Terms & Conditions
1.1 “CF” shall mean Computer Function Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Computer Function Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by CF to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by CF to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by CF to the Customer.
1.5 “Services” shall mean all Services supplied by CF to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between CF and the Customer in accordance with clause 5 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Application of these terms and conditions to consumers
3.1 Clause 9 (Defects), clause 10 (Returns) and clause 11 (Warranty) shall NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
4.1 Any instructions received by CF from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by CF shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
4.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of CF.
4.4 The Customer shall give CF not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by CF as a result of the Customer’s failure to comply with this clause.
5. Price And Payment
5.1 At CF’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by CF to the Customer in respect of Goods supplied; or
(b) CF’s quoted Price (subject to clause 5.2) which shall be binding upon CF provided that the Customer shall accept CF’s quotation in writing within thirty (30) days.
5.2 CF reserves the right to change the Price in the event of a variation to CF’s quotation.
5.3 At CF’s sole discretion a deposit may be required.
5.4 At CF’s sole discretion a minimum charge may apply to all work undertaken even if the Customer decides not to proceed with the repair.
5.5 At CF’s sole discretion payment shall be due before delivery of the Goods.
5.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
5.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit or debit card (a surcharge of up to five percent (5%) of the price may be applicable), or by direct credit, or by any other method as agreed to between the Customer and CF.
5.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. Delivery Of Goods
6.1 At CF’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at CF’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by CF or CF’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
6.2 At CF’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
6.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then CF shall be entitled to charge a reasonable fee for redelivery.
6.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.5 The failure of CF to deliver shall not entitle either party to treat this contract as repudiated.
6.6 CF shall not be liable for any loss or damage whatever due to failure by CF to deliver the Goods (or any of them) promptly or at all due to circumstances beyond the control of CF.
7.1 If CF retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, CF is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CF is sufficient evidence of CF’s rights to receive the insurance proceeds without the need for any person dealing with CF to make further enquiries.
7.3 CF shall not be held liable for any loss, corruption, or deletion of files or data (including, but not limited to, software programmes) resulting from servicing or repairs being undertaken on the Goods. It is the sole responsibility of the Customer to back-up any data which they believe to be important, valuable or irreplaceable prior to bringing in any Goods for servicing or repairs. The Customer shall back up all data stored in the Goods to be returned and remove any removable media, such as diskettes, CDs, DVDs or PC Cards from the Goods before returning or submitting the Goods for repair or replacement. The Customer accepts full responsibility for the Customer’s software and data and CF is not required to advise or remind the Customer of appropriate backup and other procedures.
7.4 Specifications of systems and products may change at any time without notice.
7.5 All third party software is provided at the Customer’s own risk and is not in any way warranted by CF nor shall CF be in any way responsible for the implementation or effects of any “patches”, “updates”, or “fixes” offered by the manufacturer of the software.
8.1 CF and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid CF all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to CF in respect of all contracts between CF and the Customer.
8.2 Receipt by CF 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 CF’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until CF shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from CF to the Customer CF may give notice in writing to the Customer to return the Goods or any of them to CF. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) CF shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to CF then CF or CF’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as CF has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for CF; and
(f) the Customer shall not deal with the money of CF in any way which may be adverse to CF; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of CF; and
(h) CF can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that CF will be the owner of the end products.
9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify CF of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford CF an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which CF has agreed in writing that the Customer is entitled to reject, CF’s liability is limited to either (at CF’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10.1 Returns under CF’s “Computer Function Money Back Guarantee for Desktop Computers” are subject to the conditions contained in the document of that name when supplied to the Customer at the time of sale.
10.2 Other returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 9.1; and
(b) CF has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) CF will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.3 CF may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
11.1 Any “Computer Function Exclusive 3 Year Warranty” provided to the Customer by CF shall be subject to the conditions contained in the document of that name when supplied to the Customer at the time of sale.
11.2 For Goods not manufactured by CF, the warranty shall be the current warranty provided by the manufacturer of the Goods at the time of purchase. CF shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods at that time.
11.3 A book in fee will apply to all non warranty service work.
12. Intellectual Property
12.1 Where CF has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in CF, and shall only be used by the Customer at CF’s discretion.
12.2 The Customer warrants that all designs or instructions to CF will not cause CF to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify CF against any action taken by a third party against CF in respect of any such infringement.
12.3 Where CF has provided computer software and documentation, CF retains ownership of the computer software and documentation, but grants a licence to the Customer for use of the computer software and documentation. The Customer will use any third-party software supplied by CF, and identified as such, strictly in terms of the licence under which it is supplied.
13. Default & Consequences of Default
13.1 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify CF from and against all costs and disbursements incurred by CF in pursuing the debt including legal costs on a solicitor and own client basis and CF’s collection agency costs.
13.3 Without prejudice to any other remedies CF may have, if at any time the Customer is in breach of any obligation (including those relating to payment), CF may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. CF will not be liable to the Customer for any loss or damage the Customer suffers because CF has exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to CF’s other remedies at law CF shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to CF shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to CF becomes overdue, or in CF’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which CF may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to CF or CF’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that CF (or CF’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should CF elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify CF from and against all CF’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint CF or CF’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 CF may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice CF shall repay to the Customer any sums paid in respect of the Price. CF shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by CF (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation by the Customer of a finance contract will incur a twenty percent (20%) administration fee.
15.4 Orders and Invoices being cancelled or returned due to “change of mind” will incur a twenty percent (20%) fee based on the total order/invoice value.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for CF to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by CF.
16.2 The Customer and/or the Guarantor/s agree that CF may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to CF being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by CF for the following purposes and for other purposes as shall be agreed between the Customer and CF or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by CF, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 CF may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17. Unpaid CF’s Rights
17.1 Where the Customer has left any item with CF for repair, modification, exchange or for CF to perform any other Service in relation to the item and CF has not received or been tendered the whole of the Price, or the payment has been dishonoured, CF shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while CF is in possession of the item;
(c) a right to sell the item.
17.2 The lien of CF shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
18.1 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
18.3 CF shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CF of these terms and conditions.
18.4 In the event of any breach of this contract by CF the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by CF.
18.6 CF may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Customer agrees that CF may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which CF notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 The failure by CF to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CF’s right to subsequently enforce that provision.