1.1 The supply of goods and/or the performance of services by Pixel Cube ("we" or "us" or "our") to all its customers ("you") is offered only and exclusively on the following terms and conditions. By requesting, ordering or otherwise permitting us to supply goods to or perform services for you, you hereby accept irrevocably and unconditionally our offer without derogation or qualification.
2.0 Basis of Contract
2.1 Unless otherwise agreed by us in writing, these Conditions apply to every supply of goods and provision of services by us to you and cannot be varied, amended or supplemented by any other terms or conditions without our prior written consent.
2.2 Any written quotation provided by us to you concerning the proposed supply of goods or services is valid for 30 days and is an invitation only to you to place an order based upon that quotation.
3.0 Charges and Payment
Credit card payments will attract a Merchant Service Fee (MSF) of 2.8% for Visa or MasterCard.
3.2 All our visits are chargeable and are charged in half hour units. Any part thereof is chargeable at the same rate as a full half hour.
3.3 All goods supplied by us are charged separately from the services.
3.4 Where there is any change in the costs incurred by us in relation to the goods or services, we may vary our price for goods or services in order to take account of any such change, without giving notice to you.
3.5 Call-out fees may be applied at rates dependent on your suburb.
3.6 Surcharges may be applied on same day and/or outside business hours visits.
4.0 Payment Default
4.1 If you default in the payment by the due date of any amount payable to us, or if any cheque drawn by you is dishonoured, then all money which is then due as well as all monies that are payable by you to us at a later date on any account, shall be due and payable immediately without the requirement of any notice to you, and we may, without prejudice to any other right or remedy available to us:-
(a) charge you interest on any sum due at the rate of 2% above the corporate reference rate of our principal banker. This interest shall be calculated daily and compounded every 30 days for the period from the due date until the date of payment in full; and
(b) charge you for all expenses and costs (including debt collection commission and fees, legal costs on a full indemnity basis and dishonoured cheque fees) suffered or incurred by us resulting from the default, including taking whatever action we deem appropriate to recover any amounts due (which, for the avoidance of doubt, shall include engaging Collection Management Services or other debt collection agency to seek to recover the amounts due); and
(c) cease or suspend for such period as we think fit, supply of any further goods or services to you; and
(d) by notice in writing to you, terminate any contract with you so far as unperformed by us; without effect on our accrued rights under this or any other any contract.
4.2 Clause 4.1 may also be relied upon, at our option:
(a) where you are an individual, you become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally; or
(b) where you are a corporation, you enters into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or you have a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, your liquidation (including provisional liquidation), winding up or dissolution without winding up.
5.0 Passing of Property
5.1 Until full payment in cleared funds is received by us for all goods supplied by us to you, as well as all other amounts owing to us by you:
(a) title and property in all goods remains vested in us and does not pass to you;
(b) you must hold the goods as fiduciary bailee and agent for us;
(c) you must keep the goods separate from your other goods and maintain the labelling and packaging of the goods;
(d) you hereby undertake to us to hold the proceeds of any sale of the goods on trust for us in a separate account, however any failure to do so will not affect your obligation to deal with the proceeds as our trustee;
(e) we may, without notice, enter any premises where we suspect the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of us, and for this purpose you irrevocably license us to enter such premises and shall also indemnify us and hold us harmless from and against all costs, claims, demands or actions by any party arising from such action.
6.0 Risk and Insurance
The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods shall pass to you immediately upon delivery of the goods to the premises nominated by you.
7.0 Performance of contract
7.1 Any period or date for delivery of goods or provision of services stated by us is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
7.2 Whilst every attempt will be made to perform the repairs onsite, it may be necessary to return your system to our base or third party for diagnosis and repair.
8.0 Warranties & Returns
8.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
8.2 We stand behind our service. If you notify us of a problem with the services you were provided, and our diagnosis of the problem indicates that our services were not performed satisfactorily, we will work to provide a solution to your problem quickly and at no additional cost to you.
8.3 You acknowledge that computers are complicated and sometimes problems are more deeply rooted or complicated than initially diagnosed. You also acknowledge that a problem which occurs with your computer after our visit may be unrelated to the work we performed for you and is therefore outside the scope of our warranty.
8.4 In addition to your rights, and the remedies that may be available to you, under the Australian Consumer Law or any other law that applies to the goods or services you purchase from us, you may also be entitled to additional benefits under the terms of any Manufacturer's Warranty relating to your Product.
8.5 Goods that Pixel Cube sell are often covered by a manufacturer's warranty, if so the documentation for which is provided with the goods themselves.
8.6 Pixel Cube's Optional On-Site Warranty Service is in addition to your rights and remedies under the Australian Consumer Law, any other law that applies to the goods or services that you purchase from us, and any Manufacturer's Warranty relating to your Product.
8.7 If you purchase the Optional On-Site Warranty Service, in the event of a Mechanical or Electrical Failure of the Product covered by the manufacturer's warranty, at our sole discretion, we will:
a) Pick up the product from any Melbourne Metro or South East Suburb address
b) Act on your behalf to arrange for the product to be repaired or replaced in accordance with the manufacturer's warranty terms & conditions
c) Test the repaired or replaced Product
d) Deliver the repaired or replaced Product to any Melbourne Metro or South East Suburb address
e) Re-perform any labour that has been purchased from Pixel Cube where the benefits of such labour have been lost as a result of the Mechanical or Electrical Failure of the Product
8.8 Without limiting or restricting the other rights and remedies that may be available to you under the Australian Consumer Law or any other law in relation to the Product, this On-Site Warranty Service does not cover:
a) Mechanical or Electrical Failure of the Product caused by: negligence, accidental or deliberate misuse or unauthorised alterations;
failure to follow the manufacturer's instructions for usage, installation, operation or maintenance; external sources, including electrical interference, power surges and voltage fluctuations; infestations of vermin, pests or insects; acts of God; water damage, rust or corrosion; defects in the Product brought to your attention before you originally purchased it;
b) repairs to:
- cosmetic items, such as paint or finishing, which do not affect the operation of the Product;
- accessories used in or with the Product unless those accessories are covered under a separate extended warranty;
- cartridges, software, or add-on options incorporated in the Product;
c) cost of replacement of any item or accessory, either external or internal that is intended to be replaceable, including fuses, batteries, light bulbs, etc.
d) loss, damage or costs incurred as a result of:
- damage to or loss of software, data or removable data medium caused by the Mechanical or Electrical Failure of the Product;
- using the Product for purposes other than those described in these terms and conditions;
- not being able to use the Product following Mechanical or Electrical Failure of the Product
e) loss, damage or costs incurred where no Mechanical or Electrical Failure is identified;
f) normal maintenance costs
g) the Product if it is recalled by the manufacturer, importer or a government agency;
h) any claim against you by any third party including for personal injury or damage to property;
i) any claim by you for personal injury or damage to property;
8.9 Please be aware that where the Product is capable of retaining user-generated data, this may be lost during a repair process. We therefore recommend that you back up your data prior to any repair. Data may be stored in files and folders on such appliances as your computer, telephone contacts in your mobile telephone, songs and other media stored on portable recordable devices.
8.10 We may refuse to action a claim under your On-Site Warranty Service, or reduce the benefits available to you in respect of the claim, if, in our reasonable opinion, you make any misrepresentation or commit any fraudulent or dishonest act or omission in connection with the claim.
8.11 If the On-Site Warranty Service is cancelled after the item has been purchased there will be no refund of the fee you have paid.
8.12 Returned items or cancelled orders will be accepted entirely at Pixel Cube's discretion, and may attract a restocking fee of 15%.
9.0 Customer's Responsibilities
9.1 You shall be solely responsible for all data inputs, the manner of use of the goods by all those to whom it provides access and all outputs derived, and all other results of such processing.
9.2 You shall comply, at your own expense, with any recommendations and guidelines with respect to the use of the goods, including any adjustments or replacements required in respect of equipment and software that is incidental or collateral to the use of the goods.
9.3 You shall ensure that your operators are adequately trained and informed as to the use of the goods and shall comply with guidelines and procedures supplied by us and/or any third party manufacturer from time to time.
9.4 You shall promptly report errors or faults in the operation of any aspect of the goods or any provision of the services in accordance with applicable fault reporting procedures from time to time.
9.5 You shall perform general "housekeeping", testing, adjustment and/or maintenance as recommended by us in respect of any goods supplied by us in order to maximise the availability of and performance of the goods or permit performance by us of any of our obligations hereunder.
9.6 You agree to exercise due care and carry out such precautions which may be recommended by us or otherwise required as a matter of prudence in connection with the performance by us of any of our obligations hereunder, for example, but without limiting the generality of the foregoing, advising your staff of system restarts or scheduled downtime, recording of error information, and will co-operate with other system administration activities such as, but not limited to, running diagnostic tests and operational readiness tasks.
9.7 You shall as a fundamental term of these Conditions back up all software, data and files that are stored on your computer and/or on any other storage devices you may have prior to the arrival of the Pixel Cube technician. We and/or our third party service provider shall not be responsible at any time for any loss, alteration or corruption of any such software, data or files. Repair of goods may result in loss of data.
9.8 Onsite services involve our Pixel Cube technicians visiting you at your home or other location (Premises) requested by you.
9.8.1 You must ensure that a person of at least 18 years of age is present for the duration of the provision of onsite services.
9.8.2 You must provide our technicians with:
(a) access to the areas of your premises necessary to provide services;
(b) necessary passwords to your computer;
(c) a safe working environment and working space;
(d) electrical power and internet access (where applicable).
9.8.3 If the services involve the installation of software, then you must provide our technicians with the installation disks for your operating system or software along with a product key for this software.
10.1 To the full extent permitted by applicable law, all conditions, warranties, representations, indemnities and guarantees with respect to the goods and/or the services, or other goods or services that may be provided by Pixel Cube under these Conditions, that may otherwise be implied by statute, law, equity, trade custom, prior dealings between the Parties or otherwise (including, but not limited to, any implied warranty of merchantability, fitness for particular purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
10.2 Except to the extent specifically provided in these Conditions, our sole liability to you for any and all breaches of any term or terms of these Conditions, whether express or implied, shall be limited to:
10.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of the fees and charges paid by you under these Conditions as at the date of the breach;
10.2.2 in relation to goods if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the goods or the supply of equivalent goods; or
(b) payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the repair of the goods or payment of the cost of having the goods repaired,
as in each case we may elect; and
10.2.3 in relation to services if supplied to you as a consumer (as defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again,
as in each case we may elect.
10.3 In no event shall we be liable to you or to any third party under or in connection with these Conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
10.3.1 malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) our actions that were expressly or impliedly authorised by you, or by your employees or agents;
(c) accident, misuse or abuse by anyone other than us;
(d) alteration or modification of the goods by anyone other than us;
(e) products (including any hardware or software) not licensed or supplied by us that are attached to or used with the goods;
(f) your failure to provide a proper operating and working environment for the goods;
(g) damage during any movement, relocation or re-installation of the goods;
(h) power surge or failure,
(i) acts of God or acts outside our reasonable control;
(j) any other condition not arising under normal operating conditions; or
(k) normal wear and tear; or
10.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach of your obligations or responsibilities set out in these Conditions.
10.4 Any replacement of parts under warranty will be carried out at the premises nominated by us. The cost and risk of transport of any defective part to the nominated premises is your responsibility.
10.5 In no event will we be liable to you or to any third party under or in connection with these conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
10.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
10.5.2 your liability to any third party; or
10.5.3 incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused, including without limitation the breach of these Conditions or any expiration or termination of these Conditions, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if we have been advised of the possibility of such loss or damage.
10.6 We will not be liable for any loss or damage suffered by you where we have failed to meet any delivery date or cancelled or suspended the supply of goods or services.
10.7 Nothing contained in these Conditions excludes, restricts or modifies any:
10.7.1 implied condition, warranty or other implied obligation in relation to these Conditions or the goods and services where pursuant to applicable law to do so is unlawful or void; or
10.7.2 liability for fraud or deceit; or
10.7.3 liability for death or personal injury caused by the negligence of either Party.
11.0 Copyright in Software
11.1 We will not be responsible to you or any third party for any breach of any software licence in respect of software provided to us by you to be installed on your computer.
11.2 You hereby warrant that you have a valid licence in respect of such software and shall indemnify us and hold us harmless against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of us installing software at your request.
12.1 If, through circumstances beyond our reasonable control, we are unable to effect delivery or provision of goods or services, then we may cancel your order (even if it has already been accepted) by notice in writing to you.
12.2 If you give us less than twenty-four (24) hours notice to cancel any request for on-site service, then we may charge a cancellation fee equal to the first hour of service at the rates quoted at the time of booking for the loss and expense caused.
14.0 No representation or reliance
14.1 You acknowledge that neither we nor any person acting on behalf of us has made any representation or other inducement to it to enter into these Conditions, except for representations or inducements expressly set out in these Conditions.
14.2 You acknowledge and confirm that you do not enter into these Conditions in reliance on any representation or other inducement by or on behalf of us, except for representations or inducements expressly set out in these Conditions.
14.3 Without limiting the generality of clauses 14.1 and 14.2, you understand and hereby confirm that:
(a) your decision to enter into these Conditions was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by us or any person on its behalf in relation to the capacity, uses or benefits that might or would be derived or obtained from the goods or services, except as expressly set out in clause 8, and
(b) you have relied on your own skill and judgement in deciding to purchase and acquire the goods and services.
15.1 By signing the Pixel Cube Application for Retail Credit Account document, you agree to guarantee to abide by these trading terms and that you shall be personally liable for all fees for services performed in accordance with the agreement and these terms and conditions.
16.0 Entire Agreement
16.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
16.1.1 embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed by the Parties; and
16.1.2 supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the Parties.
17.0 Governing law
17.1 This Agreement is governed by and must be construed according to the law applying in Victoria. The Parties hereby irrevocably submit to the jurisdiction of the courts of Victoria.
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