The supply of goods and/or the performance of services by Computer Mechanics Franchising (“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.
Mandatory Repair Notices
As per the Competition and Consumer Act 2010, please note the following Mandatory Repair Notices required by law:
(a) Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
(b) Repair of goods may result in loss of data.
In these conditions:
“ACL” means the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010;
“Conditions” means these Terms and Conditions;
“Customer” or “you“ means a person, firm or corporation, jointly and severally if more than one, that requests goods or services from us;
“goods” means all products and other goods (including any software) supplied by us to you or on your behalf;
“including“ is not a word of limitation and means without limitation;
“services” means all services performed by us for you or on your behalf;
“business hours” means Monday to Friday 9am to 5.30pm, excluding gazetted public holidays;
“Computer Mechanics” or “we“ or “us“ or “our“ means Computer Mechanics Franchising (ABN 16 106 648 999); and
“Party“ and “Parties“ means (severally and not jointly) Computer Mechanics and/or the Customer as the context requires.
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 7 days and is an invitation only to you to place an order based upon that quotation. These Conditions may be supplemented by additional terms in our quotation which are not inconsistent with these Conditions.
3.0 Charges and Payment
3.1 Payment for goods and services must be made by cash or credit card prior to the supply of the goods or the performance of the services unless you have a credit account with us. Credit card payments will attract a Merchant Service Fee (MSF) of 2.5% for Visa or MasterCard and 5% for American Express.
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 on 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.
3.7 If you nominate and are approved for the good(s) or service(s) you have purchased to be invoiced, you may be charged an account fee per invoice issued. This fee will be advised in advance.
3.8 If you exceed your approved credit terms, you will be charged a $12.00 late payment fee. A revised invoice will be sent to you.
3.9 Support Packs (Prepaid Hours):
(a) Once you have purchased a block of prepaid hours it cannot be cancelled.
(b) You are obliged to pay for the services that Computer Mechanics agrees to provide you with regardless of whether you utilise those services. If you do not provide Computer Mechanics with the necessary materials or information for Computer Mechanics to deliver the services to you, you are still liable to Computer Mechanics for full payment.
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 Dun & Bradstreet 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 Computer Mechanics Warranties
8.1 If we cannot provide you with a solution to your problem, we will not charge you further those services in respect of that problem. In some cases, the solution may be that you need to upgrade or replace your software or hardware. If we advise you to do so and you choose not to upgrade or replace your software or hardware, you acknowledge that we have met our commitment to you by providing you with a solution to your problem, whether or not you choose to implement that solution.
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.
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 Service Guarantee.
8.4 You acknowledge that any equipment presented for repair may have pre-existing damage or other problems, and that Computer Mechanics cannot, due to such pre-existing damage, assume responsibility for such damage or further problems resulting therefrom.
8.5 When we sell you equipment, hardware or software, we may be selling such equipment, hardware or software on behalf of a third party manufacturer or licensor. We do not warrant that the operation of any software we install or service will be uninterrupted or error free. You acknowledge that software (and information technology and communications products generally), including your software, may have errors and may encounter unexpected problems, and accordingly, you may experience downtime and errors in the use of software. You also acknowledge that your use of such software may be subject to a third party licence.
8.6 We shall honour all terms, conditions and obligations (if any) that are implied or imposed under applicable State or Commonwealth laws concerning the supply of the goods and/or the performance of the services and nothing in these Conditions seeks to restrict, modify, limit or exclude such terms, conditions or obligations. Our express warranty and guarantee are in addition to and do not affect your statutory rights and remedies (if any).
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 represent and warrant to Computer Mechanics that you are the owner of, and/or have the right to be in possession of and make decisions regarding, all data, media or equipment (“Data”) provided to Computer Mechanics , and that you have obtained all necessary consents required under the Privacy Act 1988 (Cth) in relation to the disclosure of personal information by you to Computer Mechanics and to the use of that personal information by Computer Mechanics , and that your collection, possession, processing and transfer of such Data is in compliance with data protection and privacy laws to which you are subject. You indemnify Computer Mechanics from any expense (including reasonable legal fees), damage or liability arising out of any claim, demand or suit resulting from a breach of your warranties.
9.8 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 Computer Mechanics 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.
9.9 Onsite services involve our Computer Mechanics technicians visiting you at your home or other location (Premises) requested by you.
9.9.1 You must ensure that a person of at least 18 years of age is present for the duration of the provision of onsite services.
9.9.2 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).
9.9.3 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 The goods may come with guarantees that cannot be excluded under the ACL. You may therefore be entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You may also be 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. You may also be entitled to remedies that cannot be excluded under the ACL if any services supplied by us fail to meet a consumer guarantee under the ACL. Furthermore, nothing contained in these Conditions excludes, restricts, limits or modifies any:
(a) term, condition, warranty, guarantee or obligation in relation to the goods and/or the services (nor any right or remedy in relation to the breach or non-performance of any such term, condition, warranty, guarantee or obligation) where pursuant to applicable law to do so is unlawful or void or unenforceable; or
(b) liability for fraud or deceit; or
(c) liability for death or personal injury.
10.2 Subject always to clause 10.1, and without excluding, restricting, limiting or modifying the rights and remedies to which you (if you are a consumer as defined by the ACL) may be entitled under the ACL or our liability to you thereunder:
(a) you acknowledge that we are not the manufacturer of the goods and have no control whatsoever over their manufacture, and, accordingly, the goods are provided “as is” (that is, as supplied by the manufacturer) and that we do not make any warranty or representation as to the quality and/or the suitability of the goods;
(b) all terms, 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 us under these Conditions, that may otherwise be implied or imposed by statute, law, equity, trade custom, prior dealings between us or otherwise, are hereby excluded;
(c) our liability to you for loss or damage of any kind arising out of, or in connection with, these Conditions and/or the goods and/or the services, is reduced to the extent (if any) that you cause or contribute to the loss or damage;
(d) in no event shall we be liable to you under, arising out of, in connection with, or in respect of, either these Conditions and/or the goods and/or the services for:
(i) any loss, damage, cost or expense of any nature that was 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 maintain the goods or 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;
(k) normal wear and tear;
(l) any breach of your obligations or responsibilities set out in these Conditions;
(m) our failure to meet any delivery date or cancelled or suspended supply of goods or services;
(ii) loss of profit;
(iii) business interruption costs or expenses;
(iv) loss of or damage to goodwill or reputation;
(v) the failure to realize an expectation benefit;
(vi) liability to any third party;
(vii) loss of or corruption to data;
(viii) consequential loss, damage, cost or expense; or
(ix) incidental or indirect loss, damage, cost or expense; or
(x) special, exemplary or punitive damages or fines,
even if we have been advised of the possibility of such loss, liability, damage, cost, expense or fines; and
(e) except to the extent already excluded or limited under these Conditions, our maximum liability to you under, arising out of, in connection with, or in respect of, either these Conditions and/or the goods and/or the services, shall be limited to:
(i) in relation to goods if supplied to you as a consumer (as defined in the ACL):
(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
(ii) in relation to services if supplied to you as a consumer (as defined in the ACL):
(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 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.
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 onsite 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.
13.0 Same Day Service Available
“Same Day Service Available” is only available for some computer repair services. Same day service attracts a surcharge and must be brought to our workshop no later than 10am Monday through Friday, excluding holidays. We may assign specific appointment times at our discretion, either for our own purposes or as a courtesy to you. Your request for specific appointment times are not covered by this guarantee in any way. This guarantee only applies to some services and does not ensure that all necessary work can be completed on the same day. Any changes made by you to a same day service request that is already scheduled void this guarantee in its entirety. Additional restrictions may apply. We may cancel this offer at any time.
14.0 Feedback and Information
Computer Mechanics welcomes your feedback. It helps us improve! Any written feedback you provide to us shall be deemed to be non-confidential. Computer Mechanics shall be free to use such information on an unrestricted basis.
15.0 No representation or reliance
15.1 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.
15.2 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.
15.3 Without limiting the generality of clauses 15.1 and 15.2, 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.
16.0 Entire Agreement
16.1 To the full 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 Western Australia. The Parties hereby irrevocably submit to the jurisdiction of the courts of Western Australia.