Terms and Conditions
Purchase of goods and services from ITMIGHTY are subject to the following terms and conditions.
By agreeing to purchase or receive goods or services from ITMIGHTY, you accept the following terms and conditions,
without limitation or qualification.
In these conditions:
"Conditions" means these Conditions of Provision of Goods and Services;
"Customer" means a person, firm or corporation, jointly and severally if there is more than one, that requests goods or
services from ITMIGHTY;
"Services" means all services supplied by ITMIGHTY to the Customer;
"ITMIGHTY" means ITMIGHTY (ABN 45 412 065 031);
and "Party" and "Parties" means severally and not jointly ITMIGHTY and/or the Customer as the context requires.
2.0 Basis of Contract
2.1 Unless otherwise agreed by ITMIGHTY in writing, these Conditions apply exclusively to every contract for the sale of
goods or the provision of services by ITMIGHTY to the Customer and cannot be varied or supplanted by any other terms or conditions without the prior written consent of ITMIGHTY.
2.2 Any written quotation provided by ITMIGHTY to the Customer concerning the proposed supply of goods or services is
valid for 7 days and is an invitation only to the Customer to place an order based upon that quotation. These Conditions may
be supplemented by additional terms in ITMIGHTY's quotation which are not inconsistent with these Conditions.
3.0 Charges and Payment
3.1 Payment for goods and services must be made by cash, cheque or credit card on or prior to the completion of the
of goods or services unless the Customer has a credit account with ITMIGHTY.
3.2 All ITMIGHTY visits are chargeable and are charged in half hour units after the first hour. Any part thereof is chargeable
at the same rate as a full half hour.
3.3 All goods supplied by ITMIGHTY are charged separately from the services.
3.4 Where there is any change in the costs incurred by ITMIGHTY in relation to the goods or services, ITMIGHTY may vary its
price for goods or services on order to take account of any such change, without giving notice to the Customer.
3.5 Call-out fees may be applied at rates dependent on the Customer's suburb.
4.0 Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable to ITMIGHTY, or if any cheque drawn by the Customer is dishonoured, then all money which would become payable by the Customer to ITMIGHTY at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and ITMIGHTY may, without prejudice to any other remedy available to it:-
(a) charge the Customer interest on any sum due at the rate of 2% above the corporate reference rate of ITMIGHTY's
principal banker. This interest shall be calculated daily and compounded every 30 days for the period from the due date until
of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs on a solicitor/own client basis and dishonoured
cheque fees) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any
(c) cease or suspend for such period as ITMIGHTY thinks fit, supply of any further goods or services to the Customer;
(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by ITMIGHTY;
without effect on the accrued rights of ITMIGHTY under any contract.
4.2 Clauses 4.1(c) and 4.1(d) may also be relied upon, at the option of ITMIGHTY:
(a) where the Customer is an individual, he or she becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation, it enters into any scheme of arrangement or any assignment or composition with
or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator,
administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation
(including provisional liquidation), winding up or dissolution without winding up of the Customer.
5.0 Passing of Property
5.1 Until full payment in cleared funds is received by ITMIGHTY for all goods supplied by it to the Customer, as well as all
other amounts owing to ITMIGHTY by the Customer:
(a) title and property in all goods remain vested in ITMIGHTY and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for ITMIGHTY;
(c) the Customer must keep the goods separate from its goods and maintain the labelling and packaging of the goods; the Customer is required to hold the proceeds of any sale of the goods on trust for ITMIGHTY in a separate account however
failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
(d) ITMIGHTY may without notice, enter any premises where it suspects the goods may be and remove them,
notwithstanding that they may have been attached to other goods not the property of ITMIGHTY, and for this purpose the Customer
irrevocably licenses ITMIGHTY to enter such premises and also indemnifies ITMIGHTY from and against all costs,
demands or actions by any party arising from such action.
6.0 Risk and Insurance
The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods shall pass to the Customer immediately upon delivery of the goods to the premises nominated by the Customer.
7.0 Performance of contract
Any period or date for delivery of goods or provision of services stated by ITMIGHTY is intended as an estimate only and is
not a contractual commitment. ITMIGHTY will use its reasonable endeavours to meet any estimated dates for delivery of
the goods or completion of the services.
8.0 ITMIGHTY Warranties
8.1 If ITMIGHTY is not able to diagnose the cause of any hardware or software problem, then no charge will apply to the
Customer. ITMIGHTY does not warrant that it will be able to fix all problems that it diagnoses.
8.2 All goods and services supplied shall be free from defects in materials and workmanship for a period of 14 days from
the date of delivery.
8.3 Nothing in this clause 8 is intended by the parties to be, and shall not be construed or interpreted to be, a representation, term, warranty or condition that the operation, use or functionality of any goods or products supplied by ITMIGHTY
(including any software) will be uninterrupted or error free. Customer understands and accepts that all such goods and
products (and information technology and communications products generally), may have errors (or "bugs") and may
encounter unexpected problems, and accordingly Customer may experience downtime and errors in the use of the goods
and products. Without limiting the obligations set out in clause 9, Customer will put in place reasonable internal procedures
and processes to enable it to minimise any inconvenience and any adverse impact of any such downtime or error.
9.0 Customer's Responsibilities
9.1 Customer shall be solely responsible for all data inputs, the manner of use of the goods by all those to whom it provides
access and all outputs derived, and all other results of such processing.
9.2 Customer shall comply, at its own expense, with any recommendations and guidelines with respect to the use of the
goods, including any adjustments or replacements required in respect of equipment and software that is incidental or
collateral to the use of the goods.
9.3 Customer shall ensure that its operators are adequately trained and informed as to the use of the goods and shall comply
with guidelines and procedures supplied by ITMIGHTY and/or any third party manufacturer from time to time.
9.4 Customer shall promptly report errors or faults in the operation of any aspect of the goods or any provision of the
services in accordance with applicable fault reporting procedures from time to time.
9.5 Customer shall perform general "housekeeping", testing, adjustment and/or maintenance as recommended by
in respect of any goods supplied by ITMIGHTY in order to maximise the availability of and performance of the
goods or permit performance by ITMIGHTY of any of its obligations hereunder.
9.6 Customer agrees to exercise due care and carry out such precautions which may be recommended by ITMIGHTY or
otherwise required as a matter of prudence in connection with the performance by ITMIGHTY of any of its obligations
hereunder, for example, but without limiting the generality of the foregoing, advising its staff of system restarts or
scheduled downtime, recording of error information, and will co-operate with other system administration activities such
as, but not limited to, running diagnostic tests and operational readiness tasks.
9.7 The Customer shall as a fundamental term of these Conditions back up all software, data and files that are stored on its computer and/or on any other storage devices it may have prior to the arrival of the ITMIGHTY technician. ITMIGHTY and/or
its third party service provider shall not be responsible at any time for any loss, alteration or corruption of any such software,
data or files.
10.1 To the full extent permitted by applicable law, all conditions, warranties, representations, indemnities and guarantees
with respect to the goods and/or the services, or other goods or services that may be provided by ITMIGHTY under these Conditions, that may otherwise be implied by statute, law, equity, trade custom, prior dealings between the Parties or
otherwise (including, but not limited to, any implied warranty of merchantability, fitness for particular purpose, quiet
enjoyment or non-infringement) are hereby expressly excluded.
10.2 Except to the extent specifically provided in these Conditions, ITMIGHTY's sole liability to Customer for any and all
breaches of any term or terms of these Conditions, whether express or implied, shall be limited to:
10.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of the fees and charges paid by the Customer under
these Conditions as at the date of the breach;
10.2.2 in relation to goods if supplied to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the goods or the supply of equivalent goods; or
(b) payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the repair of the goods or payment of the cost of having the goods repaired; and
10.2.3 in relation to services if supplied to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again, as in each case ITMIGHTY may elect.
10.3 In no event shall ITMIGHTY be liable to Customer or to any third party under or in connection with these Conditions or in respect of the use of (or failure or performance of) the goods or the supply of the services for:
10.3.1 malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) actions of ITMIGHTY that were expressly or impliedly authorised by Customer, or by Customer's employees or agents;
(c) accident, misuse or abuse by anyone other than the ITMIGHTY;
(d) alteration or modification of the goods by anyone other than the ITMIGHTY;
(e) products (including any hardware or software) not licensed or supplied by ITMIGHTY that are attached to or used with the goods;
(f) Customer's failure to provide a proper operating and working environment for the goods;
(g) damage during any movement, relocation or re-installation of the goods;
(h) power surge or failure,
(i) acts of God or acts outside ITMIGHTY's control;
(j) any other condition not arising under normal operating conditions; or
(k) normal wear and tear; or
10.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach of the Customer's obligations
or responsibilities set out in these Conditions.
10.4 Any replacement of parts under warranty will be carried out at the premises nominated by ITMIGHTY. The cost and risk
of transport of any defective part to the nominated premises is the responsibility of the Customer.
10.5 In no event will ITMIGHTY be liable to Customer or to any third party under or in connection with these conditions or in
respect of the use of (or failure or performance of) the goods or the supply of the services for:
10.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
10.5.2 Customer's liability to any third party; or
10.5.3 incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused,
including without limitation the breach of these Conditions or any expiration or termination of these Conditions, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if ITMIGHTY has been advised of the possibility of such loss or damage.
10.6 ITMIGHTY will not be liable for any loss or damage suffered by the Customer where ITMIGHTY has failed to meet any
delivery date or cancels or suspends the supply of goods or services.
10.7 Nothing contained in these Conditions excludes, restricts or modifies any:
10.7.1 implied condition, warranty or other implied obligation in relation to these Conditions or the software and services
where pursuant to applicable law to do so is unlawful or void; or
10.7.2 liability for fraud or deceit; or
10.7.3 liability for death or personal injury caused by the negligence of either Party.
11.0 Copyright in Software
11.1 ITMIGHTY will not be responsible to the Customer or any third party for any breach of any software licence in respect
of software provided to ITMIGHTY by the Customer to be installed on a Customer's computer.
11.2 The Customer hereby warrants that it has a valid licence in respect of such software and shall indemnify ITMIGHTY
against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of
ITMIGHTY installing software at the request of the Customer.
12.1 If, through circumstances beyond the control of ITMIGHTY, ITMIGHTY is unable to effect delivery or provision of goods
or services, then ITMIGHTY may cancel the Customer's order (even if it has already been accepted) by notice in writing to
12.2 If the Customer gives less than 4 hours notice to ITMIGHTY to cancel any request for on-site service, then ITMIGHTY
may charge a cancellation fee of $66 for the loss and damage caused.
13.0 No Representation or reliance
13.1 The Customer acknowledges that neither ITMIGHTY nor any person acting on behalf of ITMIGHTY has made any representation or other inducement to it to enter into these Conditions, except for representations or inducements
expressly set out in these Conditions.
13.2 The Customer acknowledges and confirms that it does not enter into these Conditions in reliance on any representation
or other inducement by or on behalf of ITMIGHTY, except for representations or inducements expressly set out in these
13.3 Without limiting the generality of clauses 13.1 and 13.2, Customer understands and hereby confirms that:
(a) its decision to enter into these Conditions was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by ITMIGHTY or any person on its behalf in relation to the capacity, uses or benefits that might or
would be derived or obtained from the goods or services, except as expressly set out in clause 8, and
(b) Customer has relied on its own skill and judgement in deciding to purchase and acquire the goods and services.
14.0 Entire Agreement
14.1 To the extent permitted by law, in relation to its subject matter, these Conditions:
14.1.1 Embody and constitute the entire legal and contractual relationship of the Parties, including the entire terms agreed
by the Parties; and
14.1.2 supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations,
understandings, agreements or contracts between the Parties.
15.0 Governing Law
15.1 This Agreement is governed by and must be construed according to the law applying in Victoria. The Parties
hereby irrevocably submit to the exclusive jurisdiction of the courts of Victoria.
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