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1. Definitions
1.1 “DPL Technology” shall mean Dewturn Pty Ltd T/A DPL Technology its successors and assigns or any person acting on behalf of and with the authority of Dewturn Pty Ltd T/A DPL Technology.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by DPL Technology to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by DPL Technology to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by DPL Technology to the Client.
1.5 “Services” shall mean all Services supplied by DPL Technology to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between DPL Technology and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Acceptance
3.1 Any instructions received by DPL Technology from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by DPL Technology shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of DPL Technology.
3.4 The Client shall give DPL Technology not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by DPL Technology as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by DPL Technology only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6 These terms and conditions are meant to be read in conjunction with the Terms and Conditions set out in either DPL Technology’s “Ad-Hoc Support Service Agreement” and/or the “Proactive Support Maintenance Agreement”. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
4. Price And Payment
4.1 At DPL Technology’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by DPL Technology to the Client in respect of Goods supplied; or
(b) DPL Technology’s current price at the date of delivery of the Goods according to DPL Technology’s current Price list; or
(c) DPL Technology’s quoted Price (subject to clause 4.2) which shall be binding upon DPL Technology provided that the Client shall accept DPL Technology’s quotation in writing within thirty (30) days.
4.2 DPL Technology reserves the right to change the Price in the event of a variation to DPL Technology’s quotation.
4.3 At DPL Technology’s sole discretion a deposit may be required.
4.4 At DPL Technology’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Clients shall be made by instalments in accordance with DPL Technology’s payment schedule; or
(d) payment for approved Clients shall be due by the fourteenth (14th) of the month following the month in which DPL Technology’s issue of the invoice.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and DPL Technology.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At DPL Technology’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at DPL Technology’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by DPL Technology or DPL Technology’s nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2 At DPL Technology’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then DPL Technology shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 DPL Technology may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.7 The failure of DPL Technology to deliver shall not entitle either party to treat this contract as repudiated.
5.8 DPL Technology shall not be liable for any loss or damage whatever due to failure by DPL Technology to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of DPL Technology.
6. Risk
6.1 If DPL Technology retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, DPL Technology is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by DPL Technology is sufficient evidence of DPL Technology’s rights to receive the insurance proceeds without the need for any person dealing with DPL Technology to make further enquiries.
7. Title
7.1 DPL Technology and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid DPL Technology all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to DPL Technology in respect of all contracts between DPL Technology and the Client.
7.2 Receipt by DPL Technology 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 DPL Technology’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until DPL Technology shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from DPL Technology to the Client DPL Technology may give notice in writing to the Client to return the Goods or any of them to DPL Technology. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) DPL Technology shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to DPL Technology then DPL Technology or DPL Technology’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as DPL Technology has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to DPL Technology for the Goods, on trust for DPL Technology; and
(f) the Client shall not deal with the money of DPL Technology in any way which may be adverse to DPL Technology; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of DPL Technology; and
(h) DPL Technology can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that DPL Technology will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within fourteen (14) days (in respect of hardware) and seven (7) days (in respect of labour) of delivery (time being of the essence) notify DPL Technology of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford DPL Technology an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which DPL Technology has agreed in writing that the Client is entitled to reject, DPL Technology’s liability is limited to either (at DPL Technology’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9. Warranty
9.1 For Goods not manufactured by DPL Technology, the warranty shall be the current warranty provided by the manufacturer of the Goods. DPL Technology shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
9.2 To the extent permitted by statute, no warranty is given by DPL Technology as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. DPL Technology shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
9.3 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by DPL Technology as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. DPL Technology shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
10. Intellectual Property
10.1 Where DPL Technology has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in DPL Technology, and shall only be used by the Client at DPL Technology’s discretion.
10.2 The Client warrants that all designs or instructions to DPL Technology will not cause DPL Technology to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify DPL Technology against any action taken by a third party against DPL Technology in respect of any such infringement.
10.3 Where DPL Technology has provided the Client with computer software (including coding and routines) the Company retains ownership of the computer software. DPL Technology hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use DPL Technology’s software under the terms of the licence it was supplied.
11. Default & Consequences of Default
11.1 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 one half percent (2.5%) per calendar month (and at DPL Technology’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by DPL Technology.
11.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify DPL Technology from and against all costs and disbursements incurred by DPL Technology in pursuing the debt including legal costs on a solicitor and own client basis and DPL Technology’s collection agency costs.
11.4 Without prejudice to any other remedies DPL Technology may have, if at any time the Client is in breach of any obligation (including those relating to payment), DPL Technology may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. DPL Technology will not be liable to the Client for any loss or damage the Client suffers because DPL Technology has exercised its rights under this clause.
11.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6 In relation to any accounts past for debt recovery. DPL Technology reserves the right to charge a legal action fee of $1,000.00 to cover legal costs to begin the process of debt recovery and add to the clients account any further costs incurred in recovery of any outstanding debt.
11.7 Without prejudice to DPL Technology’s other remedies at law DPL Technology shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DPL Technology shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to DPL Technology becomes overdue, or in DPL Technology’s opinion the Client will be unable to meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
12. Security And Charge
12.1 Despite anything to the contrary contained herein or any other rights which DPL Technology may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to DPL Technology or DPL Technology’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that DPL Technology (or DPL Technology’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should DPL Technology elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify DPL Technology from and against all DPL Technology’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint DPL Technology or DPL Technology’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13. Cancellation
13.1 DPL Technology may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice DPL Technology shall repay to the Client any sums paid in respect of the Price. DPL Technology shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by DPL Technology (including, but not limited to, any loss of profits) up to the time of cancellation.
14. Privacy Act 1988
14.1 The Client and/or the Guarantor/s agree for DPL Technology to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by DPL Technology.
14.2 The Client and/or the Guarantor/s agree that DPL Technology may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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
(d) to assess the credit worthiness of Client and/or Guarantor/s.
14.3 The Client consents to DPL Technology being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by DPL Technology for the following purposes and for other purposes as shall be agreed between the Client and DPL Technoglogy or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by DPL Technology, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
14.5 DPL Technology may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15. Unpaid DPL Technology’s Rights
15.1 Where the Client has left any item with DPL Technology for repair, modification, exchange or for DPL Technology to perform any other Service in relation to the item and DPL Technology has not received or been tendered the whole of the Price, or the payment has been dishonoured, DPL Technology shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while DPL Technology is in possession of the item;
(c) a right to sell the item.
15.2 The lien of DPL Technology shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
16. General
16.1 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.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
16.3 DPL Technology shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by DPL Technology of these terms and conditions.
16.4 In the event of any breach of this contract by DPL Technology the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 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 DPL Technology.
16.6 DPL Technology may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7 The Client agrees that DPL Technology may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which DPL Technology notifies the Client of such change.
16.8 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.
16.9 The failure by DPL Technology to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect DPL Technology’s right to subsequently enforce that provision.
For all other matters the relevant state fair trading laws apply.
By placing an order with DPL Technology you agree to these terms and conditions.
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