Terms of Service

In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by Downs ICT & ClearCall the following words have the following meanings:

• "After Hours" means from outside of 0830–1630 Monday to Friday excluding public holidays.
• "Business Hours" means 0830–1630 Monday to Friday excluding public holidays.
• "Client", "You" or "Your" means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed, and in any case each of their heirs, successors and assigns.
• "Conditions" means these terms and conditions.
• "Goods" means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things.
• "GST" has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• "Order" means any order requested by You to Us for Goods or Services in any form.
• "Quote" means a quote provided to You by Us.
• "Period" means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and You as the period during which some Services will be provided.
• "Plan" means any arrangement between Us and You for Services (including unlimited support) and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule.
• "Plan Schedule" means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in its absolute discretion without notice to You.
• "Public Holidays" means any day which is a public holiday throughout Queensland.
• "Rates" means the hourly rates and other charges for Services set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You.
• "Rate Schedule" means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You.
• "Service request" means a request for service such as adds, moves, changes and technical assistance.
• "Services" means the provision of any services by Us including Work, advice and recommendations.
• "Software" includes software and any installation, update, associated software and any services provided in connection with any of these things.
• "Us", "Our" or "We" means Downs ICT and/or ClearCall and its heirs, successors and assigns.
• "Work" means anything We may do, provide, customise, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.

All references to dollars ($) are to Australian Dollars. A reference to time is to Australian Eastern Standard time.

Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.

The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

3.1 The minimum term that You acquire the service for is outlined in Our Quote to You, beginning from the first of the next month after the date of signing or approving the Quote.

3.2 After the expiry of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by you as specified in Clause 4.

4.1 This Agreement may be terminated by You upon ninety (90) days written notice if We:

• Fail to fulfil in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.
• Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.
• Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement.

4.2 This Agreement may be terminated by Us upon ninety (90) days written notice to you.

4.3 If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.

4.4 Should You wish to terminate this Agreement before the end of the commitment term, You agree to pay all of the remaining payments up until the end of the commitment term.

10.1 Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

10.2 Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price.

10.3 The price in the final quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the quote, as long as the quote has not been confirmed with You.

10.4 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given.

10.5 The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.

10.6 When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.

10.7 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

10.8 We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply.

10.9 Unless Specified, all items on quote are covered by manufacturer's warranty covering parts and labour for hardware only on a return to depot basis.

11.1 You may place an Order for Goods and/or Services with Us. Normally, We will require that You provide either a completed Order form or You approve the quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable ABN or ACN number.

11.2 You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form.

11.3 An Order has no effect unless or until it is accepted by You in writing and, until We have received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.

11.4 We are not obliged to deliver any Order until we have received payment in clear funds from You for the Order, any related freight, delivery and (where applicable) in-transit insurance costs.

11.5 You will not cancel an Order unless We agree to do so in writing in Our absolute discretion.

12.1 All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).

12.2 You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.

12.3 We reserve the right to vary any Rate and/or the Rate Schedule from time to time, in its absolute discretion and without notice to You.

12.4 You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.

12.5 Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs.

12.6 You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses.

13.1 We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.

13.2 We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.

15.1 We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours.

15.2 You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.

15.3 Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You.

15.4 Until We receive full payment in cleared funds for any moneys due to Us by You on any account or for any reason, title to, and property in, Goods supplied to You remain vested in Us and does not pass to You.

16.1 You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier.

16.2 Where Goods have some element of customisation for You, are supplied pursuant to an Order that is special or unusual, the Goods are obtained from overseas, or are otherwise not readily returnable by Us to the manufacturer or supplier, You may not return the Goods to Us or cancel the related services.

16.3 You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.

16.4 Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened.

16.5 You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.

17.1 You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate.

17.2 We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new software or hardware for You or any other Work) under any Plan.

17.3 The parties acknowledge that We may recommend that You purchase Goods provided by third parties from time to time, and that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment.

18.1 If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

18.2 We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.

19.1 We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.

19.2 If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided however that You will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.

20.1 You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal direct with such manufacturer rather than Us for all claims covered by such warranties.

20.2 You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods.

21.1 Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

21.2 You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You. You acknowledge You are solely responsible for backing up Your programs and data.

21.3 You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to You or any third party.

21.4 Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.

23.1 We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may retain and use it for any such purposes ("Authorised Purposes").

23.2 We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for you or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for your purposes.

23.3 Otherwise We will not disclose Your personal information without Your consent unless authorised by law.

23.4 Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it.

For full details, please refer to our Privacy Policy.

We make no representations or warranties in relation to information available on Our website, including without limitation:

• that the information on Our website is complete or correct;
• that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and
• that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.

In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests. Service requests must be lodged via:

• Phone: 1300 822 555
• Email: [email protected]
• Web Portal: clearcall.com.au

Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue. Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

27.1 In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.

27.2 You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users' desktops and control Your PCs. This may require that devices are left on overnight or weekends.

29.1 All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing), by cash, cheque, credit card or direct deposit.

29.2 Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.

29.3 All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost.

29.4 If payment of any Sum Due is not made on time, We will charge a fee of $65 ex GST or interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.

30.1 You agree that employees are one of Our most valuable assets. Policy and professional ethics require that Our employees not seek employment with, or be offered employment by You during the course of engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).

30.2 In the event You violate this provision, You agree to immediately pay Us 100% of the employee's total annual salary as liquidated damages, and We shall have the option to terminate this Agreement without further notice or liability to You.

31.1 All Software licences are the responsibility of You and not that of Us. It is the duty of Yours to store all licences for all Software used, so that they can be reproduced if and when required. This includes all Software installed by Us.

31.2 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from any unauthorised Software use by You or any breach of any Software licence.

31.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

32.1 You warrant that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by You to Us belongs to You.

32.2 All copyright and other intellectual property rights in any Work created, commissioned or acquired by Us in the course of the supply of Services by Us to You will be the exclusive property of Ours unless otherwise agreed in writing by Us and You.

32.3 We acknowledge that in the course of providing Services to You, We may learn from You certain non-public personal and otherwise confidential information relating to You, including Your customers, consumers or employees. We shall regard any and all information We receive which in any way relates or pertains to You as confidential.

32.4 Both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, except unless permitted in writing by the disclosing party or as required by applicable law.