliance and the consequences of non-compliance.
8. Exclusion and limitation of liability
8.1 Exclusion of liability
To the maximum extent permitted by law the Company exclude all liability for any loss, damage or injury suffered by the Customer that is an indirect or consequential result of their purchase and use of the Goods and Services and any Work Product, including without limitation any loss of income, loss of profits or loss of data.
8.2 Limitation of liability – consumer purchases
Where the Consumer Guarantees apply to a purchase of Goods or Services from the Company, to the maximum extent permitted by law the Company limits its liability to the Customer for a breach of this Agreement or a Consumer Guarantee to, at the Company’s election:
(a) the replacement of the Goods;
(b) the supply of equivalent Goods;
(c) the repair of the Goods; or
(d) the re-supply of the Services; or
(e) the costs of any of the above.
8.3 Limitation of liability – commercial purchases
(a) Where the Consumer Guarantees do not apply to a purchase of Goods or Services from the Company, to the maximum extent permitted by law the Company limits its liability to the Customer to the amount of $2,000,000.00
(b) The Customer acknowledges and agrees that where Goods, Services or Work Products are purchased from the Company for use in commercial purposes, they are solely responsible for any disruption to those commercial purposes caused by failure of the Goods, Services or Work Products.
10. General provisions
(a) Assignment – The Company may assign its rights and obligations under this Agreement by notifying the other of the terms of such an assignment. The Customer must not assign its rights under this Agreement without the prior written consent of the Company
(b) Entire agreement – This document and the Order Form contains the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements and understandings except as otherwise provided herein.
(c) Governing law and jurisdiction – The laws of Queensland and Australia govern this Agreement. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
(d) Prevalence – In the event of any inconsistency between the terms and conditions contained in this Agreement and those contained in an Order Form, the terms and conditions contained in this Agreement prevail except for any agreed Special Conditions.
(e) Severance – If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in full force and effect.
(f) Survival – Any clause which is expressed to survive, or which by its nature is intended to survive termination of this Agreement, survives termination.
(g) Variation – An amendment or variation to this Agreement is not effective unless it is in writing and signed by the Parties.
(h) Waiver – A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. A waiver is not effective unless it is in writing and signed by the Party giving it.
(i) Warranties regarding capacity – Each Party represents to each other that as at the date of this Agreement:
(i) it has taken all necessary action to authorise its entry into and performance of this Agreement;
(ii) it has the power to enter into and perform its obligations under this Agreement; and
(iii) its obligations under this Agreement are valid and binding and enforceable against it in accordance with its terms.