Recurring Services Terms and Conditions of Trade
Recurring Services
Updated 17/0/7/2023
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1. Definitions
1.1 “ETECH” means ETGroup Pty Ltd trading as Essential Tech, ABN 37 609 322 885, its successors and assigns or any person acting on behalf of and with the authority of ETGroup Pty Ltd trading as Essential Tech.
1.2 “Agreement End Date” means the Agreement end date of any IT Support Agreements and Third Party Software detailed within any support Agreement.
1.3 “Agreement Period” means the length of Agreement stated in any ETECH Support Agreement which The Client agrees to pay monthly charges for any IT Support Agreement and Third Party Software Agreement
1.4 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting ETECH to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Products via the website.
1.6 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.7 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”
1.8 “Goods” means all Goods or Services supplied by ETECH to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.9 “Agreement End Date” means the Agreement end date of any IT Support Agreements and Third-Party Software detailed within any support Agreement.
1.10 “Agreement Period” means the length of Agreement stated in any ETECH Support Agreement which The Client agrees to pay monthly charges for any IT Support Agreement and Third-Party Software Agreement.
1.11 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between ETECH and the Client in accordance with clause 3 below.
1.12 “Service Charges” means the monthly cost of any IT Support Agreements and Third Party Software detailed in any ETECH Support Agreement.
1.13 “IT Support Agreements” means the support offered by ETECH to The Client to help keep The Clients existing and any new IT Hardware and Software services up and running within the guidelines of this Agreement
1.14 “Third Party Software” means software from a third-party provider which ETECH is providing to the customer within the guidelines of the Agreement
2. Acceptance
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 the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and ETECH.
2.3 Any advice, recommendation, information, assistance or service provided by ETECH in relation to Goods and Services supplied is given in good faith, is based on ETECH’s own knowledge and experience and shall be accepted without liability on the part of ETECH and 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 Goods or Services
2.4 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with ETECH and it has been approved with a credit limit established for the account.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Pricing
3.1 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services. Any such GST and other taxes or duties are additionally at the Client’s account.
3.2 At ETECH’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by ETECH to the Client; or
(b) ETECH’s quoted price (subject to clause 4.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
3.3 If the Client requests any variation to the Agreement, ETECH may increase the price to account for the variation.
3.4 Where there is any change in the costs incurred by ETECH in relation to goods or services, ETECH may vary its price to take into account of any such change, by notifying the Client.
3.5 At ETECH’s sole discretion, a non-refundable deposit may be required.
4. Payment
4.1 The time for payment for the Goods is of the essence.
4.2 The Price will be payable by the Client on the date/s determined by ETECH, which may be:
(a) on completion of the services;
(b) by way of installments/progress payments in accordance with ETECH’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by ETECH.
(e) 7, 14, 21, or 30 days from invoice date;
4.3 Payment may be made by cheque, electronic/on-line banking, or by any other method as agreed to between the Client and ETECH.
4.4 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.5 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 ETECH nor to withhold payment of any invoice because part of that invoice is in dispute.
4.6 Prices quoted for supply of goods & services exclude GST and any other taxes or duties imposed on or in relation to the goods & services. In addition to the Price the Client must pay to ETECH an amount equal to any GST ETECH must pay for any supply by ETECH under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.7 Payment terms may be revoked or amended at ETECH’s sole discretion, immediately upon giving the Client written notice.
5. Charges
5.1 The provision of Managed Services on a remote, off-site basis (such as over the telephone or by e-mail) within the Managed Services Period shall be included in the Charges, subject to the Service level chosen by the Client.
5.2 The provision of Managed Services outside the Managed Service Period or the provision of Out-of-scope Services shall be charged for at the applicable time and materials rates as set out in ETECH’s Managed Services Charges definition.
5.3 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by ETECH, which may be:
(a) by way of instalments in accordance with ETECH payment schedule (Managed Services Charges are payable in advance, due the 1st of each month, with the first month being pro-rata from the date of commencement); and
(b) where completion of any additional Services are carried out, outside the scope of the payment schedule, the respective invoices shall be issued on either the fourteenth (14th) or thirtieth (30th) day, as agreed by the parties.
5.4 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 ETECH's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
5.5 If the Client owes ETECH's any money the Client shall indemnify ETECH from and against all costs and disbursements incurred by ETECH in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ETECH's contract default fee, and bank dishonour fees).
5.6 Further to any other rights or remedies ETECH's may have under this contract, if a Client has made payment to ETECH, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ETECH's under this clause 4 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
5.7 Receipt by ETECH, 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, and until then ETECH’s ownership or rights in respect of the Services, and this Contract, shall continue.
5.8 If the Client pays any Charges in advance and they are varied, or the Services are terminated, ETECH will refund the Client any overpayment, and the Client has to pay ETECH, any underpayment. This clause is strictly exclusive of all pre-paid plans and services, and does not detract from any obligations the Client may have to give notification to terminate the Services, or to pay early termination fees, where applicable.
5.9 The Services supplied under this Contract do not include, unless otherwise specified in writing by ETECH:
(a) travel and accommodation required to provide authorised on-site Services;
(b) courier and freight charges;
(c) products and services supplied by a third party. Where the provision of Services requires ETECH to obtain products and/or services from a third party, the Agreement between ETECH and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to ETECH, and the Client shall be liable for the cost in full including ETECH’s margin of such products and/or services.
(d) support of other software, accessories, attachments, machines, hardware, peripherals, systems or other devices not supplied by ETECH.
(e) rectification of lost or corrupted data arising from any reason other than the negligence, fault or omission of ETECH.
(f) support which is rendered more difficult because of any changes, alternation, addition, modifications or variations to the Services, the operating system or the operating environment.
(g) attendance to faults caused by using the Products.
(h) diagnosis or rectification of problems not associated with the Products.
(i) loss or damage caused directly or indirectly by operator error or omission and over which ETECH has no control; and
(j) any direct costs other than ETECH’s personnel’s time and ordinary overheads.
6. Personal Property Securities Act 2009 (“PPSA”)
6.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
6.2 Upon 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 Goods and/or collateral (account) – being a monetary obligation of the Client to ETECH for Services – that have previously been supplied and that will be supplied in the future by ETECH to the Client.
6.3 The 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 ETECH 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 6.3(a)(i) or 6.3(a)(ii);
(b) indemnify, and upon demand reimburse, ETECH 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 Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of ETECH;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of ETECH;
(e) immediately advise ETECH of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
6.4 ETECH 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.
6.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
6.7 Unless otherwise agreed to in writing by ETECH, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
6.8 The Client must unconditionally ratify any actions taken by ETECH under clauses 6.3 to 6.5.
6.9 Subject to any express provisions to the contrary (including those contained in this clause 6.6) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
7. Collateral & Assignment
7.1 The Client hereby charges all its right, title and interest in the property or properties referred to in the Client’s Credit Application and also any property or properties that it owns currently or may acquire in the future solely or jointly or have or become to have a beneficial interest in, in favour of ETECH, with the due and punctual observance and performance of all the obligations of the Client. The Client indemnifies ETECH against all expenses and legal costs (on a solicitor/own client basis) for preparing, loading and removing any caveat.
7.2 The Client hereby acknowledges that ETECH may at its discretion register and lodge a caveat(s) on such property or properties in respect of the interests conferred on it under clause 6.1. Such registration of a caveat by ETECH over the Client’s property or properties must not be challenged by the Client in any way whatsoever, and the Client agrees not to take any steps in filing a “lapsing notice” via the Land Titles Office to have the caveat removed, until such time that the Client has paid all monies owing by it to ETECH as claimed from time to time.
8. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
8.1 The Client must inspect the goods or services on delivery and must within seven (7) days of delivery notify ETECH in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the goods or services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ETECH to inspect the goods or services.
8.2 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).
8.3 ETECH acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
8.4 If the Client is a consumer within the meaning of the CCA, ETECH’s liability is limited to the extent permitted by section 64A of Schedule 2.
8.5 If ETECH is required to replace the Goods under this clause or the CCA, but is unable to do so, ETECH may refund any money the Client has paid for the Goods.
8.6 Subject to this clause 8.7, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) ETECH has agreed that the goods or services are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
8.7 ETECH may in its absolute discretion accept non-defective Goods for return in which case ETECH may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
8.8 Notwithstanding anything contained in this clause if ETECH is required by a law to accept a return then ETECH will only accept a return on the conditions imposed by that law.
8.9 Subject to clause 7.1, customised, or non-stock list items or Incidental Items made or ordered to the Client’s specifications are not acceptable for credit or return.
9. Default and Consequences of Default
9.1 If the Client defaults in payment by the due date of any amount payable to ETECH, then all money which would become payable by the Client to ETECH at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Client, and ETECH may, without prejudice to any of its other accrued or contingent rights:
(a) 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 ETECH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment;
(b) charge the Client a late payment administration fee equal to 10% of the invoice to a maximum of $200 plus GST;
(c) charge the Client for, and the Client must indemnify ETECH from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
(d) cease or suspend supply of any further goods or services to the Client
(e) by written notice to the Client, terminate any uncompleted contract with the Client.
9.2 Clauses 9.1(d) and 9.1(e) may also be relied upon, at ETECHs option:
(a) where the Client is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Client is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Client.
10. Title
101 ETECH and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid ETECH all amounts owing to ETECH; and
(b) the Client has met all of its other obligations to ETECH.
10.2 Receipt by ETECH 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.
10.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 10.1
(a) the Client is only a bailee of the Goods and must return the Goods to ETECH on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for ETECH and must pay to ETECH the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of
business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for ETECH and must pay or deliver the proceeds to ETECH on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of ETECH and must sell, dispose of or return the resulting product to ETECH as it so directs.
(e) the Client irrevocably authorises ETECH to enter any premises where ETECH believes the Goods are kept and recover possession of the Goods.
(f) ETECH may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ETECH.
(h) ETECH may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Submitting Support Requests And Access
11.1 The Client may request Managed Services by way of a Managed Services Request.
11.2 The Client shall provide ETECH with:
(a) prompt notice of any Faults; and
(b) such output and other data, documents, information, assistance and (subject to compliance with all Client's security and encryption requirements notified to ETECH in writing) remote access to the Client System, as are reasonably necessary to assist ETECH to reproduce operating conditions similar to those present when the Client detected the relevant Fault and
to respond to the relevant Managed Services Requests. All such data, documents and information shall constitute Client Confidential Information.
11.3 ETECH's obligation to respond to any Managed Services Requests shall not be dependent upon the Client reproducing the problem. However, the parties acknowledge that the time to resolve the problem may be impacted by ETECH's inability to reproduce the problem.
11.4 All Managed Services shall be provided from ETECH's office, however, where the basis of the Service Contract is based on a 24/7 contract, the Services may be carried out remotely at a member of staff’s premises via their own personal internet connection using VPN secured technology.
11.5 The Client acknowledges that, to properly assess and resolve Managed Services Requests, it may be necessary to permit ETECH direct access at the Client Site to the Client System and the Client's files, equipment and personnel.
11.6 The Client shall provide such access promptly, provided that ETECH complies with all the Client's security requirements and other policies and procedures relating to contractors entering and working on the Client Site notified to ETECH.
12. Early Termination Fee
12.1 The Client will be liable for an Early Termination Fee where you elect to cancel your service, or your service is terminated by ETECH prior to the minimum contract period specified in the SLA (Service Level Agreement) or proposal.
12.2 The Early Termination Fee is calculated using the following formula - Early Termination Fee = (contract Term – completed contract months) x monthly value.
12.3 The Client acknowledges that the Early Termination Fee represents a genuine pre-estimate of the loss ETECH will suffer and is not a penalty.
13. Third Party Products
13.1 ETECH offers no warranty in relation to third party products. Those being products manufactured or supplied by parties other than ETECH. All products supplied by ETECH are covered by the manufactures warranty where applicable.
13.2 ETECH offers no additional warranties in relation to these products. ETECH makes no representations as to whether products or services of third parties will work on the client systems other than that, where applicable, the manufacturer of those products or supplier of those services have claimed either directly to ETECH in correspondence or through their product documentation that these products or services will work on the target systems types.
14. Damages Due to Third Party Products
14.1 Client agrees that it indemnifies ETECH for any damages or consequential damages due to faulty products or products that do not perform to the manufacturer’s specification. Client agrees that it will not seek compensation from ETECH for damages resulting from the failure of any product in any way. Client agrees that it accepts the Products’ manufacturers warranties are the only warranties relating to the product and that ETECH offer no further warranties in relation to third party products. If a third party product or service does not function correctly, or fails after a period. The client’s remedies exist only with the manufacturer of the products in so far as the manufactures warranty and acceptance of use permits.
15. Software Updates
15.1 The client agrees to indemnify ETECH against damages due to errors or failures and subsequent damages that arise form updates supplied by system manufacturers and applied to systems by ETECH.
16. Backups
16.1 The Client is responsible for maintaining their own backups (including but not limited to, e-mail and software) on their own systems, unless otherwise agreed in writing; ETECH does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly.
16.2 If the Client requires assistance in creating backups, please contact ETECH, an additional fee will apply in accordance with clause 3.3.
16.3 Where ETECH is instructed to execute back-ups on behalf the Client, ETECH will use their best endeavours to ensure complete and accurate backups of the Client’s data, but assume no responsibility for this duty. It is recommended by ETECH that the Client always keeps a backup of their computer and website whenever possible. ETECH makes no guarantees about the availability of backups.
17. Authorisation to Work on Systems
17.1 By engaging ETECH in any capacity to work on the clients systems, the client authorises ETECH to update, install, uninstall, make modification to, make configuration changes to and otherwise alter software installed on the client systems, and, add or remove or otherwise make modifications to hardware in the system, in so far as such alterations are reasonable and justifiable in order to diagnose, repair, or otherwise achieve the desired outcome on the client systems. The client also understands and accepts that client systems may become unavailable to the client during the period in which work on client systems is in progress. The client also indemnifies ETECH against problems and resulting damages arising from such alterations or systems unavailability. ETECH will endeavour to minimise disruption to and availability of systems while work is on progress in so far as it does not interfere with the work to be done. ETECH will endeavour to keep the client informed of the status of systems availability to the best of its ability and where practical to do so.
18. Cancellation
18.1 Without prejudice to any other remedies ETECH may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ETECH may suspend or terminate the supply of Goods to the Client. ETECH will not be liable to the Client for any loss or damage the Client suffers because ETECH has exercised its rights under this clause.
18.2 ETECH may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice ETECH shall repay to the Client any money paid by the Client for the Goods. ETECH shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by ETECH as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy
19.1 All emails, documents, images or other recorded information held or used by the Contractor is Personal Information, as defined and referred to in clause 12.2, and therefore considered Confidential Information. The Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
19.2 The Client agrees for ETECH to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by ETECH.
19.3 The Client agrees that ETECH may exchange information about the Client with those credit providers and with related body corporates 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 including the Client’s repayment history in the preceding two (2) years.
19.4 The Client consents to ETECH being given a consumer credit report to collect overdue payment on commercial credit.
19.5 The Client agrees that personal credit information provided may be used and retained by ETECH for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
19.6 ETECH may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report; allow the CRB to create or maintain a credit information file about the Client including credit history.
19.7 The information given to the CRB may include:
(a) personal information as outlined in 19.1 above;
(b) name of the credit provider and that ETECH is a current credit provider to the Client;
(c.) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and ETECH has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of ETECH, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.8 The Client shall have the right to request (by e-mail) from ETECH:
(a) a copy of the information about the Client retained by ETECH and the right to request that ETECH correct any incorrect information; and
(b) that ETECH does not disclose any personal information about the Client for the purpose of direct marketing.
19.9 ETECH will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfill the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
19.10 The Client can make a privacy complaint by contacting ETECH via e-mail. ETECH will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20. Trusts
If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Essential Tech Pty Ltd may have notice of the Trust, the Client covenants with Essential Tech Pty Ltd as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Client will not without consent in writing of Essential Tech Pty Ltd will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
21. Intellectual Property
21.1 Where the ETECH has designed, drawn, written plans or a schedule of Services, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the ETECH, and shall only be used by the Client at the ETECH’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the ETECH.
21.2 The Client warrants that all designs, specifications or instructions given to the ETECH will not cause the ETECH to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the ETECH against any action taken by a third party against the ETECH in respect of any such infringement.
21.3 The Client agrees that the ETECH may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the ETECH has created for the Client.
22. Force Majeure
22.1. Neither ETECH or the Client shall be liable for any default on a Project due to any force majeure act, event or cause (other than lack of funds which is beyond the reasonable control of that party, including:
(a) Act of God, peril of the sea, accident of navigation, war, sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, quarantine, radiation or radioactive contamination;
(b) Action or inaction of any government or governmental or other competent authority (including any court of competent jurisdiction), including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; and
(c) Breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material.
23. General
23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which ETECH has its principal place of business and are subject to the jurisdiction of the courts in Brisbane.
23.3 Subject to clause 8, ETECH shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ETECH of these terms and conditions (alternatively ETECH’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.4 ETECH may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
23.5 The Client cannot licence or assign without the written approval of ETECH.
23.6 ETECH may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of ETECH’s subcontractors without the authority of ETECH.
23.7 The Client agrees that ETECH may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for ETECH to provide Goods to the Client.
23.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them