COMPUTER REPAIR SERVICES AGREEMENT
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CONTRACT DETAILS
Parties
____________________ of ____________________ ('Recipient')
-AND-
Fleurieu Info Tech (48 752 572 088) of PO Box 2093, Middleton, South Australia, 5213 ('Provider').
AGREEMENT SUMMARY
This Agreement is made on ____________________.
The Recipient has engaged the Provider to provide the Services. By signing this Agreement, the Provider accepts the terms and conditions of this Agreement, and agrees to provide the Recipient with the Services.
ORDER DETAILS
Service Description
Commencement Date ____________________
2. The Services Computer repair services- IT & Technology Break / Fix, Installation, Configuration, Website creation, IT Consulting
3. Location of the Services ____________________________________________
4. Consideration The Recipient shall pay the Provider $____________________
5. Payment Schedule The Recipient will pay the Provider within 7 days of service completion.
6. Method of Payment Cash, Bank Transfer, PayPal, Credit Card
7. Means of communication
Provider: 0499 448 095, hello@fleurieuinfotech.com.au
Recipient: ________________________________________
LEGAL TERMS
1. Definitions and interpretation
1.1. Definitions
The following words have these meanings in this Agreement unless the contrary intention appears:
Agreement means this Computer Repair Services Agreement, including any annexure;
Business Day means any day excluding Saturday, Sunday, a public holiday in South Australia and/or a Commonwealth public holiday;
Confidential Information means any information that is:
(a) Information, ideas forms, specifications, processes, statements, formulae, trade secrets, drawings and data (and copies and extracts made of or from that information and data) that is not in the public domain is considered confidential information; and
(b) confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by the Recipient or the Provider in the provision of the Services;
Order Details means the order for Services provided to the Provider from the Recipient from time to time; and
Services means the services specified in Item 2 of the Order Details or as agreed between the Parties occasionally.
1. 2. Interpretation In this Agreement:
(a) references to a person include an individual, form or a body, whether incorporated or unincorporated;
(b) clause headings are for references only and shall not form part of this Agreement nor be used in the interpretation of this Agreement;
(c) if the time of doing an act or thing under this Agreement falls on a day which is not a Business Day, then the time of doing that act or thing shall be deemed to be the next Business Day;
(d) words in the singular include the plural and vice versa in accordance with the context of which that word is used;
(e) words importing a gender include other genders;
(f) a reference to a clause is a reference to a clause in this Agreement;
(g) a reference to any of the words 'include', 'includes' and 'including' is to be read as if followed by the words "without limitation";
(h) a reference to a statute, ordinance, code or law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;
(i) a reference to any party include that party's executors, administrators, substitutes, successors and permitted assigns; and
(j) each party has participated in the negotiating and drafting of this document, and in the event of ambiguity or a question of interpretation arising, this Agreement is to be construed as if the Agreement was drafted jointly.
2. Commencing and completing the Services
2. 1. Commencing the Services
(a) The Provider will commence the Services on the Commencement Date.
(b) The Provider must, within 48 hours, provide written notice to the Recipient requesting additional information if all of the relevant information and material for completion of the Services has not been provided for the completion of the Services. If no written notice is provided, it is implied all relevant information and materials have been supplied.
2.2. Term
The Services will continue until both parties decide to terminate the Agreement in accordance with clause 5 of this Agreement.
2. 3. Rejection of the Services
(a) Notwithstanding clause 2.4 of this Agreement, the Recipient may reject the completed Services provided by the Provider if the Recipient deems the completed Services have not been completed in accordance with the description provided in Item 2 of the Agreement Summary.
(b) If the Recipient deems the Services incomplete, the Provider agrees to rectify the Services within seven 7 days. If the Services are not rectified or are still deemed to be not in accordance with the Order Details by the Recipient, the Recipient may cancel the Services and the Provider must refund all monies paid to it in fulfilment of the Services within 3 Business Days and release the Recipient from all claims for payment in relation to works performed with respect to the Services.
2. 4. Alterations to the Services
(a) If the Provider is required to alter the description of the Services, the Provider must first obtain written consent from the Recipient.
2. 5. Outside Work
(a) If the Provider has to obtain goods and/or services from a third party, the Provider must first obtain written consent from the Recipient and have the third party give an undertaking of confidentiality that is satisfactory to the Recipient before instructing or giving Confidential Information to the third party.
(b) If the third party breaches the aforementioned undertaking of confidentiality, the Provider is liable for any losses or damages suffered by the Recipient and/or the customer.
2. 6. Warranty Period for the Services
(a) Where the Services include the provision of technology, then due to the inherently complex nature of technology, the Provider is unable to provide the Recipient with a guarantee that the Services will be free from technical errors and/or bugs (the 'Errors'). Accordingly, upon delivery of the Services, the Provider agrees to review and repair any pre-existing coding errors for the first thirty (30) days after delivery at no charge to the Recipient.
(b) The Provider's Services come with guarantees that cannot be excluded under the Australian Consumer Law. For a major failure (as defined by the Australian Consumer Law) with the service, the Recipient is entitled to:
● terminate this Agreement;
● a refund for any fees paid by the Recipient to the Provider; and
● compensation for any damage or loss (whether direct or consequential) that was, or reasonably ought to have been, foreseeable by the Provider.
(c) If the failure with the service does not amount to a major failure, the Recipient is entitled to a re-supply of the service within a reasonably time, or to terminate this Agreement and be provided with a refund of any fees paid by the Recipient to the Provider for the service.
3. Payment for the Services
3.1. Consideration
The Recipient agrees to pay the Provider an amount set out in Item 4 of Order Details (the 'Consideration').
3. 2. Time and Method for Payment
(a) the Recipient will make Payment of the Consideration pursuant to Item 5 of Order Details.
(b) the Recipient will make Payment of Consideration by the method prescribed in Item 6 of Order Details.
3.3. Goods and Services Tax
Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with this Agreement and/or its Order Details, are listed in Australian Dollars (AUD) and are GST inclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts. Where the services are provided outside Australia, GST is inapplicable.
4. Copyright and Intellectual Property Rights
4. 1. Intellectual Property Rights
(a) The Provider recognises that all Intellectual Property are the property of the Recipient and the Provider will take all such steps as practicable to ensure that the Intellectual Property will vest in and remain vested in the Recipient.
(b) The Provider warrants that the Provider owns the Intellectual Property Rights in the Intellectual Property delivered to the Recipient in the provision of the Services.
(c) The Provider grants to the Recipient a non-exclusive, transferable, royalty-free, perpetual licence to use and intellectual property rights owned by the Provider which have been used in completion of the Services, that were already in existence prior to commencing the Services.
4.2. Indemnification
The Provider hereby indemnifies and agrees to keep indemnified the Recipient against all liability, losses or expenses incurred by the Recipient in relation to or in any way directly or indirectly connected with any breach of copyright or any right in relation to copyright in such literary and artistic works supplied as aforesaid.
5. Termination of this Agreement
5. 1. For the Recipient
(a) The Recipient may terminate this Agreement with the Provider for any breach of this Agreement by providing 5 days written notice to the Provider. At the Recipient's discretion, the Recipient may allow the Provider to remedy the breach within 5 days' notice, or another time-frame as the Recipient elects, and in being satisfied with the remedy of the breach by the Provider, the Recipient will not terminate this Agreement.
(b) The Recipient may terminate this Agreement for any reason by providing the Provider with 5 days' written notice of the Recipient's intent to terminate this Agreement.
(c) Upon receiving notification of the Recipient's intent to terminate this Agreement, the Provider will continue work on the Services until the lapse of the notice period, unless the Recipient's provides express written notice to cease work on the Services.
(d) If the Recipient terminates this Agreement for reasons other than a breach of this Agreement by the Provider, the Recipient will pay the Provider for the portion of the Services completed to date and time of cancellation.
5. 2. For the Provider
(a) The Provider may terminate this Agreement by providing 10 days written notice to the Recipient of the Provider's intent to terminate this Agreement.
(b) The Provider may terminate this Agreement for a breach by the Recipient of this Agreement by providing 5 days' written notice of the breach to the Recipient. During the 5 day notice period, the Recipient reserves the right to remedy the breach. If the Recipient remedies the breach which was the cause of the notice, this Agreement will not be terminated at the lapse of the 5 days on the notice's basis.
(c) Upon providing notice of the Provider's intent to terminate this Agreement, the Provider agrees to continue providing the Services until the cessation of the notice period unless otherwise instructed by the Recipient to cease work.
(d) If the Provider provides notice of intent to terminate this Agreement, the Recipient will pay for the work which has been done and at the time the Agreement is terminated, will pay any outstanding works completed between the provision of the notice to terminate and the cessation of this Agreement. If the Recipient elects to have the Provider cease work upon receiving notification of the Provider's intent to terminate, the Recipient will only be liable to pay amounts outstanding on work completed by the Provider to the date the request to cease work was issued by the Recipient.
6. Liability and waivers
6. 1. Liability
(a) The total liability of either party or the other for damage, loss or reliance shall be limited to the Consideration.
(b) Neither party shall not be liable to the other for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by either party, however caused and under any theory of liability; including, but not limited to: any loss of profit (incurred directly or indirectly), any loss of goodwill or business reputation, death or personal injury and any other intangible loss.
6. 2. Waivers
(a) A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
(b) The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
(c) You understand that in the process of working on your computer equipment, there is a potential for data loss. You agree that you have made the necessary backups of your data so that, in the event of such loss, the data can be restored. If in either case you have not, Fleurieu Info Tech will not be responsible for any data loss or damage whatsoever.
7. No employment
No provision of this Agreement may be interpreted as establishing an employment relationship between the parties, including any of their employees or contractors.
8. General matters
8. 1. Communication between Parties
The parties agree on the forms of communication pursuant to Item 7 of Order Details.
8. 2. Disclosure and Use of Confidential Information
(a) All obligations of confidence set out in this Agreement continue in full force and effect after this Agreement is terminated or any Completion Date for the services.
(b) The Provider must not disclose any Confidential Information to any third party, including the customer and/or its agents, employees or servants, without the prior consent of the Recipient.
(c) If the Provider discloses any Confidential Information to a third party without prior consent of the Recipient, the Provider will notify the Recipient as soon as practicable.
(d) If the Provider discloses any Confidential Information to a third party without the prior written consent of the Recipient, the Provider is liable for any damage suffered by the Recipient and/or the customer as a consequence of the disclosure.
(e) Each party must keep confidential the terms of this Agreement. If a party becomes aware of a breach of this obligation, that party will immediately notify the other party.
(f) The Provider must not use any Confidential Information without the prior consent of the Recipient.
(g) If the Provider uses any Confidential Information without the prior written consent of the Recipient, the Provider will notify the Recipient as soon as practicable.
(h) If the Provider uses any Confidential Information without the prior consent of the Recipient, the Provider is liable for any damage suffered by the Recipient and/or the customer as a result of the use.
(i) This Agreement prohibits the disclosure of Confidential Information by the Provider with exception to the following circumstances:
(i) the disclosure is to a professional adviser for it to provide advice in relation to matters arising under or in connection with this Agreement and the Recipient has consented to the disclosure of such information to the professional adviser;
(ii) the disclosure is required by applicable law or regulation; or
(iii) if the confidential information is already in the public domain at no fault of the Provider.
8.3. No partnership or agency
Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
8.4. Governing Law & Jurisdiction
(a) This Agreement is governed by the laws of South Australia, Australia.
(b) In the event of any dispute arising out of or in relation to the Services, the Provider agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in South Australia, Australia.
8. 5. Dispute Resolution & Mediation
(a) If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) A party to this Agreement claiming a dispute (the 'Dispute') has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the 'Notice').
(c) On receipt of the Notice by the other party, the parties to this Agreement (the 'Parties') must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(d) If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by President of Law Society, South Australia or an independent third party that you both respect, or an industry body that you both have access / membership or his or her nominee and attend a mediation.
(e) It is agreed that mediation will be held in South Australia, Australia.
(f) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
(g) All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.
(h) If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
(i) In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
8.6. Severance
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
8.7. Assignment
The Provider agrees for the Recipient to delegate, assign, novate and/or subcontract any obligations pursuant to this Agreement to any person without the Provider's consent
8. 8. Entire Agreement and Modifications
(a) Both the Recipient and the Provider confirm and acknowledge that:
(i) This Agreement shall constitute the entire agreement between the Provider and the Recipient and shall supersede and override all previous communications, either oral or written, between the parties;
(ii) No agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
(iii) If for whatever reason there is inconsistency between this Agreement and any other agreement, this Agreement shall prevail.
Executed as an Agreement on ____________________
Executed by ____________________
Executed by Fleurieu Info Tech
Signature