All goods and services (Products) supplied by Justified Pty Ltd ACN 621 315 099 – ABN 82 621 315 099 (Justified) to the customer (Customer) are supplied on these terms and conditions.
No order shall be binding on Justified until accepted by Justified. An individual contract for the supply of Products (defined as Equipment/Hardware/Software/Subscriptions), on these terms and conditions, is formed on acceptance by Justified of an order from the Customer. Justified reserves the right to accept any order in whole or in part. Where Justified makes a part delivery of any order, such delivery shall constitute a separate contract. No order may be cancelled or varied after acceptance by Justified unless the cancellation or variation is agreed upon by Justified.
2. Payment Terms
2.1. Credit customers
All credit orders are accepted by Justified subject to satisfactory credit approval of the Customer, which may be withdrawn at any time. Where credit approval has not been granted, or is withdrawn, payment in full for all Products supplied is required on delivery. Where credit has been granted, payment for the Products is to be made in accordance with the customer’s credit approval terms and the Justified General Credit Approval Terms. Payment must be made in full without setoff or deduction. Justified will investigate any disputed amounts and if resolved in favour of the customer, a credit will be issued to the customer. Not all Products offered by Justified are offered on credit terms. Justified may decide at its discretion whether to allow orders to be made on credit. Where orders are not allowed on credit terms the customer must pay for the products in accordance with the Cash on Delivery terms in this agreement.
2.2. Cash on Delivery
Customers without credit approval must pay for Products upon delivery of the Products. Hardware is considered delivered upon physical delivery of the hardware to the client. Software is considered delivered upon the physical delivery of software media to the client, or the transfer of software files or installation files to the client’s computer equipment.
Justified labour services are charged per hour or part thereof at the discretion of Justified and considered delivered upon the completion of each hours’ worth of service.
2.3. Partial fulfilment of order
Justified reserve the right to require payment for Products delivered even if those Products formed only part of an order on which other Products remain undelivered.
2.4. Delivery Charges
Justified reserve the right to charge for delivery of the Products at any time, notwithstanding that it may not have previously done so.
Ownership of the Products does not pass to the Customer until the Customer has discharged all outstanding indebtedness, whether in respect of the Products or otherwise, to Justified. Risk in the products will pass on delivery to the customer.
2.6. Deposits and payment in advance
Justified may at its discretion require that a partial deposit or full price be paid prior to delivery of Products.
2.7. Project Work
Justified require 50% of the total project consulting fee upfront, upon acceptance of fixed fee project quotations/proposals. The 50% upfront fee must be paid prior to commencement of the project. The remaining 50% fee is due and payable at the completion of the project. Products associated with project solutions are required to be paid in full upon acceptance of the project quotation/proposal.
2.8. Minimum call out charge
Justified may at its discretion charge a minimum call out charge on all on-site support services which will be the minimum amount payable by the client irrespective of the duration of the service call.
2.9. Early Termination Fee
- You will be liable for an Early Termination Fee where you elect to cancel your service or your service is terminated by Justified prior to the minimum contract period specified in the SLA (Service Level Agreement) or proposal.
- The Early Termination Fee is calculated using the following formula:
Early Termination Fee = (contract Term – completed contract months) x monthly value.
- You acknowledge that the Early Termination Fee represents a genuine pre-estimate of the loss Justified will suffer and is not a penalty.
3. Third Party products
Justified offers no warranty in relation to third party products. Those being products manufactured or supplied by parties other than Justified. All products supplied by Justified are covered by the manufactures warranty where applicable. Justified offers no additional warranties in relation to these products. Justified makes no representations as to whether products or services of third parties will work on the client systems other than that, where applicable, the manufacturer of those products or supplier of those services have claimed either directly to Justified in correspondence or through their product documentation that these products or services will work on the target systems types.
4. Justified offers no guarantees as to the suitability of or reliability of 3rd party products or services.
5. Damages due to third party Products
Client agrees that it indemnifies Justified for any damages or consequential damages due to faulty products or products that do not perform to the manufacturer’s specification. Client agrees that it will not seek compensation from Justified for damages resulting from the failure of any product in any way. Client agrees that it accepts the Products’ manufacturers warranties are the only warranties relating to the product and that Justified offer no further warranties in relation to third party products. If a third party product or service does not function correctly, or fails after a period. The client’s remedies exist only with the manufacturer of the products in so far as the manufactures warranty and acceptance of use permits.
Justified sells labour in units of time or part thereof at the discretion of Justified as outlined in our Pricing Schedule. All labour is billed per hour and all quotes relating to labour are estimates only and are not fixed quotes.
7. Diagnostics and fault finding
Client accepts that it will incur all costs involved in diagnosing actual or apparent faults with systems, even where Justified recommend, or was the reseller of the products in question, or where Justified installed the products, and, or maintains the products.
8. System updates
The client agrees to indemnify Justified against damages due to errors or failures and subsequent damages that arise form updates supplied by system manufacturers and applied to systems by Justified.
Justified recommends Products based on information obtained via any or all of the following sources; supplier or manufacturer; product specifications; industry publications; the experience of Justified staff; and product selection policies established by Justified. Justified is not obliged to check all of the above sources when making recommendations about Products. When Justified recommendations are accepted by the client, the client agrees that it takes full responsibility for the decisions and Implements or contracts Justified to implement the recommendations at the Clients risk.
Where a customer requests specific Products and Justified supplies those Products directly, retails those Products, or arranges for the Products to be provided by a third party, this does not constitute a recommendation by Justified to use the Products, nor does it constitute Justified’s endorsement of the Products or the Products suitability.
10. Authorisation to work on systems
By engaging Justified in any capacity to work on the client systems, the client authorizes Justified to update, install, uninstall, make modification to, make configuration changes to and otherwise alter software installed on the client systems, and, add or remove or otherwise make modifications to hardware in the system, in so far as such alterations are reasonable and justifiable in order to diagnose, repair, or otherwise achieve the desired outcome on the client systems. The client also understands and accepts that client systems may become unavailable to the client during the period in which work on client systems is in progress. The client also indemnifies Justified against problems and resulting damages arising from such alterations or systems unavailability. Justified will endeavour to minimise disruption to and availability of systems while work is on progress in so far as it does not interfere with the work to be done. Justified will endeavour to keep the client informed of the status of systems availability to the best of its ability and where practical to do so.
Except for those required or implied by legislation, Justified gives no express warranty in relation to products and services supplied to the Customer, and the Customer acknowledges that it has not relied on any representation or warranty made by or on behalf of Justified. Certain legislation may imply conditions and warranties into these terms and conditions. To the extent that such conditions and warranties may lawfully be excluded, all such conditions and warranties are expressly excluded.
The liability of Justified under or arising out of the supply of goods and services for breach of any term, condition or warranty implied in or imposed upon the supply of goods and/or services by legislation shall be limited, at the option Of Justified:
a) If the breach or liability relates to hardware:
i. the replacement of the hardware or the supply of equivalent hardware;
ii. the repair of the hardware;
iii. the payment of the cost of replacing the hardware or of acquiring equivalent hardware;
iv. the payment of the cost of having the hardware repaired; Or
v. the return of the hardware and payment of refund to the customer
b) if the breach or liability relates to services;
vi. the supplying of the services again; or
vii. A refund of the monies paid by the customer for the supply of the services.
Except as expressly provided above, Justified shall not be under any liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage or loss of profits, loss of use or loss of data) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Products, any services supplied by Justified or the failure of Justified to comply with these terms and conditions.
These terms and conditions will apply to the exclusion of all other terms and conditions contained in the Customer’s order. In the event of any inconsistency, Justified will be deemed, by delivering the Products to the Customer or supplying services to the Customer, to have made an offer to the Customer to sell the Products or supply the services pursuant to these terms and conditions, which offer will be deemed to have been accepted if the Customer retains the Products or accepts the services.
12. Server / Network Maintenance
In order to keep its servers up to date, Justified will perform scheduled maintenance to servers from time to time. We reserve the right to suspend access to the server during the time required for the scheduled maintenance.
Justified will attempt to perform all scheduled maintenance at off-peak time. If the maintenance period is expected to last for more than 30 minutes the Justified will post a notice regarding the maintenance to its announce mail list.
Unscheduled maintenance may need to be performed. During this time the server may be off-line. In this case a notice regarding the maintenance will be posted after it is done.
13. Hosting Data and Data Backup
UPLOADING HOSTING DATA
Except for intellectual property rights in the Hosting Data, the Service Provider and Justified will own all intellectual property rights created during the course of providing the Service.
Subject to this clause 3 and the Acceptable Use Policy, you and your Users may upload content that you wish to be part of your website, in the manner and form and at the times directed by Justified and the Service Provider from time to time.
You must ensure that all Client Data:
- complies with any content standards set by the Service Provider and/or Justified from time to time;
- complies with the Acceptable Use Policy;
- complies with all Laws; and
- does not infringe the intellectual property rights of any person.
Justified and/or it’s Service Provider may remove any Hosting Data it considers unsuitable.
It is your responsibility to maintain local copies of your web content and information. The Service Provider performs weekly snapshots of all server data and daily incremental backup of all system and Hosting Data. However, we strongly recommend that all users keep their own recent copy of their sites for any unforeseen events. Backups are made for server restoration purposes only. In the event of equipment failure, data corruption or virus infection, you should be prepared to re-upload your data to your account.
UPDATES OF WEBSITE SOFTWARE
From time to time, the Service Provider and Justified may provide updates to the website software used to run your website. It is your responsibility to update your website to the new version of the software. If you do not update to the new version of the software, then:
- the security of your website and Hosting Data may be compromised.
14. You indemnify us
You agree to indemnify and hold harmless the Service Provider and Justified and the employees and agents of the Service Provider and Justified (together, “Indemnified Parties”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Subscriber’s use of the Services and Products, and will reimburse each Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
This clause 9 does not apply:
- if you are a Consumer, in relation to any Losses that arise from our breach of a Consumer Guarantee or Title Guarantee;
- in relation to Consumer Goods or Consumer Services we supply to you; or
- to the extent that it is not Fair or Reasonable for us to rely on it.
15. Governing Law
This agreement and the transactions contemplated by this agreement are governed by the law of Western Australia.
16. Hosting Account Uses
You may use the service for the purpose of web site hosting so long as such use is legal and does not constitute an unacceptable use.
We do NOT allow ADULT material of any kind. Adult material includes nudity, porn, etc. Links to other web sites containing adult material are NOT permitted either. Justified and/or The Service Provider reserves full right to suspend any account that does not comply with this guideline.
You may not use the Service for any purpose that violates local, State, Federal or international laws.
You may not use the Service for spamming (sending unsolicited advertising to those with which the customer has no existing business relationship, posting off-topic advertising in newsgroups); spoofing (using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message), generating extremely high volumes of outgoing mail than a normal user, and subscribing someone else to an electronic mailing list without that person’s permission.
The Service Provider’s services may not be used as a conduit of spam, or for transit of spam, or for activities relating to the propagation of spam or benefiting thereof. The Service Provider remains the final arbitrator of what is or is not considered spam on the Service Provider’s network.
Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email.
You may not abuse our server resources. Running programs in the background on a our server without our prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, and the like are not acceptable uses of the Service Provider’s servers. In addition any domain that exceeds reasonable bandwidth usage can be terminated without prior notice.
You may not use the Service Provider’s servers for development purposes. The Client’s web site must be fully developed and tested before it can be moved to our servers. If we find excessive number of errors in the web log files of your account, we reserve the right to suspend your account without prior notice until your web site is debugged.
You may not use your the Service Provider hosting account as a download repository. If you plan to offer files, other than web page files, for downloading, including music and video files, you must negotiate the terms with the Service Provider. We reserve the right to suspend such accounts without prior notice.
You may not use your account for hacking/cracking. We reserve the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.
The Customer is responsible for all activity originating from the account unless proven to be a victim of outside hacking or address forgery. The Customer is responsible for securing their username/password.
We may monitor your account but will respect your privacy. We may monitor the conduct of your account to determine whether this policy is being followed.
We may suspend or terminate your account and/or notify the authorities. If we believe that your use of the service may break the law or that you have not complied with this policy we may warn you by email (but we are not obliged to do so); suspend your access to the service; terminate your account without notice; and/or notify and provide relevant information to the authorities, as appears appropriate in the circumstances.
You agree that you will have no claim against the Service Provider or Justified in respect of any action reasonably taken by the Service Provider in its implementation of the terms of this Acceptable Use Policy, and you indemnify the Service Provider and Justified against any claim by a User arising out of the same.
17. Limitations of Service
You acknowledge that, due to the inherent risks of the internet, and of computer-based networks and systems:
- the services provided under this agreement will not be uninterrupted or error free;
- the services may not meet your requirements; and
- your data may not be secure or protected from loss or corruption, and data loss or corruption may occur due to delays, service interruptions or other reasons.
18.1 IF YOU ARE NOT A CONSUMER:
- our liability to you for any Loss, however caused (including by our negligence), that you suffer or incur in connection with the Service or this Agreement, whether or not you were aware of the possibility of such Losses to you when this agreement was entered into, is limited to the amount of Fees received by us from you under this agreement;
- the maximum amount you may claim from us for Losses suffered or incurred by you in connection with this agreement is limited to the aggregate amount of fees which you have paid us at any time, less any amounts already paid out or due to be paid out by us to you for any reason;
- we are not liable for any indirect or consequential losses, or any loss of revenue, loss of profit, loss of business opportunity, or payment of liquidated sums, penalties or damages under any agreement) sustained by the you or any other person arising from or in connection with the Service or this agreement;
- we are not liable for any Losses you suffer or incur by or in connection with the Service or this agreement that is caused by (or to the extent contributed to by) the acts or omissions of a third party; and
- we are not liable for any Losses you suffer or incur due to factors outside our reasonable control.
18.2 IF YOU ARE A CONSUMER, OUR LIABILITY TO YOU FOR FAILURE TO APPLY WITH ANY APPLICABLE CONSUMER GUARANTEE IS LIMITED TO (AT OUR ELECTION):
- in relation to goods:
- replacing the goods or supplying equivalent goods (or paying the cost of either); or
- repairing the goods, or paying the cost of having the goods repaired;
- in relation to services:
- resupplying the services to you; or
- paying the cost of having the services resupplied.
18.3 IF YOU ARE A CONSUMER, OUR LIABILITY TO YOU FOR ALL LOSSES, HOWEVER CAUSED (INCLUDING BY OUR NEGLIGENCE), SUFFERED OR INCURRED BY YOU IN CONNECTION WITH THIS AGREEMENT, OTHER THAN A FAILURE BY US TO COMPLY WITH ANY APPLICABLE CONSUMER GUARANTEE, IS LIMITED AS SET OUT IN CLAUSE 7.1 ABOVE.
18.4 CLAUSES 18.2 AND 18.3 DO NOT APPLY:
- in relation to a Title Guarantee;
- to the extent that it is not Fair or Reasonable for us to rely on them; or
- in relation to Consumer Goods or Consumer Services we supply to you.
18.5 ANY CONDITION OR WARRANTY WHICH WOULD BE IMPLIED BY LAW AS A TERM OF THIS AGREEMENT IS EXCLUDED.
Justified reserves the right to change these Terms and Conditions at any time. Justified reserves the right to recover from the Customer all goods and services tax (GST) payable in respect of the supply of goods and services to the Customer.
These terms and conditions are governed by and will be construed in accordance with the laws of West Australia and the parties agree to submit to the jurisdiction of the courts of that state.
The Service Provider and Justified are not responsible for the content of traffic:
- We exercise no supervision or control whatsoever over the content of the information passing through our network.
- We accept no responsibility for the consequences of unauthorised breach of our system security such as hacking or denial of service attacks.
You are responsible for use of your account. If you permit others to use our service, you are responsible for making users of the service aware of this policy and obtaining compliance of your users with this policy.
The failure by Justified to exercise, or any delay in exercising, any right, power or privilege available to it under these terms and conditions will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any other right or power.