Red 11 Pty Ltd ("The Supplier") supplies software and hardware ("the goods") to the Customer on the basis of the following terms and conditions and the Customer's acceptance of this is evidenced by their purchase or use of the goods.
1a. The payment falls due and payable as listed in the payment terms on the invoice. Unless otherwise stated, payment is due within 14 days from the date of invoice.
1b. The Customer agrees to pay interest on any overdue accounts from the day the amount became due at the rate from time to time applied by the Westpac Banking Group Pty Ltd on overdrafts in excess of $100,000.
1c. Pending payment in full for the goods, the Customer:
i. must not supply any of the goods to any person outside of its ordinary or usual course of business:
ii. must not allow any person to have or acquire any security interest in the goods;
iii. must insure the goods for their full insurable or replacement value (whichever higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business;
iv. Must not remove, deface or obliterate any identifying plate, mark or number on any of the goods.
2. The Customer will comply with the terms of any license agreement applicable to any part of the goods and the Customer shall not copy the goods in whole or in part except to make copies as are necessary for the purpose of a bona fide system backup and security. In no event shall the customer decrypt, reverse assemble or reverse compile any part of or the whole of the goods.
3a. The property of the Supplier remains with the Supplier until the Supplier has been paid in full for the goods under all individual contracts and terms set out in the Order or Invoice for the supply of the goods, between the Supplier and the Customer.
3b. Risk in the goods shall pass to the Customer on delivery to the Customer. However, the Supplier shall not be responsible for any loss of or damage to, the goods in transit.
3c. Delivery shall occur upon physical delivery to the Customer or if installation is required upon loading at the Customer's premises. The Supplier is authorised to deliver and install goods at the address given to the Supplier by the Customer for that purpose and it is expressly agreed that the Supplier shall be taken to have delivered and installed the goods in accordance with its contract if the Addressee obtains from any person a receipt or signed delivery docket for the goods.
4a. The Customer is a bailee of the goods until such time as the property in them passes to the customer and that this bailment continues in relation to each of the goods until the price of the goods has been paid in full.
4b. Despite Clause 1.c., if the Customer supplies any of the goods to any person before all moneys payable by the Customer have been paid to the Supplier, the Customer agrees that:
i. it holds the proceeds of resupply of the goods on trust for and as agent for the Supplier immediately when they are receivable or are received.
ii. it must either pay the amount of the proceeds of resupply to the Supplier immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the Supplier.
iii. in the event that the Customer uses the goods in some manufacturing or construction process of its own then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Supplier. Such parts shall be deemed to be equal in dollar terms to the amount owing by the Customer to the Supplier.
iv. if the Customer fails to pay for the goods within the period of credit extended by the Supplier to the Customer, the Supplier may recover possession of the goods at any site owned, possessed or controlled by the Customer without liability including for trespass and the Customer agrees that the Supplier has an irrevocable license to do so.
5. To the extent of the law, the Supplier does not warranty that the goods will be error free, the use of the goods shall be interrupted or that the goods will be fit for purpose. Any liability of the Supplier shall in the case of goods be limited to the replacement of the goods or the supply or equivalent goods and in the case of services to the supply of the services again.
6. Should the Customer wish to return any goods due to product failure or damage, the Customer must provide written notice within 7 days of receiving the goods, stating the reason for returning them. The return of any goods is subject to acceptance by the manufacturer and will be considered where the goods have not been used and all packaging, manuals and accessories are available.
7. Nothing in this agreement shall exclude, restrict or modify any condition, warranty or liability which may at any time be implied by the Trade Practices Act, the Sales of Goods Act or any law where to do so would render the above provision of this Agreement void provided that liability is limited as far as possible as provided in Clause 5. hereof.
8. This Agreement will be governed and constructed according to the laws of the State of Western Australia and cannot be superceded by any other parties Terms and Conditions without written agreement from the Supplier.
9. This Agreement constitutes the entire agreement between the parties and is not transferable without written consent of the Supplier.
10. All Quotations provided by Red 11 are based on the information provided by the customer. Red 11 does not warrant that any proposed configurations will achieve particular performance results or be suitability for future requirements unless specifically requested and responded to in writing.
11. Where a client is leasing equipment, Red 11 reserves the right to with hold delivery until full payment and / or a letter of authorisation is provided by the leasing company.