Company Information
Orange Byte IT
ABN: 68 916 307 042
Address: Orange, NSW 2800
Email: support@orangebyte.it
Introduction
These Terms of Service ("TOS") govern all services provided by Orange Byte IT ("We," "Our," "Us") to you. By using Our services, you agree to these terms, Our Privacy Policy, and any additional service agreements issued.
SCOPE OF WORK
1.
We will perform the services detailed in the accompanying order form, encompassing a comprehensive range of IT solutions. Our services include Software Troubleshooting, where we will diagnose and resolve software issues, ensuring optimal system performance through installations, updates, and configurations. In Managed IT Services, we will provide continuous network monitoring, robust security management, and regular system maintenance to enhance the reliability and efficiency of your IT infrastructure. Additionally, our Data Recovery and Transfers service will involve retrieving lost or inaccessible data and securely transferring data between systems, ensuring data integrity and confidentiality. The specific tasks, timelines, and deliverables for these services are outlined in the order form and are subject to the terms and conditions of our service agreement.
PRICE AND INVOICING
2.
Price means our fixed and published price, or the amount agreed between us, or the amount established by a course of dealing between us. The price unless otherwise agreed does not include delivery costs.
3.
The observation of agreed time frames is of primary importance.
4.
If you must make a payment or do any other thing on or by a day that is not a business day you must make the payment or do the thing on or by the next business day.
5.
Unless otherwise agreed payment is a condition precedent to delivery of the goods.
6.
By accepting payment of any sum after its due date We do not waive our right either to require payments as they fall due or to suspend or end our arrangements.
7.
You and any guarantor will be in default if you do not pay Us when money is due for payment or fail to comply with any other obligation under our business arrangements.
9.
A fee will be charged for the work completed, regardless of whether the device or issue was fixed. This fee must be paid before the device is returned to the owner's possession.
8.
If We require you to pay a deposit, We will notify you in writing, and acceptance of this agreement is only taken to have occurred once the deposit is paid in full.
DEFAULT, INTEREST AND COSTS
10.
If you are in default under our agreement, We may send you a default notice. The notice will tell you what the default is and what you are required to do to correct the default. You will have 14 business days to rectify the default.
11.
If you do not comply with the default notice you become immediately liable to pay Us all money owing with interest. As title to the goods does not pass to you until We have been paid, We may repossess and sell the goods and apply the proceeds of the sale towards repayment of the money owed under the agreement.
12.
You also agree to pay on default all costs and expenses incurred in exercising our rights of recovery from you and the guarantor, if any, and indemnify Us against any losses resulting from the default.
13.
In the event that any amount payable under this Agreement is not paid by the due date We reserve the right to charge interest on the overdue amount at a rate of 5% per annum above the Target Cash Rate as published by the Reserve Bank of Australia from time to time. Interest shall accrue daily on the overdue amount from the due date until the date of actual payment, both before and after any judgment, and shall be compounded monthly.
14.
Title in the goods does not pass to you until We have received payment in full.
15.
To protect our security interest in the goods until payment We may choose to register any item or chattel under the agreement between Us under the Personal Properties Securities Act 2009. You agree to do all things necessary to facilitate such registration.
16.
On default in payment, you irrevocably permit Us or any person authorized by Us in writing on reasonable notice to enter your premises or the premises where the goods are reasonably believed by Us to be held on your behalf. You also agree to indemnify and hold Us harmless for all reasonable costs and expenses of recovery of the goods and losses if any on their resale.
17.
You agree to sign documents or do all things necessary to perfect our rights under the agreement and appoint Us as your attorney to sign any document or do anything that may reasonably be required to enforce our rights on default.
RISK AND DAMAGE TO PRODUCTS
18.
Unless otherwise agreed risk passes to you at the time We ship FOB (Free on Board) our ordinary place of business to your specified location. You assume all responsibility for filing claims for damage against the carriers and other agents. You must insure the goods against loss or damage.
19.
If any of the goods are damaged or destroyed after shipment you must direct the insurer to make payment to Us of all insurance money payable in respect of the insurance claim made on the damaged or destroyed goods.
20.
Insurance money received by Us will be applied firstly against the outstanding price of the goods that are damaged or destroyed, secondly against the outstanding price of all goods supplied under the agreement, thirdly against the outstanding balance payable to Us by you on any account under our agreements and fourthly in payment of any balance to you.
CONFIDENTIALITY
21.
Except as contemplated by this agreement, a party must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
This clause does not apply to information that is:
- generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
- required to be disclosed by any law; or
- disclosed by a party to subcontractors or authorized agents.
22.
“Confidential Information” includes information of or provided by a party to the other party under or in connection with this agreement that is by its nature confidential information, is expressly states by a party as confidential, or the other party reasonably suspects is confidential in nature.
WARRANTIES
23.
You represent and warrant to Us that all information and representations that you, or any person acting on your behalf has given in connection with our transactions are true and correct and that you have not failed to disclose to Us anything relevant to our decision to have dealings with you and that no court proceedings or dispute is current that may have an adverse effect on performing your obligations under this agreement.
24.
We warrant that all information technology services provided will be performed with due skill and care, in accordance with industry standards and practices
25.
We are not responsible for any additional damage to faulty, aged, or compromised hardware that may occur while performing the agreed services. You must acknowledge any existing damage before work begins.
26.
While We take all reasonable precautions to prevent damage, you accept full responsibility for any damage occurring as a result of our work if the risks were disclosed and acknowledged beforehand.
27.
If tampering or damage is evident or suspected, any warranty We provide will be voided. We will not issue a refund under these circumstances.
28.
If work has been conducted prior to identifying damage or tampering that was not disclosed to Us, We will endeavour to restore the device to its original condition, if possible, or as near to the original condition as received. You agree that all labour fees incurred and the cost of any parts, materials or supplies utilised in the course of such restoration will remain payable in full by You to Us.
29.
Damage and tampering can include, but are not limited to, physical, electrical, liquid, malware, settings/OS tampering or misconfiguration, debris, insects, and any other conditions that can reasonably be considered as not acceptable wear and tear.
30.
Our Warranties are provided in addition to any rights or remedies you may have under the Australian Consumer Law and other applicable laws.
31.
Acceptance of the goods must take place immediately following delivery and is established if you signify by words or conduct that the goods are conforming or that you retain them despite their nonconformity or deal with them in a way inconsistent with our ownership. You may reject them on good grounds after a reasonable opportunity to inspect them. The rejection must immediately be communicated to Us with full particulars of the nonconformity. On acceptance, if payment arrangements are in place, then they must be honoured. If payment has been made, then it will either be refunded by Us or credited towards payment of replacement goods for the nonconforming goods.
32.
Your right against Us to retain or dispose of the goods or services delivered or supplied is conditional on you honouring our payment arrangements.
INDEMNITY AND LIABILITY
33.
You warrant that the performance of the services under this Agreement will not breach any existing warranties or service agreements applicable to your hardware or software. In the event that the services may potentially affect existing warranties, you acknowledge and accept all associated risks and confirm that you discussed these risks with all relevant parties, including manufacturers, service providers, and other stakeholders. You agree to indemnify and hold Us harmless from any claims, damages, or liabilities arising from any breach of existing warranties or service agreements as a result of the services provided under this Agreement. Furthermore, you acknowledge that you have had the opportunity to discuss the potential impact of the services on existing warranties with Us and have made an informed decision to proceed. This clause is in addition to any rights or remedies you may have under the Australian Consumer Law and other applicable laws.
We particularly draw your attention to this clause, if you have Apple products
34.
You agree to indemnify and hold Us harmless from any claims, damages, or liabilities arising from data loss during the provision of services. It is your responsibility to back-up your data prior to Us commencing our work.
35.
Our liability, and the limit of any claim by you against us, is strictly limited to the amount paid for the service.
36.
We are not liable for indirect, incidental, or consequential damages, including but not limited to lost data, business interruptions, or system failures.
37.
We are not liable for personal injury, accidents, or damage occurring on our premises or the client’s premises during the provision of services. Clients and their representatives enter our premises or allow service at their location at their own risk.
38.
Given the rapidly evolving nature of technology, any recommendations, suggestions, or advice provided by Us are generalized statements and should not be taken as guarantees of suitability for specific needs. We are not liable for any unsatisfactory, damaging, or otherwise unfavourable outcomes resulting from acting on our recommendations or advice.
DISPUTE RESOLUTION
39.
When a dispute arises between Us you agree to comply with our dispute resolution process. To this end a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required, and the action believed necessary under the circumstances that will assist both in settling the dispute.
40.
Each party will then in good faith attempt to resolve the dispute by negotiation, and if the dispute in some aspect involves payment of money, the party withholding payment is required immediately on receipt of the notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts must be paid immediately.
TERMINATION
41.
Either party may terminate this agreement at any time by providing 7 days’ written notice.
42.
Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
- is in breach of this agreement and either:
- fails to remedy such breach within 7 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
- that breach is not capable of remedy; or
- ceases, suspends or threatens to cease or suspend to conduct its business.
The date of termination will be the date that notice is given, under this clause.
GUARANTEE
43.
If you are a company, the directors of the company hereby guarantee to Us the due and punctual performance by the company of all its obligations under this agreement, including but not limited to the payment of all sums due and payable by the company to Us under this agreement.
44.
All principals of a company, trust, or partnership are required to sign a personal guarantee, at Our request.
45.
All guarantors are jointly and severally liable for performance of all of the terms, covenants, and conditions of Our agreements
46.
You and the guarantors jointly and severally authorise Us to exchange information about the creditworthiness of either yourself or the guarantors with any credit reporting agency at any time during the term of the agreement
MISCELLANEOUS
47.
Notices must be in writing and be given personally by, email or Express or Registered Post with delivery confirmation or by email with receipt confirmation.
48.
The parties submit to the exclusive jurisdiction of New South Wales, and any action must be brought and heard in the nearest relevant jurisdiction to Us.