Nerds2You

TERMS OF TRADE

  1. Definitions  
    • 1.1 “Nerds 2 You” means Jamie Wright T/A Nerds 2 You, its successors and assigns or any person acting on behalf of, and with the authority of, Jamie Wright T/A Nerds 2 You.
    • 1.2 “Client” means the person/s requesting Nerds 2 You to provide the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
    • 1.3 “Services” means all Goods (which includes any hardware or software, whether supplied from a third party or where custom developed or programmed for the Client, accessories or parts, etc.) and/or Services (which includes any advice or recommendations, installation of Goods, product support, etc.) provided by Nerds 2 You to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • 1.4 “Sub-contractor” means any third party Sub-contractor engaged by Nerds 2 You to assist and carry out services to complete the Services as detailed in Nerds 2 You quote to Client. 1.5 “Price” means the cost of the Services (plus any GST where applicable) as agreed between Nerds 2 You and the Client in accordance with clause 4 below.
    • 1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
  2.  Acceptance  
    • 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts, Services provided by Nerds 2 You.
    • 2.2 These terms and conditions:
      1. (a) sets forth the entire and final understanding of the Client and Nerds 2 You pertaining to the subject matter here of and supersedes all prior arrangement, whether oral or written; and
      2. (b) may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Nerds 2 You.
    • 2.3 The Client shall as soon as practicable make available to Nerds 2 You all information, documents, software, hardware, and other particulars required by Nerds 2 You for the provision of Services.
    • 2.4 None of Nerds 2 You’ agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Director of Nerds 2 You in writing nor is Nerds 2 You bound by any such unauthorised statements.
    • 2.5 Any advice, recommendations, information, assistance or service provided by Nerds 2 You in relation to the Services provided is given in good faith, is based on information provided to Nerds 2 You, and Nerds 2 You’ own industry knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and Nerds 2 You shall make all effort to offer the best solution to the Client.
    • 2.6 Provided Nerds 2 You acts reasonably, they are entitled to assume that any request in connection with the Services that Nerds 2 You receives from the Client (or the Client’s agents, employees or contractors) or from the premises where the Services are being provided or accessed, is authorised by the Client.
    • 2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
    • 2.8 The commencement date shall be the date of the first delivery of the Services, or from the date of signing, whichever, is the earlier. Fixed Price contracts for Service Contracts shall be for the period (‘initial term”) as agreed between both parties and shall be reviewed automatically, thereafter, for like periods (“additional terms”), unless agreed otherwise until terminated by either party by giving at least one (1) months required notice as defined in the contract prior to the expiration date of the initial term or any additional term.
    • 2.9 The Client acknowledges and accepts that the Price stated will remain fixed for an initial period of twelve (12) months from the date of this contract and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI).
    • 2.10 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Nerds 2 You’ website and/or in Nerds 2 You’ Service Contract. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
    • 2.11 Nerds 2 You may from time to time sub-contract some of the Services. Nerds 2 You will secure a quote or estimate for such services and gain Client approval before engaging the sub-contractor for the Services. The Client is liable to pay the Sub-contractor’s costs directly to the Sub-contractor once the Sub-contractor’s account has been checked and certified for payment by Nerds 2 You. Nerds 2 You may charge as an extra for this co-ordination work based on current hourly charge rates.
    • 2.12 A call out of fifty dollars ($50) will also be charged for any Services completed outside a twenty-five (25) kilometre radius from Nerds 2 You’ premises. If required, Goods can be delivered to Nerds 2 You’ premises this fee shall be waived.
  3. Change in Control  
    • 3.1 The Client shall give Nerds 2 You not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Nerds 2 You as a result of the Client’s failure to comply with this clause.
  4. Price and Payment  
    1. 4.1 At Nerds 2 You’ sole discretion the Price shall be either:
      1. (a) as indicated on any invoice provided by Nerds 2 You to the Client; or
      2. (b) Nerds 2 You’ quoted price (subject to clause 4.2) which will be valid for the period stated in this contract, or otherwise for a period of fourteen (14) days.
    2. 4.2 Nerds 2 You reserves the right to vary the Price:
      1. (a) if a variation to the plan of scheduled Services, or Client specifications is requested (including, but not limited to, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, any request to investigate and/or repair any faults or defects outside Nerds 2 You’ normal business hours);
      2. (b) as a result of increases beyond Nerds 2 You’ reasonable control in the cost of materials or labour (e.g. third-party network operator or supplier costs, etc.).
    3. 4.3 Variations will be charged for on the basis of Nerds 2 You’ quotation, and will be detailed in writing, and shown as variations on Nerds 2 You’ invoice. The Client shall be required to respond to any variation submitted by Nerds 2 You within ten (10) working days. Failure to do so will entitle Nerds 2 You to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    4. 4.4 At Nerds 2 You’ sole discretion, a non-refundable deposit may be required.
    5. 4.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Nerds 2 You, which may be: 
      1. (a) on provision of the Services; or
      2. (b) the date specified on any invoice or other form as being the date for payment; or
      3. (c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Nerds 2 You.
    6. 4.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Nerds 2 You nor to withhold payment of any invoice because part of that invoice is in dispute.
    7. 4.7 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Nerds 2 You.
    8. 4.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Nerds 2 You an amount equal to any GST Nerds 2 You must pay for any provision of Services by Nerds 2 You under this contract or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price, except where they are expressly included in the Price.
    9. 4.9 The Client acknowledges and agrees that the Client’s obligations to Nerds 2 You for the provision of the Services shall not cease, and ownership of the Goods (if applicable) shall not pass, until: 
      1. (a) the Client has paid Nerds 2 You all amounts owing thereto for the particular Services; and
      2. (b) the Client has met all other obligations due by the Client to Nerds 2 You in respect of all agreements between Nerds 2 You and the Client.
    10. 4.10 Receipt by Nerds 2 You of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Nerds 2 You’ ownership or rights in respect of the Services, and this contract, shall continue.
  5. Provision of the Services
    1. 5.1 The Services are provided on the basis of specifications, information and instructions provided by the Client to Nerds 2 You (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy Nerds 2 You’ requirements of interpretation and understanding, as once accepted by the Client, Nerds 2 You’ quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, Nerds 2 You shall not accept any liability for the supply of Services contrary to the Client’s intention, or errors or omissions in the Services, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Client or oversight or misinterpretation thereof, and Nerds 2 You may charge the Client additional costs incurred thereby in remedying the Services, and if reasonably practical, will notify the Client of such costs before they are incurred and the Client agrees to them.
    2. 5.2 Where the performance of any contract with the Client requires Nerds 2 You to obtain products and/or services from a third party, the contract between Nerds 2 You and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Nerds 2 You, and the Client shall be liable for the cost in full including Nerds 2 You’ margin of such products and/or services.
    3. 5.3 Nerds 2 You may supply Goods to the Client where it is required for the provision of Services, and
      1. (a) delivery of the Goods is taken to occur at the time that Nerds 2 You (or Nerds 2 You’ nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address; and
      2. (b) at Nerds 2 You’ sole discretion, any costs of delivery shall be included in the Price; and
      3. (c) Nerds 2 You may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions; and
      4. (d) risk of damage to, or loss of, the Goods passes to the Client on delivery, and the Client must insure the Goods on, or before, delivery; and(e) the Client may request upgrades to or newer versions of the Goods and Nerds 2 You will advise the Client of the availability of such Goods and the additional cost associated with the supply of the Goods.
    4. 5.4 Whilst Nerds 2 You shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties (subject to Nerds 2 You’ normal service hours of 8:30am to 5:00pm on business days), the Client acknowledges that any time specified thereby for provision of the Services is an estimate only and Nerds 2 You will not be liable for any loss or damage incurred by the Client as a result of any delay. In the event that Nerds 2 You is unable to provide the Services as agreed solely due to any action or inaction of the Client then Nerds 2 You shall be indemnified from any liability for any resulting failure to provide the Services and/or entitled to charge a reasonable fee for re-providing the Services at a later time and date.
    5. 5.5 Normal Working Hours:
      1. (a) Services may be requested outside of the hours of 8:30am to 5:00pm Monday through Friday, and including all public holidays by prior arrangement, but may be subject to additional charges.
  6. Repair Notice
    1. 6.1 If the Client is a consumer within the meaning of the CCA, this clause constitutes a Repair Notice given under the Australian Consumer Law (“ACL”), and the Client acknowledges that:
      1. (a) the repair of equipment may result in the loss of any files stored on the hard drive, etc. (“User-Generated Data”). It is the sole responsibility of the Client to back-up any User-Generated Data which they believe to be important, valuable, or irreplaceable prior to submitting the equipment for repair; and
      2. (b) equipment presented for repair may be replaced by, or repaired with, refurbished Goods of the same type rather than being repaired.
  7. Client’s Obligations
    1. 7.1 The Client shall:
      1. (a) co-operate with Nerds 2 You in connection with the provision of the Services, and shall ensure that the work area is free from hazards and all other objects (including but not limited to, cabling or items that are likely to break) that may limit such access to the Client’s premises, equipment and adequate working space and facilities, such as electrical outlets, within a reasonable distance from the equipment. Nerds 2 You shall not be liable for any loss or damage to any property, or injury to any person, that may be caused by the Client’s failure to comply with this clause 7.1(a);
      2. (b) obtain, keeps and make available to Nerds 2 You, machine readable copies of all programs, operating systems, drivers and data files relating to the equipment. Nerds 2 You does not assume any liability as a consequence of the Client’s inability to use its machine readable data;
      3. (c) not modify, create any derivative work of, or incorporate any other goods into the network or any portion thereof. Nerds 2 You shall not be responsible for the maintenance of, or the repair of problems or malfunctions caused by any modifications of enhancements made by the Client or by anyone else other than Nerds 2 You.
    2. 7.2 The Client accepts and acknowledges that during the course of the Services:
      1. (a) existing plastics or connections may be broken to access a repair area and/or carry out general maintenance, which is beyond Nerds 2 You control. Any additional cost associated with replacement items shall be borne by the Client; and
      2. (b) where the Client chooses to delivery their laptop, computer or any other digital device to Nerds 2 You business premises for repair, all risk to such items remains with the Client in the first instance, any damage to the Goods or any personal injury experienced during this delivery method, shall be the Client responsibility
  8.  Client’s Property and Materials
    1. 8.1 In the case of property and materials left with Nerds 2 You without specific instructions, Nerds 2 You shall be free to dispose of them at the end of three (3) months after Nerds 2 You receiving them and to accept and retain the proceeds (such sale is to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods), if any, and/or charge the Client in addition to the Price to cover Nerds 2 You’ own costs in storing, handling and/or disposing of such property.
    2. 8.2 The lien of Nerds 2 You shall continue despite the commencement of proceedings, or judgment for any moneys owing to Nerds 2 You having been obtained against the Client.
    3. 8.3 Where materials or equipment are supplied by the Client, Nerds 2 You accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
  9. Risk and Limitation of Liability
    1. 9.1 The Client acknowledges and agrees that Nerds 2 You shall not be held responsible or liable for:
      1. (a) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by Nerds 2 You. Whilst Nerds 2 You will endeavour to restore files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data as per clause 6.1(a). The Client accepts full responsibility for the Client’s software and data and Nerds 2 You is not required to advise or remind the Client of appropriate backup procedures;
      2. (b) loss or damage caused by any component failure, notwithstanding any rights the Client has under the CCA, or the Client’s software or hardware caused by any ‘updates’ provided for that software;
      3. (c) any unlicensed software, data loss or problems arising caused by the user or software.
    2. 9.2 If during the provision of the Services Nerds 2 You is required to perform a backup of any data to its server as it sees fit in order to repair computers/devices such information data will be held for a maximum of thirty (30) days. The Client must inform Nerds 2 You within thirty (30) days (commencing from the repair date) if any data is missing so that Nerds 2 You can attempt to restore the missing data. Whilst Nerds 2 You will take all possible precaution to protect the Client’s data on Nerds 2 You servers it may be required in some circumstances to view personal data in order to test a successful data recovery or data restore procedure, Nerds 2 You will treat such information as confidential and shall not disclose any or part thereof of said information, unless it falls under the umbrella as detailed in clause 9.5 . After thirty (30) days Nerds 2 You will delete the data and Nerds 2 You accepts no liability for deletion of files should the Client fail to comply with this clause.
    3. 9.3 Nerds 2 You, its directors, agents, or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of Services by Nerds 2 You to the Client.
    4. 9.4 The Client agrees to defend, hold harmless and indemnify Nerds 2 You for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Clients breach of any warranty made by the Client pursuant to this contract. The Client further agrees to defend, hold harmless and indemnify Nerds 2 You for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Client’s negligent or reckless acts or omissions arising out of this contract.
    5. 9.5 The Client acknowledges that it is the policy of Nerds 2 You to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.
  10. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
    1. 10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
    2. 10.3 Nerds 2 You acknowledge that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    3. 10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Nerds 2 You makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Nerds 2 You’ liability in respect of these warranties is limited to the fullest extent permitted by law.
    4. 10.5 If the Client is a consumer within the meaning of the CCA, Nerds 2 You’ liability is limited to the extent permitted by section 64A of Schedule 2.
    5. 10.6 If Nerds 2 You is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then Nerds 2 You may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
    6. 10.7 If the Client is not a consumer within the meaning of the CCA, Nerds 2 You’ liability for any defective Services is:
      1. (a) limited to the value of any express warranty or warranty card provided to the Client by Nerds 2 You at Nerds 2 You’ sole discretion;
      2. (b) limited to any warranty to which Nerds 2 You is entitled, if Nerds 2 You did not manufacture the Goods;
      3. (c) otherwise negated absolutely.
    7. 10.8 Subject to this clause 10, returns will only be accepted provided that:
      1. (a) the Client has complied with the provisions of clause 10.1; and
      2. (b) Nerds 2 You has agreed that the Goods are defective; and
      3. (c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      4. (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
    8. 10.9 Notwithstanding clauses 10.1 to 10.7 but subject to the CCA, Nerds 2 You shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      1. (a) the Client failing to properly maintain or store the Goods;
      2. (b) the Client using the Goods for any purpose other than that for which they were designed;
      3. (c) the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      4. (d) interference with the Goods by the Client or any third party without Nerds 2 You’ prior approval;
      5. (e) the Client failing to follow any instructions or guidelines provided by Nerds 2 You;
      6. (f) fair wear and tear, any accident, or act of God.
    9. 10.10 Nerds 2 You may in its absolute discretion accept non-defective Goods for return in which case Nerds 2 You may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
    10. 10.11 Notwithstanding anything contained in this clause if Nerds 2 You is required by a law to accept a return then Nerds 2 You will only accept a return on the conditions imposed by that law.
    11. 10.1 The Client must inspect Nerds 2 You’ Services on completion (or Goods on delivery) and must within seven (7) days notify Nerds 2 You in writing of any evident defect, error or omission in the Services provided (including Nerds 2 You’ workmanship) or of any other failure by Nerds 2 You to comply with the description of, or quotation for, the Services which Nerds 2 You was to provide. The Client must notify any other alleged defect in Nerds 2 You’ Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Nerds 2 You to review the Services that were provided.
  11. Title
    1. 11.1 The Client acknowledges and agrees that, until ownership of the Goods passes to the Client in accordance with clause 4.9:
      1. (a) the Client is only a bailee of the Goods and must return the Goods to Nerds 2 You on request.
      2. (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Nerds 2 You and must pay to Nerds 2 You the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      3. (c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Nerds 2 You and must pay or deliver the proceeds to Nerds 2 You on demand.
      4. (d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Nerds 2 You and must sell, dispose of or return the resulting product to Nerds 2 You as it so directs.
      5. (e) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Nerds 2 You.
      6. (f) Nerds 2 You may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
    2. 11.2 If the Client fails to return the Goods, or refuses to allow Nerds 2 You to recover the Goods, the Client irrevocably authorises Nerds 2 You (as the invitee of the Client) to enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated, or Nerds 2 You believes the Goods are kept, and take/recover possession of the Goods, without being responsible for any damage thereby caused. Furthermore, provided Nerds 2 You acts with reasonable care, the Client must reimburse Nerds 2 You for any loss and/or costs incurred thereby.
  12. Intellectual Property
    1. 12.1 Where Nerds 2 You has supplied the Client with computer software (including coding and routines) and/or has designed, drawn or developed Goods for the Client, Nerds 2 You retains full ownership of the computer software and/or the copyright in any designs and drawings and documents shall remain the property of Nerds 2 You, and Nerds 2 You hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the software (under the terms of the licence it was supplied) and/or Goods.
    2. 12.2 The Client warrants that all designs or instructions to Nerds 2 You will not cause Nerds 2 You to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold Nerds 2 You harmless from all loss incurred or suffered by Nerds 2 You arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s intellectual property rights by the Client during the use of the Services.
  13. Cancellation and Termination
    1. 13.1 Either party may, without liability, cancel these terms and conditions or cancel provision of the Services:
      1. (a) if there is no contract term specified, at any time by giving thirty (30) days’ notice to the other party;
      2. (b) if a contract term is specified, at any time after the end of the contract term by giving thirty (30) days’ notice to the other party;
    2. 13.2 Nerds 2 You may, in addition to their right to cancel under clause 13.1:
      1. (a) do so at any time:
        1. (i) prior to the commencement of the Services, by giving notice to the Client, in the event Nerds 2 You determine it is not technically, commercially or operationally feasible to provide the Services to the Client;
        2. (ii) in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy.
    3. 13.3 In the event that the Client:
      1. (a) cancels the provision of Services prior to the expiry of any specified contract term, then the Client shall be liable to pay for the provision of the Services until the expiration of the contact term;
      2. (b) fails to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the contract term, the contract term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing Nerds 2 You with thirty (30) days’ notice.
    4. 13.4 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this agreement will be terminated by Nerds 2 You (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice. 13.5 In the event that the Client cancels delivery of Goods or changes their mind prior to commencement of the Services then the Client agrees notify Nerds 2 You in writing and shall be liable for a cancellation fee of twenty (20%) of the quotation Price to cover any loss incurred by Nerds 2 You (including, but not limited to, any amounts owing for Services already undertaken and any loss of profits) up to the time of cancellation.
    5. 13.6 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.
  14. Personal Property Securities Act 2009 (“PPSA”)
    1. 14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    2. 14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
      1. (a) all Goods previously provided, or that will be provided in the future, by Nerds 2 You to the Client;
      2. (b) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Nerds 2 You for Services – that have previously been provided and that will be provided in the future by Nerds 2 You to the Client.
    3. 14.3 The Client undertakes to:
      1. (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Nerds 2 You may reasonably require to;
        1. (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        2. (ii) register any other document required to be registered by the PPSA; or
        3. (iii) correct a defect in a statement referred to in clause 14.2(a)(i) or 14.2(a)(ii);
      2. (b) indemnify, and upon demand reimburse, Nerds 2 You for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
      3. (c) not register a financing change statement in respect of a security interest without the prior written consent of Nerds 2 You;
      4. (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Nerds 2 You.
    4. 14.4 Nerds 2 You and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    5. 14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    6. 14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    7. 14.7 Unless otherwise agreed to in writing by Nerds 2 You, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    8. 14.8 The Client must unconditionally ratify any actions taken by Nerds 2 You under clauses 14.2 to 14.5.
    9. 14.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  15. Security and Charge
    1. 15.1 In consideration of Nerds 2 You agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. 15.2 The Client indemnifies Nerds 2 You from and against all Nerds 2 You’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Nerds 2 You’ rights under this clause.
    3. 15.3 The Client irrevocably appoints Nerds 2 You and each director of Nerds 2 You as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
  16. Default and Consequences of Default
    1. 16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Nerds 2 You’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. 16.2 If the Client owes Nerds 2 You any money the Client shall indemnify Nerds 2 You from and against all costs and disbursements incurred by Nerds 2 You in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Nerds 2 You’ contract default fees, and bank dishonour fees).
    3. 16.3 Further to any other rights or remedies Nerds 2 You may have under this contract, if the Client has made payment to Nerds 2 You by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Nerds 2 You under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
    4. 16.4 Without prejudice to any other remedies Nerds 2 You may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or where the Client fails to cooperate with Nerds 2 You or hinders Nerds 2 You’ ability to provide the Services hereunder) under these terms and conditions Nerds 2 You may suspend the provision of Services to the Client or terminate this contract. Nerds 2 You will not be liable to the Client for any loss or damage the Client suffers because Nerds 2 You has exercised its rights under this clause.
    5. 16.5 Without prejudice to Nerds 2 You’ other remedies at law Nerds 2 You shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Nerds 2 You shall, whether or not due for payment, become immediately payable if:
      1. (a) any money payable to Nerds 2 You becomes overdue, or in Nerds 2 You’ opinion the Client will be unable to make a payment when it falls due;
      2. (b) the Client has exceeded any applicable credit limit provided by Nerds 2 You;
      3. (c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  17. Privacy Act 1988
    1. 17.1 The Client agrees for Nerds 2 You to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Nerds 2 You.
    2. 17.2 The Client agrees that Nerds 2 You may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      1. (a) to assess an application by the Client; and/or
      2. (b) to notify other credit providers of a default by the Client; and/or
      3. (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
      4. (d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
    3. 17.3 The Client consents to Nerds 2 You being given a consumer credit report to collect overdue payment on commercial credit.
    4. 17.4 The Client agrees that personal credit information provided may be used and retained by Nerds 2 You for the following purposes (and for other agreed purposes or required by):
      1. (a) the provision of Services; and/or
      2. (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
      3. (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      4. (d) enabling the collection of amounts outstanding in relation to the Services.
    5. 17.5 Nerds 2 You may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Client including credit history.
    6. 17.6 The information given to the CRB may include:
      1. (a) personal information as outlined in 17.1 above;
      2. b) name of the credit provider and that Nerds 2 You is a current credit provider to the Client;
      3. (c) whether the credit provider is a licensee;
      4. (d) type of consumer credit;
      5. (e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      6. (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Nerds 2 You has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      7. (g) information that, in the opinion of Nerds 2 You, the Client has committed a serious credit infringement;
      8. (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    7. 17.7 The Client shall have the right to request (by e-mail) from Nerds 2 You:
      1. (a) a copy of the information about the Client retained by Nerds 2 You and the right to request that Nerds 2 You correct any incorrect information; and
      2. (b) that Nerds 2 You does not disclose any personal information about the Client for the purpose of direct marketing.
    8. 17.8 Nerds 2 You will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
    9. 17.9 The Client can make a privacy complaint by contacting Nerds 2 You via e-mail. Nerds 2 You will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
  18. General
    1. 18.1 Any notice to be given by either party to the other may be sent by either e-mail, fax or recorded delivery to the most recent e-mail address, fax number or address notified to the other party, and if sent by e-mail shall (unless the contrary is proved) be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two (2) days following the date of posting.
    2. 18.2 The Client acknowledges that they have relied on their own judgment to evaluate the suitability of the Services for the purpose for which they require them. The Client must not rely on any statement, representation or promise made by Nerds 2 You that is not expressly set out in this contract.
    3. 18.3 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that parties right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    4. 18.4 Subject to clause 10, Nerds 2 You shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of business, profit or opportunity) suffered by the Client arising out of a breach by Nerds 2 You of these terms and conditions (alternatively Nerds 2 You’ liability shall be limited to damages which under no circumstances shall exceed the Price).
    5. 18.5 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which Nerds 2 You has its principal place of business, and are subject to the jurisdiction of the Perth Court in that state.
    6. 18.6 This contract does not create any rights in any third parties, except assigns, successors and heirs expressly permitted hereunder.
    7. 18.7 Nerds 2 You may license or sub-contract all or any part of its rights and obligations without the Client’s consent, and:
      1. (a) Nerds 2 You does not warrant the accuracy or quality of the Sub-contractor’s work or warrant that any recommendations of the Sub-contractor are appropriate or adequate or are fit for their purpose or that they are not given negligently; and
      2. (b) the Client shall not make any demand on Nerds 2 You or commence any legal proceedings against Nerds 2 You. Nerds 2 You shall have no liability, whether in negligence or otherwise, to the Client in relation to any Services performed by the Sub-contractor;
      3. (c) Client agrees and understands that they have no authority to give any instruction to any of Nerds 2 You Sub-contractors without the authority of Nerds 2 You. 18.8 The Client agrees that Nerds 2 You may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Nerds 2 You to provide Goods to the Client.
    8. 18.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    9. 18.10 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
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