ABN 60 126 901 040
Suite 7.03, 227 Elizabeth Street
Sydney NSW 2000
PO Box A2626
Sydney South NSW 1235
TERMS AND CONDITIONS
1. Ownership of Equipment
(a) Title of goods passes to the purchaser at the end of the agreed term.
(b) For the purposes of this agreement, the term “Equipment” includes hardware and software.
(c) The purchaser shall keep the Equipment free and clear of any liens or other encumbrances, and shall not permit any act where the seller’s title or rights in respect of the Equipment may be negatively affected.
(a) The ownership of any Equipment sold by the seller and delivered to the purchaser will be transferred to the purchaser when the purchaser has made payment in full for all the Equipment and all that is owing to the seller no matter what the grounds.
(b) In the event of payment for the Equipment becoming overdue or in the event of any other default, the seller may recover and resell the Equipment and / or initiate proceedings against the purchaser for the price of the Equipment.
(c) The seller or its agent may enter the purchaser’s premises for the purposes of recovering possession of the Equipment in the event of payments of the Equipment becoming overdue or in the event of any other default.
3. Possession and Surrender of Equipment
(a) The purchaser shall be entitled to possession of the Equipment on confirmation of receipt of payment.
(b) The purchaser acknowledges having inspected the Equipment and agrees that the Equipment is in good and acceptable condition at the time of delivery.
4. Use and Maintenance of Equipment
(a) If replacement equipment is deemed necessary by the seller due to reasons other than hardware failure or software malfunction (excluding malfunctions caused by a computer virus) it will be provided at the expense of the purchaser who will be liable for the costs and expenses of repairing the Equipment.
(b) The purchaser shall, at its own expense, be responsible for complying with and conforming to all laws and regulations relating to the safe and lawful possession, use or maintenance of the Equipment.
(c) The purchaser shall promptly pay all taxes, fees, licences and governmental charges, together with any penalties or interest thereon, relating to the possession, use or maintenance of the Equipment.
5. Equipment Operating Environment
The purchaser acknowledges that all electronic equipment is affected by heat and humidity and undertakes to ensure that all equipment installed shall be operated within the manufacturer’s specification. As a general guideline, the operating temperature is 0-40 degrees Centigrade and humidity is 20-80% (no condensing)
The purchaser agrees that it is unconditionally bound to pay all amounts due under this agreement in full without set-off or counterclaim, and without any deduction in respect of taxes, unless prohibited by law, on any account whatsoever. This obligation continues to be effective, even if the Equipment is lost, stolen, damaged or destroyed, if it is defective or if the purchaser can no longer use it.
Written permission must be received from the seller prior to return of any item of Equipment. Returned items are subject to fifteen percent (15%) restocking charge. In addition the purchaser is responsible for arranging shipment and paying all freight, duties, or other charges associated with returning the Equipment to the seller.
8. Entire agreement
(a) This agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind preceding the date of this agreement.
(b) There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this agreement.
(c) This agreement may be modified in writing and for any such modification to be effective, the modification must be signed by both the seller and the purchaser.
(d) This agreement cannot be cancelled or terminated except in accordance with its terms. (e) Any brochures and marketing material that may have been provided to the purchaser does not form part of this Agreement
9. Goods and Services Tax & Prices
(a) For the purpose of this agreement, the following words have the attributed meanings:
(i) “GST” means any tax on goods, services and other supplies, including any value-added tax, broad-based consumption tax or other similar tax introduced in Australia.
(ii) “GST Exclusive Value” means the GST exclusive value as calculated in accordance with the GST Law.
(iii) “GST Law” includes any Act, order, ruling or regulation that imposes or otherwise deals with the administration or imposition of a GST in Australia, including A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b) Where a GST is payable in connection with any supply made by either party to the other under this Agreement:
(i) the party making the supply is or will be registered under GST Law at the time the supply is made by that party; and
(ii) a tax invoice (as that term is defined in the GST Law) in connection with the supply has been rendered by the supplier to the recipient of the supply.
(c) The consideration payable or to be provided for that supply will be increased by an amount equal to the GST liability properly incurred by the party making the supply.
(d) All invoiced amounts and amounts expressed in this agreement are expressed as being inclusive of GST.
10. Warranty, Disclaimer of Warranties & Agreed Liability
(a) The seller represents and warrants that it has the right to sell the Equipment as provided in this agreement and that purchaser shall be entitled to quietly hold and possess the Equipment, and seller will not interfere with that right as long as the purchaser pays the moneys required to be paid under this agreement in a timely manner and performs all other obligations under this agreement.
(b) The seller warrants that the Equipment is in good operating order and condition as at the commencement date of this agreement.
(c) Upon delivery of the Equipment, it is the obligation of the purchaser to inspect the Equipment and satisfy itself that it is in good operating order and condition.
(d) The purchaser acknowledges that the seller has no control over the operation of any external conditions or any other equipment or machine used along with the Equipment.
(e) The purchaser must rely upon its own judgment both as to the quality and condition of the Equipment and its fitness and suitability for any particular purpose as well as the performance of services provided by third parties.
(f) No warranties are given by the seller to the purchaser in relation to the Equipment or any services other than those implied by law.
(g) Subject to additional condition 10(h) below, the liability of either party to the other for any breach of this agreement, or for any negligent act or omission, or otherwise arising in any other way out of the subject matter of this agreement and the use of the Equipment, will not extend to any indirect damages or losses, or any loss of profits, loss of revenue, loss of data, loss of contracts or opportunity, whether direct or indirect, even if the party bringing the claim has advised the other of the possibility of those losses or if they were within the other party’s contemplation.
(h) To the extent permitted by law, the entire liability of the seller to the purchaser, whether in contract, tort or otherwise, shall be limited to the total of the amount actually paid to seller at the date the claim arose.
(i) The seller shall not be liable to the purchaser for any breach of its obligations under this agreement, in tort, contract or otherwise, if such breach is caused by circumstances beyond its reasonable control.
(j) The express undertakings and warranties given by the seller in this agreement are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing or in any other way. All of these are excluded to the fullest extent permitted by law.
(k) The seller warrants the equipment as fit for the purposes as a point of sale system. Therein the primary function is to document sale transactions at the point of sale.
(l) In the event of a hardware failure, the faulty product should be returned to the supplier under RTB (Return to Base) warranty which in this case is the seller.
11. Prices Exclude Network Infrastructure
For the avoidance of doubt, the purchaser acknowledges that the cost of the following is not included in the proposal and it the buyer’s responsibility to have;
(a) A stable working internet connection
(b) Where appropriate a wireless network connection
(c) Any hardware VPNs, where required
(d) Network and power cabling. Please note, the seller will supply the cables required to connect the POS terminals and network printers into the wall plates (Ethernet ports).
(e) The seller can provide a switch to enable communication between each Neotechnology Terminal and the Neotechnology Server, however, the switch may not be included in the initial quote and will be quoted and charged for separately.
12. Installation Hours
(a) The seller’s standard hours of installation and training in respect of the Equipment are Monday to Friday from 9.30am to 4.30pm excluding public holidays. Any installation or training which occurs outside of these hours is subject to additional fees which are charged in a minimum of 2 hour blocks at the ruling rate at the time of implementation.
(a) Except for damages, claims or losses due to the seller’s negligent acts or omissions, the purchaser, to the extent permitted by law, will indemnify on a continuing basis and will hold the seller and the seller’s property, free and harmless against all losses, liabilities, costs and expenses (including, without limitation, legal expenses on a full indemnity basis) and taxes, of whatever kind or nature (including claims for strict liability in tort) arising from its use or operation of the Equipment or in respect of any damage to property or death of or injury to any person which may be suffered or sustained in connection with the purchaser’s use or operation of the Equipment. (b) The purchaser releases the seller to the fullest extent permitted by law from all claims and demands of every kind arising out of the leasing of the Equipment, including any liability which may arise in respect of any accident or damage to property or death of or injury to any person of whatever nature or kind in or near the Equipment. The purchaser agrees that the seller will have no responsibility or liability for any loss of or damage to any property of the purchaser.
14. General Provisions
(a) Waiver: The failure of either party to enforce any provisions of this agreement shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement. The acceptance of payment by seller does not waive seller’s right to enforce any provisions of this agreement.
(b) Cumulative rights: The seller’s and the purchaser’s rights under this agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
(c) Severability: If any part or parts of this agreement shall be held unenforceable for any reason, the remainder of this agreement shall continue in full force and effect. If any provision of this agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
(d) Assignment: Neither this agreement nor the purchaser’s rights hereunder are assignable, except with the seller’s prior, written consent. The purchaser may apply to assign this agreement but the purchaser acknowledges that the seller is not obliged to agree. The seller may charge a fee to credit assess the proposed assignee even if the proposed assignee is declined.
(e) Governing Law: This agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia and any action relating to this agreement shall be taken in the appropriate court in that State.
(f) Binding effect: The covenants and conditions contained in this agreement shall apply to and bind the parties and the heirs, legal representatives, successors and permitted assigns of the parties.
(g) Force majeure: The seller shall not be liable for any act, omission, result or consequence, including but not limited to any delay in delivery or performance which is due to anything, matter or circumstance beyond the seller’s reasonable control.
(h) Joint and several: If there is more than one person comprising the purchaser, the “purchaser” means each party separately and all parties jointly.
(a) The purchaser must advise the seller if the purchaser changes its bank account or credit card details, or the purchaser’s business, postal or email address, or if the purchaser believes that there is any information that the seller should be aware of about the purchaser’s ability to comply with this agreement.
(b) The seller can give the purchaser notice by delivering it to the purchaser personally or leaving it at, or sending it by post, facsimile or email to the purchaser’s business, postal or email address last known to the seller. An email notice shall be valid if not returned.
(c) A certificate signed by one of the seller’s authorised officers is adequate proof of the facts stated in it relating to this agreement and rights and obligations arising under it in the absence of manifest error.
16. Travel and other Costs.
(a) Any costs associated with travel, accommodation and meals shall be invoiced to the purchaser separately and payable within 14 days.
The purchaser grants the seller a royalty-free, limited, non-exclusive right, authorisation and license to use the name, all logos (appropriately trademarked), trademarks, copyrights and related intellectual property of the purchaser, along with images displayed on the purchaser’s website in the seller’s marketing and promotional material.