NanoByte Solutions Pty Ltd - Terms & Conditions of Trade
1.1 "NanoByte" means NanoByte Solutions Pty Ltd T/A NanoByte, its successors and assigns or any person acting on behalf of and with the authority of NanoByte Solutions Pty Ltd T/A NanoByte & NB Domains.
1.2 "Client" means the person/s (or entity) purchasing the Products/Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 "Products" means all goods (including computer hardware and software) supplied by NanoByte to the Client at the Client's request from time to time (where the context so permits the terms 'Products' or 'Services' shall be interchangeable for the other).
1.4 "Services" means all managed network, print and telecommunications services provided by NanoByte to the Client under the terms of this agreement.
1.5 "Price" means the Price payable for the Products/Services as agreed between NanoByte and the Client in accordance with clause 5 below.
1.6Words not defined in this agreement shall have the same meaning as in the Telecommunications Act 1997 (where defined under that piece of legislation).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts delivery of, Products/Services supplied by NanoByte.
2.2 This agreement also includes any application or order form completed by the Client and supplied to NanoByte. NanoByte may accept and rely on a facsimile copy of any application or order form sent to NanoByte by the Client as if it was the original document and the Client further agrees to be bound by the fax document as if was the original document.
2.3 These terms and conditions may only be amended with NanoByte's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and NanoByte.
2.4 NanoByte may, at their sole discretion, request the Client to provide documentation such as utility bills or form of identification such as car license, passport, etc. within three (3) business days in order to safeguard both parties against fraudulent purchases. A statement of order will only be processed by NanoByte when verification is complete and status has been approved. In the event the Client fails to comply with such request, NanoByte may (at their sole discretion) cancel the order.
2.5 No agency, partnership, joint venture, or employment is created as a result of this agreement, and the Client does not have any authority of any kind to bind NanoByte in any respect whatsoever.
3.Change in Control
3.1 The Client shall give NanoByte not less than fourteen (14) days prior written notice of any change in the Client's details (including, but not limited to, changes in the Client's name, address, contact phone or fax number/s). The Client shall be liable for any loss incurred by NanoByte as a result of the Client's failure to comply with this clause.
3.2 Where the Client is a business entity, in addition to clause 3.1, the Client shall give NanoByte prior written notice of any proposed change of ownership of the Client and/ or business practice.
4. Specifications of Products
4.1 The Client acknowledges that:
(a) all descriptive specifications, technical descriptions, illustrations, images, drawings, data, dimensions and weights stated in NanoByte's fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by NanoByte;
(b) while NanoByte may have provided information or figures to the Client regarding the performance of the Products, the Client acknowledges that NanoByte has given these in good faith, and are estimates only, and performance rates may be less than estimates due to factors out of NanoByte's control.
4.2 The Client shall be responsible to research Products prior to purchase to ensure that the Products ordered are suitable for their intended use.
4.3 NanoByte reserves the right to substitute comparable Products (or components of the Products), and in all such cases NanoByte will notify the Client in advance of any such substitution.
5.Price and Payment
5.1 At NanoByte's sole discretion the Price shall be either:
(a) as indicated on any invoice provided by NanoByte to the Client; or
(b) the Price as at the date of delivery of the Products/Services according to NanoByte's current Price List (NanoByte undertakes to advise the Client of any changes to NanoByte's Price List, and copies of the Price List are available from NanoByte on request); or
(c) NanoByte's quoted price (subject to clause 6.3) which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days. The Client acknowledges that NanoByte will not credit any price variance between the quoted price and actual Price due to any fluctuation in the wholesale price of the Goods; it shall be the Client's responsibility to examine the Seller's quotation carefully prior to order placement.
5.2 NanoByte reserves the right to change the Price if a variation to NanoByte's quotation is requested. Any variation from the plan of the scheduled Services or specifications of the Products (including, but not limited to, any variation due to fluctuations in currency exchange rates, or as a result of increases to NanoByte in the cost of materials and labour) will be charged for on the basis of NanoByte's quotation and will be shown as variations on the invoice.
5.3 At NanoByte's sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Products/Services being of the essence, the Price will be payable by the Client by/on the date/s determined by NanoByte, which may be:
(a) on delivery/provision of the Products/Services;
(b) before delivery of the products/Services;
(c) by way of instalments/progress payments in accordance with NanoByte's payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client's address or address for notices;
(e )the date specified on any invoice or other form as being the due date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by NanoByte.
5.5 Payment may be made by cash, cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and NanoByte. No bank cheques or drafts will be accepted. Credit card/debit card payments will be done through an automated payment system over the phone. The Client acknowledges and agrees that NanoByte, in an effort to prevent credit fraud, shall be entitled to charge a small amount to the specified credit/debit card and request verification of such amount from the Client prior to debiting full payment.
5.6 The amount stated as payable to NanoByte (the "Price") under this agreement and referred to in NanoByte quotations/proposals or tenders is exclusive of existing taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Products/Services. The Client shall also be liable for all new taxes, duties or charges imposed subsequent to this document in respect of the supply of Products/Services.
6. Provision of Services and Delivery of Goods
6.1 NanoByte maintains a 'no fix, no fee' policy; in the event NanoByte is unable to resolve the problem, or if the suggested solution is not feasible, the Client will not be charged. However, if NanoByte is able to remedy the problem, but is preventing by the Client from doing so (including, where the Client does not possess the required parts or licensed software), then the Client shall be charged for the Services rendered on an hourly basis at NanoByte's current hourly rate. This policy is not applicable to Services for data back-up and recovery, computer virus or spyware problems.
6.2 The Client acknowledges that a minimum labour charge of one (1) hour at NanoByte's standard hourly rate will be applicable for all Services supplied by NanoByte.
6.3 The Client acknowledges that any on-site visit undertaken by NanoByte shall be charged to the Client on an hourly basis, or otherwise on a pre-purchased package deal.
6.4 The Client authorises NanoByte to make required diagnostic, repairs, upgrades or replacements as specified herein, and agree to pay all charges in relation thereto. Where further Services are authorised, the Client agrees to pay the hourly rate, fees and/or other taxes specified in the authorisation section and/or the invoice/estimate.
6.5 Delivery ("Delivery") of the Products is taken to occur at the time that:
(a) the Client or the Client's nominated carrier takes possession of the Products at NanoByte's address; or
(b) NanoByte (or NanoByte's nominated carrier) delivers the Products to the Client's nominated address even if the Client is not present at the address.
6.6 At NanoByte's sole discretion the cost of delivery is either included in the Price or is in addition to the Price. Subject to particular model(s) and availability, all hardware purchases will be shipped within three (3) business days.
6.7 The Client must take delivery by receipt or collection of the Products whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Products as arranged then NanoByte shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.8NanoByte may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.9 Whilst NanoByte will make every endeavour to meet the Client's expectations, any time or date given by NanoByte to the Client is an estimate only. The Client must still accept delivery of the Products even if late, and NanoByte will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.10 NanoByte may require certain media to provide the Services (including, but not limited to, a physical charger for devices is required); if the Client does not have the media required for installation, NanoByte is not obligated to make available those applications that require physical media, serial numbers, or product keys free of charge. The Client acknowledges that not having the media may slow or halt the Services until the correct media or registration information is obtained.
7.1 Risk of damage to or loss of the Products passes to the Client on Delivery. The Client will accept any Products on the basis of this agreement and any additional terms and conditions notified at the time of delivery.
7.2 The Client accepts full responsibility for the safekeeping of the Products and the Client agrees to insure, or self-insure, NanoByte's interest in the Products and agrees to indemnify NanoByte against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks. If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Client, NanoByte is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by NanoByte is sufficient evidence of NanoByte's rights to receive the insurance proceeds without the need for any person dealing with NanoByte to make further enquiries. In the event of insurance loss and/or peril, the Client shall limit the amount of damage to two thousand dollars ($2,000.00) maximum total loss on all Products, equipment and data.
7.3 If the Client requests NanoByte to leave Products outside NanoByte's premises for collection or to deliver the Products to an unattended location then such Products shall be left at the Client's sole risk.
7.4 It shall be the Client's sole responsibility to remove any removable media (including, but not limited to, diskettes, CDs, DVDs or PC Cards) prior to returning or submitting Products/goods for repair or replacement.
7.5 NanoByte will not be responsible for any licensing issues for software already installed on the Client's system.
7.6 Any advice, recommendations, information, assistance or service provided by NanoByte in relation to Products/Services supplied is given in good faith, is based on information provided to NanoByte, and NanoByte's own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and NanoByte shall make all effort to offer the best solution to the Client.
7.7 NanoByte shall not be held liable for any loss or corruption of data or files (including, but not limited to, software programmes) resulting from servicing or repairs being undertaken on any computer or device. It is the sole responsibility of the Client to backup any data which they believe to be important, valuable or irreplaceable prior to bringing in any computer or device for servicing or repairs.
7.8 The Client acknowledges and agrees that if the computer or device (the subject of the Services) was not working properly at the time of submission to NanoByte, the Client releases NanoByte from any liability as a result of further damages in the event of any computer-related failure due to hardware wear and tear, application conflicts, faulty applications, virus/malware infections, incompatible third-party devices, or system/OS related bugs.
7.9 Whilst NanoByte shall make every effort to contact the Client, any item left with NanoByte for over a period of thirty (30) days will be destroyed or recycled at NanoByte's sole discretion, and all personal data will be destroyed to protect the Client's privacy.
8.1 NanoByte and the Client agree that ownership of the Products shall not pass until:
(a) the Client has paid NanoByte all amounts owing to NanoByte; and
(b) the Client has met all of its other obligations to NanoByte.
8.2 Receipt by NanoByte of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that:
(a)until ownership of the Products passes to the Client in accordance with clause 8.1 that the Client is only a bailee of the Products and must return the Products to NanoByte on request.
(b) in the event that Products are not returned to NanoByte upon request the Client irrevocably grants to NanoByte, NanoByte agents and servants, leave and licence without the necessity of giving any notice, to enter at any time on and into any premises where NanoByte believes the Products are situated (using reasonable force if necessary), to inspect, search for and re-take possession of any Products. The Client agrees to indemnify and hold harmless NanoByte against any loss or damage suffered by any person or company arising from such re-possession.
(c) the Client holds the benefit of the Client's insurance of the Products on trust for NanoByte and must pay
to NanoByte the proceeds of any insurance in the event of the Products being lost, damaged or destroyed.
(d) the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary
course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for NanoByte and must pay or deliver the proceeds to NanoByte on demand.
(e) the Client should not convert or process the Products or intermix them with other Products but if the Client does so then the Client holds the resulting product on trust for the benefit of NanoByte and must sell, dispose of or return the resulting product to NanoByte as it so directs.
(f) NanoByte may recover possession of any Products in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of NanoByte.
(h) NanoByte may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Client.
9. Personal Property Securities Act 2009 ("PPSA")
9.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Products that have previously been supplied and that will be supplied in the future by NanoByte to the Client.
9.3The Client undertakes to:
(a)promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which NanoByte may reasonably require to;
(i)register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii)register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii)
(b)indemnify, and upon demand reimburse, NanoByte for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Products charged thereby;
(c)not register a financing change statement in respect of a security interest without the prior written consent of
(d )not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products in favour of a third party without the prior written consent of NanoByte;
(e) immediately advise NanoByte of any material change in its business practices of selling Products which
would result in a change in the nature of proceeds derived from such sales.
9.4 NanoByte and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7Unless otherwise agreed to in writing by NanoByte, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8The Client must unconditionally ratify any actions taken by NanoByte under clauses 9.3 to 9.5.
9.9Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10. Security and Charge
10.1 In consideration of NanoByte agreeing to supply Products/Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies NanoByte from and against all NanoByte's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising NanoByte's rights under this clause.
10.3 The Client irrevocably appoints NanoByte and each director of NanoByte as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client's behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Products/Services on delivery/provision and must within seven (7) days (for Products) or forty-eight (48) hours (for Services) of such time notify NanoByte in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Products/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow NanoByte to inspect the Products/Services.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
11.3 NanoByte acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, NanoByte makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products/Services. NanoByte's liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Client is a consumer within the meaning of the CCA, NanoByte's liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If NanoByte is required to replace the Products under this clause or the CCA, but is unable to do so, NanoByte may refund any money the Client has paid for the Products.
11.7 If NanoByte is required to rectify, re-supply, or pay the cost of resupplying the Services under this clause or the CCA, but is unable to do so, then NanoByte may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Products/Services which have been provided to the Client which were not defective.
11.8 If the Client is not a consumer within the meaning of the CCA, NanoByte's liability for any defect or damage in the Products is:
(a) limited to the value of any express warranty or warranty card provided to the Client by NanoByte at NanoByte's sole discretion. NanoByte does not offer any warranty on:
(i) all optical devices, tape drives, printers, scanners, cameras, notebooks, third party PCs (e.g. HP, IBM, Acer, Toshiba, LG, Fujitsu, Samsung, Canon, Sony, Benq, and Philips), and all other external devices other than the manufacturer's warranty;
(ii) physical damage and software reconfiguration, or damage sustained to other equipment/components, used in conjunction with the Products.
(b) limited to any warranty to which NanoByte is entitled, if NanoByte did not manufacture the Products.;
(c)otherwise negated absolutely.
11.9 Subject to this clause 10, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b)NanoByte has agreed that the Products are defective; and
(c) the Products are returned:
(i)accompanied by a Returns Authorisation Number (RA), obtained from NanoByte, and which shall be valid for a period of seven (7) days;
(ii) within a reasonable time at the Client's cost (if that cost is not significant);
(iii) unopened, and in their original packaged state, as delivered.
11.10 Notwithstanding clauses 11.1 to 11.9 but subject to the CCA, NanoByte shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Products;
(b)the Client using the Products for any purpose other than that for which they were designed;
(c) the Client continuing the use of the Products after any defect became apparent or should
have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by NanoByte;
(e) fair wear and tear, any accident, or act of God.
11.11 In the case of second hand Products, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Products prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by NanoByte as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that NanoByte has agreed to provide the Client with the second hand Products and calculated the Price of the second hand Products in reliance of this clause 11.11.
11.12 NanoByte may, in its absolute discretion, accept non-defective Products for return, in which case NanoByte shall require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Products plus any freight costs. Due to copyright and licensing restrictions, software will not be accepted where the packaging seal is broken.
11.13 Notwithstanding anything contained in this clause if NanoByte is required by a law to accept a return then NanoByte will only accept a return on the conditions imposed by that law.
12. Intellectual Property
12.1 The Client acknowledges that all intellectual property rights arising out of the Products/Services provided by NanoByte (including any intellectual property rights in any software written by or on behalf of NanoByte and any discoveries, inventions, patents or designs) are and will remain the property of NanoByte. The Client agrees to do all things necessary, at NanoByte request, to effect an unconditional and irrevocable assignment of any intellectual property rights referred to in this clause.
12.2 Software provided under this agreement will be licensed to the Client on the terms of the relevant license agreement provided therewith or as otherwise agreed between NanoByte and the Client in writing.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at NanoByte's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Client owes NanoByte any money the Client shall indemnify NanoByte from and against all costs and disbursements incurred by NanoByte in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, NanoByte's contract default fee, and bank dishonour fees).
13.3 Without prejudice to any other remedies NanoByte may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions NanoByte may suspend or terminate the supply of Products/Services to the Client. NanoByte will not be liable to the Client for any loss or damage the Client suffers because NanoByte has exercised its rights under this clause.
13.4 If the Client doesn't pay the account by the account due date, NanoByte also reserves the right (at NanoByte's discretion) to adjust the prices the Client pays for the Products/Services.
13.5 Without prejudice to NanoByte's other remedies at law NanoByte shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to NanoByte shall, whether or not due for payment, become immediately payable if:
(a) any money payable to NanoByte becomes overdue, or in NanoByte's opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement
with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.1 NanoByte may cancel any contract to which these terms and conditions apply or cancel delivery/provision of Products/Services at any time before the Products/Services are due to be delivered/commenced by giving written notice to the Client. On giving such notice NanoByte shall repay to the Client any money paid by the Client for the Products/Services. NanoByte shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery/provision of the Products/Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by NanoByte as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for Products made to the Client's specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.
15. Information and Confidentiality
15.1 The Client agrees to provide NanoByte with any information NanoByte requests in connection with NanoByte providing the Products/Services to the Client under this agreement.
15.2 The Client authorises and consents to NanoByte conducting a physical audit of the Client's premises, equipment, systems, etc., and the Products/Services supplied by NanoByte should NanoByte consider it necessary.
16. Privacy Act 1988
16.1The Client agrees for NanoByte to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by NanoByte.
16.2The Client agrees that NanoByte may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a)to assess an application by the Client; and/or
(b)to notify other credit providers of a default by the Client; and/or
(c)to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d)to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3The Client consents to NanoByte being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4The Client agrees that personal credit information provided may be used and retained by NanoByte for the following purposes (and for other purposes as shall be agreed between the Client and NanoByte or required by law (including investigations of credit fraud) from time to time):
(a)the provision of Products/Services; and/or
(b)the marketing of Products/Services by NanoByte, its agents or distributors; and/or
(c)to provide information about the Client to a Carrier in order to facilitate the provision of Products/Services under this agreement; and/or
(d)analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of
(e)processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(f)enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Products/Services.
16.5NanoByte may give information about the Client to a credit reporting agency for the following purposes:
(a)to obtain a consumer credit report about the Client;
(b)allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6The information given to the credit reporting agency may include:
(a)personal particulars (the Client's name, sex, address, previous addresses, date of birth, name of employer and driver's licence number);
(b)details concerning the Client's application for credit or commercial credit and the amount requested;
(c)advice that NanoByte is a current credit provider to the Client;
(d)advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e)that the Client's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in
respect of any default that has been listed;
(f)information that, in the opinion of NanoByte, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client's credit obligations);
(g)advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h)that credit provided to the Client by NanoByte has been paid or otherwise discharged.
16.7NanoByte warrants not to sell, rent, or lease the Client's personally identifiable information to others.
16.8Furthermore NanoByte (except as is allowed under this agreement) shall not unless in receipt of an appropriate request from a government agency, law enforcement agency, court, or as required by law, or with the Client's permission, share the personal data of the Client with any third party except those business partners that are acting on NanoByte's behalf to supply the Client Products/Services under this agreement. For the sake of clarity such third party business partners are governed by NanoByte Privacy, Information and Confidentiality policies with respect to the use of the Client's personal information.
17.Unpaid Seller's Rights
17.1 Where the Client has left any item with NanoByte for repair, modification, exchange or for NanoByte to perform any other service in relation to the item and NanoByte has not received or been tendered the whole of any moneys owing to it by the Client within thirty (30) days of the overdue invoice date, NanoByte shall have, until all moneys owing to NanoByte are paid:
(a) a lien on the item; and
(b)the right to retain or sell the item in order to recoup any loss suffered by NanoByte due to the Client's default in payment. Such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of NanoByte shall continue despite the commencement of proceedings, or judgment for any moneys owing to NanoByte having been obtained against the Client.
18. Employee Engagement
18.1 The Client acknowledges and agrees that it cannot employ or engage the service(s) of any NanoByte employees (whether permanent or part-time) or contractor/s, within five (5) years of the employee/s or contractor/s termination/resignation or employment with NanoByte.
19. Standard Communications and Advices
19.1NanoByte communicates with its Clients primarily via email. General advices to Clients shall be sent to the email address specified by the Client at the time of registration for the Products/Services or as subsequently specified by the Client ("Email Address"). The Client is responsible for notifying NanoByte of any Email Address changes. The Client agrees that sending a message to the Email Address is the agreed upon means of providing general advices. Email is used to communicate important information about the Products/Services, billing, changes to the Products/Services and other information. The information is time-sensitive in nature. It is required that the Client read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Products/Services supplied under this agreement.
20.1 In accordance with the Spam Act 2003, by agreeing to this agreement the Client acknowledges and accepts that the Client has agreed to the Client or the Client's organisation receiving electronic correspondence from NanoByte and their authorised 3rd party partners in relation to promotions, invitations, brochures, newsletters, surveys etc. If the Client wishes at any time to unsubscribe from receiving such electronic correspondence then the Client can do so by emailing email@example.com.
21.1 Any formal notice, claim, demand, consent or other communication required to be given to another party in relation to this agreement must be delivered personally or sent by prepaid mail or by facsimile to the address of the other party as last notified.
21.2 The failure by NanoByte to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect NanoByte's right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.3 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which NanoByte has its principal place of business, and are subject to the jurisdiction of the courts in that state.
21.4 Subject to clause 11, NanoByte shall be under no liability whatsoever to the Client for any , incidental, indirect, punitive or consequential damages or for any damages, including but not limited to, loss of data, loss of revenue or profits, or arising out of or in connection with the use of, or the inability to use, Products/Services supplied under this agreement which are suffered by the Client arising out of a breach by NanoByte of these terms and conditions (alternatively NanoByte's liability shall be limited to damages which under no circumstances shall exceed the Price). Furthermore, the Client agrees that NanoByte's liability will be reduced by the extent, if any, to which the Client (or any other third party) contributed to the loss.
21.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by NanoByte nor to withhold payment of any invoice because part of that invoice is in dispute. If the Client wants to dispute in good faith an amount charged to the Client's account, the Client must notify NanoByte in writing within fourteen (14) days of receipt of the account concerned setting out the Client's reason/s for the dispute and the amount in dispute.
21.6 NanoByte may license or sub-contract all or any part of its rights and obligations without the Client's consent.
21.7The Client agrees that NanoByte may amend these terms and conditions at any time. If NanoByte makes a change to these terms and conditions, then that change will be effective upon the expiry of fourteen (14) days written notice from NanoByte. The Client will be taken to have accepted such changes if the Client makes a further request for NanoByte to supply Products/Services to the Client.
21.8 Neither party shall be liable for any default due to any act of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other event beyond the reasonable control of either party.
21.9The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations
to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Additional Terms Applicable to Managed Services
22. Services / Acceptance
22.1 Services will be supplied to the Client through the carriers or networks ("Carrier/s") that NanoByte nominate in writing from time to time. The Client agrees that NanoByte:
(a) may change Carriers without reference to the Client and at any time; and
(b) has the Client's express authorisation to notify any relevant Carrier in respect of and to effect any such change.
22.2 The Client acknowledges and agrees that Nanobyte shall provide the Services to the Client to the extent and to the standard that Carriers provide Services to NanoByte.
22.3 NanoByte does not warrant that they will be able to supply uninterrupted Services, and the shall not be liable for any failure to provide all or part of any of the Services. In the event the Client's connection is disrupted, NanoByte will do the best possible to reinstate the Services to the Client as soon as is reasonably possible.
22.4 NanoByte cannot guarantee the Services will be free from infiltration, hacking, malware etc. therefore NanoByte shall not under any circumstances accept any liability whatsoever in the event of unauthorised access to NanoByte or the Client's transmission facilities or premise equipment or for unauthorised access to, or alteration of, theft or destruction of, the Client's equipment, data files, programs, procedures or information through accident, fraudulent means or devices, or through any other method, regardless of howsoever such damage occurs.
22.5 NanoByte shall not be liable to the Client in any way whatsoever for any delay in the connection of the Services.
22.6 The Client is responsible for maintaining the security of their account, username, passwords, and files and for all uses of their account and of the Services provided by NanoByte.
22.7 The Client acknowledges and accepts that any liability of any Carrier to the Client in relation to the Services is governed by the terms and conditions on which that Carrier from time to time supplies such services to the Carriers own retail customers.
22.8 Unless otherwise stated in this agreement, NanoByte reserves the exclusive right to provide the Client with all long distance services upon commencement of this agreement.
22.9 When using the Services, the Client agrees to:
(a)comply with all statutes, regulations, by-laws or licence conditions of any government body; and
(b)not breach any person's rights or otherwise cause NanoByte or a Carrier loss, liability or expense.
22.10 NanoByte obligation to provide the Services ceases when NanoByte transfers the Client's account to another supplier and the other supplier takes over full billing of those services.
22.11 At commencement of this agreement NanoByte shall confirm to the Client the agreed term that this agreement is to remain in place (the Initial Term). At the end of the Initial Term this agreement will automatically renew for the same period as the Initial Term unless the Client provides NanoByte, prior to the end of the Initial Term, notification of the Client's intention to terminate the Services. The Client agrees to pay for all Services for the duration of the Initial Term (or any subsequent term once a subsequent term has commenced). Expiration of the Initial Term or any subsequent term does not alleviate the Client of responsibility for paying all unpaid or accrued charges due under this agreement.
22.12 In addition to clause 15, the Client authorises and consents to the following:
(a) NanoByte exchanging with Carriers all information about the Client and the Services provided to the Client in NanoByte possession or control including, but not limited to, the Client's name, billing address, street address, relevant telephone numbers, any information obtained by NanoByte for the purpose of the Client's application and this agreement;
(b) the Carrier exchanging with NanoByte any information in the Carrier's possession or under its control
in relation to the Services including, without limitation, all the Client's records and, in particular, exchange line details, account information, call charge records and call event records; and
(c) NanoByte and the Carrier's use of the information referred to in paragraphs (b) and (c) of this clause.
22.13 Except as is allowed under clauses 16 and 15, NanoByte and the Client agree that they will at all times keep as strictly confidential any confidential information that is disclosed or provided by one party to the other supplied by the Carriers or NanoByte, and NanoByte will keep confidential all information supplied by the Client. For the purposes of this clause, "confidential information" means information in any form but does not include information that is already in the public domain at the time that is disclosed or becomes part of the public domain otherwise than as a result of an unauthorized disclosure by NanoByte or the Client.
22.14 Whilst NanoByte respects the Client's privacy and confidentiality, the Client acknowledges that NanoByte utilizes the public internet and third party networks to provide voice and video communication services, accordingly NanoByte cannot guarantee the security of voice and video communications of the Client through those mediums.
22.15 NanoByte cannot guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. The Client assumes all risk of use of all programs and files associated with the Services, and indemnifies NanoByte entirely of all responsibility for any consequences of its use.
22.16 The Services may be accessed throughout Australia and overseas. NanoByte makes no representations that the Services comply with the laws (including intellectual property laws) of any country outside Australia. Any access of the Services from outside Australia is done at the Client's own risk and they shall be responsible for complying with the laws in the place where the Services are accessed.
22.17 The Client may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Australia and all other applicable countries.
23. Charges and Payment
23.1 The Client agrees during the term of this agreement:
(a) to be charged for the Services NanoByte provides to the Client (irrespective of whether it is the Client who uses them) at NanoByte current prices from time to time;
(b) to pay NanoByte for all calls made using the VoIP Solution;
(c) to pay accounts for all of those charges (including taxes) by the due date specified in relation to the Client's account as per clause 5.6.
24. Transfer of Services
24.1 If the Client transfers any services ("Transferred Services") from a Carrier, a telecommunications service provider or equipment supplier who supplies telecommunications services or equipment to the Client at the time of signing this agreement ("Current Supplier") to NanoByte, The Client duly authorises NanoByte to sign on the Client's behalf and in the Client's name any forms required by the Current Supplier to facilitate the transfer of the Transferred Services to NanoByte as NanoByte may direct.
24.2 Where the Client has existing PABX or other network equipment, the Client must ensure that it is programmed as NanoByte specifies.
24.3 Where the Client has equipment on the occupied premises which is used by another supplier to provide the Client with services, then NanoByte will disconnect that equipment when the Client transfers the services to NanoByte. The Client must immediately notify that supplier that the Client transferred the services to NanoByte and arrange for the supplier to remove the supplier's equipment from the premises.
24.4 The Client agrees to immediately pay to the Current Supplier any amounts owing for the Transferred Services up to the date of the transfer.
24.5 If the Client directs NanoByte, or authorises another carrier to transfer any of the Services to another supplier, the Client must pay in full:
(a) all of NanoByte accounts up until the time NanoByte stops providing the Services, before NanoByte will release the number in question; and
(b) all other proper charges that NanoByte become aware of after the date of transfer that relate to the
Services NanoByte provided to the Client.
25. Termination of Services
25.1 NanoByte may terminate an agreement for the provision of Services at any time by written notice if a Carrier ceases to provide the necessary Services to NanoByte.
25.2 If this agreement is terminated either under clause 13.3 or 25.1 and a Carrier arranges to supply the Client services other than through NanoByte, then the Client acknowledges and accepts that:
(a) the Carrier may not be able to make those arrangements immediately; and
(b) once the Carrier has made arrangement, the services then acquired by the Client from the Carrier will be on the Carrier's then current tariffs and terms and conditions, and the Carrier will bill the Client accordingly.
25.3 NanoByte reserves the right, at its sole discretion, to suspend, terminate or amend the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, the Client's breach of this agreement, the Client's failure to pay any sum due this agreement, suspected fraud or any other activity by the Client that adversely affects (or may affect) the Services, NanoByte, NanoByte's network or another third party's use of the Services. NanoByte reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and the Client agrees that NanoByte determination is final and binding on the Client. NanoByte may require an activation fee to change or resume a terminated or suspended account.
25.4 In the event that the Client wishes to terminate the supply of Services then the Client agrees to provide NanoByte with no less than thirty (30) days notice of termination. The Client shall be responsible for the full monthly service fee applicable during the period of notice.
26.1 NanoByte will make available technical support to the Client via telephone and e-mail for the Services provided. Support for other applications and uses is not provided or implied unless agreed to in writing by NanoByte and the Client.
27. System Requirements
27.1 The Client acknowledges that in order to use the Services, a modern browser and a stable connection to the Internet is required. The Services may work in a limited manner on other web browsers (such as earlier versions of the previously mentioned browsers), but the Services were not designed for use on web browsers other than those recommended by NanoByte. Any additional hardware or other equipment is required to comply with the provision of the Services shall be at the Client's own cost in addition to the Price.
28. Hosting Services
28.1 "Website" means a location (owned by the Client) which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical user Interface.
28.2 NanoByte will:
(a) install and host host the Website on NanoByte's webserver;
(b) ensure that from the "Live Date":
(i) sufficient capacity is maintained on NanoByte's webserver to enable users access to the Website in a timely manner;
(ii) the Website is accessible to users in accordance with the NanoByte's service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or Website maintenance in accordance with clause 28.2(c));
(c) provide the Client with reasonable access to the Website to perform maintenance services.
28.3 NanoByte will not:
(a)alter or amend, or permit any person to alter or amend the Website without the written consent of the Client;
(b) post or display on the Website any advertisement, sponsorship or promotion without the written consent of the Client;
(c) use any "User Data" for marketing, referral or other purposes except as expressly authorised by this agreement;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Website; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.
28.4 The Client will, at its sole cost and expense:
(a) develop and maintain the Website, unless specified otherwise and shall be subject to clause 5.2;
(b) provide Website content to NanoByte (in such form as reasonably prescribed by NanoByte) from time to time, and hereby grants NanoByte a non-exclusive, worldwide, irrevocable licence to use the content for the purposes of hosting the Website;
(c) do all things reasonably necessary to enable NanoByte to host the Website on NanoByte's webserver;
(d) ensure that the content supplied to NanoByte does not contain:
(i) prohibited content; any content that is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code, or contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful, or is, or could reasonably be considered to be, in breach of any person's intellectual property rights;
(ii) a link to any website that contains prohibited content; or
(iii) any viruses, trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
28.5 The Client will not do anything that prevents or hinders NanoByte from providing Hosting Services to any other person.
29. Monitoring Services
29.1 In the event the Client uses monitoring Services to monitor computer systems that they do not own, or have explicit written permission from the owner of such computer system to access, the Client shall not copy, disseminate, publish, make commercial use of, or otherwise use the data in any manner that interferes with such owner's rights.
30. Email Services
30.1 Email Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian or other laws that may apply in the local area is prohibited (including, but not limited to, material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights).
30.2 The Client must not use the Email Services:
(a) to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material;
(b) to send email campaigns that link to or display nudity, obscene content, gambling related content, pay day lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that NanoByte deems inappropriate;
(c) for the sending of unsolicited email (sometimes called "spam"); the Client must follow the rules of the Australian Spam Act 2003 (Cth) (and equivalent anti-spam legislation in all applicable countries) when sending emails through the Services.
30.3 If at any time the Client's email has been is flagged as spam by a recipient, NanoByte reserves the right to terminate this agreement without notice.
30.4 Emails the Client sends through the Services may generate abuse complaints from recipients. The Client shall be responsible for ensuring that emails do not generate a number of abuse complaints in excess of industry norms. NanoByte, in its sole discretion, shall determine whether the level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this agreement. Furthermore, NanoByte, at their sole discretion, may immediately disable the Client's access to the Services without refund if they believe that the Client has violated any term or condition herein.
31. Refund Policy
31.1 All goods returned to NanoByte Solutions must be accompanied by a Return Authorisation Number. Goods delivered without an RA will not be considered as returned goods.
31.2 Return Authorisation numbers are valid for seven (7) days from date of issue.
31.3 Cost of returning goods to NanoByte Solutions under warranty is the senders responsibility.
31.4 Goods should be properly packaged for return as goods damaged in transit will void warranty.
31.5 Goods returned for warranty will be repaired or replaced at NanoBytes discretion.
31.6 Whilst NanoByte Solutions will endeavour to return warranted goods to sender as quickly as possible, temporary replacement items will not be supplied.
31.7 A copy of original invoice must accompany warranty returns.
31.8 All products carry a 12-month warranty period from date of invoice except as otherwise indicated or advertised.
31.9 Goods returned, with No Fault Found will be charged a minimum service fee of $25.00 + 10% GST per item.
31.10 Customers cancelling orders after goods have been picked will incur a 15% restocking fee.
31.11 A restocking fee of 15% within 7 days, 20% within 14 days, and 30% within 30 days will be charged on all return goods which are not faulty. No refunds after 30 days of purchase.
31.12 For all returned product(s), customer must maintain a copy of the proof of delivery or consignment information to confirm delivery in case of future queries.
31.13 Please note that if the seal of a software package is broken the return or exchange cannot be accepted due to copyright and licensing restrictions unless faulty or defective.
31.14 Please confirm with NanoByte Solutions prior to purchasing as to whether a computer hardware or peripheral item is returnable, exchangeable or firm sale.
31.15 Any incorrect, missing or damaged items received must be reported to us within 24 hours of delivery. (Please quote the invoice number for reference).
31.16 Title of goods does not pass on to the customer until invoice has been paid in full and cleared.
31.17 Original invoice(s) must be presented for all warranty claims.
31.18 Physical damage and software reconfiguration are not covered under parts or labour warranty. Warranty does not cover damages to other equipments used in conjunction with goods purchased.
31.19 All optical devices, Tape drives, Printers, Scanners, Cameras, Notebooks, third party PCs eg: (HP, IBM, Acer Toshiba, LG, Fujitsu, Samsung, Canon, Sony, Benq, Philips) and all other external devices are covered only by manufactures warranty
31.20 All discrepancies with your purchase must be notified within 24 hours.