Terms of Service

1.0

Introduction

1.1

We agree to supply Goods and/or the perform Services and you agree to accept the Goods and/or Services in accordance with these Terms. These Terms are deemed to be incorporated into all Orders for Goods and/or Services by us to you unless otherwise agreed by us in writing.

1.2

If you place an Order for Goods and/or Services, or enter into a contract with us for Goods and/or Services and those Goods and/or Services are provided by us to you or you pay for those Goods and/or Services, you are taken to have accepted these Terms.

1.3

As per the Competition and Consumer Act 2010 , please note the following Mandatory Repair Notices required by law:

(a) Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
(b) Repair of goods may result in loss of data.

2.0

Definitions

2.1

In these conditions:
ACL means the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 ;
Conditions means these Terms and Conditions;
Customer or you means a person, firm or corporation, jointly and severally if more than one, that requests goods or services from us;
Goods means all products and other goods (including any software) supplied by us to you or on your behalf;
Including is not a word of limitation and means without limitation;
Services means all services performed by us for you or on your behalf;
Managed Services means services which are provided to you and managed by us.

Business hours means Monday to Friday 8am to 5pm at your local time, excluding gazetted public holidays;
Privata or we or us or our means Privata Services Pty Limited (ABN 27 125 370 434); and
Party and Parties means (severally and not jointly) Privata Services and/or the Customer as the context requires.

Insolvency Event means, for a person, being in liquidation or provisional liquidation or administration, having a controller (as defined in the Act) or similar appointed to it or its property, being taken under s459F(1) of the Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or becoming incapable of managing its affairs fro any reason, taking any step that could result in becoming insolvent under administration (as defined in the Act), entering into a compromise or arrangement with, or assignment for the benefit of, its members, creditors or any analogous event;

3.0

Basis of Contract

3.1

Unless otherwise agreed by us in writing, these Conditions apply to every supply of goods and provision of services by us to you and cannot be varied, amended or supplemented by any other terms or conditions without our prior written consent.

3.2

Any written quotation provided by us to you concerning the proposed supply of goods or services is valid for 30 days. These Conditions may be supplemented by additional terms in our quotation which are not inconsistent with these Conditions.

3.3

Any written quotation provided by us to you concerning the proposed supply of goods or provision of Services is only an invitation only to you to place an order based upon that quotation and we are under no obligation to sell or offer those Goods and/or Services outlined in the quote and may choose to accept or reject any Order you place with us which may be based on that quote.

3.4

Any order placed by you will constitute an offer by you to purchase the Goods and/or Services described in that order and will remain subject to our acceptance, in our sole discretion.

3.5

Once we have accepted an Order, you will not be able to modify or cancel any part of or the whole of that Order, unless agreed by us in our sole discretion.

4.0

Charges and Payment

4.1

Payment for goods and services must be made by cash or credit card on or prior to the supply of the goods or the performance of the services unless you have a credit account with us. Credit card payments will attract a Merchant Service Fee (MSF) of 1% for Visa or MasterCard and 3% for American Express.

4.2

All our visits are chargeable and are charged in one hour units. Any part thereof is chargeable at the same rate as a full hour.

4.3

All goods supplied by us are charged separately from the services.

4.4

Where there is any change in the costs incurred by us in relation to the goods or services, we may vary our price for goods or services on order to take account of any such change, without giving notice to you.

4.5

Call-out fees may be applied at rates dependent on your suburb.

4.6

Surcharges may be applied on same day and/or outside business hours visits.

4.7

If you nominate and are approved for the good(s) or service(s) you have purchased to be invoiced, you may be charged an account fee per invoice issued. This fee will be advised in advance.

4.8

If you exceed your approved credit terms, you will be charged a $50.00 late payment fee. A revised invoice will be sent to you.

4.9

Support Packs (Prepaid Hours):

(a) Once you have purchased a block of prepaid hours it cannot be cancelled.
(b) You are obliged to pay for the services that Privata Services agrees to provide you with regardless of whether you utilise those services. If you do not provide Privata Services with the necessary materials or information for Privata Services to deliver the services to you, you are still liable to Privata Services for full payment.

5.0

Payment Default

5.1

If you default in the payment by the due date of any amount payable to us, or if any cheque drawn by you is dishonoured, then all money which is then due as well as all monies that are payable by you to us at a later date on any account, shall be due and payable immediately without the requirement of any notice to you, and we may, without prejudice to any other right or remedy available to us:-

(a) charge you interest on any sum due at the rate of 2%  above the corporate reference rate of our 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; and
(b) charge you for all expenses and costs (including debt collection commission and fees, legal costs on a full indemnity basis and dishonoured cheque fees) suffered or incurred by us resulting from the default, including taking whatever action we deem appropriate to recover any amounts due (which, for the avoidance of doubt, shall include engaging Dun & Bradstreet or other debt collection agency to seek to recover the amounts due); and
(c) cease or suspend for such period as we think fit, supply of any further goods or services to you; and
(d) by notice in writing to you, terminate any contract with you so far as unperformed by us; without effect on our accrued rights under this or any other any contract.

5.2

 Clause 5.1 may also be relied upon, at our option:

(a) where you are an individual, you become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally; or
(b) where you are a corporation, you enters into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or you have a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, your liquidation (including provisional liquidation), winding up or dissolution without winding up.

6.0

Passing of Property

6.1

Until full payment in cleared funds is received by us for all goods supplied by us to you, as well as all other amounts owing to us by you:

(a) title and property in all goods remains vested in us and does not pass to you;
(b) you must hold the goods as fiduciary bailee and agent for us;
(c) you must keep the goods separate from your other goods and maintain the labelling and packaging of the goods;
(d) you hereby undertake to us to hold the proceeds of any sale of the goods on trust for us in a separate account, however any failure to do so will not affect your obligation to deal with the proceeds as our trustee;
(e) we may, without notice, enter any premises where we suspect the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of us, and for this purpose you irrevocably license us to enter such premises and shall also indemnify us and hold us harmless from and against all costs, claims, demands or actions by any party arising from such action.

7.0

 Risk and Insurance

7.1

The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods shall pass to you immediately upon delivery of the goods to the premises nominated by you.

7.2

Title in the Goods will not pass to you until you have paid us all amounts owing (all cheques or negotiable instruments have been paid) and you have met all other obligations due by you to us in respect of these Terms and all other contracts between you and us, and until the above obligations have been satisfied, you acknowledge and agree that you:

(a) hold the Goods as bailee only;

(b) must store the Goods supplied in a way that it is clear that they are our property; and

(c) irrevocably authoriss us to enter any premises where the Goods are kept and, if necessary, to use our name and to act on your behalf to recover the Goods.

 

 

8.0

Performance of contract

8.1

Any period or date for delivery of Goods or provision of Services stated by us is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the Goods or completion of the Services. You must accept delivery of Goods or completion of Services even in the event of a delay.  Any failure of us to deliver the Goods or provide the Services within the original timeframe specified will not entitle you to cancel the balance of an Order.

8.2

Whilst every attempt will be made to perform the repairs onsite, it may be necessary to return your system to our base or third party for diagnosis and repair.

8.3

Subject to clause 8, we are not liable to you for any loss or damage (including consequential loss or damages) arising from late delivery of the Goods.

8.4

Subject to clause 8, you must indemnify us against any claim, loss or damage suffered by us, or as a result of us becoming liable to any third party (directly or indirectly,) as a result of us or our employees, contractors or agents entering any premises for the purpose of delivering the Goods.

9.0

 Privata Services Warranties

9.1

If we cannot provide you with a solution to your problem, we will not charge you for those services in respect of that problem. In some cases, the solution may be that you need to upgrade or replace your software or hardware. If we advise you to do so and you choose not to upgrade or replace your software or hardware, you acknowledge that we have met our commitment to you by providing you with a solution to your problem, whether or not you choose to implement that solution.

9.2

We stand behind our service. If you notify us of a problem with the services you were provided, and our diagnosis of the problem indicates that our services were not performed satisfactorily, we will work to provide a solution to your problem quickly and at no additional cost to you.

9.3

You acknowledge that computers are complicated and sometimes problems are more deeply rooted or complicated than initially diagnosed. You also acknowledge that a problem which occurs with your computer after our visit may be unrelated to the work we performed for you and is therefore outside the scope of our Service Guarantee.

9.4

You acknowledge that any equipment presented for repair may have pre-existing damage or other problems, and that Privata Services cannot, due to such pre-existing damage, assume responsibility for such damage or further problems resulting therefrom.

9.5

When we sell you equipment, hardware or software, we may be selling such equipment, hardware or software on behalf of a third party manufacturer or licensor. We do not warrant that the operation of any software we install or service will be uninterrupted or error free. You acknowledge that software (and information technology and communications products generally), including your software, may have errors and may encounter unexpected problems, and accordingly, you may experience downtime and errors in the use of software. You also acknowledge that your use of such software may be subject to a third party licence.

9.6

We shall honour all terms, conditions and obligations (if any) that are implied or imposed under applicable State or Commonwealth laws concerning the supply of the goods and/or the performance of the services and nothing in these Conditions seeks to restrict, modify, limit or exclude such terms, conditions or obligations. Our express warranty and guarantee are in addition to and do not affect your statutory rights and remedies (if any).

 

We will comply with our obligations under the Privacy Act 1988 (Cth) and in accordance with our Privacy Policy which can be viewed at https://www.privata.com.au/legal. You must read and shall be deemed to have read the Privacy Policy. You agree and consent irrevocably to our use of your personal information in accordance with the Privacy Policy.

10.0

Customer’s Responsibilities

10.1

You 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.

10.2

You shall comply, at your 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.

10.3

You shall ensure that your operators are adequately trained and informed as to the use of the goods and shall comply with guidelines and procedures supplied by us and/or any third party manufacturer from time to time.

10.4

You 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.

10.5

You shall perform general “housekeeping”, testing, adjustment and/or maintenance as recommended by us in respect of any goods supplied by us in order to maximise the availability of and performance of the goods or permit performance by us of any of our obligations hereunder.

10.6

You agree to exercise due care and carry out such precautions which may be recommended by us or otherwise required as a matter of prudence in connection with the performance by us of any of our obligations hereunder, for example, but without limiting the generality of the foregoing, advising your 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.

10.7

You represent and warrant to Privata Services that you are the owner of, and/or have the right to be in possession of and make decisions regarding, all data, media or equipment (“Data”) provided to Privata Services, and that you have obtained all necessary consents required under the Privacy Act 1988 (Cth) in relation to the disclosure of personal information by you to Privata Services and to the use of that personal information by Privata Services, and that your collection, possession, processing and transfer of such Data is in compliance with data protection and privacy laws to which you are subject. You indemnify Privata Services from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of your warranties.

10.8

You acknowledge and agree that:

(a) we and/or our third party service providers will not be responsible at any time for any loss, alteration or corruption of any software, data or files as a result of you failing to back up all software, data and files prior to us supplying the Goods or providing the Services;

(b) you will 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;

(c) you will exercise due care and carry out such precautions which may be recommended by us or otherwise required as a matter of prudence in connection with the performance by us of any of our obligations hereunder, for example, but without limiting the generality of the foregoing, advising your 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; and

(d) any replacement of parts under warranty will be carried out at a premises nominated by us and we will not be liable for the cost and risk of transport of any defective part to the nominated premises.

10.9

Onsite services involve our Privata Services technicians visiting you at your home or other location ( Premises) requested by you.

10.9.1

You must ensure that a person of at least 18 years of age is present for the duration of the provision of onsite services.

10.9.2

You must provide our technicians with:

(a) access to the areas of your premises necessary to provide services;
(b) necessary passwords to your computer;
(c) a safe working environment and working space;
(d) electrical power and internet access (where applicable).

10.9.3

If the services involve the installation of software, then you must provide our technicians with the installation disks for your operating system or software along with a product key for this software.

10.10

Following the supply of the Goods and/or the provision of the Services, you must:

(a) 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;

(b) ensure that your operators are adequately trained and informed as to the use of the Goods and shall comply with guidelines and procedures supplied by us and/or any third party manufacturer from time to time;

(c) perform general “housekeeping”, testing, adjustment and/or maintenance as recommended by us in respect of any Goods supplied by us in order to maximise the availability of and performance of the Goods or permit performance by us of any of our obligations hereunder; and

(d) comply, at your 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.

10.11

You represent and warrant to us that you are the owner of, and/or have the right to be in possession of and make decisions regarding, all data, media or equipment (Data) provided to Privata Services, and that you have obtained all necessary consents required under the Privacy Act 1988 (Cth) in relation to the disclosure of personal information by you to Privata Services and to the use of that personal information by us, and that your collection, possession, processing and transfer of such Data is in compliance with data protection and privacy laws to which you are subject. You indemnify us from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of this warranty.

11.0

Liability

11.1

The goods may come with guarantees that cannot be excluded under the ACL. You may therefore be entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You may also be entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. You may also be entitled to remedies that cannot be excluded under the ACL if any services supplied by us fail to meet a consumer guarantee under the ACL. Furthermore, nothing contained in these Conditions excludes, restricts, limits or modifies any:

(a) term, condition, warranty, guarantee or obligation in relation to the goods and/or the services (nor any right or remedy in relation to the breach or non-performance of any such term, condition, warranty, guarantee or obligation) where pursuant to applicable law to do so is unlawful or void or unenforceable; or
(b) liability for fraud or deceit; or
(c) liability for death or personal injury.

11.2

Subject always to clause 11.1, and without excluding, restricting, limiting or modifying the rights and remedies to which you (if you are a consumer as defined by the ACL) may be entitled under the ACL or our liability to you thereunder:

(a) you acknowledge that we are not the manufacturer of the goods and have no control whatsoever over their manufacture, and, accordingly, the goods are provided “as is” (that is, as supplied by the manufacturer) and that we do not make any warranty or representation as to the quality and/or the suitability of the goods;
(b) all terms, 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 us under these Conditions, that may otherwise be implied or imposed by statute, law, equity, trade custom, prior dealings between us or otherwise, are hereby excluded;
(c) our liability to you for loss or damage of any kind arising out of, or in connection with, these Conditions and/or the goods and/or the services, is reduced to the extent (if any) that you cause or contribute to the loss or damage;
(d) in no event shall we be liable to you under, arising out of, in connection with, or in respect of, either these Conditions and/or the goods and/or the services for:

(i) any loss, damage, cost or expense of any nature that was caused (directly or indirectly) by:

(a) any third party;
(b) our actions that were expressly or impliedly authorised by you, or by your employees or agents;
(c) accident, misuse or abuse by anyone other than us;
(d) alteration or modification of the goods by anyone other than us;
(e) products (including any hardware or software) not licensed or supplied by us that are attached to or used with the goods;
(f) your failure to maintain the goods or 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 our reasonable control;
(j) any other condition not arising under normal operating conditions;
(k) normal wear and tear;
(l) any breach of your obligations or responsibilities set out in these Conditions;
(m) our failure to meet any delivery date or cancelled or suspended supply of goods or services;

(ii) loss of profit;
(iii) business interruption costs or expenses;
(iv) loss of or damage to goodwill or reputation;
(v) the failure to realize an expectation benefit;
(vi) liability to any third party;
(vii) loss of or corruption to data;
(viii) consequential loss, damage, cost or expense; or
(ix) incidental or indirect loss, damage, cost or expense; or
(x) special, exemplary or punitive damages or fines,
even if we have been advised of the possibility of such loss, liability, damage, cost, expense or fines; and

(e) except to the extent already excluded or limited under these Conditions, our maximum liability to you under, arising out of, in connection with, or in respect of, either these Conditions and/or the goods and/or the services, shall be limited to:

(i) in relation to goods if supplied to you as a consumer (as defined in the ACL):

(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, as in each case we may elect; and

(ii) in relation to services if supplied to you as a consumer (as defined in the ACL):

(a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again, as in each case we may elect.

11.3

Any replacement of parts under warranty will be carried out at the premises nominated by us. We accept no  risk of transport of any defective part to the nominated premises.

12.0

Copyright in Software

12.1

We will not be responsible to you or any third party for any breach of any software licence in respect of software provided to us by you to be installed on your computer.

12.2

You hereby warrant that you have a valid licence in respect of such software and shall indemnify us and hold us harmless against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of us installing software at your request.

13.0

Cancellation

13.1

If, through circumstances beyond our reasonable control, we are unable to effect delivery or provision of goods or services, then we may cancel your order (even if it has already been accepted) by notice in writing to you.

13.2

If you propose to cancel any part of or the whole of an Order relating to:

(a) the supply of Goods, we will not accept such cancellation unless you agree to compensate us for our loss arising from the cancellation of part of or the whole of the Order; and/or

(b) the provision of Services on less than twenty-four (24) hours notice, we may charge a cancellation fee equal to the first hour of service at the rates quoted at the time of booking for the loss and expense caused.

14.0

Same Day Service Available

14.1

“Same Day Service Available” is only available in the Cairns area. This guarantee applies exclusively to service scheduled with us. Same day service may attract a surcharge and must be requested over the phone no later than 10am Monday through Friday, excluding holidays. We may assign specific appointment times at our discretion, either for our own purposes or as a courtesy to you, but we only guarantee that a technician will arrive by midnight. Your request for specific appointment times are not covered by this guarantee in any way. This guarantee only applies to the initial visit by our technician and does not ensure that all necessary work can be completed on the same day. Any changes made by you to a same day service request that is already scheduled void this guarantee in its entirety. In the event we are unable to provide same day service to a customer, our only liability is to provide the first hour’s service free on the next available appointment scheduled by you through our service hotline as listed above. This offer is limited to one per customer. Additional restrictions may apply. We may cancel this offer at any time.

15.0

100% Money-back Guarantee

15.1

We want you to be happy with your service! If it wasn’t completed to your satisfaction, we’ll work with you to get the job done right. Or if you’d prefer, we’ll refund you in full for your service – no questions asked.

15.2.1

Our 100% Money-back Guarantee applies:

15.2.2

To service charges only (excludes parts)

15.2.2

If your service was completed within the last 30 days

15.2.3

If payment for your service was made to Privata Services Pty Ltd

16.0

Fair Use

16.1

This policy applies to Services provided by Us and aims to ensure that we provide quality services to all of our customers and that no customer is disadvantaged by the conduct of others.

16.2

In doing so, this policy ensures that all customers do not use our Services in an excessive or unreasonable manner.

16.3

Unreasonable use of Services includes heavy usage patterns that cause significant service congestion, disruption or otherwise adversely affect other customer’s use of the Service.

16.4

If the Service is a Managed Service then any use greater than the 75th percentile of normal use on a three month rolling monthly average basis for each of the defined Managed Services by Managed Service users is defined as excessive or unreasonable use.

16.5

If we consider that use of the Service continues to be unreasonable, or if the parties are unable to agree to the changes to the service, we may, in our sole discretion, without liability, restrict, suspend or cancel the Service.

16.6

Use of a Service outside of what is typical of a ‘standard small to medium sized business’ is regarded as unreasonable use.

17.0

Implied terms

17.1

We acknowledge that where the supply of Goods are “consumer” supplies, under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act), certain statutory express and implied guarantees and warranties (including, without limitation, the statutory guarantees under the Competition and Consumer Act will be implied into these Terms (Non- Excluded Guarantees).

17.2

We acknowledge that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.

17.3

Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, we make no warranty or other representations under any contract with you or these Terms. Your liability in respect of these warranties is limited to the fullest extent permitted by law.

18.0

Feedback and Information

18.1

Privata Services welcomes your feedback. It helps us improve! Any written feedback you provide to us shall be deemed to be non-confidential. Privata Services shall be free to use such information on an unrestricted basis.

19.0

No representation or reliance

19.1

You acknowledge that neither we nor any person acting on behalf of us 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.

19.2

You acknowledge and confirm that you do not enter into these Conditions in reliance on any representation or other inducement by or on behalf of us, except for representations or inducements expressly set out in these Conditions.

19.3

Without limiting the generality of clauses 19.1 and 15.2, you understand and hereby confirm that:

(a) your decision to enter into these Conditions was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by us 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) you have relied on your own skill and judgement in deciding to purchase and acquire the goods and services.

20.0

Entire Agreement

20.1

To the full extent permitted by law, in relation to its subject matter, these Conditions:

20.1.1

embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and

20.1.2

upersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.

21.0

Governing law

21.1

This Agreement is governed by and must be construed according to the law applying in Queensland. The Parties hereby irrevocably submit to the jurisdiction of the courts of Queensland.

 

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