By accepting the offer for services or supply of products, referred to in this document, the recipient (the Customer) hereby acknowledges it has read and accepted the “Terms & Conditions of Sale” with Servswell Pty Ltd (ACN 614 799 003) (the Company), formed in part by the terms contained in this document and in part from the Terms of Service.
The “Terms & Conditions of Sale” embody the sole terms and conditions of contract between the Company and the Customer, and shall supersede all other terms, conditions and agreements between the parties unless otherwise authorised by the Company in writing.
1. DEFINITIONS AND INTERPRETATION - In these Terms and Conditions of Sale, these terms have the following meanings unless the context requires otherwise:
1.1. "ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act 2019 (Cth) and its associated regulations, as amended.
1.2. “Agreement” means these Terms and Conditions of Sale as modified, amended or varied in writing from time to time.
1.3. “Business Day” means a day when banks are generally open for business in the relevant place for doing anything specified in these Terms and Conditions of Sale.
1.4. “the Company” means, as the context requires Servswell Pty Ltd (ACN 614 799 003) and any of its divisions supplying goods or services under these Terms and Conditions of Sale.
1.5. “Confidential Information” means all confidential and propriety information (including without limitation, pricing, trade secrets, sales and marketing information, technology, software, ideas, know-how, processes, specifications, technical data and configurations) which is disclosed by the Company.
1.6. “the Customer” means an individual or end user, jointly or severally if more than one, or a duly authorised representative of the Customer purchasing the Product or Products as the case may be from the Company.
1.7. “Delivery” means physical delivery of any Product(s) to the Customer or to a carrier arranged by the Company.
1.8. “Default” or “Default in Payment” means:
1.8.1. if the Customer fails to pay any amount due to the Company;
1.8.2. if any step is taken by the Customer to enter into any arrangement between the Customer and its creditors;
1.8.3. if any step is taken to appoint a liquidator (provisional or otherwise), receiver, administrator or trustee in bankruptcy to the whole or part of the Customer's assets or business.
1.9. “Goods and Services Tax” means the tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.10. “GST” means Goods and Services Tax.
1.11. “Order(s)” means a purchase order for Product(s) submitted by the Customer to the Company which the Company will endeavour to fulfil.
1.12. “Product(s)” means any product sold by the Company from time to time to which these Terms and Conditions of Sale apply.
1.13. “Service(s)” means the provision of online information technology services including, but not limited to, assistance with computers, laptops, mobile devices, data storage, printers, routers, Wi-Fi, social media, software and digital applications; and services relating to the installation or maintenance of computer hardware or software, by the Company.
1.14. “Terms of Service” means the terms of service available at the Company’s website https://servswell.com, which may be amended from time to time.
1.15. The singular includes the plural and vice versa. Reference to a person includes any other entity recognised by law and vice versa.
1.16. Any reference to any of the parties by their defined terms includes that party’s executors, administrators or permitted assigns, or being a company, its successors or permitted assigns.
1.17. An agreement, representation, or warranty in favour of two or more persons binds them jointly and severally.
1.18. Reference to a statute, ordinance, code or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it;
1.19. Clause headings are for reference purposes only;
1.20. To the extent that any term in this document conflicts with the Terms of Service, the Terms of Service will prevail to the extent of any inconsistency.
2. ORDERS AND PERFORMANCE
2.1. All orders for Product(s) and Service(s) placed by the Customer are subject to acceptance by the Company, which may be withheld by the Company in its absolute discretion, and receipt of the Customer's payment of the full purchase price or deposit as agreed.
2.2. The Company will use reasonable endeavours to supply the Product(s) and Service(s) within the time requested by the Customer.
2.3. Any price list, quote, or other document published by the Company does not constitute a representation that the Product(s) or Service(s) described in that publication are available to the Customer and the Company will not be bound by any order for Product(s) or Service(s) based upon or which refers to such publication.
2.4. The Customer acknowledges that the Company may at any time without notice to the Customer vary the composition of or pricing for the Product(s) (or components of the Product(s)) and Service(s), and that the Company does not undertake that any Product(s) or Service(s) supplied to the Customers will be identical to those previously purchased or advertised.
2.5. The Company may vary or amend these Terms and Conditions of Sale by written notice to the Customer at any time. Any variations or amendments will apply to Orders made by the Customer after the date of written notice.
2.6. The Company’s obligation to perform in accordance with these Terms and Conditions of Sale will be suspended for the period of any delay arising out of anything outside the control of the Company.
3. DELIVERY
3.1. Any period or date for delivery stated by the Company is intended as an estimate only and is not a contractual commitment. Subject to the ACL, the Company will not be liable for any loss (including any consequential loss) or damage suffered by the Customer or any other person arising out of a failure to meet an estimated delivery date.
3.2. The Customer will accept delivery of the Product(s) promptly and will be responsible for any delivery charges, demurrage or storage costs incurred by the Company as a result of a failure by the Customer to accept delivery.
3.3. The Customer must notify the Company in writing within seven (7) business days of a delivery of any shortfall or damaged Product(s). If the Customer fails to give such notice, the Product(s) will be deemed in all respects to be in accordance with the order and the Customer will be deemed to have accepted the Product(s).
4. RISK AND TITLE
4.1. Risk in relation to the Product(s) and all insurance responsibility for theft, damage or otherwise will pass to the Customer at the time the Product(s) are delivered to the Customer at the place nominated on the Customer’s Order.
4.2. Title to any Product(s) delivered by the Company will not pass to the Customer until payment in full for the Product(s) has been made by the Customer to the Company.
4.3. Until title in the Product(s) passes to the Customer, the Product(s) are held by the Customer as bailee for the Company, and the Customer will keep the Product(s) clearly identified as the property of the Company, secure and in good order and condition. The Customer must maintain the Product(s) in good and serviceable condition secure from the risk of damage or theft and fully insured against such risks as are usual and common to insure against in businesses of a similar nature to that carried on by the Customer.
4.4. The Customer assumes all risk and liability for loss, damage or injury to persons, including the customer, or to the Customer's or a third parties’ property, arising out of the Customer's use or possession the Product(s), unless recoverable from the Company on the failure of any applicable statutory guarantee under the ACL.
5. QUOTATIONS
5.1. Any quotation, displayed price, Order list or order confirmation provided by the Company to the Customer concerning the proposed supply of Product(s) or Service(s) is an invitation to treat only, and is subject to the Customer placing an Order which is the Customer's offer to enter into a contract with the Company on these Terms and Conditions of Sale.
5.2. Any quotation provided by the Company will be subject to these Terms and Conditions of Sale. No quotation will be binding on the Company unless it is in writing and signed by the Company or by an employee duly authorised on its behalf. Any quotation provided is based strictly on the details specified in the quotation. Any changes to the specifications may incur extra charges and require additional time for delivery.
5.3. Except as otherwise varied in writing by the Company, (such change being made by a duly authorised employee of the Company) any quotation published will be valid for a period of 30 days only.
5.4. GST and freight are not included in quotations unless specified in writing.
6. PRIVACY
6.1. The Company is committed to protecting the privacy of its Customers. The Company will comply with the Privacy Act 1988 (Cth) (“Privacy Act”) in accordance with the Australian Privacy Principles as contained in the Privacy Act. The Company will also comply with the Customer’s requests relating to any concerns about the protection of Personal Information held by the Company on behalf of the Customer (if any). If the Customer has any query regarding the protection of Personal Information held by the Company on behalf of the Customer, the Customer is requested to contact Servswell’s Privacy Officer at support@servswell.com using the subject line Attn: Privacy Officer.
7. SALE
7.1. Any description of Product(s) by way of samples, documents, price lists or pamphlets is given for identification purposes only and the use of such description will not constitute sale by way of description.
8. SPECIAL CONDITIONS
8.1. In addition to these Terms and Conditions of Sale and the Terms of Service, certain Product(s) are subject to special conditions, which are set out in catalogues, price lists or advised from time to time (“Special Conditions”). To the extent that there is an inconsistency between these Terms and Conditions of Sale and the Special Conditions, the Special Conditions will prevail to the extent of any inconsistency.
9. PRICE AND PAYMENT
9.1. The price of the Product(s) shall be as set out in the invoice or price list current at the date of placement of the Order. The Company reserves the right by written notice to the Customer at any time prior to delivery to increase the price of the Product(s) to reflect any increased cost to the Company of supplying the Product(s), such as without limitation any foreign exchange fluctuation, imposition or alteration of taxes or duties or any other increases in costs.
9.2. An invoice or statement will be delivered by the Company, to the Customer, in the post or via electronic mail.
9.3. The Customer will pay the invoice or statement in full to the Company within 10 business days of the date on which Delivery is made, or as the parties may otherwise agree. Time shall be of the essence in relation to payments due to the Company.
9.4. All payments will be made in Australian dollars (or such currency or currencies as the parties may otherwise agree) by cheque, transfer to a bank account nominated by the Company from time to time, or as otherwise agreed.
10. LIMITATION OF LIABILITY
10.1. As expressly provided in these Terms and Conditions of Sale, all terms, conditions, warranties and statements, whether express, implied, written, oral, collateral, statutory or otherwise, are excluded and the Company disclaims all liability in relation to these to the maximum extent permitted by law.
10.2. To the maximum extent permitted by law and except as otherwise provided in these terms and conditions, the Company’s liability under any term, condition or warranty, express or implied, is limited to the resupply of the Product(s).
10.3. Notwithstanding any other provision of these terms and conditions, the Company will not be liable in any way whatsoever for any indirect loss or damage, special, consequential loss or damage or punitive damages, including economic loss, arising from the performance, non-performance or breach of these Terms and Conditions of Sale.
10.4. To the full extent permitted by law, the Company shall not be liable for any delay, inconvenience, loss or damage of any kind arising out of the failure, malfunction, breakdown or defect of the product(s) or from loss or damage or deterioration of the Product(s) howsoever caused.
10.5. It is understood and agreed between the parties that these terms and conditions shall not be construed as constituting the Customer as agent of the Company for any purpose whatever. The Customer shall not describe itself as agents for the Company or in any words indicate the existence of any agency relationship between the parties.
11. GOODS AND SERVICES TAX
11.1. Any consideration payable by the Customer in respect of any supply made under these terms and conditions by the Company does not include any GST payable in relation to the supply of the subject matter of these terms and conditions.
11.2. Any consideration payable by the Customer in respect of any supply made under these terms and conditions by the Company will be varied on the basis of the net financial impact of the GST and any associated taxation reform on the cost to the Company of providing the supply.
11.3. The net financial impact of the GST will be calculated on the basis of the GST payable on the supply by the Company after allowing for any reduction in cost or other financial benefit to the Company arising from the GST and any associated taxation reform and the net costs reasonably incurred in complying with the GST law.
12. ADMINISTRATIVE PROVISIONS
12.1. Any date, period or time for performance contained in these Terms and Conditions of Sale may be altered by agreement between the parties, but, in the absence of that agreement, time will be of the essence of these terms and conditions.
12.2. All the agreements and understandings between the parties or any of them in relation to the subject matter of these terms and conditions are embodied in these Terms and Conditions of Sale, which, as from the date of execution, supersedes all prior agreements and understandings.
12.3. No modification, amendment or other variation of these Terms and Conditions of Sale will be valid or binding on a party unless it is made in writing and signed by or on behalf of the Company.
12.4. These Terms and Conditions of Sale are governed by and construed in accordance with the law of Queensland and the parties agree to submit to the non-exclusive jurisdiction of the courts of that place.
12.5. If any term agreement or condition of these terms and conditions or the application of these Terms and Conditions of Sale to any person or any circumstance is or becomes illegal, invalid or unenforceable in any jurisdiction, it will be severed and none of the remaining terms agreement conditions or applications in any other jurisdiction will be affected.
12.6. Each party will bear its own costs and expenses (including legal costs) of and incidental to the negotiation, execution and implementation of these Terms and Conditions of Sale (or any waiver or amendment of it).
12.7. The Customer shall not assign or purport to assign the benefit of these Terms and Conditions of Sale without the prior written consent of the Company.
13. CONFIDENTIAL INFORMATION, TRADEMARKS & INTELLECTUAL PROPERTY
13.1. The Customer guarantees to hold all information disclosed by the Company as Confidential Information in the strictest confidence and agrees not to use any Confidential Information for any purpose outside the purchase, sales and use of the Product(s), and not to disclose the Confidential Information to any third party.
13.2. The Customer guarantees that any copyright, trademark or intellectual property involved in an-order upon the Company will not be infringed on placement of the order and the Customer indemnifies the Company from any action arising out of the infringement of any copyright, trademark or intellectual property.
13.3. Any copyright, trademark or intellectual property owned by the Company shall be the sole property of the Company and the Customer shall have no rights to this property except as agreed to in writing by the Company.