Terms & Conditions of Service

Electrocare Pty Ltd trading as Electrotek – Terms & Conditions of Service

These Terms apply to any dealings with Us on or after 4 October 2023.

Background

A. Electrocare Pty Ltd trading as Electrotek provides information technology services both directly and indirectly through strategic wholesale partners. These services include but may not be limited to the following:

Outsourcing
Maintenance and repair
System design
Managed desktop
Project services
Managed Internet and SPN solutions
Application management
Systems integration
Managed Help desk
Internet WAN & Private network Service
Desktop as a Service (DaaS)
Infrastructure as a Service (IaaS)
Storage as a Service (STaaS)
Backup and Recovery – Live Backup
Managed Service Agreements
Telephony Managed Service Agreements

B. These Terms set out the terms and conditions under which Electrocare Pty Ltd trading as Electrotek supplies these Services.

Agreement

1. Parties

1.1 The Company named in an Order
1.2 The Client detailed on the Order

2. Master Terms

2.1 Unless otherwise agreed by Us in writing, these Terms are deemed incorporated into and applicable to (and will prevail over) the terms of every Quote, Order, plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.
2.2 Your use of Our Services is conditional upon Your acceptance of these Terms of Service and IT LEADER’s Privacy Policy at www.electrotek.com.au/privacy.

3. Product Terms

3.1 The Services and/or Goods that we are able to provide are described in the Product Terms.
3.2 Each of the Product Terms sets out:

3.2.1 The scope of the Service
3.2.2 The fees and charges for the Service and/or Goods
3.2.3 Any special conditions that apply to the Service or the supply of the Goods

4. Orders and Quotes

4.1 Orders

4.1.1 You may request a Service by submitting an Order to Us.
4.1.2 Each Order must:

4.1.2.1 Be in Our standard form as current at the time
4.1.2.2 Clearly identify the service requested by reference to Product Terms
4.1.2.3 Set out the required commencement date and term of the Service
4.1.2.4 Be completed by You accurately with all required information
4.1.2.5 Be a request for Service and not a contract unless and until accepted by Us and Our acceptance has been communicated to You and any required payment from You has been paid in clear funds to Us.

4.1.3 We may rely upon the apparent validity of an Order unless we have actual knowledge to the contrary.

4.2 Quotes

4.2.1 You may request a Quote by submitting an enquiry to Us in writing.
4.2.2 Each Quote:

4.2.2.1 will only be valid for 7 days unless otherwise specified in the Quote, following which it will automatically lapse;
4.2.2.2 is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us;
4.2.2.3 may be varied or withdrawn at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable, or the cost price of Goods or Services increases after the date of the Quote.

4.2.3 Once a Quote has been confirmed by Us, the prices in the Quote will be confirmed as the final agreed price. A Quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.
4.2.4 The price in the final Quote may vary from the original request if there is any price or product change requested by You. We reserve the right to alter products and prices in the Quote, as long as the Quote has not been confirmed with You.
4.2.5 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the Quotes, and We agree to the changes, these changes will be charged at Our prevailing rates.
4.2.6 Once the Quote has been confirmed and converted to an Order, the Order will be subject to our normal Terms.
4.2.7 The general minimum turnaround time for Quote requests to be actioned is usually 24 hours. In the event that a Quote is required urgently, please let Us know so that we can respond to it accordingly.
4.2.8 When a special price or discount offer has been applied to this Quote, no other special promotion, discount, or bonus offer will be applicable.
4.2.9 In the event that products in the Quote are subjected to any price and supply fluctuations that are outside of Our control, We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.
4.2.10 Prices on non-stocked products are subject to price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.
4.2.11 ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
4.2.12 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
4.2.13 We do not keep inventory and, as such, only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.
4.2.14 Prices are based upon the total Quote purchase.
4.2.15 Unless specified, all items on the Quote are covered by the manufacturer’s warranty, covering parts and labour for hardware only on a return-to-depot basis.

5. Service Contracts

5.1 If We accept an Order in writing, a binding contract is created (‘Service Contract’) comprising:

5.1.1 The Product Terms, including any special conditions;
5.1.2 The Order form; and
5.1.3 These Terms.

5.2 Each Service Contract is an independent contract.
5.3 If there is any inconsistency between the parts of a Service Contract, the order of priority, from highest to lowest, is:

5.3.1 Any special conditions in the Product Terms;
5.3.2 The remainder of the Product Terms;
5.3.3 The Order form; and
5.3.4 These Terms.

6. Goods and Services

6.1 For each Service Contract, we will provide You with the Services and/or Goods specified in the relevant Product Terms.

7. Fees

7.1 You must pay Our fees for the provision of the Goods and/or Services.
7.2 The fees for Goods and/or Service are:

7.2.1 The fees specified in the Product Terms;
7.2.2 If none are specified, our then current Rate Schedule for that Service or Good; or
7.2.3 If there are no current published fees, at our time and materials rates for similar Services.
7.2.4 We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in our absolute discretion and otherwise in line with CPI. Where we elect to vary our Rates and/or Rates Schedule, we will endeavour to provide thirty (30) days’ notice to You.

7.3 If we perform any Work that is not covered by the Product Terms, we may charge for that Work:

7.3.1 At our current Rates for that type of Work; or
7.3.2 If there are no current published Rates, at our time and materials rates for similar Work.

7.4 Unless we say otherwise in writing, when we use the term Monthly Base Fee, this means the standard price published in our Rates Schedule or contained in an Order form, excluding variations, usage, consumption, excluded item fees or set up fees.
7.5 Where a charge is calculated based on increments of time, e.g. 1 hour minimum for onsite Work or 15 minutes minimum for remote Work, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
7.6 We may, in Our absolute discretion, charge for Goods separately from Services or may charge for Goods and Services together.
7.7 You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion, and that the amount of the call-out fee will depend upon where the Services are provided.
7.8 Without prejudice to any other rights of Ours under these Terms, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, we may, in our absolute discretion, vary any of Our Rates.
7.9 Where We arrange a return or refund on Your behalf, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation, and any refund. We may deduct the Return/Cancellation fee from any moneys otherwise due to be refunded to You by Us.

8. Prepaid Fees

8.1 If Product Terms require fees to be prepaid:

8.1.1 Services will not be provided until You pay the prepaid fees;
8.1.2 We may suspend providing a Service if the balance of the prepaid fees will not cover our fees for the Service required; and
8.1.3 We may apply amounts You owe us against the balance of Your prepaid fees in any manner we decide.

8.2 Prepaid fees are non-refundable.

9. Expenses

9.1 You must reimburse our out-of-pocket expenses incurred by Us in providing the Services to You in addition to the fees upon written demand.
9.2 Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses, or other outlays we incur in providing the Goods or Service.
9.3 Where appropriate and practical, we will:

9.3.1 Obtain prior written authorisation from You before such expenses are incurred;
9.3.2 Supply reasonable evidence substantiating the expense.

10. Third-party Charges

10.1 You are responsible for all third-party charges incurred as a result of Your use of the service (for example, telecommunications carriage fees) unless we specify otherwise in writing.
10.2 Where we specify that our fees include third-party charges, we may increase our fees to You if there is an increase in third-party charges.

11. Invoicing and Payment

11.1 We will invoice You:

11.1.1 In accordance with any payment schedule specified in the Product Terms;
11.1.2 Otherwise, in our discretion, either:

11.1.2.1 Monthly in advance for prepaid fees; or
11.1.2.2 Monthly in arrears.

11.2 You must pay each invoice in full:

11.2.1 By the due date specified in the invoice; or
11.2.2 If no due date is specified in the invoice, within 14 days of the invoice date, by cash, cheque, credit card or direct deposit in accordance with these Terms and in the way set out in the Invoice.
11.2.3 Late invoicing does not affect our right to payment or Your obligation to pay Us in accordance with our usual Terms.
11.2.4 Where You fail to pay an invoice within seven (7) days of the due date, we may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You under any Service Contract.
11.2.5 All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable without any further notice to You. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due”.
11.2.6 If payment of any Sum Due is not made on time, we will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.
11.2.7 All payments of the Sum Due made by You to Us will be applied as follows:

11.2.7.1 First in or towards payment of any costs (including legal costs), charges, expenses, or outgoings paid by Us in relation to any dishonoured cheque or payment processing fees, collection costs, or any other action taken by Us for the recovery of any amounts owing by You to Us;
11.2.7.2 Secondly, in or towards payment of any interest due or payable hereunder; and
11.2.7.3 Thirdly, in or towards payment of Your debts to Us in order from the longest-standing due to the most recently incurred.

11.2.8 We may require You to provide security over Your property (including the Goods or any other property of Yours) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by Us to You.
11.2.9 In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to You.
11.2.10 You hereby irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection, or enforcement of any collateral held or to be held as security for any Sum Due.
11.2.11 We may exercise any of Our rights and remedies, including taking legal action against You for the recovery of any moneys due to Us, notwithstanding we may have exercised other rights under these Terms.

12. GST

12.1 Unless stated otherwise, fees and charges stated under this agreement exclude GST and any other applicable taxes or government charges (unless otherwise stated in writing by Us).
12.2 The consideration payable by You under this agreement is the value of any taxable supply for which payment is to be made.
12.3 Subject to Us supplying You with a valid tax invoice, if we make a taxable supply in connection with a Service Contract for a consideration, which represents its value, then You must pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
12.4 Subject to Us supplying You with a valid tax invoice, if a Service Contract requires You to pay, reimburse or contribute to an amount paid or payable by Us in respect of an acquisition of a taxable supply from a third party, the amount required to be paid, reimbursed or contributed by You will be the value of the acquisition by Us less any input tax credit to which we are entitled plus, if our recovery from You is a taxable supply, any GST payable under clause 12.3.

13. Service Delivery

13.1 We will provide the Service:

13.1.1 During Business Hours, unless otherwise specified in writing;
13.1.2 At the location(s) specified in the Product Terms or, if no location is specified, at the location we determine to be most appropriate; and
13.1.3 With professional skill and care, using appropriately qualified personnel.

14. Service Standard

14.1 We do not warrant that the Service will be uninterrupted or error-free.
14.2 If service levels are specified in the Product Terms, we will use all reasonable efforts to meet or exceed those service levels.
14.3 We do not guarantee that service levels will be met. If the Product Terms specify that credits or rebates will apply, you hereby acknowledge and agree that those credits or rebates are Your sole remedy in respect of service level failure and that you otherwise agree to hold Us harmless from any action, claims, liability or loss in respect of service levels not being met for any reason.

15. Access

15.1 In order to provide You with the agreed Service and to enable Us to fulfill our obligations under the Product Terms, You agree to give Us reasonable and timely access to Your facilities, premises, information, equipment, personnel, network, and data as and when required.
15.2 We will not be responsible for any delay in providing a service where the delay results from Your failure to provide timely access in accordance with clause 15.1.
15.3 You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to, amongst other things, view system statuses, send monitoring information, see users’ desktops, and control Your computers and devices. This may require that devices are left on overnight or weekends.

16. Your Obligations

16.1 You must:

16.1.1 Comply with our reasonable and lawful directions in relation to the Service;
16.1.2 Provide a safe working environment for our personnel;
16.1.3 Comply with all laws, regulations, policies, and guidelines (including any acceptable use policy that we inform You of) applicable to the Service;
16.1.4 Ensure that any incumbent provider who is transitioning the service to Us makes available the information, resources, and facilities required by Us to provide the Service; and
16.1.5 Maintain regular and complete backups of all of Your data, in accordance with our reasonable advice and direction.

16.2 We will provide You with a full copy of Your data at any time upon Your written request, on the basis that:

16.2.1 Your account is paid up in full; and
16.2.2 You provide an adequate storage device or request Electrotek supply You with one at cost to You, for the purpose of backup and/or removal of such data; and
16.2.3 You will pay for all backup and removal services, in full, at our standard service rate for data recovery services, prior to commencement of works.

16.3 We will not be responsible for any failure, default, or delay to the extent caused by Your failure to perform Your obligations under this clause.

17. Hardware Supply

17.1 To the extent that the service is for the sale and supply of hardware:

17.1.1 The risk of loss of or damage to the hardware passes to You on delivery;
17.1.2 We own the hardware until You have paid for it in full;
17.1.3 You must not sell, dispose of, assign or encumber the hardware unless and until You have paid for it in full;
17.1.4 Where the hardware manufacturer’s warranty is capable of being assigned to You, you will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal directly with such manufacturer rather than Us for all claims covered by such warranties;
17.1.5 Where hardware is subject to export control laws or regulations (including US export laws and regulations), You must not directly or indirectly export, re-export, distribute or otherwise act in violation of such laws and regulations; and
17.1.6 The United Nations Convention on Contracts for the International Sale of Goods does not apply.

17.2 You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to You arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.

18. Hardware Leasing

18.1 To the extent that the service is for the leasing of hardware:

18.1.1 We own the hardware, and it is leased, not sold, to You;
18.1.2 You must not do anything which is contrary to or prejudices our ownership of the leased hardware;
18.1.3 You must insure the leased hardware for its full replacement value and keep it secure and safe from loss, destruction, or damage;
18.1.4 The leased hardware must only be used in accordance with the manufacturer’s instructions and our reasonable directions;
18.1.5 At the end of the lease term, you must return the leased hardware to Us along with all parts and accessories; and
18.1.6 We may require a security deposit which we may apply in satisfaction of any amount You owe Us in relation to the leased hardware.

18.2 If the leased hardware is lost, destroyed, or damaged:

18.2.1 You must promptly notify Us of the loss or damage;
18.2.2 You must pay Us the cost of repairing or replacing the leased hardware; and
18.2.3 Your obligation to pay the fees in respect of the leased hardware is absolute and continues notwithstanding its loss, destruction, or damage or the termination of the Service Contract.

18.3 We may retake possession of the hardware if:

18.3.1 You breach this agreement; or
18.3.2 We reasonably believe we need to do so to protect our title to the hardware, and You hereby irrevocably authorise Us to enter on to Your premises for this purpose.

18.4 We retain full title to the hardware notwithstanding the possession and use of it by You, subject only to Your rights as a mere bailee of the hardware with a right only to use them in accordance with, and under, the lease. You hereby authorise and empower Us to take all such steps and register any instrument or charge required for Us to secure our interests under the Personal Property Securities Act 2009 (Cth) in the hardware.

19. Loan Equipment

19.1 We may install on Your premises, loan, or otherwise provide You with equipment (‘Loan Equipment’).
19.2 All Loan Equipment:

19.2.1 Remains the property of Electrotek;
19.2.2 Must only be used by You for the purposes of receiving Services from Us; and
19.2.3 Must be kept secured from loss or damage.

19.3 If Loan Equipment in Your possession or control is lost, stolen, or damaged:

19.3.1 You must notify Us without unreasonable delay; and
19.3.2 You must pay Us the replacement cost of the Loan Equipment calculated as the recommended retail price at the date the Loan Equipment was lost, stolen, or damaged, less any amount we recover under an insurance policy.

20. Our Software

20.1 To the extent that a Service involves the creation or licensing of software that we own:

20.1.1 We warrant that our software will operate substantially in accordance with its accompanying documentation during the Warranty Period;
20.1.2 We will use our reasonable efforts to correct any defect provided:

20.1.2.1 You notify Us of the defect during the Warranty Period;
20.1.2.2 You have used the software in accordance with its accompanying documentation and our recommendations;
20.1.2.3 The software has not been used on or in conjunction with equipment or software not approved by Us in writing;
20.1.2.4 The software has not been modified by anyone other than Us;
20.1.2.5 The defect is not due to a change in Your IT or physical environment after delivery of the software; and
20.1.2.6 You are not in breach of this agreement or any Service Contract.

20.2 For the purposes of this clause:

20.2.1 ‘Warranty Period’ means 90 days from the date of delivery, unless we specify a different period in writing.
20.2.2 ‘Defect’ means a reproducible failure of the software to work substantially as described in the documentation that accompanies it.

20.3 All copyright in our software or in custom software remains the sole property of Ours unless alternate arrangements are made in writing as part of a separate software agreement.

21. Third-Party Software and Materials

21.1 In providing a service we may supply You with materials (including software) licensed by third parties.
21.2 You must comply with the terms of the third-party license, and You indemnify Us against any loss, damage, claim, liability, or demand we incur due to Your breach of a third-party license.
21.3 All Software licenses are the responsibility of You and not that of Us. It is Your duty to store all licenses for all Software used, so that they can be reproduced if and when required. This includes all Software installed by Us.
21.4 You indemnify and hold Us harmless against any claim, allegation, loss, damage, or expense arising directly or indirectly from:

21.4.1 Any unauthorized Software use by You;
21.4.2 Any breach of any Software license in respect of Software provided to Us by You to be installed on one of Your computers;
21.4.3 Otherwise as a result of Us installing Software where You are not authorized to use the Software; and
21.4.4 Any problem, defect, or malfunction associated with any Software (or related services) supplied by third parties.

22. Third-Party Services

22.1 Third-Party Links

22.1.1 The Services may include links to or display content from third-party websites, or integrations to third-party platforms, which offer products and services (Third Party Links). Third Party Links are provided solely as a convenience for You. We attempt to select and provide Third Party Links that we believe may be of use to You, but we do not warrant, endorse, or accept any liability for any Third-Party Links, or any products and services offered through them.

22.2 Interfacing Services

22.2.1 We may interface or be integrated with products or services supplied by interfacing service providers (Interfacing Services). You acknowledge and agree that the Interfacing Services are supplied to You pursuant to an agreement between You and the relevant third party and not by Electrotek. We do not warrant, endorse, or accept any liability for any Interfacing Services.
22.2.2 “Interfacing Third Party” means any entity that provides products or services that are delivered in or through, or that interface or are integrated with, the Services.

22.3 Notice and Disclaimer

22.3.1 You acknowledge and agree that:

22.3.1.1 The third-party links and Interfacing Services are offered by third parties that may include our related bodies corporate;
22.3.1.2 We may receive financial or other benefits, including commissions, as a result of:

22.3.1.2.1 Making third party links available through the Services, or Your purchase of products and services through third-party links; or
22.3.1.2.2 Your purchase of Interfacing Services.

22.4 We may remove or cancel a third-party link, or add a new third-party link, at any time.
22.5 An interfacing service provider may terminate, withdraw, or cancel an Interfacing Service in accordance with the terms of its agreement with You.

23. Third-Party Authorisations

23.1 At times We may need to contact Your third-party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.

24. Contracting

24.1 We may subcontract any or all of the Services to be performed but shall retain prime responsibility for the Services under these terms.

25. Delay

25.1 We will use our reasonable efforts to meet any deadlines or milestones that we promise to meet but will not be liable for any delay or failure to meet these.
25.2 To the extent that our provision of a service is impaired by:

25.2.1 You;
25.2.2 A third-party;
25.2.3 A failure or defect (not caused by Us) in hardware or software (not supplied by Us); or
25.2.4 An event beyond our reasonable control – then:

25.2.4.1 Our obligation to provide the service is suspended;
25.2.4.2 We will not be liable to You in respect of any delay or failure to provide the Service.

25.2.5 Where our personnel are delayed from performing a service due to a delay You cause, we may invoice You those personnel’s hourly rate for the duration of the delay subject only to Us making reasonable efforts to reallocate our personnel to other chargeable duties.

26. Errors and Omissions

26.1 We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, we may rescind the affected contract or Order by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event will be limited to the return of any money You have paid in respect of the affected Order.

27. Confidentiality

27.1 A party must not use or disclose the other party’s confidential information without prior written approval.
27.2 Each party must take all reasonable steps to ensure that its employees and agents do not use or disclose the other party’s confidential information.
27.3 A party may disclose confidential information where required by law or the rules of a stock exchange.
27.4 This clause survives termination of this agreement.
27.5 ‘Confidential information’ means all information treated by the owning party (‘discloser’) as confidential and:

27.5.1 Provided to the other party (‘recipient’); or
27.5.2.2 Is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient).

28. Intellectual Property Rights

28.1 Unless otherwise specified in writing, we own exclusively all intellectual property rights in material, including software, that we design, create, modify, supply or licence, even if it was created or modified for or suggested by You.
28.2 To the extent necessary for You to receive the benefit of a service, we grant You a non-exclusive, non-transferable, licence to use our materials.
28.3 If any of Your materials become combined with our materials with Your knowledge and without Your objection, then we have a perpetual, royalty-free, irrevocable, non-exclusive licence to copy, use, adapt and distribute and sub-license those materials in the course of our ongoing business.

29. Limitation of Liability

29.1 Some laws – particularly the Competition and Consumer Act 2010 (Cth)(‘the Act’) – may give You rights and remedies that cannot be changed or excluded. These Terms and each Service Contract are subject to those laws.
29.2 Where we are allowed to limit it, our liability for breaches of the Act is limited, at our option to:

29.2.1 In the case of Goods:

29.2.1.1 Replacing the Goods or supplying equivalent Goods;
29.2.1.2 Repairing the Goods;
29.2.1.3 Paying for the cost of replacing the Goods or buying equivalent Goods; or
29.2.1.4 Paying for the cost of repairing the Goods.

29.2.2 In the case of Services:

29.2.2.1 Supplying the Services again; or
29.2.2.2 Paying for the cost of supplying the Services again.

29.3 Subject to clauses 29.1 and 29.2:

29.3.1 All express or implied representations, conditions, warranties and remedies relating to goods or services that we supply are excluded.
29.3.2 We are not liable for any indirect, special, economic or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings that You or any third-party incur or suffer in any way, howsoever caused, and You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential loss.

29.4 Subject to clauses 29.5, 29.6, and 29.7, our maximum aggregate liability under a Service Contract, whether for breach of these terms or in negligence or in any other tort or for any other common law or statutory cause of action or otherwise is the amount equal to the fees You have paid to Us under the Service Contract in the preceding year.
29.5 The limitation of liability in clause 29.4 does not apply in the case of a claim that we have negligently caused personal injury or death.
29.6 You indemnify and hold Us harmless in respect of any allegation, claim, loss, or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You. You acknowledge You are solely responsible for backing up Your programs and data in order to mitigate Your own potential loss of programs and data.
29.7 You acknowledge You are solely responsible for backing up Your programs and data in order to mitigate Your own potential loss of programs and data. You indemnify and hold Us harmless in respect of any allegation, claim, loss, or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You.
29.8 You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:

29.8.1 Decisions as to whether or not to follow recommendations by Us;
29.8.2 Decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and
29.8.3 Any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Your own independent advice or second opinion from a suitably qualified person.

30. Warranty and Indemnity

30.1 You warrant that You have not relied on any representation made by Us which has not been stated expressly in these Terms.
30.2 You must indemnify Us, our employees and agents against any loss (including reasonable legal costs and expenses) or liability any of Us reasonably incurs or suffers arising from any proceedings where such loss or liability was caused by:

30.2.1 Your breach of these Terms or a Service Contract; or
30.2.2 Your wilful, unlawful or negligent act or omission.

31. Termination and Suspension of Service Contracts

31.1 We may terminate or suspend performance of a Service Contract immediately if:

31.1.1 You breach the Service Contract and fail to remedy the breach within 14 days after receiving a notice detailing the breach and requiring that it be cured;
31.1.2 You become insolvent;
31.1.3 You fail to pay money owed to Us within 30 days of it being due;
31.1.4 You cease, or threaten to cease, carrying on Your business;
31.1.5 You exceed Your credit limit or there is an adverse change in our credit assessment of You;
31.1.6 We reasonably believe that You have used a service for unauthorised, criminal or unlawful activity; or
31.1.7 An administrator or controller (as those terms are defined in the Corporations Act 2001 (Cth)) is appointed in respect of any of Your assets.

31.2 Your breach of a Service Contract is deemed to be a breach of these Terms and all other Service Contracts.
31.3 Termination of a Service Contract does not affect our rights of action based on any breach by You before the termination.
31.4 On termination we may:

31.4.1 Repossess any of our property in Your possession, custody or control;
31.4.2 Retain all moneys paid to Us under the Service Contract;
31.4.3 Provide You with an invoice for all unpaid fees and expenses and any costs incurred by Us as a result of termination; and
31.4.4 Pursue any additional or alternative remedies provided by law.

31.5 If You terminate a Service Contract prior to its expiry, then You must pay Us within 14 days of invoice, the equivalent of the Monthly Service Fee multiplied by the number of months remaining in the Service Contract.
31.6 The termination fee in clause 31.5:

31.6.1 Is a reasonable pre-estimate of our loss and damage arising from an early termination of a Service Contract; and
31.6.2 Is without prejudice to any other rights we may have to recover other sums from You. For example, if the Monthly Service Fee is $200 (including GST), and there are 3 months remaining in the Service Contract, you must pay Us $600.

31.7 Should the Service Contract expire and not be expressly terminated by You, it will continue indefinitely on a quarter-by-quarter basis, and You must provide Us with 90 days’ notice to cancel the service.
31.8 Upon expiry or termination of a Service Contract, each party must return any property belonging to the other party within 7 days.

32. Termination for Non-Performance

32.1 You may terminate the Service Contract immediately if we breach a Service Level Agreement and fail to remedy the breach within 14 days after receiving notice in writing detailing the breach and requiring that it be cured.
32.2 Termination of a Service Contract does not affect our rights of action based on any breach by You before the termination and is without prejudice to any other rights we may have to recover other sums from You.
32.3 Should You wish to terminate this Agreement before the end of the commitment term, you agree to pay all of the remaining payments up until the end of the commitment term.
32.4 On termination we may retain all moneys already paid to Us under the Service Contract.
32.5 If You terminate a Service Contract in accordance with 32.1 prior to its expiry, then no termination fee will be payable.

33. Notices

33.1 All notices must be:

33.1.1 In writing;
33.1.2 Signed by the party giving it (or its authorised representative); and
33.1.3 Sent to a party’s service address.

33.2 A party’s service address is any of:

33.2.1 In the case of a corporation, its current registered office;
33.2.2 The parties’ business addresses set out in an Order form;
33.2.3 The last notified e-mail address for the provision of notices; or
33.2.4 Any other address a party nominates, by written notice to the other party, as a service address.

34. Restraints

34.1 Neither party may approach the employees, agents or contractors of the other party to this agreement, with an offer of employment during the term of this agreement or for each of the following periods, 2 months, 3 months, 6 months and 12 months after its expiry or termination.
34.2 For the avoidance of doubt, nothing in this clause 34.1 prevents either party from employing an employee of the other party as a result of the employee responding to a public notice, in the absence of any solicitation, however if this occurs then the employing party will pay a replacement recruitment fee to the other party of 15% of the employee’s total annual salary, as liquidated damages and the other party shall have the option to terminate this Agreement without further notice or liability to the other. The amount of liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs a party would incur to identify, recruit, hire and train suitable replacements for such personnel.

35. Privacy Statements and Your Rights

35.1 We are collecting Your personal information for the fulfilment of quotes, Orders and the provision of Goods or Services to You and it may retain and use it for any such purposes (“Authorised Purposes”).
35.2 You are required to provide your personal information to Us for Authorised Purposes.
35.3 We may disclose Your personal information to other persons for the purposes of the fulfilment of quotes, Orders and Work for You or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for Your purposes, or to confirm Your requirements, to anyone proposing to supply Goods or Services to You, or to acquire Goods or Services on Your behalf, or in respect of enquiries relating to any of the foregoing.
35.4 Otherwise, We will not disclose Your personal information without Your consent unless authorised by law.
35.5 Your personal information will be held by Us at Our principal place of business, and You can contact Us to request to access or correct it.
35.6 We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if You submit incorrect information.
35.7 From time-to-time, Electrotek may call or contact You about Your account or receive calls from You. We may record those calls and contacts, and store those records, in accordance with its Privacy Policy and subject to applicable laws.

36. Insurance Coverage

36.1 We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of not less than $2,000,000. At Your reasonable request We will provide You with certificates, including renewal certificates evidencing such coverage within thirty (30) days of such request.

37. Variation of these Terms and Conditions

37.1 We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, we have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these Terms and Conditions.

38. Force Majeure

38.1 Neither party shall be responsible for any interruption, delay, or other failure to perform an obligation under this Agreement (other than an obligation to pay the Fees or other money) that is caused by a Force Majeure Event. Force Majeure Event shall mean Acts of God, natural disasters (e.g. lightning, earthquakes, storms, floods), wars, riots, explosions, terrorism, vandalism, civil unrest, governmental acts, pandemics (whether declared or undeclared, and including restrictions imposed as a result of a pandemic), injunctions, failures of telecommunication providers or internet service providers, failure of third party suppliers, service providers, or vendors, and any other cause beyond the reasonable control of a party.
38.2 We may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.
38.3 We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods or services.

39. Severability

39.1 If any provision of these Terms is held to be invalid or unenforceable, the provision shall be modified and interpreted so as best to accomplish the objective of the original provision as permitted by law, and the remaining provisions shall remain in full force and effect.

40. No Relationship

40.1 Nothing in these Terms shall be construed as creating a joint venture, partnership, agency, employment, franchise, or other relationship between You and Electrotek. Neither party to these Terms shall have the right, power, or authority to create any obligations or duty, express or implied, on behalf of the other party.

41. General Matters

41.1 We may assign or novate our rights and obligations under this Agreement at any time without Your consent.
41.2 You may not assign Your rights and obligations under this agreement without our prior written consent (which we will not unreasonably withhold).
41.3 If a party overlooks a breach of a Service Contract by the other party on one or more occasions, it is not taken to have agreed to any future breach.
41.4 These Terms, the Product Terms, and the Electrotek Order form are the entire agreement between the parties with respect to the services specified in the Product Terms and all prior agreements regarding those services are superseded. No amendment or modification of a Service Contract is binding unless in writing and executed by the parties.
41.5 Anything a party can do; it may do through an appropriately authorised representative.
41.6 Any matter in our discretion is in our absolute and unfettered discretion.

42. Applicable Law and Disputes

42.1 This agreement is subject to the laws that apply in any applicable State or Territory within Australia.
42.2 Save with the exception of Us exercising Our rights to recover unpaid fees or expenses under this agreement, any dispute or difference arising in connection with this agreement will be submitted to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules.
42.3 Otherwise, legal proceedings relating to this agreement or any dispute about it must be brought in the courts of Queensland, Australia.

43. Our Website

43.1 We make no representations or warranties in relation to information available on Our website, including without limitation:

43.1.1 That the information on Our website is complete or correct;
43.1.2 That Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties, or malfunction in hardware or software; and
43.1.3 That We endorse any internet site linked to Our website or any third-party products or services referred to on Our website.

44. Guarantee

44.1 In consideration of the Electrotek agreeing to enter into this Agreement at the request of the Client and Guarantor, the Guarantor hereby guarantees to the Electrotek the due and punctual performance by the Client of its monetary and other obligations under this Agreement (the “Guaranteed Obligations”).
44.2 As a separate and independent obligation, the Guarantor agrees to indemnify Electrotek against all losses, costs, liabilities, or damage which Electrotek may suffer or sustain as a result of the non-payment of any moneys or the non-performance of any obligations under this Agreement by the Client whenever and as often as such event occurs.
44.3 The obligations of the Guarantor under this guarantee and indemnity are principal obligations imposed upon the Guarantor as principal debtor. Accordingly, the Guarantor acknowledges that Electrotek has the right to make a claim or demand against the Guarantor pursuant to this guarantee and indemnity without having first taken any proceedings against the Client or any other person.
44.4 This guarantee and indemnity is not to be considered as wholly or partly discharged unless and until all of the Guaranteed Obligations have been satisfied in full.
44.5 This guarantee and indemnity is not impaired or discharged by:

44.5.1 Any variation (with or without the consent of the Guarantor) whenever made to this Agreement;
44.5.2 Any breach, wilful or otherwise, of any obligation of the Subscriber under this Agreement with or without the consent or knowledge of the Subscriber, any Guarantor, or Electrotek;
44.5.3 The granting of time, credit, forbearance, indulgence or concession to the Subscriber or to any other Guarantor;
44.5.4 Any compromise, abandonment, waiver, release, variation or redemption or compounding by Electrotek of any of its rights under this Agreement or against any other Guarantor;
44.5.5 The unenforceability in whole or in part of this guarantee and indemnity against any other Guarantor or that any other Guarantor has not executed this Agreement;
44.5.6 The fact that all or any part of the moneys owing by the Client may not or may cease to be recoverable from the Client or any other person liable for any reason (other than the same has been fully paid or satisfied);
44.5.7 The liquidation, death, insolvency, or bankruptcy (as the case may be) of the Client or any Guarantor;
44.5.8 The avoidance for any reason by statute or otherwise of any payment by or on behalf of the Client or any Guarantor;
44.5.9 The transfer or assignment of the benefit of this Agreement to any person or corporation;
44.5.10 The Client being under any legal disability;
44.5.11 The fact that Electrotek might have entered into this Agreement as agent for an undisclosed principal;
44.5.12 An obligation under this Agreement being unenforceable for any reason; or
44.5.13 Any other matter or thing which but for this provision could or might operate to abrogate the effect of provisions of this guarantee and indemnity.

44.6 If there are two or more Guarantors, then the obligations under this guarantee and indemnity bind them jointly and each of them severally. A reference to Guarantor means all Guarantors, any 2 or more, and each of them.
44.7 Each Guarantor represents and warrants to Electrotek that it is to the Guarantor’s commercial benefit that it enters into the Guarantee and Indemnity.

45. Definitions and Interpretation

45.1 In these Terms, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by Us, where not otherwise defined, the following words have the following meanings:

“After Hours” means between 5:00pm and 8:00am, Monday to Friday and all day Saturday and Sunday, including Public Holidays;
“Business Hours” means between 8:00am and 5:00pm, Monday to Friday excluding Public Holidays at the place in which the Service or Goods are to be provided;
“Client”, “You” or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed, and in any case each of their heirs, successors and assigns;
“Goods” means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;
“GST” has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Intellectual property rights” means all patents, copyright, rights in circuit layouts, registered designs, trademarks, trade, business or company names and the right to have confidential information kept confidential;
“Order” means any order requested by You to Us for Goods or Services in any form, and may include any plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You;
“Quote” means a quote provided to You by Us;
“Product Terms” mean the product terms or terms of supply proposed or provided to You by Us either before or after receiving an Order from You;
“Public Holidays” means any day which is a public holiday throughout Queensland;
“Fees” or “Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work it has done;
“Rate Schedule” means the schedule of rates, charges and conditions for the services of ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;
“Return/Cancellation Fee” means a fee charged pursuant to clause 7.9 as set by Us from time to time;
“Services” means the provision of any services by Us including Work, advice and recommendations;
“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;
“Terms” and “Terms and Conditions” means these terms and conditions;
“Work” means anything we may do, provide, customise, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items;
“Electrotek”, “Company”, “Us”, “Our” or “We” means Electrocare Pty Ltd trading as Electrotek ABN 55 118 481 13 and its heirs, successors and assigns.

45.2 In these Terms, the Rate Schedule and every quote, Order, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:

45.2.1 Headings are for navigational assistance only and do not affect the meaning of this agreement.
45.2.2 Where a term is said to ‘include’ one or more things, the list is not exhaustive and does not limit the natural meaning of the term in any way.
45.2.3 A schedule or attachment to a document (including a schedule or attachment to this agreement) is part of that document, as is any document incorporated by reference.
45.2.4 A reference to the singular includes the plural and vice versa.
45.2.5 There is no significance in the use of gender-specific language.
45.2.6 A ‘person’ includes any entity which can sue and be sued and any legal successor to, assigns or representatives of that person.
45.2.7 A reference to a law includes any amendment or replacement of that law.
45.2.8 A provision must not be construed to the disadvantage of a party because that party prepared or required it.
45.2.9 All references to dollars ($) are to Australian Dollars.
45.2.10 A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Terms and Conditions;
45.2.11 A recital, schedule, annexure or description of the parties’ forms part of these Terms and Conditions.

45.3 A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time.