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Terms and conditions for supply of services
1 Definitions and interpretation
Customer means any person who purchases Services from the Supplier.
Supplier means ProMobile company.
Services means the services supplied by the Supplier to the Customer.
Terms and Conditions means the terms and conditions of supply set out in this document and any special terms and conditions agreed to in writing by the Supplier.
Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
2.1 These conditions will apply to all contracts for the supply of Services by the Supplier to the Customer and shall prevail over any other documentation or communication from the Customer.
2.2 Any variation to these Terms and Conditions shall be inapplicable unless agreed in writing by the Supplier.
2.3 All Services provided by Supplier are provided on these Terms and Conditions.
2.4 In the event that this agreement has been entered into by more than one party, each party shall be jointly and severally liable for any amount due.
3.1 Any instructions received by the Supplier from the Customer for the supply of Goods and Services and/or the Customer’s acceptance of Goods and Services supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
3.2 Any instructions received by the Supplier from the Customer for the supply of Goods and Services and/or the Customer’s acceptance of Goods and Services supplied by the Supplier shall constitute acceptance of the Terms and Conditions contained herein.
4.1 At the Supplier’s sole discretion:
(1.a) The price shall be as indicated on invoices provided by the Supplier to the Customer for Goods and Services supplied.
(1.b) A deposit may be required.
(1.c) Payment shall be due on delivery of the Goods or supply of the Services.
4.2 Time for payment for the Goods and Services shall be of the essence and will be stated on the invoice or any other forms.
4.3 The Customer agrees to pay all amounts due in clear funds, no later than 7 days from the date of invoice.
4.4 If the Customer fails to pay in accordance with clause 4.3, the Supplier will:
(4.a)Charge a late payment fee of $25.00 on all amounts paid after the due date;
(4.b)Charge interest on debts at 1.5% per day where interest will accrue daily from the payment due date until the outstanding amount is paid in full.
(4.c)Recover all collection and legal costs and expenses incurred in collecting overdue accounts on an indemnity basis;
(4.e)Sue for the money owing on the Goods or Services provided; and
(4.f)Remove any discounts or promotion value from the invoice.
4.5 Failure to comply with clause 4.3 will constitute a breach of contract and the Supplier may treat the whole Agreement as repudiated and act accordingly.
4.6 Payment shall be made by cash, electronic funds transfer (EFT) or by credit card. The Supplier at the Supplier’s sole discretion may accept any other method of payment provided that it is agreed to in writing.
4.7 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.
5 Limitation of liability
5.1 Nothing in these Terms and Conditions shall exclude or limit the liability of the Supplier for death or personal injury. However, the Supplier shall not be liable for any direct loss or damage suffered by the Customer howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the price of the Services.
5.2 The Supplier shall not be liable under any circumstances to the Customer or any third party for any indirect or consequential loss of profit or other economic loss suffered by the Customer howsoever caused, as a result of any negligence, breach of contract, misrepresentation or otherwise.
The Supplier’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:
(1.a)in the case of Goods, any one or more of:
(1.a.i)the replacement of the Goods or the supply of equivalent goods;
(1.a.ii)the repair of the Goods;
(1.a.iii)the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
(1.a.iv)the payment of the cost of having the Goods repaired; or
(1.b)in the case of Services:
(1.b.i)the supplying of the Services again; or
(1.b.ii)the payment of the cost of having the Services supplied again.
8 Customer’s property
Any property of the Customer under the Supplier’s possession, custody or control is completely at the Customer’s risk as regards loss or damage caused to the property or by it.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed, and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
(1.a)In the absence of any breach of this agreement, either party may terminate this agreement in its absolute discretion with a minimum of 7 days’ written notice to the other party.
(1.b)This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
(1.c)Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 7 days after receipt of a written notice by the other party requiring rectification of the breach.
(1.d)Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
(1.e)The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
11 Governing law
This agreement shall be governed by and construed in accordance with Western Australian law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.