Set out below are the terms and conditions of access for the website of Pongobyte Computers (ABN 37 557 669 574) and the basis upon which items are sold to you using this website or by other means.  By accessing, placing an order via or using this website or otherwise placing an order with Pongobyte Computers, you agree to these terms and conditions.  If you do not wish to agree to these terms and conditions, you must not access, place an order via or use this website.

  1. Schedule of Definitions:

Business Days means a weekday in which trading banks are open for the transaction of banking business in Sydney, Australia.

Buyer means the entity to whom Goods are supplied by Pongobyte;

Contract means a contract of the sale of Goods arising out of an order accepted by Pongobyte;

Delivery means the Goods have been:

  1. handed to the Buyer or the Buyers’ Representative;
  2. delivered to the carrier or site nominated by the Buyer;

Delivery Agent means any nominated third party delivery or shipping company engaged by Pongobyte to deliver Goods ordered from it.

Delivery Fee means the fees, if any, charged for the delivery of the Goods.

Delivery Services means the delivery of products offered by Pongobyte;

Dispute an unresolved claim which arises under these terms and conditions.

Force Majeure shall include but is not limited to natural disasters, civil disasters, political event, change of legal/political environment, business disruption, accidents, earthquake, flood, hurricane or typhoon, tornado, tsunami, volcanic eruption, wildfire/bushfire, landslide or avalanche, fire, flood, storm, terrorist acts, revolt, war, financial markets disturbances, changes of regime or tax or regulatory authority, energy failure, external telecommunications failure and/or failure of transport systems.

Goods means any goods and/or services supplied by Pongobyte;

GST means Goods and Services Tax as provided for in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Invoice means the Invoices issued by Pongobyte in relation to a Contract;

Parties means the parties to these terms and conditions;

Personal Information has the meaning as defined under the Privacy Act 1988 (Cth).

PPSA means

  1. the Personal Property Securities Act 2009; and
  2. the Personal Property Securities Regulations 2010,

as amended, supplemented, or affected by any other applicable legislation of the Commonwealth, or any State or Territory, of Australia;

PPSA Register means the Personal Property Securities Register within the meaning of, and as defined in, PPSA;

Products means the purchase products, including Goods that have been listed for sale by Pongobyte;

Purchaser means the entity to whom Goods are supplied by Pongobyte;

Purchase Order means an invoice, quotation, purchase order or other document detailing the goods wishing to be purchased;

Purchase Services means the service provided by Pongobyte which allows you to purchase the listed products via the Website or phone service;

Pongobyte Branded Goods means custom-built computers that are assembled by Pongobyte.

Price means the purchase price of each Good as specified on the Website (including GST).

Related Body Corporate means a related body corporate as defined in section 9 of the Corporations Act 2001 (Cth).

Terms means the terms and conditions contained herein within this document, together with the Privacy Policy located on the Website.

Warranty means a guarantee to repair or replace the products if they fail to be of acceptable quality and the failure does not amount to a major failure;

Warranty Claim means a claim brought over material defects and workmanship within the warranty period;

Warranty Period means 30 days from the date of purchase; and

Website means ‘www.pongobyte.com.au’ and any pages or subpages associated with this domain name and, where the context permits, such other websites on which we advertise our Goods from time to time.

We or Us or Our or Pongobyte means Pongobyte Computers (ABN 37 557 669 574) and, where the context permits, its employees, independent contractors or agents.

You or Your means You as the purchaser of Goods from Pongobyte pursuant to these Terms and Conditions.

  1. Background
    1. Pongobyte Computers (ABN 37 557 669 574) herein referred to as Pongobyte or Supplier provides you with an opportunity to browse and purchase products through the Website, for online and phone orders. Please read these Terms and Conditions (the ‘Terms’) carefully.
    2. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms or are under the age of 18, you must cease usage of the Website, Products or any of the Purchase Services, immediately.
    3. Pongobyte reserves the right to review and change the Terms by updating this page at its sole discretion. When Pongobyte updates the Terms, it will use reasonable endeavours to provide you with notice of the updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication.
  2. Availability of Goods and Orders
    1. Pongobyte reserves the right to withdraw any Goods or Services from sale temporarily or permanently without prior notice to you for any reason. Some Goods or Services might still appear on the Website for a period of time after that withdrawal but that is not a representation that they are available.
    2. Pongobyte reserves the right to accept or reject your Purchase Order for any reason, including, without limitation, an error in the product description or price posted on the Website, the availability of the Goods or Services, or an error in your Purchase Order. Your contract with Pongobyte comes into existence when you receive email confirmation from Pongobyte containing receipt of your order, an acceptance of your order, confirmation of receipt of your payment and details of the likely delivery.
    3. You acknowledge and agree that:
  1. all pictures and images of Goods displayed on the Website are for illustration purposes only, and the appearance and dimensions of Goods may differ in real life; and
  2. You have read and fully understand and accept any written description of the Goods prior to submitting Your Order.
    1. You may place an Order by submitting the electronic Order form on the Website or by submitting an Order by other means, including by emailing Your Order to info@pongobyte.com.au.  In completing the Order form, You agree to provide complete and accurate information to enable the processing and delivery of Your Order.
    2. You may not place an Order if You lack capacity to enter into a binding agreement with Us.  If you are under 18 years of age, you must obtain the consent of your parent or legal guardian.
    3. Unless provided for under these Terms, You cannot cancel or change your Order once it has been accepted.
    4. If We reject or cancel Your Order under these Terms and Conditions, and Your payment for the Goods has already been processed, We will refund the Price of the Goods to You. When this refund is received will depend upon each financial institution’s processing times.  Pongobyte is not liable with respect to any loss (consequential, direct or indirect) You or any third party might suffer as a result of any delay in processing or paying Your refund.
  1. Price and Payment
    1. Unless otherwise stated, all Prices, Delivery Fees and other charges quoted are in Australian Dollars and, where applicable, are inclusive of goods and services tax (GST).
    2. Pongobyte reserves the right to change or alter Prices of Goods on the Website for any reason and without notice to You, unless You have already submitted an Order at a stipulated Price and that Order has been accepted by us, in which case there will be no change or alteration in pricing (provided Your Order is not affected by a pricing error, in which case clause 5.3 will apply).
    3. In respect of any Order, We will charge You and You agree to pay:
  • the Price (which is the Price at the time the Order is submitted); and
  • the Delivery Fee (if applicable).
    1. You can pay for Your Goods by any of the methods specified on the electronic Order form on the Website. When paying through a third party provider, You warrant that You have familiarised Yourself with, and agree to be bound by, the applicable terms and conditions provided by the third party provider. You are liable for any surcharges the third party provider may apply to your purchase.
    2. You acknowledge and agree that any payment in respect of an Order must be paid within 14 days of Your Order being placed and cleared to Our satisfaction before Goods which are the subject of an Order are dispatched. If Your payment is not received within 14 days of Your Order being placed or if Your payment cannot be processed, Your Order will be cancelled.
    3. In our sole discretion, we can accept orders for Goods on a deferred payment plan. Additional terms and conditions will apply to such orders.
    4. You will receive a tax invoice by email once payment in respect of Your Order has been processed and cleared pursuant to this clause.
  1. Shipping and Delivery
    1. Pongobyte uses Delivery Agents to deliver Your Goods.  You agree that Your details including Your delivery address to be supplied to the Delivery Agent for the purpose of delivering Your Goods.
    2. You acknowledge and agree that additional delivery fees may be payable if Your Order otherwise incurs additional charges, for instance because You provide an incorrect delivery address and a second delivery attempt is required.
    3. Date of delivery is quoted in good faith and in light of conditions and circumstances prevailing at the time, but no responsibility is accepted by Pongobyte for delay due to strikes, lockouts, machinery breakdowns, shortage or unavailability of materials, delays in transport or any other cause beyond Pongobyte’s control. Weather delays and other unforeseen circumstances may impact delivery time. Unless there are exceptional circumstances, we will make every effort to fulfil your Purchase Order.
    4. If You are not personally available to accept delivery, the Goods may be left with a person at Your nominated delivery address who is over 16 years of age.
    5. When Pongobyte is unable to deliver the Goods, it may charge you all costs and expenses associated with the delayed delivery.
    6. Pongobyte will be deemed unable to deliver the Goods including where (without limitation):
  1. You are unable or unwilling to accept the delivery;
  2. You refuse to sign to confirm delivery has taken place;
  3. the site where the delivery is to take place is deemed unsafe or unsuitable by Pongobyte; or
  4. You do not pay the price for the Goods in cash or by cheque or by credit card where the goods were supplied on a payment on or before delivery basis.
    1. You will not be relieved of any obligation to accept Goods and to pay Pongobyte for the Goods by reason of any delay in delivery.
    2. Pongobyte has no liability for any loss or damage consequential or otherwise for failure to deliver the Goods or late delivery of the Goods.
    3. You indemnify Pongobyte against any loss or damage you might suffer or incur arising out of delivery of the Goods to anywhere other than a kerbside or road.
    4. Pongobyte accepts no responsibility or liability for deliveries after they have been left at your designated delivery address. Risk and title in the Goods pass to you on the date and time of delivery of the Goods to the delivery address provided in your order.
    5. You acknowledge and agree that Pongobyte’s delivery drivers are not authorised representatives of Pongobyte for any purposes arising under this clause. Pongobyte may integrate delivery through the use of third party delivery companies. These third party delivery service providers and delivery companies are not authorised representatives of Pongobyte for any purposes arising under these Terms. You acknowledge that Pongobyte is not the provider of these third party delivery options and merely facilitates your interaction with the third party delivery providers and delivery companies.
  1. Warranty, Returns and Refunds
    1. Pongobyte’s Goods come with guarantees that cannot be excluded under the Australian Consumer Law (the ‘ACL’). You are entitled to a replacement or refund for a major failure of the Product and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure (the ‘Warranty‘).
    2. Please inspect goods immediately upon arrival. You may make a claim under this clause (the ‘Warranty Claim‘) for material defects and workmanship in the Goods within 30 days from the date of purchase (the ‘Warranty Period‘).
    3. In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to Pongobyte showing the date of purchase of the Goods, provide a description of the Goods and the price paid for the Goods by sending written notice to Pongobyte at Suite 1002, 10-12 Flushcombe Rd, Blacktown NSW 2148 or by way of email to support@pongobyte.com.au (the ‘Service Address’).
    4. Where the Warranty Claim is accepted then Pongobyte will, at its sole discretion, either repair or replace any defective Goods or part thereof with a new or remanufactured equivalent during the Warranty Period at no charge to you for parts or labour. In all circumstances, you must ensure that the Goods are appropriately packed and protected from damage.
    5. The Warranty shall be the sole and exclusive warranty granted by Pongobyte, and shall be the sole and exclusive remedy available to you in addition to any other rights under law in relation to the Goods to which this warranty relates.
    6. In the event a Good provides for a direct manufacturer to customer warranty service, we will alert you of this, and in circumstances where time is of the essence, you can elect to liaise directly with the manufacturer as it may provide a faster turnaround time.
    7. All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.
    8. The Warranty does not apply to any appearance of the supplied Goods nor to the additional excluded items set forth below nor to any supplied Goods where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.
    9. In the event that you receive the Goods or Services you have purchased, but you simply change your mind, you will not be offered a refund.
    10. In the event that the Goods have been damaged during delivery:
  1. Please contact us as soon as possible (at most 5 business days from the date of delivery) and we will discuss whether the Goods can be repaired or returned at reasonable expense for repairs or replacement;
  2. Any damaged product must be returned in the condition in which it was received, together with any packaging and other items which you received with the damaged Goods at your expense.
    1. Notwithstanding, any other provisions of these Terms and Conditions, we may refuse to provide a repair, replacement or refund for Goods or Services purchased by you if:
  1. you misused the said product in a way which caused the problem;
  2. you knew or were made aware of the problem(s) with the product or service before you purchased it;
  3. the defect or damage was caused by or resulted from a connection or attachment to the product which was not approved by the Pongobyte or the manufacturer or is not an approved attachment to the product;
  4. the product that is repaired or altered by anyone other than an authorised Pongobyte service personnel where a product was disassembled or repaired in such a manner that performance or functionality is affected;
  5. the product fails or is damaged as a result of improper storage, operation under abnormal conditions, misuse, neglect, abuse, accident or maladjustment of consumer controls. Short circuiting the equipment will be considered misuse and will cause the product not to be covered by warranty.
  6. the defect or damage is due to spills of liquid or other substances, excessive temperature or humidity and environmental conditions;
  7. you asked for a service to be done in a certain matter, or you asked for alterations to a product, against our advice, or you were unclear about what you wanted; or
  8. any other exceptions that apply under the Australian Consumer Law.
    1. In the event that a product you have purchased fails to meet one or more Consumer Guarantees under the Australian Consumer Law, and the sale is governed by the Australian Consumer Law, we shall bear the cost of shipping the Goods (the ‘Returned Good’), back to you, as well as any cost of shipping any replacement product to you.
    2. If the Returned Goods are not faulty, you may be responsible for the associated costs (the ‘Service Fee’) including the costs incurred by Pongobyte in processing your Warranty Claim, any labour costs of both the Pongobyte or the manufacturer and any postage costs incurred by Pongobyte.
    3. If the Returned Good can easily be shipped or returned, then you are responsible for organising the Returned Good to be returned to us. We will send you a Return Authorisation Form (the ‘RMA’) for you to fill in and return to us. We will then provide subsequent shipping instructions. If the Returned Good is eligible for repair, replacement or refund under these Terms (including under Australian Consumer Law) then we will reimburse you for the reasonable postage, shipping or transportation costs for the Returned Good.
    4. Pongobyte accepts no responsibility for any damage nor will they offer a refund, repair or replacement for Returned Goods that have not been appropriately packaged by you and are damaged in transit as a result.
  1. Pongobyte Branded Goods – Extended Warranty
    1. Extended Warranty is offered as an extra level of service for Pongobyte Branded Goods. The components that are used to build these systems carry manufacturers warranty, we will assist you to make claims based on the manufacturer’s warranties, once the Extended Warranty has expired.
    2. If your Pongobyte Branded Goods only include 1 year Extended Warranty (standard inclusion with the purchase of all Pongobyte Branded Goods), there may be extra years of manufacturers based warranty included for individual components in the system after the Extended Warranty has lapsed.
    3. The advantage of having an Extended Warranty is that claims are processed quicker using parts from Pongobyte’s own inventory, bypassing the standard manufacturer’s warranty that can take approximately 2-6 weeks.
    4. If you purchase Pongobyte Branded Goods, you will be given the option of purchasing a Pongobyte Extended Warranty for the Goods for a period of 1 or 2 years.
    5. If you purchase a Pongobyte Extended Warranty, you will receive the following services:
  1. where a Pongobyte Branded Good is found to be faulty, we will supply and provide all parts and labour necessary to repair your  Pongobyte Branded Good;
  2. Pongobyte will, at its discretion, replace the faulty part with a manufacturer repaired, refurbished or a new part. If Pongobyte cannot find a replacement part of the same model, it may use a part of equivalent or better quality and performance.
    1. Without limiting any other provisions in these Terms and Conditions, in regard to Pongobyte Branded Goods:
  1. Pongobyte will at its own cost repair hardware faults arising and reported by sending written notice to us within 12 months from the date of purchase, or where you have purchased an extra 1 or 2 year Extended Warranty, if the fault is reported within 3 years from the date of Purchase, depending on the type of Extended Warranty you have opted for).
  2. Pongobyte may refer repairs to the manufacturer if a specific part requires repair. Where parts are referred to the manufacturer for repair or replacement, Pongobyte has no control over the processing time of the manufacturer or the turnaround time (unless you purchased an Extended Warranty in which case clause 11 applies).
  3. Without limiting the above, some components used to build the Pongobyte Branded Goods carry manufacturers’ warranty, Pongobyte will assist customers to make claims based on the manufacturers’ warranties, once the Extended Warranty has expired.
  4. Pongobyte reserves the right under this clause, to use its sole discretion when repairing a system covered by Extended Warranty with respect to parts being new or refurbished, and where Pongobyte cannot source the same part or brand, they will use a different part or brand of a similar or better performance.

For the avoidance of doubt, the undertakings contained in this clause 11 do not apply to Goods that are not Pongobyte Branded Goods.

  1. Lifetime Technical Support
    1. Pongobyte offers lifetime email and telephone technical support for all purchased Goods. For the avoidance of doubt, this means that Pongobyte offers technical advice and support to customers for hardware related issues via telephone and email. The support provided does not extend or relate to software related issues and does not include conducting repairs or servicing Goods.
  2. Retention of Title and PPSA
    1. Items and property pertaining to the Goods supplied will remain the property of Pongobyte and will not pass on to you until payment of the money owing for the Goods and any other money owing by you to Pongobyte has been fully paid.
    2. You shall, at the request of Pongobyte, assist in taking any measures necessary to protect Pongobyte’s title of the Goods supplied in the country concerned.
    3. You must inform Pongobyte of any seizure or other act of intervention by third parties in relation to the Goods supplied.
    4. Until the Goods have been paid for in full:
      1. you have possession of the Goods as bailee only;
      2. you must properly store, protect and insure the Goods, including storing them in a manner that shows clearly that they are the property of Pongobyte; and
      3. you may sell or consume the Goods, in the ordinary course of business, but only as the fiduciary agent of Pongobyte.
    5. You have no authority to bind Pongobyte to any liability by contract or otherwise and must not purport to do so.
    6. You must, if requested by Pongobyte, deliver up the Goods to Pongobyte, failing which Pongobyte is irrevocably authorised to enter the place where the Goods are stored and repossess the Goods, if:
  1. you fail to pay a due amount following demand by Pongobyte;
  2. you commit an act of bankruptcy;
  3. a receiver is appointed to you;
  4. you go into liquidation, administration or some other form of insolvency administration;
  5. you cease to carry on business; or
  6. you enter into a scheme or compromise with its creditors.
    1. Pongobyte’s property in the Goods is not affected if the Goods become a fixture attached to your or a third party’s premises.
    2. Pongobyte may commence legal action against you if the Goods are not paid for, although property in the Goods has not passed to the Buyer.
    3. You irrevocably agree and consent to Pongobyte registering its interest in the Goods on the PPSA Register pursuant to the provisions of the PPSA.
  1. Promotions and Discounts
    1. Pongobyte may from time to time run promotions.  Promotions are governed by their own additional terms and conditions which may vary these Terms and Conditions.
    2. All times and dates specified in promotions are deemed to be the local time in Sydney, Australia unless otherwise stated.
  2. Warranties You make
    1. You represent and warrant that:
  1. You are over the age of 18 or have the consent of your parent or guardian and have capacity to enter into a contract with Pongobyte;
  2. all information (including Personal Information) and data provided by You to Us through the Website is true, accurate, complete and up to date;
  3. in placing Your Order, You have read, understood and agreed to these Terms and Conditions; and
  4. You have complied with all Laws.
  1. Copyright and Intellectual Property Rights
    1. The Website, the Purchase Services and all of the related products of Pongobyte are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interaction features) or the Purchase Services are owned or controlled for these purposes and are reserved by Pongobyte or its contributors.
    2. All trademarks, service marks and trade names are owned, registered and/or licensed by Pongobyte, who grants to you a worldwide, non exclusive, royalty free, revocable license to:
  1. use the Website pursuant to the Terms;
  2. copy and store the Website and the material contained in the Website in your device’s cache memory; and
  3. print pages from the Website for your own personal and non-commercial use.

Pongobyte does not grant you any other rights whatsoever in relation to the Website or the Purchase Services. All other rights are expressly reserved by Pongobyte or its contributors.

    1. Ponogobyte expressly prohibits you from:
  2. Modifying or copying the layout or appearance of the Website or any computer software or code contained on the Website; and
  3. Decompiling or disassembling, reverse engineering or otherwise attempting to discover or access any source code related to the Website.
    1. Pongobyte retains all rights, title and interest in and to the Website and all related Purchase Services. Nothing you do on or in relation to the Website will transfer any:
  1. business name, trading name, domain name, trade mark, industrial patent, registered design or copyright, or
  2. a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
  3. a thing, system or process that is subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process) to you.
    1. You may not, without the prior written permission of Pongobyte and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Purchase Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
    2. Subject to the terms of Our Privacy Policy, if You correspond or otherwise communicate with us, You automatically grant to Us an irrevocable, perpetual, non-exclusive, royalty-free, worldwide licence to use, copy, display and distribute the content of Your Content and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content. This may include, but is not limited to, publishing testimonials on Our Website and developing Your ideas and suggestions for improved products or services We provide.
  1. Third party Websites
    1. This Website may contain links to other websites controlled by third parties (Third Party Websites).
    2. Pongobyte is not responsible for the content or privacy practices of Third Party Websites.
    3. The Third Party Websites are provided solely for Your convenience and do not constitute, expressly or impliedly, an endorsement by Pongobyte of the third party or the products or services provided by the third party or any affiliation between Pongobyte and the third party.
    4. You access those sites and/or use those site’s products and services solely at Your own risk and should make Your own enquiries before relying on any content contained in such Third Party Websites.
  2. Use of Cookies
    1. Cookies are small pieces of information that Your browser stores on Your computer hard drive.  We use Cookies to provide You site usage information as well as to assist Us to improve and develop the Goods and services We offer.
    2. If You disable cookies on Your web browser, You may not be able to fully experience all features of the Website.
  3. Liability and Indemnity
    1. Pongobyte is not liable for any loss caused to the Purchaser by a Force Majeure Event and shall be excused from performance of its respective obligations when and to the extent such performance is delayed or prevented by a Force Majeure Event.
    2. Pongobyte’s total liability arising out of or in connection with the Purchase Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Goods or Services to you.
    3. Without limiting the foregoing, Our maximum aggregate liability for all proven losses, damages and claims arising out of or in connection with these Terms and Conditions or a supply of Goods under these Terms and Conditions, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $100.
    4. You expressly understand that Pongobyte, it’s affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss or profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
    5. In relation to the supply of Goods, to the extent permitted by the ACL, Pongobyte’s liability is limited to:
  1. replacing the goods or supplying similar goods;
  2. repairing the goods;
  3. providing the cost for replacing the goods or for acquiring equivalent goods;
  4. providing the cost for having the goods repaired;

In relation to the supply of services to the extent permitted by the ACL, Pongobyte’s liability is limited to:

  1. supplying the service again; or
  2. providing for the cost of having the services supplied again.
    1. To the extent permitted by the ACL, Pongobyte is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Purchaser.
    2. You agree to indemnify Pongobyte, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
  1. all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;
  2. any direct or indirect consequence of you accessing, using or transacting on the Website or attempts to do so; and/or
  3. any breach of the Terms.
    1. Subject to and without limiting the foregoing, We will not be liable for, will not repair and will not replace Goods:
  1. that have been damaged or defaced by You;
  2. that have been subjected to misuse;
  3. where You have altered or modified the Goods in their design or construction or where You have without our prior approval replaced parts, repaired the Goods or attempted to repair the Goods;
  4. that have been damaged due to changes in voltage in the power supply network;
  5. that have been damaged by foreign objects, including without limitation liquid spills, or that have been damaged as a result of rough or inappropriate handling.
    1. The obligations under this clause will survive termination of these Terms.
  1. Termination
    1. Pongobyte may at any time, terminate the Terms with you if:
  1. you have breached any provision of the Terms or intend to breach any provision;
  2. Pongobyte is required to do so by law;
  3. the provision of the Purchase Services to you by Pongobyte is, in the opinion of Pongobyte, no longer commercially viable.
    1. Subject to local applicable laws, Pongobyte reserves the right to discontinue or cancel your use of the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Pongobyte’s name, reputation or violates the rights of those of another party.
  1. General Disclaimer
    1. Pongobyte may in its sole discretion amend these Terms and Conditions at any time.  Any variations to these Terms and Conditions will take effect from posting on the Website. The Terms and Conditions which apply at the time of Order are those that govern Your relationship with Pongobyte with respect to that Order.
    2. Pongobyte reserves the right to discontinue the use of any Goods or Services for any reason and to elect to replace any Goods or Service with an alternative.
    3. Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
    4. Subject to this clause, and to the extent permitted by law:
  1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded;
  2. Pongobyte will not be liable for any special, indirect, consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity pursuant to statute or otherwise.
    1. use of the Website, the Purchase Services and any of the Products of Pongobyte (including Delivery Services), is at your own risk. Everything on the Website, the Purchase Service and the Products of Pongobyte, are provided to you on an “as is” and “as available” basis, without warranty, or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Pongobyte (including any third party where the Delivery Services are made available to you) make any express or implied representations or warranty about its Content or any Products or Purchase Services (including the Products and Purchase Services of Pongobyte) referred to on the Website. This includes (but is not restricted to) any loss or damage you might suffer as a result of the following:
  1. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct or theft, destruction, alteration or unauthorised access to records;
  2. the accuracy, suitability or currency of any information on the Website, the Purchase Services, or any of its Content related products (including third party material and advertisements on the Website);
  3. costs incurred as a result of you using the Website, the Purchase Services or any of the Products;
  4. the Content or operation in respect to links which are provided for the User’s convenience;
  5. any failure to complete a transaction, or any loss arising from e-commerce transactions on the Website; or
  6. any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
    1. You agree that You will not engage in any activity that directly or indirectly interferes with or disrupts the operation of the Website or its services in any way or use the Website in a manner that adversely affects the availability of the Purchase Services.
    2. Pongobyte will not be liable to You for any loss or that of any third party for any delay, cancellation, failure to process or failure to deliver Goods to You due as a result of You providing inaccurate or incomplete information.
    3. It is your responsibility to backup all existing data, software, and programs, and to erase all existing data before receiving a service or repair on your goods. Pongobyte will not be responsible for loss, recovery, or compromise of data, programs or loss of use of equipment arising out of the services provided by Pongobyte.
    4. The Website may be accessed throughout Australia and overseas.  Pongobyte makes no representations that the content of the Website complies with the Laws (including intellectual property Laws) of any country outside Australia.  If You access this Website from outside Australia, You do so at Your own risk and are responsible for complying with the Laws in the place where You access this Website.
  1. Dispute Resolution
    1. Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

    1. Notice:

A party to the Terms claiming a dispute (‘Dispute‘) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

    1. Resolution:

On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties ‘) must:

  1. Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
  2. If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
  3. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
  4. The mediation will be held in Sydney, Australia.
    1. Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

    1. Termination of Mediation:

If 2 weeks have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

  1. Waiver

A failure or delay by Pongobyte to exercise a power or right under these Terms and Conditions does not constitute as a waiver of that power or right, and the exercise of a power or right by Pongobyte does not preclude its future exercise or the exercise of any power or right by or on behalf of Pongobyte.

  1. Notice

Any notice required or permitted to be given by either party to the other under these conditions will be sent by way of email to the address provided by the Purchaser at the time of sending. Sufficient notice will be deemed to have been served on the expiry of 24 hours after the email correspondence has been sent.

Pongobyte may give notice to You by electronic mail. You may give notice to Pongobyte by electronic mail to office@pongobyte.com.au.

  1. Governing Law

The Terms and Conditions contained within this Agreement are governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales. The Purchaser cannot bring a claim, suit or action arising out of any part of this Agreement in a different jurisdiction, regardless of the Purchaser’s geographical locations.

  1. Entire Agreement 

These Terms and any document expressly referred to in them represent the entire agreement between the Purchaser and the Website Provider and supersedes any prior agreement, understanding or arrangement between the Purchaser and the Website Provider, whether oral or in writing. If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.

  1. Contact

If You have any questions about the Terms, please contact Pongobyte at office@pongobyte.com.au.