1. OUR CONTRACT WITH YOU
1.1 These are the terms and conditions (“Terms”) on which 1Cyber (“We/Us/Our/1Cyber/1Sight/1Desk/1Gadget/1Assure/1Nexus/1Sign/1Mobile”) agree to supply to you (“You”/the “Client”) the services (“Services”) or products (“Products”) described overleaf (“Quote”).
1.2 Please ensure that you read these Terms carefully, and check that the details on the Quote and in these Terms are complete and accurate, before you sign the Quote. If you think that there is a mistake or require any changes, please contact Us to discuss. We will confirm any changes in writing to avoid any confusion between you and Us.
1.3 Notwithstanding that you have accepted Our Quote, we reserve the right at all times to revise the Quote or to refuse to honor the Quote. Your acceptance of our Quote constitutes an offer to Us to provide you the Services or the Products in the Quote.
1.4 These Terms will become binding on you and Us and a contract (the Contract) will arise when We contact you in writing to inform that We will provide you with the Services and/or Products in the Quote. And the date We notify you of this will be the date of the Contract.
1.5 If any of these Terms conflict with any term of the Contract, these Terms shall prevail.
2. CHANGES TO ORDER OR TERMS
2.1 We may revise these Terms from time to time.
2.2 If We have to revise these Terms under clause 2, We will give you at least three (3) business day’s written notice of any changes to these Terms before they take effect. You can choose to cancel the Contract in accordance with the Terms.
2.3 If you wish to cancel the Contract before it has been fulfilled, please see your right to do so in clause 8.
3. PROVIDING SERVICES
3.1 We will make every effort to complete the Services or to supply the Products in a timely manner. However, there may be delays due to an Event Outside Our Control. See clause 7 for Our responsibilities when an Event Outside Our Control happens. Any hours of IT support and maintenance to be provided by Us shall expire if not utilised within ninety days from the date of the Contract.
3.2 If you do not, after being asked by Us, provide Us with any information or document We have requested for, or if you provide Us with incomplete or incorrect information or documents (the “Requested Information”), We may make an additional charge of a reasonable sum to cover any extra work that may be required, or We may suspend the Services by giving you written notice. We will not be liable for any delay or non-performance where you have not provided the Requested Information.
3.3 We may suspend the Services if payment for the Services is not received as provided for in clause 5.1. We will give you written notice before we do so. Our right under Clause 5.2 to charge you interest continues notwithstanding the Services have been suspended.
3.4 We own the copyright, design right and all other intellectual property rights in the Products and any drafts, drawings or illustrations We make in connection with the Services for you. However, once full payment is made in accordance with clause 5.1, We may agree to assign all intellectual property rights in the final version of the Products to you on terms to be agreed.
4. IF THERE IS A PROBLEM WITH THE PRODUCTS OR THE SERVICES
4.1 Product Warranty. Subject to Clause 4.3, We warrant that during the Warranty Period, the Products that We supply or provide to you are free from defects and fit for the purposes stated in the Contract. In addition to any manufacturer or supplier warranty, if there is a defect in any of the Products during the Warranty Period, We will assist at no cost to you with liaising with that Product’s manufacturer or supplier to rectify the defect or replace that Product. In this Clause, Warranty Period means a period of 90-days from the date that Product is delivered to you.
4.2 Service Warranty. Subject to Clause 4.3, We warrant that during the Warranty Period, the Services that We supply or provide you are supplied or provided to you with reasonable care and diligence in accordance with the terms of the Contract. If there is any defect in the quality of our Service during the Warranty Period, We will rectify the defect at no cost to you. In this Clause, Warranty Period means a period of 90-days from the date that Service was completed or performed.
4.3 Voiding of Product Warranty or Service Warranty (hereafter, the “Warranties”). For the Warranties to apply, you must: (a) notify Us immediately or in any case within twenty-four (24) hours of the discovery of the defect in the Product or the defect in the quality of the Service; and (b) give Us the first and reasonable opportunity to rectify or repair any defect. The Warranties in this Clause will be voided immediately if you or any third parties interfere with the Product or the Service before We have the opportunity to rectify or repair the defect.
5. PRICE AND PAYMENT
5.1 Unless otherwise stated, all prices in our Quote for the Product or the Service is exclusive of GST. You will pay any and all applicable taxes or GST on the price for the Products or the Services.
5.2 We may ask you to make an advance payment of the price for the Services and Products that you ask Us to provide or supply to You. If we do so, We will issue you with an invoice for the advance payment. Your rights to a refund of any advance payment on cancellation are set out in Clause 8. We will invoice you for the balance of the price for the Services and/or the Products on or any time after We have performed the Services or delivered the Products, whichever is the earlier. All invoiced amounts are immediately due and payable as from the date of the invoice. Late Payment Charge (LPC) will apply if payment is not received within 7 calendar days from the date of the invoice (hereafter, the Original Invoice).
5.3 LPC means a charge of a sum representing ten (10) per cent (%) of the unpaid balance of the Original Invoice and invoiced to you in our reminder invoices. Until full payment of the Original Invoice, We will issue you with reminder invoices at the first instance on the fourteenth (14th) day of non-payment and thereafter on each seven (7) day period of non-payment. These reminder invoices will state the unpaid balance of the Original Invoice and the LPC due and payable.
5.4 If you choose to pay by credit card, you agree to pay a credit card charge of 2.9 per cent (%) on the total price for the Product and/or the Service.
5.5 We retain the title in all the Products supplied to until full payment for them is received.
6. OUR LIABILITY TO YOU
6.1 In this clause:
A reference to We, Us, Our or 1Cyber also includes its directors, principals and employees.
A reference to “you” or the “Client” also includes its directors, principals and employees, your shareholders, subsidiaries or associated or related parties.
A reference to “Claim” means any and all actions, losses, damages, claims, liabilities, costs, and expenses (including without limitation, reasonable legal fees and expenses) brought against, paid or incurred by any of them at any time, in any way arising out of or relating to the Contract or any contract with Us.
A reference to “Loss” means and includes loss of profit, loss of business, business interruption, or loss of business opportunity, any consequential, special, indirect, incidental, punitive or exemplary loss, damage, cost or expenses (including, without limitation, lost profits and opportunity costs), relating to or arising in connection with this Contract.
6.2 Our liability to you for any Loss is excluded to the fullest extent possible under law.
6.3 You warrant that any material you provide Us does not infringe any person’s intellectual property rights (“IPR”). You indemnify and hold 1Cyber harmless against any Claim by third parties for IPR infringement arising from the material you provide us.
6.4 1Cyber shall not be liable to the Client in respect of any Claim. In no event shall 1Cyber be liable to you for any Loss. The Client undertakes to fully indemnify and hold 1Cyber harmless from any Loss and against all Claims.
7. EVENTS OUTSIDE OUR CONTROL
7.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under these Terms that is caused by an Event Outside Our Control.
7.2 An Event Outside Our Control means any act or event beyond Our reasonable control. It includes but is not limited to unavailability of key personnel or unavailability of key materials that would make rendering our services or supplying our products more expensive than it, in our sole discretion, ordinarily would cost. If any Event Outside Our Control takes place that affects the performance of Our obligations under these Terms:
(a) We will contact you as soon as reasonably possible to notify you; and
(b) Our obligations under these Terms will be suspended and the time for performance of Our obligations will be extended for duration of the Event Outside Our Control. Where the Event Outside Our Control affects Our performance of Services to you, We will resume the Services as soon as reasonably possible after the Event Outside Our Control is over.
7.3 You may cancel the Contract if an Event Outside Our Control takes place and you no longer wish Us to provide the Services. Please see your cancellation rights under clause 8. We will only cancel the Contract if the Event Outside Our Control continues for longer than 10 weeks in accordance with Our cancellation rights in clause 8.
8. YOUR RIGHTS TO CANCEL AND APPLICABLE REFUND
8.1 You may cancel the Contract in the following circumstances:
(a) before We begin to provide the Services; or
(b) if We change these Terms under clause 2.1 to your material disadvantage; or
(c) by giving Us at least 30 calendar days’ notice in writing; or
(d) We break this contract in any material way and We do not correct or fix the situation within 14 days of you asking Us to in writing;
(e) We break this contract in any material way and We do not correct or fix the situation within 14 days of you asking Us to in writing;
(f) We go into liquidation or a receiver or an administrator is appointed over Our assets;.
8.2 If you cancel the Contract under clause 8.1(a) and you have made any payment in advance for Services that have not been provided to you, We will refund these amounts to you.
8.3 If you cancel the Contract under clause 8.1(b) and We have already started work on the Contract by that time, you will pay Us any costs We reasonably incurred in starting to fulfill the Contract, and this charge will be deducted from any refund that is due to you or, if no refund is due to you, this charge will be invoiced to you. We will tell you what these costs are when you contact Us.
8.4 If you cancel the Contract under clause 8.1(c), any advance payment you have made for Services that have not been provided will be refunded to you. If We have already started work on the Contract by that time, you will pay Us any costs We reasonably incurred in starting to fulfill the Contract, and this charge will be deducted from any refund that is due to you or, if no refund is due to you, this charge will be invoiced to you. We will tell you what these costs are when you contact Us.
9. OUR RIGHTS TO CANCEL AND APPLICABLE REFUND
9.1 We may cancel the Contract before we provide the Services due to Events outside Our Control. We will promptly contact you if this happens.
9.2 In the course of providing the Services to you, We may cancel the Contract at any time by giving you seven (7) days written notice.
9.3 If we cancel the Contract under clause 9.1 and clause 9.2 and you have made any payment in advance for Services that have not been provided to you (the “Unused Service”), We will refund you the value of the Unused Service after deducting the Admin Fee. Our Admin Fee is an amount equivalent to 10 per cent of the value of the Unused Service.
9.4 We may cancel the contract for Services at any time with immediate effect by giving you written notice if:
(a) you do not pay Us when you are supposed to as set out in clause 5.1. This does not affect Our right to charge you interest under clause 5.2; or
(b) you breach the Contract in any other material way and you do not rectify the breach within 7 days of Us asking you to in writing.
10. OTHER IMPORTANT TERMS
10.1 We may transfer Our rights and obligations under these Terms to another organisation, and We will always notify you in writing if this happens, but this will not affect your rights or Our obligations under these Terms.
10.2 You may only transfer your rights or your obligations under These Terms to another person if We agree in writing.
10.3 This Contract is between you and Us. No other person shall have any rights to enforce any of its terms.
10.4 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
10.5 If We fail to insist that you perform any of your obligations under these Terms, or if We do not enforce Our rights against you, or if We delay in doing so, that shall not mean that We have waived Our rights against you and shall not mean that you do not have to comply with those obligations. If We do waive a default by you, We will only do so in writing, and that shall not mean that We will automatically waive any later default by you.
10.6 These Terms are governed by the law of South Australia. You and We both agree to submit to the exclusive jurisdiction of the courts of South Australia.
10.7 The Contract is the entire agreement between Us and You. The only enforceable obligations that We owe to You or that You owe to Us are those that arise out of the provisions contained in the Contract. Any and all representations, communications and prior agreements are merged into and superseded by the Contract.
11. HOSTING SERVICES
11.1 1Cyber strictly disallows Mass Mailing, Spamming, Sending out newsletters of any kind on our servers. Violation of this rule will result in termination of hosting account without refund. We recommend that you setup SMTP to ensure emails sent out from our servers are not detected as spam mails.
12 INSTALLATION OF SECURITY SYSTEMS
12.1 The installation of the Products is designed to reduce the risk of loss or damage to your agreed location of installation “Premises” so far as can be done by the use of this type of equipment. However, we do not guarantee that the Products cannot be removed, tampered with or made to stop working by you or any person(s). Should this happen, the Client agrees that We are not liable for any losses you may suffer directly or indirectly.
12.2 Unless otherwise stated, Our Installer (“Licensed Security Agent with an Open Registration License and relevant Endorsements”) will carry out the Service during Normal Working Hours (“0900hrs to 1700hrs Monday to Friday except statutory holidays”). We will perform the Service with reasonable skill and care.
12.3 Unless otherwise stated, the Client acknowledges and agrees that the following are not included in the Service(a) all cutting of ways, trenching, excavation, cable trenching, backfilling, provision of 240V mains power connections, cable installation, alterations to existing equipment, interfacing with fire, heat or detection systems and lifting equipment required to work at heights.(b) laying underground cabling or pits, redecoration, restoration, fixing and replacement of roof tiles, plastering works, painting works, building works, removal of concrete grounds, floor boards, laminates, carpet lifting/laying, erecting of poles, provisions of mounting brackets, providing cable containment, working on exceptionally high ceilings of above 2.6 meters, penetrations and drilling through walls thicker than 300mm.
12.4 The Client shall give Us free and uninterrupted access to the Premises to enable Us to install the Product in a continuous sequence at the date specified in the Quote. The Client must ensure that the Premises is at all times a safe working environment and (without limitation) will not contain asbestos or similar hazards. If We are forced to cease or suspend the Service or leave the Premises because the Premises are not in a ready state to perform or carry out the Service, We reserve the right to charge for the cost of such cessation or interruption.
12.5 The Client shall provide adequate facilities at the Premises at no cost to Us. Unless otherwise stated, adequate facilities shall mean and include parking facilities, Premises power, Premises lighting, lifting and handling equipment, ladders, scaffolding, scissor lifts, elevated work platforms, and rubbish removal skips.
12.6 If there is a delay in the completion of the Service due to an Event Outside Our Control then We shall be entitled to a reasonable extension of time to complete the Security System Installation.
12.7 If the delay is caused by acts or omissions of the Client, its servants or agents, any contractors or consultants engaged by the Client or any head contractor or other party to which the Client has contracted with, We shall be entitled to claim the reasonable costs of the delay from the Client, and the amount shall be a debt due and owing to Us.
12.8 The Client may, before completion of the Service, request Us in writing to vary the scope of the work involved in the Service which We may, at our own sole discretion choose to accept. We will provide a Quote for the proposed variation, and shall advise in writing the revised Price, any time extension necessary and the technical impact of any proposed variations.
12.9 We may substitute the Products offered as part of the Service with technically equivalent or superior products provided that the Clients has been informed by Us and accepts in writing the alternative Product offered prior to its supply.
12.10 Notwithstanding clause 3.10 or 3.11, We may terminate the Service at any time by providing seven (7) days written notice to the Clients.
12.11 If you do not, after being asked by Us, provide Us with any information or document We have requested for, or if you provide Us with incomplete or incorrect information or documents (the “Requested Information”), We may make an additional charge of a reasonable sum to cover any extra work that may be required, or We may suspend the Service by giving you written notice. We will not be liable for any delay or non-performance where you have not provided the Requested Information.
12.12 The Client agrees that when assessing an alleged defect of the Products, due allowance shall be made for fair wear and tear of the Products supplied. Should the Client or any other party attempt to carry out repairs, mal-operate the Products, or modify it in any way during the Warranty Period without Our written permission, The Warranties in this Clause will be voided immediately and we shall be relieved of the obligations under the Warranties.