Terms & Conditions

The Budget Computer Company – Terms & Conditions of Trade 

 © Copyright – EC Credit Control 1999 - 2017-#35752

  1. Definitions

    1. “TBCC” means Technology Enterprises Australia Pty Ltd T/A The Budget Computer Company, its successors and assigns or any person acting on behalf of and with the authority of Technology Enterprises Australia Pty Ltd T/A The Budget Computer Company.

    2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting TBCC to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

      1. if there is more than one Client, is a reference to each Client jointly and severally; and

      2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

      3. includes the Client’s executors, administrators, successors and permitted assigns.

    3.  “Services” means all Goods (which includes any files, information, printed or virtual material, data, hardware or software, whether provided from a third party or where custom developed or programmed for the Client) and/or Services (which includes any advice or recommendations, installation of Goods, product support, etc.) provided by TBCC 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).

    4. “Price” means the price payable (plus any GST where applicable) for the Services as agreed between TBCC and the Client in accordance with clause 5 of this contract.

    5. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

 

  1. Acceptance

    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 Services provided by TBCC.

    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 agreement between the Client and TBCC.

    3. Services provided by TBCC are subject to availability and only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

    4. None of TBCC agents or representatives are authorised to make any representations, statements, conditions or contracts not expressed by the manager of TBCC in writing nor is TBCC bound by any such unauthorised statements.

    5. Once accepted by the Client, TBCC written quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, TBCC shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.

    6. This contract constitutes the entire contract between TBCC and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by TBCC, but not embodied in this contract.

    7. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW & SA), the Electronic Transactions Act 2001 (ACT), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions Act 2003 (WA), the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (TAS), or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. Errors & Omissions

    1. The Client acknowledges and accepts that TBCC shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

      1. resulting from an inadvertent mistake made by TBCC in the formation and/or administration of this contract; and/or

      2. contained/omitted in/from any literature (hard copy and/or electronic) supplied by TBCC in respect of the Services.

    2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of TBCC; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

  1. Change in Control

    1. The Client shall give TBCC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by TBCC as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment

    1. At TBCC sole discretion the Price shall be either:

      1. as indicated on any invoice provided by TBCC to the Client; or

      2. the Price as at the date of provision of the Services according to TBCC current hourly rate schedule; or

      3. TBCC quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days, excluding promotional offers.

    2. Additional and/or Varied Services:

      1. TBCC reserves the right to vary the Price:

        1. if a variation to the Goods, or plan of scheduled Services, is requested (including, but not limited to, any change in the Client’s specifications, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, any request to investigate and/or repair any faults or defects outside TBCC normal business hours);

        2. as a result of increases beyond TBCC reasonable control in the cost of materials or labour, or due to fluctuations in currency exchange rates.

      2. Where the performance of any contract with the Client requires TBCC to obtain products and/or services from a third party, the contract between TBCC and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to TBCC, and the Client shall be liable for the cost in full including TBCC margin of such products and/or services;

      3. All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client; or

      4. In the event that TBCC is requested to provide on-site Services, TBCC reserves the right to charge a minimum call-out fee equal to one (1) hours labour (and/or two (2) hours labour for any requested provision of Services after-hours), plus travel and Goods.

    3. Variations will be charged for on the basis of TBCC’s quotation, and will be detailed in writing, and shown as variations on TBCC’s invoice. The Client shall be required to respond to any variation submitted by TBCC within ten (10) working days.  Failure to do so will entitle TBCC to add the cost of the variation to the Price.  Payment for all variations must be made in full at the time of their completion.

    4. At TBCC’s sole discretion, a non-refundable deposit may be required upon the Client’s acceptance of TBCC quotation.

    5. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by TBCC, which may be:

      1. on provision of the Services;

      2. the date specified on any invoice or other form as being the date for payment; or

      3. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by TBCC.

    6. Payment may be made by cash, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and TBCC.

    7. 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 TBCC nor to withhold payment of any invoice because part of that invoice is in dispute.

    8. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to TBCC an amount equal to any GST TBCC must pay for any provision of Services by TBCC under this or any other contract. 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.

    9. The Client acknowledges and agrees that the Client’s obligations to TBCC for the provision of the Services shall not cease (and the ownership of any Goods as per clause 9 shall not pass) until:

      1. the Client has paid TBCC all amounts owing for the particular Services; and

      2. the Client has met all other obligations due by the Client to TBCC in respect of all contracts between TBCC and the Client.

    10. Receipt by TBCC 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 TBCC ownership or rights in respect of the Services, and this contract, shall continue.

 

  1. Provision of Goods and/or Services

    1. Any time specified by TBCC for provision of the Services is an estimate only and TBCC will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that TBCC is unable to provide the Services as agreed solely due to any action or inaction of the Client, then TBCC shall be entitled to:

      1. charge the Client additionally for re-providing the Services at a later time and date; or

      2. subject to clause 15.3, terminate the contract.

    2. Provision of the Goods is taken to occur at the time that TBCC (or TBCC nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address. At TBCC sole discretion, the cost of delivery is included in the Price, unless otherwise stated.

    3. The Client must take delivery, by receipt of the Goods, whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then TBCC shall be entitled to charge a reasonable fee for redelivery and/or storage.

    4. TBCC may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

    5. In the event the Goods ordered by the Client are unavailable, TBCC may (at their sole discretion) substitute Goods with similar specifications and quality. The Client shall be entitled to return these Goods to TBCC within five (5) business days of the date of delivery and TBCC will credit the Client the Price of the Goods less any expenses incurred (including, but not limited to, delivery costs) by TBCC.

    6. The Client acknowledges that items presented for repair may be replaced by refurbished Goods of the same type rather than being repaired.

 

  1. Client’s Property and Materials

    1. In the case of the Client’s property being left with TBCC without specific instructions, TBCC shall be free to dispose of such property at the end of sixty (60) days after TBCC receiving it and to either accept and retain the proceeds (if any) and/or charge the Client in addition to the Price to cover TBCC own costs in storing, handling and/or disposing of such property, in accordance with clause 19.

    2. Where products or equipment are supplied by the Client, TBCC accepts no responsibility for imperfect work caused by defects in or unsuitability of such products or equipment.

 

  1. Risk and Limitation of Liability

    1. Risk of damage to or loss of the Goods passes to the Client on Delivery, and the Client must insure the Goods on or before Delivery.

    2. If any of the Goods are damaged or destroyed following Delivery, but prior to ownership passing to the Client, TBCC is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TBCC is sufficient evidence of TBCC rights to receive the insurance proceeds without the need for any person dealing with TBCC to make further enquiries.

    3. If the Client requests TBCC to leave Goods outside TBCC premises for collection, or to deliver the Goods to an unattended address, then such Goods shall be left at the Client’s sole risk.

    4. The Client acknowledges and agrees that TBCC shall not be held responsible or liable for:

      1. any loss, corruption, or deletion of files or data (including, but not limited to, hard drives-internal and external, diskettes, CD’s, DVDs, PC cards or software programmes) resulting from illegal hacking or Services provided by TBCC. Whilst TBCC will endeavour to restore the files or data (at the Client’s cost), and it is the sole responsibility of the Client to back-up any data (and/or to remove any removable media) which they believe to be important, valuable, or irreplaceable prior to TBCC providing the Services. The Client accepts full responsibility for the Client’s software and data and TBCC is not required to advise or remind the Client of appropriate backup procedures; or

      2. any unlicensed software, data loss or problems arising caused by the user or software.

    5. The Client acknowledges that any advice or recommendations by TBCC are provided on the basis of TBCC industry knowledge and experience only and shall not be deemed as specialist advice.

    6. TBCC, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of Services by TBCC to the Client.

    7. The Client acknowledges that it is the policy of TBCC to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.

 

  1. Title

    1. It is agreed that:

      1. until ownership of the Goods passes to the Client in accordance with clause 5.9, that the Client is only a bailee of the Goods and must return the Goods to TBCC on request.

      2. the Client holds the benefit of the Client’s insurance of the Goods on trust for TBCC and must pay to TBCC the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. 

      3. 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 TBCC and must pay or deliver the proceeds to TBCC on demand.

      4. 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 TBCC and must sell, dispose of or return the resulting product to TBCC as it so directs.

      5. the Client irrevocably authorises TBCC to enter any premises where TBCC believes the Goods are kept and recover possession of the Goods.

      6. TBCC may recover possession of any Goods in transit whether or not delivery has occurred.

      7. 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 TBCC.

      8. TBCC may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

  1. Personal Property Securities Act 2009 (“PPSA”)

    1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

    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 TBCC for Services – that have previously been provided, and that will be provided in the future, by TBCC to the Client.

    3. The Client undertakes to:

      1. 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 TBCC may reasonably require to;

        1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

        2. register any other document required to be registered by the PPSA; or

        3. correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);

      2. indemnify, and upon demand reimburse, TBCC 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 registration made thereby;

      3. not register a financing change statement in respect of a security interest without the prior written consent of TBCC;

      4. 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 TBCC.

    4. TBCC 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.

    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. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

    7. Unless otherwise agreed to in writing by TBCC, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

    8. The Client must unconditionally ratify any actions taken by TBCC under clauses 10.3 to 10.5.

    9. Subject to any express provisions to the contrary (including those contained in this clause 10) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

    1. The Client must inspect TBCC on completion (Goods on delivery) and must within seven (7) days notify TBCC in writing of any evident defect in the Services provided (including TBCC workmanship) or of any other failure by TBCC to comply with the description of, or quote for, the Services which TBCC was to provide. The Client must notify any other alleged defect in TBCC as soon as is reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow TBCC to review the Services that were provided.

    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).

    3. TBCC acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

    4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, TBCC makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. TBCC liability in respect of these warranties is limited to the fullest extent permitted by law.

    5. If the Client is a consumer within the meaning of the CCA, TBCC liability is limited to the extent permitted by section 64A of Schedule 2.

    6. If TBCC is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then TBCC 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 Services which have been provided to the Client which were not defective.

    7. If the Client is not a consumer within the meaning of the CCA, TBCC liability for any defective Services is:

      1. limited to the value of any express warranty or warranty card provided to the Client by TBCC at TBCC sole discretion;

      2. otherwise negated absolutely.

    8. Notwithstanding clauses 11.1 to 11.7 but subject to the CCA, TBCC shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

      1. the Client failing to properly maintain or store the Services;

      2. the Client using the Services for any purpose other than that for which they were designed;

      3. the Client continuing to use any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

      4. interference with the Services by the Client or any third party without TBCC prior approval;

      5. the Client failing to follow any instructions or guidelines provided by TBCC;

      6. fair wear and tear (including the fading of inks), any accident, or act of God.

    9. In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by TBCC 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 TBCC has agreed to provide the Client with the second-hand Goods and calculated the Price of the second-hand Goods in reliance of this clause 11.9.

    10. TBCC may in its absolute discretion accept non-defective Goods for return in which case TBCC may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.

    11. Notwithstanding anything contained in this clause if TBCC is required by a law to accept a return then TBCC will only accept a return on the conditions imposed by that law.

 

  1. Intellectual Property Rights

    1. Where TBCC has designed, created or developed Services for the Client, then the copyright in those Services shall remain the property of TBCC, and the Client undertakes to acknowledge TBCC designs (etc.) in the event that the Services are utilised in advertising or marketing material by the Client. Under no circumstances may such designs, drawings and documents be used without the express written approval of TBCC. 

    2. The Client warrants that all designs, specifications or instructions given to TBCC will not cause TBCC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TBCC against any action taken by a third party against TBCC in respect of any such infringement.

    3. The Client agrees that TBCC may (at no cost) use for the purposes of marketing or entry into any competition, any Services which TBCC has created for, and/or provided to, the Client.

 

  1. Default and Consequences of Default

    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 TBCC sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

    2. If the Client owes TBCC any money the Client shall indemnify TBCC from and against all costs and disbursements incurred by TBCC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TBCC contract default fee, and bank dishonour fees).

    3. Without prejudice to TBCC other remedies at law TBCC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TBCC shall, whether or not due for payment, become immediately payable if:

      1. any money payable to TBCC becomes overdue, or in TBCC opinion the Client will be unable to make a payment when it falls due;

      2. the Client has exceeded any applicable credit limit provided by TBCC;

      3. 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

      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Confidentiality

    1. The Client acknowledges that TBCC may, from time to time, disclose certain confidential information and documentation of TBCC relating to the Services, their marketing, use maintenance and software, including technical specifications. The Client must use this confidential information solely for the purposes contemplated under any relevant sales contract and the Client must not at any time disclose, whether directly or indirectly to any third party this confidential information. These obligations on the part of the Client do not apply to any information which is otherwise public knowledge within the public domain or which is required to be disclosed by law.

 

  1. Cancellation and Termination

    1. Without prejudice to any other remedies TBCC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TBCC may suspend or terminate the provision of Services to the Client. TBCC will not be liable to the Client for any loss or damage the Client suffers because TBCC has exercised its rights under this clause.

    2. TBCC may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. TBCC shall not be liable for any loss or damage whatever arising from such cancellation.

    3. At TBCC sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by TBCC up to the time of cancellation. Notice of termination must be provided in writing thirty (30) days prior to cancellation, unless otherwise agreed to.  Cancellation of orders for special or non-catalogue Goods will definitely not be accepted, once these orders have been placed.

    4. Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this contract will be terminated by TBCC (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.

 

  1. Privacy Act 1988

    1. The Client agrees for TBCC 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 TBCC.

    2. The Client agrees that TBCC may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

      1. to assess an application by the Client; and/or

      2. to notify other credit providers of a default by the Client; and/or

      3. 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

      4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.

    3. The Client consents to TBCC being given a consumer credit report to collect overdue payment on commercial credit.

    4. The Client agrees that personal credit information provided may be used and retained by TBCC for the following purposes (and for other agreed purposes or required by):

      1. the provision of Services; and/or

      2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or

      3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

      4. enabling the collection of amounts outstanding in relation to the Services.

    5. TBCC may give information about the Client to a CRB for the following purposes:

      1. to obtain a consumer credit report;

      2. allow the CRB to create or maintain a credit information file about the Client including credit history.

    6. The information given to the CRB may include:

      1. personal information as outlined in 16.1 above;

      2. name of the credit provider and that TBCC is a current credit provider to the Client;

      3. whether the credit provider is a licensee;

      4. type of consumer credit;

      5. 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);

      6. 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 TBCC has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

      7. information that, in the opinion of TBCC, the Client has committed a serious credit infringement;

      8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

    7. The Client shall have the right to request (by e-mail) from TBCC:

      1. a copy of the information about the Client retained by TBCC and the right to request that TBCC correct any incorrect information; and

      2. that TBCC does not disclose any personal information about the Client for the purpose of direct marketing.

    8. TBCC 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 fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.

    9. The Client can make a privacy complaint by contacting TBCC via e-mail. TBCC 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.

 

  1. Limitation of Liability and Indemnity

    1. The Client agrees to indemnify TBCC, it’s employees, agents and affiliates (and their employees and agents) against any action, claim, loss or expense arising from the Services, or cancellation, or failure to provide the Services, and all costs, losses and expenses suffered or incurred by TBCC, its employees, agents and affiliates (and their employees and agents) as a result of any breach by the Client of these conditions or any other contract between the Client and TBCC.

    2. The Client acknowledges that, due to the nature of the Services, technical difficulties may arise which could prevent the provision thereof; and the Client, therefore, agrees to indemnify TBCC against any costs or losses incurred by the Client as a result of this.

 

  1. Security and Charge

    1. In consideration of TBCC agreeing to provide the 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).

    2. The Client indemnifies TBCC from and against all TBCC costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TBCC rights under this clause.

    3. The Client irrevocably appoints TBCC and each director of TBCC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Unpaid Seller’s Rights

    1. Where the Client has left any item with TBCC for repair, modification, exchange or for TBCC to perform any other service in relation to the item and TBCC has not received or been tendered the whole of any moneys owing to it by the Client, TBCC shall have, until all moneys owing to TBCC are paid:

      1. a lien on the item; and

      2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

    2. The lien of TBCC shall continue despite the commencement of proceedings, or judgment for any moneys owing to TBCC having been obtained against the Client.

 

  1. Service of Notices

    1. Any written notice given under this contract shall be deemed to have been given and received:

      1. by handing the notice to the other party, in person;

      2. by leaving it at the address of the other party as stated in this contract;

      3. by sending it by registered post to the address of the other party as stated in this contract;

      4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

      5. if sent by email to the other party’s last known email address.

    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

  1. Trusts

    1. 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 TBCC may have notice of the Trust, the Client covenants with TBCC as follows:

      1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

      2. 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.

      3. The Client will not without consent in writing of TBCC (TBCC will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

        1. the removal, replacement or retirement of the Client as Trustee of the Trust;

        2. any alteration to or variation of the terms of the Trust;

        3. any advancement or distribution of capital of the Trust; or

        4. any resettlement of the trust property.

 

  1. General

    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.

    2. Both parties agree for the purpose of this contract the Services shall be governed by the laws of the state in which the sale is made however, in the event that a matter is to be pursued in a court of law, then the Client accepts TBCC right to have the matter heard in a court of law in South Australia, being the state in which TBCC has its principal place of business.

    3. Subject to clause 11, TBCC shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by TBCC, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TBCC of these terms and conditions, caused by any failure by the Client to comply with their obligations under this contract, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively TBCC liability shall be limited to damages which under no circumstances shall exceed the Price).

    4. TBCC may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

    5. The Client cannot licence or assign without the written approval of TBCC.

    6. TBCC 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 TBCC’s sub-contractors without the authority of TBCC.

    7. The Client agrees that 19.5       TBCC 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 TBCC to provide Goods to the Client.

    8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

    9. Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.

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