This agreement is between QK Services Pty Ltd (ACN 156 567 734) (“we”, “us” or “our”) and the person described as the customer in the Order (“you” or “your”).
1 About this agreement
(a) We offer a range of remote and onsite IT, Audio Visual, Antenna and security installation and support services as further described on [http://qk.com.au] and other installation, delivery, training and support services for certain technology based equipment (“Services”).
(b) You may ask us to provide certain Services by completing and submitting an order form provided by us to you (“Order”), whether through our web site or otherwise, to us. If we accept your Order, then we will provide the relevant Services to you on these terms and conditions and the terms set out in the Order (together, the “Agreement”). These terms and conditions prevail over the terms set out in the Order to the extent of any inconsistency.
2.1 Supply of Services
We will supply the relevant Services set out in the Order to you on the terms of this Agreement. Where the Services include on-site services, those Services will be carried out at the site specified in that Order (“Site”).
2.2 Extra services
We are not required to provide additional time and/or services that are not set out in the Order or that are in addition to the scope of a pre-booked job set out in an Order (“Extra Services”). If you ask us to perform any Extra Services and we agree to do so, at our discretion and subject to availability, then we will perform those Extra Services under the terms of this Agreement. If so, you agree to pay us the fees for the Extra Services calculated on a time and materials basis at our then current rates and any other fees for those Extra Services that we notify you at that time.
2.3 Service Date
We will endeavour to perform the Services on the date specified in the Order (“Service Date”) and, where relevant, to give you reasonable prior notice of any changes to the Service Date. If we are unable to perform the Services on the Service Date, we will provide the Services to you as soon as reasonably practicable or as otherwise agreed with you.
(a) We will inform you of any products that are used in conjunction with the Equipment, including cables, computer software and accessories and any other additional accessories or attachments that may be applicable to the computer or electronic equipment the subject of the Services, temporary or third party software (“Products”) that you are required to obtain to enable us to perform the Services. If you do not obtain such Products, then we may not be able to perform part of or complete the performance of the Services and will not be liable for any such non-performance.
(b) In addition to the products that you are required to obtain under paragraph (a), we have a range of other products that you may be interested in obtaining.
(c) If you ask us to supply the Products, then we will inform you of the charges (if applicable) for those products. If we agree to supply the Products to you, then we will supply those Products at the charges referred to in this paragraph (c) and on the terms of this Agreement.
2.5 Damaged or deficient Equipment
If the Services include the delivery of equipment as specified in the Order (“Equipment”) and that Equipment is faulty or damaged on delivery through no fault of yours (as reasonably determined by us), then we will arrange for the faulty or damaged Equipment to be replaced via our equipment partner at no additional charge to you. Quick Knowledge takes no responsibility for the replacement costs of the equipment.
(a) The Services do not include:
(i) the troubleshooting or rectification of any equipment or associated products that are not identified in the Order.
We may provide services for the items referred to above under this Agreement at a charge notified by us to you at that time.
(b) We are not obliged to supply the Services for any products (including the Products) that are unlicenced (or which are used in breach of its licence terms). We will not support any illegal practices and do not in any way condone any such illegal practices.
(c) While we will use due care and skill and all commercially reasonable efforts to provide the services you require, we cannot guarantee that the Services will fix or resolve any or all of your computer issues, problems or concerns.
We may not be able to provide the Services (and are not liable for any such failure to provide the Services) if, in our reasonable opinion:
(a) the wall or structure on which the Equipment is to be mounted is unsuitable or unsafe;
(b) if relevant, you have not supplied (or purchased or installed under clause 2.4) the Products to allow us to perform the Services;
(c) you have not complied with your obligations under this Agreement;
(d) we are concerned for our safety or the safety of any other person on or around the Site;
(e) if a broadband internet connection is required to receive the Services, you do not have a broadband internet connection;
(f) you do not schedule the Services to be performed where those Services are required to be scheduled by you; or
(g) an event beyond our reasonable control occurs that impact the provision of the Services.
2.8 Your obligations
Where the Services include an on-site service, to enable us to perform the Services you must:
(a) provide us with full and safe access to the Site including, where relevant, the facilities, equipment, software and network at that Site;
(b) provide us with a safe working environment and, where relevant, safe access to electrical power;
(c) ensure all relevant outlets (for example, Foxtel outlets) and antennae are in good working order; and
(d) ensure that an adult is present at the Site for the entire period the Services are performed.
2.9 Remote access
If the Services include remote diagnostic services, you grant to us (and our nominees), the right to:
(a) access your computer remotely for the purpose of providing you with the Services specified in the Order; and
(b) modify your computer systems to the extent necessary to provide the Services specified in the Order.
2.10 Changes to the Services
You may request changes to the Services by notifying us of such changes. If you request changes to the Services within 24 hours prior to the Service Date, then we may:
(a) vary the Fee (which we will inform you of at the time you request such change); and
(b) change the Service Date,
in each case, as reasonably required to accommodate those changes. If you do not agree to the varied Fee or change to Service Date, you can choose not to proceed with the change.
If a change is notified less than 24 hours before the Service Date, then you may be charged a $40.00 rescheduling fee.
You may cancel the Services by notice to us. If you cancel the Services:
(a) within 24 hours of the Service Date, then you are not entitled to a refund of any deposits paid under clause 3.2. If you have not paid a deposit, then we may charge you a $40.00 cancellation fee; and
(b) more than 24 hours before the Service Date, then we will refund the deposit paid under clause 3.2.
3 Fees and payments
(a) You agree to pay all fees and charges (including any minimum charges) under this Agreement (“Fees”). Unless otherwise specified, all Fees are exclusive of GST.
(b) You agree to pay the applicable Fees immediately on receipt of our invoice or as otherwise set out in the Order.
(c) The Fees will be specified in the Order or, if not so specified, the Fees will be our then current relevant fees and charges. We will provide our current fees and charges to you on request.
(d) If the Services are being performed on a time and materials basis, then estimated fees provided by us are indicative quotes only. However, we will not exceed the Fees specified in the Order without seeking your prior permission. If you decide not to pay the additional Fees required to complete the Services, then we will not charge you any additional Fees, but we may not be able to complete all of the Services specified in the Order.
(e) For clarity, the Fees are in addition to the purchase price for the Equipment (where relevant).
(f) We provide the Services at sites throughout Australia. If the Services include on-site services at a Site that is not located within a 30 kilometre radius of a QK partner retail store , then we may charge you a travel charge of up to $1.50 per kilometre from our closest store to that Site.
If specified in an Order, then you must pay us the deposit amount specified in the Order when you place that Order. Subject to clause 2.11(b), any deposit paid by you pursuant to an Order is not refundable.
(a) Subject to paragraphs (b) and (c), you must pay all taxes in connection with this Agreement.
(b) Where GST is imposed on a taxable supply made in connection with this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay the GST to the supplier (without deduction or setoff) by the tax invoice due date.
(c) If one party is required to indemnify or reimburse another party (Payee) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with paragraph (b) if the amount payable is consideration for a taxable supply.
4 Risk and title
(a) Where relevant, the risk of loss or damage to the Equipment and Products passes to you when we inform you that the Services have been successfully completed.
(b) Property in and title to each Product remains with us until we have received the Fees for the relevant Product in full.
5.1 Our warranty
(a) We warrant that the Services will be performed in a good and workmanlike manner, but do not warrant that the output of the Services will be free from all defects or that we can remedy or rectify any such defects.
(b) Subject to clause 6, products supplied by us under this Agreement are covered by the relevant manufacturer’s warranty. Please see the included documentation with your Product for more information on such warranty.
5.2 Your warranties
You warrant that:
(a) if relevant, you are the owner or lawful occupier of the Site, and have obtained all necessary permission and consents to enable us to perform the Services at the Site;
(b) you are the owner of the computer to which the Services relate, or you have obtained all necessary permissions and consents, to enable us to perform the Services on the computer; and
(c) you have the authority to enter in this Agreement.
(a) You may notify us of any defects in our performance of the Services (“Defects”). We will attend the Site to identify and inspect the relevant Defects.
(b) If we receive the notice under paragraph (a) above within 12 months from the Service Date of the applicable Services, then there is no charge. However, we may charge you an additional charge if we determine that:
(i) the defect was caused by you or a third party or was not the direct result of a breach of the warranty in clause 5.1(a); or
(ii) no fault is found.
6 Limitation of liability
6.1 Consumer customers
If you acquire the Services wholly or predominately for personal, domestic or household use or consumption, the following terms apply to you:
(a) We are responsible for loss suffered by you as a result of our breach of this contract if the loss was or should have been reasonably foreseeable by both you and us when this contract was entered into. We are not responsible for the types of loss set out in clause 6.1(e).
(b) We are responsible for loss suffered by you as a result of our negligence if the loss was or should have been reasonably foreseeable when our negligence occurred. We are not responsible for the types of loss set out in clause 6.1(e).
(c) You acknowledge that we may, in performing the Services, drill holes in walls and ceilings and conceal cables in certain cavities that may form part of the foundations of the Site. We limit our liability for all damage to real or tangible property caused by our breach of this Agreement or negligent act or omission that was or should have been reasonably foreseeable to (at our choice) repairing or replacing the property or paying the cost of repairing or replacing it.
(d) You must back up your data on your systems. Subject to clause 6.1(a) and (b), we exclude all liability to you for loss or corruption of data or records, the cost of rebuilding, repairing or replacing lost or corrupted data, loss of use of any computer or network systems, or any damages claimed by you based on a third party claim.
(e) In addition to the types of loss excluded above, we are not responsible for:
(i) loss that was not caused by our breach of contract or by our negligence;
(ii) loss that was not reasonably foreseeable;
(iii) any increase in loss that was caused by your breach of contract or your negligence; and
(iv) business losses (such as lost data, lost profits, failure to realise expected profits or savings, lost revenue or business interruptions) or loss suffered by non-consumers.
(f) You must take reasonable steps to minimise the extent of any loss you may suffer as a result of the Service.
6.2 Business customers
If you do not acquire the Services wholly or predominately for personal, domestic or household use or consumption, the following terms apply to you:
(a) Except as expressly stated in clause 5.1 and to the maximum extent permitted by law, we exclude all other conditions, warranties, liabilities or representations (express or implied, including terms implied or guarantees conferred by statute, law, equity, trade custom, prior dealing or otherwise) in relation to this Agreement or its subject matter, including all implied warranties concerning the performance, merchantability, suitability, non-infringement or fitness for a particular purpose of any of the Services or Products.
(b) Where a term is implied into this Agreement by law or a guarantee is conferred by law and such a term cannot be excluded then, to the maximum extent permitted by law, we limit our liability for a breach of such non-excludable terms to (at our option):
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again or payment of the cost of having the services supplied again.
(c) Subject to clause 6.2(b), we will not be liable to you for indirect and consequential loss (including loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind) in contract, tort, under any statute or otherwise (including negligence) arising from or connected to this Agreement.
(d) You must back up your data on your systems. Subject to clause 6.2(b), we exclude all liability to you for loss or corruption of data or records, the cost of rebuilding, repairing or replacing lost or corrupted data, loss of use of any computer or network systems, or any damages claimed by you based on a third party claim.
(e) You acknowledge that we may, in performing the Services, drill holes in walls and ceilings and conceal cables in certain cavities that may form part of the foundations of the Site. Subject to clauses 6.2(b) and 6.2(c), we limit our liability for all damage to real or tangible property caused by our breach of this Agreement or negligent act or omission to (at our choice) repairing or replacing the property or paying the cost of repairing or replacing it.
(f) Subject to clause 6.2(b) and 6.2(c), our liability for loss or damage of any kind, however caused, whether in contract, tort, under any statute or otherwise (including negligence) arising out of or in connection with this Agreement, is limited for all claims in the aggregate to the Fees paid and payable under the Order.
In this Agreement, the words “including”, “for example” or “such as” do not limit the meaning of the words to which the example relates or examples of a similar kind.