Purchase of goods and services from Gold Coast Sparkys are subject to the following terms and conditions. By purchasing or receiving goods or services from Gold Coast Sparkys, you accept the following terms and conditions, without limitation or qualification.
In these terms and conditions (where not inconsistent with the context):
"Conditions" means these Terms and Conditions;
"Customer" means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from Gold Coast Sparkys;
"goods" means goods supplied by Gold Coast Sparkys to the Customer;
"services" means services supplied by Gold Coast Sparkys to the Customer;
"Gold Coast Sparkys" means Gold Coast Sparkys (ABN 98 501 023 588); and
"Party" and "Parties" means severally and not jointly Gold Coast Sparkys and/or the Customer as the context requires,
2.0 Basis of Contract
2.1 Unless otherwise agreed by Gold Coast Sparkys in writing, these Conditions apply exclusively to every contract for the sale of goods or services by Gold Coast Sparkys to the Customer and cannot be varied or supplanted by any other conditions without the prior written consent of Gold Coast Sparkys.
2.2 Any written quotation provided by Gold Coast Sparkys 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. The Conditions may include additional terms in Gold Coast Sparkys’s quotation which are not inconsistent with the Conditions.
3.0 Charges and Payment
3.1 Payment for goods and services must be made by cash, cheque or by proof of direct debit on or prior to the completion of the provision of goods or services unless the Customer has a credit account with Gold Coast Sparkys.
3.2 All Gold Coast Sparkys visits are chargeable and are charged in half hour units after the first hour. Any part thereof is chargeable at the same rate as a full half hour.
3.3 All goods supplied by Gold Coast Sparkys are charged separately from the services.
3.4 Where there is any change in the costs incurred by Gold Coast Sparkys in relation to the goods or services, Gold Coast Sparkys may vary its price for goods or services on order to take account of any such change, without giving notice to the Customer.
4.0 Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable to Gold Coast Sparkys, or if any cheque drawn by the Customer is dishonoured, then all money which would become payable by the Customer to Gold Coast Sparkys at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Gold Coast Sparkys may, without prejudice to any other remedy available to it:-
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Supreme Court Act 1995 and/or Supreme Court Regulation 1998 plus 4 per cent 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 for such period as Gold Coast Sparkys thinks fit, supply of any further goods or services to the Customer;
(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by Gold Coast Sparkys; without effect on the accrued rights of Gold Coast Sparkys under any contract.
4.2 Clauses 4.1(c) and 4.1(d) may also be relied upon, at the option of Gold Coast Sparkys:
(a) where the Customer is an individual and 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 and, 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 Gold Coast Sparkys for all goods supplied by it to the Customer, as well as all other amounts owing to Gold Coast Sparkys by the Customer:-
(a) title and property in all goods remain vested in Gold Coast Sparkys and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Gold Coast Sparkys;
(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 Gold Coast Sparkys in a separate account however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;
(d) Gold Coast Sparkys 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 Gold Coast Sparkys, and for this purpose the Customer irrevocably licences Gold Coast Sparkys to enter such premises and also indemnifies Gold Coast Sparkys 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 will 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 Gold Coast Sparkys is intended as an estimate only and is not a contractual commitment. Gold Coast Sparkys will use its best reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
8.0 Gold Coast Sparkys Warranties
8.1 If Gold Coast Sparkys is not able to diagnose the cause of any hardware or software problem, then no charge will apply to the Customer. Gold Coast Sparkys does not warrant that it will be able to fix all problems, which 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 will be construed as a warranty or condition that the operation of the software will be uninterrupted or error free. Customer understands and accepts that software (and information technology and communications products generally), including the Customer’s software, may have errors and may encounter unexpected problems, and accordingly Customer may experience downtime and errors in the use of the software. 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 financial impact of any such downtime or error.
9.0 Customer’s Responsibilities
9.1 The Customer shall as a fundamental term of these Conditions back up all software and data that is stored on its computer’s hard disk drive(s) and/or on any other storage devices it may have prior to the arrival of the Gold Coast Sparkys technician. Gold Coast Sparkys 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.
10.1 All conditions, warranties, representations, indemnities and guarantees with respect to the software and/or the services, or other goods or services that may be provided by Gold Coast Sparkys 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, Gold Coast Sparkys’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 software if supplied to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the software or the supply of equivalent software; or
(b) payment of the cost of replacing the software or acquiring equivalent software; or
(c) the repair of the software or payment of the cost of having the software 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 Gold Coast Sparkys may elect.
10.3 In no event will Gold Coast Sparkys 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 software 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 Gold Coast Sparkys 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 Gold Coast Sparkys;
(d) alteration or modification of the software by anyone other than the Gold Coast Sparkys;
(e) products (including any hardware or software) not licensed or supplied by Gold Coast Sparkys that are attached to or used with the software;
(f) Customer’s failure to provide a proper operating and working environment for the software;
(g) damage during any movement, relocation or re-installation of the software;
(h) power surge or failure;
(i) acts of God or acts outside Gold Coast Sparkys’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 Gold Coast Sparkys. 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 Gold Coast Sparkys 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 software 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 Gold Coast Sparkys has been advised of the possibility of such loss or damage.
10.6 Gold Coast Sparkys will not be liable for any loss or damage suffered by the Customer where Gold Coast Sparkys 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 Gold Coast Sparkys will not be responsible to the Customer or any third party for any breach of any software licence in respect of software provided to Gold Coast Sparkys 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 Gold Coast Sparkys against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of Gold Coast Sparkys installing software at the request of the Customer.
12.1 If, through circumstances beyond the control of Gold Coast Sparkys, Gold Coast Sparkys is unable to effect delivery or provision of goods or services, then Gold Coast Sparkys 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 business hours notice to Gold Coast Sparkys to cancel any request for on-site service, then Gold Coast Sparkys may charge a cancellation fee of $74 for the loss and damage caused.
12.3 If the Customer gives less than 48 hours notice to Gold Coast Sparkys to cancel any full-day booking, then Gold Coast Sparkys may charge a cancellation fee equal to the quote for that full-day booking for the loss and damage caused.
13.0 No representation or reliance
13.1 The Customer acknowledges that neither Gold Coast Sparkys nor any person acting on behalf of Gold Coast Sparkys 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.
13.2 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 Gold Coast Sparkys, except for representations or inducements expressly set out in these Conditions.
14.0 Entire Agreement
14.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
14.1.1 embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
14.1.2 supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
15.0 Governing law
15.1 This Agreement is governed by and must be construed according to the law applying in Queensland. The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of Queensland.