Terms & Conditions
These Terms and any document(s) referred to in them constitute the entire agreement about Megan Bennett Family Trust T/A Pixel Portal supply of the products and services to Customer and supersede all prior understandings, arrangements and agreements.
In these Terms and Conditions
(a) “Company” means Megan Bennett Family Trust T/A Pixel Portal ABN 82 159 845 944
(b) “Client” includes the person, firm, corporation, company or any other body whatsoever who engages the Company for the supply of services and
(c) “Engagements” means any specified engagements of the Company by the Client for the provision of the Services.
(d) “Services” means any consulting or business advisory or other services as may be supplied by the Company to the Client.
(e) "Products" means any products (including software) supplied to Customer by Roy Adams Computer Services and described in Roy Adams Computer Services Invoice(s)
2. APPLICABLE TERMS
2.1 All engagements shall be confirmed in writing by either a) The Company confirming in writing to the Client the basis and scope of the engagement including fees and costs that may be charged to the Client by the Company, or b) The Client confirming in writing to the Company the basis and scope of the engagement including fees and costs that may be charged to the Client by the Company.
2.2 All engagements between the Client and the Company shall be subject only to the terms and conditions contained herein. Other terms and conditions (including any written terms and conditions of the Client) apply only if they are confirmed in writing by the Company and no variation of these terms and conditions under which engagements are accepted shall be effective unless that variation is confirmed in writing by the Company and signed on behalf of the Company by a Director.
3. ACCEPTANCE OF FOR ENGAGEMENTS & SERVICES
3.1 Engagements and services accepted by the Company shall constitute an irrevocable commitment on the part of the Client to purchase from the Company the specified services subject to the terms and conditions herein. 3.2 Any request on the part of the Client to cancel, amend or reschedule any Engagements or Services or part thereof shall be accepted only at the discretion of the Company and shall be subject to any specific terms as may be then stipulated by the Company in connection with such cancellation, amendment or rescheduling.
3.3 The Company reserves the right to at any time decline to accept any Engagement or Services or any part of any Engagement requested or ordered by the Client.
4. FEES AND QUOTATIONS FOR SERVICES
4.1 Any written quotation for the provision of services shall be valid for 14 days from the date of the quotation.
4.2 Prices shown on any quotation are exclusive of any Goods and Services Tax (GST) or any other applicable purchase taxes or levies.
4.3 The customer shall bear any other state or government applied taxes, levies or surcharges payable in relation to procuring and/or using the services.
5.1 All orders for Products placed by Customer:
i) are subject to acceptance by Megan Bennett Family Trust T/A Pixel Portal , and no order will be deemed to have been accepted by Megan Bennett Family Trust T/A Pixel Portal unless Products are supplied or a back-order or delivery delay is confirmed in writing by an authorised representative of Megan Bennett Family Trust T/A Pixel Portal to Customer.
ii) Megan Bennett Family Trust T/A Pixel Portal will not be bound by any terms attaching to Customer's order and, unless those terms are expressly agreed to in writing by an authorised representative of Megan Bennett Family Trust T/A Pixel Portal , Customer agrees that those terms are hereby excluded.
6.1 Delivery times advised to Customer are estimates only and Megan Bennett Family Trust T/A Pixel Portal will not be liable for any loss, damage or delay suffered or incurred by Customer or its customers arising from late or non-delivery of the Products, Services or Engagements.
7. PART DELIVERIES
7.1 Megan Bennett Family Trust T/A Pixel Portal may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products, Services or Engagements upon these Terms.
8.1 The price of the Products, Services or Engagements will be Megan Bennett Family Trust T/A Pixel Portal quoted price.
8.2 Megan Bennett Family Trust T/A Pixel Portal may, in its sole discretion:
i) suspend the provision of credit to Customer until all amounts owing are paid for in full; and
ii) from time to time and at any time, vary or cancel any credit facility it makes available to Customer.
8.3 Unless stated otherwise in these Terms (or in writing by Megan Bennett Family Trust T/A Pixel Portal authorised representative), all prices quoted for Products, Services or Engagements are exclusive of all taxes, handling, delivery, agents' charges and any other charge, duty or impost.
8.4 Customer must pay Megan Bennett Family Trust T/A Pixel Portal , within previously approved trading terms, or within terms as stated on invoice.
8.5 Customer must pay to Megan Bennett Family Trust T/A Pixel Portal any amount Customer must pay under clause 8.1 in full, despite any right of setoff that Customer may have.
9.1 To the extent that a Product supplied under these Terms is a software Product then, in addition to these Terms, that Product will be supplied subject to the terms and conditions of the relevant licence agreement applicable to it.
9.2 Software licence agreements may be packaged with the software, may be separately provided to Customer for execution or may require on-screen acceptance by Customer. Customer agrees to use the software Product in accordance with the terms and conditions of the relevant licence agreement.
9.3 In the event of the Company providing to the Client packaged software products the following provisions shall apply:
(i) In the case of packaged software products supplied by the company where the terms of the software licence specify the applicable warranty terms, warranty will be governed by the terms of the software licence relating to that product.
(ii) No representation or warranty is given as to the suitability or fitness of the packaged software for any purpose and the Client shall satisfy himself in this respect and will be totally responsible therefore.
10. INSPECTION & ACCEPTANCE
10.1 in the case of all Products ordered (other than software Products), inspect such Products upon delivery to Customer's premises; or,
10.2 in the case of software Products, test or inspect such software Products upon those Products being authorised by Megan Bennett Family Trust T/A Pixel Portal for downloading by Customer, and must, within 7 days of delivery or downloading (as the case may be), give written notice to Megan Bennett Family Trust T/A Pixel Portal of any matter or thing by which Customer alleges that the Products do not accord with Customer's order. Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by Customer.
11. TITLE AND RISK
11.1 Products supplied by Megan Bennett Family Trust T/A Pixel Portal to Customer will be at Customer's risk immediately upon: i) delivery of the Products to the Customer, Customer’s agent or into the Customer's custody or control; or
ii) collection of the Products by the Customer’s nominated carrier or agent.
11.2 Customer must:
i) effect and maintain with a reputable insurance company insurance for the Products, Services or Engagement at its cost, against all risks as it thinks appropriate;
11.3 Risk in the Products, Services and Engagements, will remain with Customer at all times unless Megan Bennett Family Trust T/A Pixel Portal retakes possession of the Products Services and Engagements in accordance with clause 8(f)(ii).
11.4 Title in the Products Services and Engagements supplied by Megan Bennett Family Trust T/A Pixel Portal to Customer will not pass to Customer and will remain the absolute property of Megan Bennett Family Trust T/A Pixel Portal until such time as Megan Bennett Family Trust T/A Pixel Portal has been paid by Customer all monies due and owing to it by the Customer in relation to any account. Title to those Services and Engagements Products which are software remains with Megan Bennett Family Trust T/A Pixel Portal and/or the applicable third party licensor(s) at all times.
11.5 Until the Products have been paid for:
i) Customer must properly segregate and store the Products, Services and Engagements in such manner as to clearly indicate that they are the property of Megan Bennett Family Trust T/A Pixel Portal ; and
ii) Customer may sell the Products and shall keep records of the Products in the ordinary course of its business as fiduciary agent for Megan Bennett Family Trust T/A Pixel Portal and Customer agrees to deposit all proceeds of any such sale (including any proceeds received from any insurance claims) in a separate bank account and agrees not to mix the proceeds with any other monies and hold the monies on trust for Megan Bennett Family Trust T/A Pixel Portal and shall immediately account for such proceeds to Megan Bennett Family Trust
11.6 If Customer has breached these Terms or the terms of any relevant Sales Contract, Customer authorises Megan Bennett Family Trust T/A Pixel Portal , at any time, to enter onto any premises upon which Megan Bennett Family Trust T/A Pixel Portal Products are stored to enable Megan Bennett Family Trust T/A Pixel Portal to:
i) inspect the Products; and/or
ii) reclaim the Products.
11.7 Customer acknowledges that in the case of software Products, any refusal or failure to pay may result in cancellation of the licence to use the software Product.
11.8 Customer agrees that the provisions of this clause 8 apply despite any arrangement under which Megan Bennett Family Trust T/A Pixel Portal grants credit to Customer.
12.1 Customer must notify Megan Bennett Family Trust T/A Pixel Portal in writing of any Products, Services or Engagements it wishes to return/refund within 30 days from the date of the invoice relating to those Products, Services or Engagements.
12.2 Returns will be subject to Megan Bennett Family Trust T/A Pixel Portal returns policy as advised to Customer and amended by Megan Bennett Family Trust T/A Pixel Portal from time to time.
12.3 Megan Bennett Family Trust T/A Pixel Portal will not be liable for any damage or defects in the Products, Services and Engagements that have been caused by the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorised repair of Megan Bennett Family Trust T/A Pixel Portal Products, Services and Engagements.
12.4 The provisions of this clause 9 do not extend to any Products, Services and Engagements which have been added to, varied, or otherwise modified by, any person other than Megan Bennett Family Trust T/A Pixel Portal .
13.1 Payment is due in Australian Dollars $ within 7 days following the date of invoice, unless expressly agreed otherwise in writing by the Company. In the event of payment not being received within 7 days the Company shall have the option to:
a) Charge interest on the overdue balance outstanding at the rate of 10% per annum above the current Prime Bank Rate.
b) At the sole discretion of the Company, suspend the provision of any further Services to the Client until such time as all overdue payments are received.
13.2 The Client shall not be entitled to cancel, suspend or modify the Client’s order for the provision of the Services in the event of the
Company electing to suspend provision of the Services under as a result of such suspension. Where the Company elects to suspend provision of the Services owing to overdue payment then Company shall bear no liability in relation to subsequent late delivery or failure to meet any previously defined delivery schedule or deadline as a direct or indirect consequence of prior suspension of delivery of the Services owing to overdue payment.
13.3 The Client will not be entitled by reason of any claim against the Company to withhold payment of the fees in respect of the Services, or to claim any right of setoff against any payment due to the Company under this or any other contract.
13.4 The granting of any credit by the Company to the Client shall be at the Company’s absolute discretion.
14.1 Whilst the Company takes every precaution in the preparation of its information sheets, guides, web site and other literature, these documents and the particulars therein are for the Client’s general guidance only and shall not constitute representations by the Company and the Company shall not be bound thereby.
15. DELIVERY & EXECUTION OF SERVICES
15.1 Delivery and execution dates are approximate only, and whilst every effort will be made to meet such dates, the Company will not accept responsibility or liability if any delivery dates are not met.
15.2 The Company may invoice the Client separately for each part of the Services as and when such parts are executed or delivered unless specifically agreed otherwise.
15.3 If execution of the services is to be to a mutually agreed written schedule, each part shall be deemed to be a separate provision of the Services and the default of the Company in respect of any one or more installments shall not entitle the Client to repudiate the contract with regard to all or any other installments.
15.4 Where delivery and/or execution of the services requires work to be undertaken at locations away from the Company’s normal place of business, it shall be the responsibility of the client to ensure that adequate provisions of infrastructure and external services are available at that location to enable provision of the Services. Such infrastructure and external services may include (but are not limited to) Desks and office infrastructure Electricity, Heating/Air Conditioning, Telephone Services, Network and Internet Connectivity, Access to required data and/or computing equipment/services.
15.5 In the event that the Company is unable to deliver, deploy or execute the agreed services at an external location owing to limitations or non-availability of required infrastructure or external services then the Client shall still be liable to pay the Company as if such services had been provided or (at the discretion of the Company) pay an amount pro-rata to the Company’s normal daily charge out rate in respect of the staff so deployed plus related expenses.
16. SUPPLY OF PRODUCTS/GOODS
In the event of the Company providing to the Client products or goods the following provisions shall apply:
16.1 Risk in the goods shall pass to the Client when the goods are delivered to the Client or its Agent.
16.2 Notwithstanding the risk in the goods passing in accordance with Clause 15.1 title in the goods will not pass to the Client until the Company has received payment for the goods although the client is licensed by the Company to use the goods so delivered.
16.3 Warranty in any products or goods supplied shall be limited to the original product manufacturer’s warranty (to the extent available to the Client) and the warranty obligation of the Company thereto shall be limited only to providing such information as may be necessary to assist the Client in obtaining the benefit of the manufacturer’s warranty.
16.4 No representation or warranty is given as to the suitability or fitness of the products or goods for any purpose and the Client shall satisfy himself in this respect and will be totally responsible therefore.
17. EXCLUSIONS OF LIABILITY
17.1 The Company shall not be liable to the Client by reason of any representation or any implied warranty or condition or other term or any duty at common law or under these terms and conditions for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company its employees or agents or otherwise) which arise out of or in connection with the supply of the Services.
17.2 The Company’s total liability for any one claim or for the total of all claims arising from any one act or default of the Company (whether arising from the Company’s negligence or otherwise) shall not exceed the fees received by the Company for the Services.
18. RELATIONSHIP OF THE PARTIES
18.1 It is specifically agreed that the relationship of the parties shall be one of the Company acting as a contracted consultant to the Client and no other interpretation shall be applied to the relationship unless specifically agreed in writing between the Company and the Client. >
19. THIRD PARTY CLAIMS
19.1 If as part of the Engagement and/or the delivery of the Services the Company shall have cause to conduct communications, interactions or negotiations with any Third party then the Client and (being a body corporate) the Directors of the Client (where there being more than one Director, the Directors acting jointly and severally) indemnify the Company and will hold the Company harmless from any claims or actions by any Third party who may seek or make any claim of liability against the Company in connection with any actions or communications undertaken for or on behalf of the Client. 19.2 For the purposes of the interpretation of clause 19.1 the following definitions shall also apply: a) “Third Party” shall include (but shall not be limited to) current or former or prospective third party entities of the following categories; Customers/Clients, Employees, Suppliers, Bankers, Creditors, Advisors, Tax authorities, Courts and law enforcement agencies, State or Federal Government departments or bodies, Regulatory or Statutory bodies. b) ‘The Company’ shall include (but shall not be limited to) Directors, Staff, Consultants, Subcontractors, Agents or other servants to the Company wether acting as either a body corporate or as a private individual.
19.3 The provisions of this clause 19 shall survive and remain in effect after the termination of the Engagement or cessation of the provision of the Services to the Client by the Company.
20. INTELLECTUAL PROPERTY
20.1 Intellectual property (if any) in any printed materials, software, data, methodologies, designs or other items of intellectual property created by the Company in relation to provision of the Services shall remain the property of the Company. Where the use of such materials by the client shall form part of the execution and delivery of the Services then the Client is granted a non-transferable licence to use the materials for the purposes specified by the Company for the duration of the Engagement.
21. FORCE MAJEURE
21.1 The performance of all contracts is subject to variation or cancellation by the Company owing to any Act of God, war, strikes, fire, flood, drought, tempest or any other cause beyond the control of the Company or owing to any inability by the Company to procure materials or articles required for the performance of the contract and the Company shall not be held responsible for any inability to deliver caused by any such contingency.
22.1 In any case where these Terms and Conditions of Sale conflict with any provision of the Trade Practices Act 1974 or any subsequent modification or re-enactment thereof, these Terms and Conditions of Sale shall prevail.
22.2 These Terms and Conditions shall be governed and construed in the accordance with the laws of Queensland and their parties submit to the jurisdiction of the Queensland Courts.
22.3 The headings of the terms and conditions are for convenience only and shall have no effect on the interpretation hereof.
22.4 The Company reserves the right to alter or modify these Terms and Conditions without notice.
22.6 The Client authorises the Company to hold and process relevant information on the Client (and where relevant the staff or agents of the Client) for the purpose of administering the account. Such data may also be used by the Company and/or it’s associated Companies for the purposes of the marketing and promotion of the Company’s and/or it’s associated Companies products and services. All information will be held in compliance with prevailing Data Privacy legislation.