Terms of Trade
When you contract any of the Rising Connection team to commence any engagement you are subjected to these Terms & Conditions of Trade by Rising Connection (the Seller).
1. Interpretation and Construction
In these Terms of Trade, the following words have the following meanings:
- Customer means any person, organisation, or other entity that has requested the supply of Equipment and/or services from the Seller as stated on any order, invoice or document;
- Equipment means any Equipment available for sale by the Seller to the Customer, at the Customer’s request;
- Intellectual Property means all processes, procedures, methodologies, techniques and/or inventions whether registered trademarks, designs, patents or not registered;
- Order means any written order made by the Customer from the Seller for the supply of Equipment and/or services;
- Quotation or Proposal means any quotation or proposal issued by the Seller to the Customer for the supply of Equipment and/or services;
- Price means the price payable for the supply of Equipment and/or services in accordance with clause 4 and as specified in the Proposal;
- Seller means Rising Connection Pty Ltd ACN 161 068 042 and it assigned representatives that have the current approval of the Seller;
- Services means any services to be rendered by the Seller to the Customer, at the Customer’s request;
- Terms means these terms & conditions of trade which apply to any supply of Equipment and/or services by the Seller to the Customer.
- A reference to these terms or another agreement between the parties includes any variation or replacement;
- A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- The singular includes the plural and vice versa;
- The masculine includes the feminine and neuter and vice versa;
- A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, employees, agents and permitted assigns;
- An obligation, agreement, representation or warranty on the part of or in favour of two or more persons binds, and/or is for the benefit of them jointly and severally;
- A reference to anything is a reference to the whole or any part of it;
- References to parties or clauses are, unless otherwise stated, references to the parties and clauses contained in these Terms.
2. Supply of Equipment and/or Services
- The Customer agrees that where the services to be supplied by the Seller include managed services with related hardware for accessing the managed services, the Seller will supply the Equipment with the embedded Intellectual Property applied within and the Seller does not supply the details on the access or working of such Equipment, including but not limited to configuration files or system passwords.
- The Seller shall supply the services subject to first receiving the Order and payment of the Price, as described in the Proposal or Quote. If the Services provided are beyond the scope of the Proposal, the approval for the Services must be provided by Company Purchase order or by email confirmation from the director of the Seller and the Price for such Services must be paid prior to the commencement of work and/or for the supply of the Equipment.
- The Seller’s Quotation for the Services is contained in the proposal the Seller may otherwise accept an Order for the supply of Equipment and/or services from the Customer. Any Quotation remains open for 30 days or otherwise for the time stated in the Proposal unless withdrawn earlier. All Quotations are estimates only and are subject to withdrawal, correction or alteration at any time prior to the Seller’s acceptance of the Customer’s request.
- Any Order shall identify the Equipment or Services ordered and refer to any Quotation pursuant to which the Order is made.
- The Seller may supply and the Customer must accept Equipment/services that vary from the Equipment and/or services ordered by the Customer provided that any such variations are not material. Any variation of an Order requested by the Customer must be agreed in writing by the Seller, in the Seller’s absolute discretion and may result in a change to the Price.
- The Seller may cancel or terminate any Order at any time without cause, in the Seller’s absolute discretion and in that event, the Seller shall repay the Customer any money paid by the Customer and the Seller is not liable for any loss or damages in any respect arising from any cancellation.
- The Seller reserves the right, whether or not an Order has been accepted and without notice to the Customer to withhold supply to the Customer and will not be liable for loss or damage resulting directly or indirectly from such action, including if the services cannot be rendered for any reason whatsoever, including if the Customer is in default of these Terms.
- If the Customer cancels an Order, the Customer remains liable and shall indemnify and keep indemnified the Seller for any and all loss is incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including but not limited to loss of profits).
- The Customer warrants that it has the power to enter into this agreement, is solvent and this agreement creates a binding and legal obligation and all information provided to the Seller by the Customer is true and correct in all material respects.
- The Customer acknowledges these Terms apply to any Order or Proposal for other supply of Equipment and/or services and the Customer accepts the Terms without amendment and agrees to be bound by them. The Terms apply over any other document or agreement to the extent of any inconsistency.
- If the Customer has accepted the Proposal online, the Customer is taken to have accepted these Term.
- If the Customer is the trustee of a trust, then in addition to that entity the trustee agrees to bind all trusts of which the Customer is a trustee from time to time.
4. Payment, Credit and Price
- The Price is the price determined by the Seller, in its absolute discretion, the price in accordance with the Proposal or as otherwise agreed in writing.
- Unless stated otherwise, the Price is exclusive of Equipment and services tax (GST). The Customer agrees that GST at the prevailing rate at the date of invoice will be included in the amount due and payable on the Price and is payable by the Customer in full at the same time as payment of the Price.
- Unless agreed otherwise by the Seller in writing, payment of the Price must be received from the Customer prior to the supply of Equipment and/or services. The Seller is not required to supply the Equipment and/or the services unless payment has been received. Payment must be made by electronic payment, credit card or by any other payment method nominated by the Seller.
- The Seller may charge to the Customer a fee for overdue payments or Customer bank fees imposed on payments including credit card payments.
- If the Equipment is required to be licensed, the license is not in effect until payment of all monies, as cleared funds, is received by the Seller, including the final payment where there are progressive payments or additional services required.
- The Customer acknowledges that if the Company supplies the Equipment and/or service on credit, then any credit provided is to be applied wholly or predominately for business purposes. The grant of any credit facility or nomination of any credit limit is in the absolute discretion of the Company and may be varied or withdrawn by the Seller at any time without liability.
5. Unpaid Invoices, Interest and Costs
- The Customer agrees that if payment is outstanding to beyond the Seller’s payment terms, the amount is immediately due and payable by the Customer and the Seller is not required to accept any further Orders until payment is made.
- The Customer agrees that in the event of an outstanding invoice, the Customer is liable to the Seller for late fee of 19% on any balance overdue calculated and accumulated onto the balance due every 28 days together with an administration fee on each invoice of $112.00 per every 28 days of which the invoice remains overdue.
- If invoices or monies outstanding are not paid in full by the due date for payment, the Seller may charge the Customer interest on the unpaid amount to be accrued daily from the date when payment becomes due until the date of payment at the rate of two and a half per cent (2.5%) per month and interest shall compound at that rate monthly both before and after any judgment obtained by the Seller.
- The Customer is not entitled to set off, deduct or otherwise withhold payment of any amount due and owing to the Seller including where the Customer has disputed the invoice or alleged amounts are owed or will become owing by the Seller to the Customer.
- The Customer is liable for all costs and disbursements incurred by the Seller or its appointed agents in recovering payment of any outstanding invoice or in enforcing its rights under these Terms, including, but not limited to, legal costs determined on a solicitor/own client basis, mercantile agents’ costs or commission and bank dishonour fees.
- If the Seller incurs out of pocket expenses due to the Customer, the Seller is entitled to charge those amounts to the client by way of invoice and payment will be due by the time nominated on the invoice.
- Until the Seller receives full payment in cleared funds of all monies due for all Equipment and/or Services supplied by it to the Customer, as well as all other amounts owing to the Seller by the Customer and the Customer has complied with all obligations pursuant to these Terms:
- The Customer must hold the Equipment as fiduciary bailee and agent for the Seller and must return the Equipment, including Equipment in transit which has not yet been delivered, to the Customer upon the Seller’s request;
- The Customer holds the benefit of its insurance of the Equipment on trust for the Seller and must pay to the Seller the proceeds of insurance in the event the Equipment are lost, destroyed or damaged;
- The Customer must keep the Equipment separate from its Equipment and maintain the Seller’s labelling and packaging;
- The Customer must not charge or otherwise grant an interest over the Equipment while they remain the Seller’s property;
- The Customer must not convert, process or otherwise comingle the Equipment but if the Customer does so, then it holds the comingled good on trust for the benefit of the Seller and must sell or dispose of the comingled good to the Seller, on the direction of the Seller;
- The Customer may sell or dispose of the Equipment only in the ordinary course of business in its capacity as agent for the Seller and if the Customer sells or disposes of the Equipment then the Customer must hold the proceeds on trust for the Seller and deliver up the proceeds to the Seller on demand;
- The Customer must hold the proceeds of sale of the Equipment on trust for the Seller in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation as trustee; and
- The Seller may without notice, enter any premises where it suspects the Equipment are and recover possession of the Equipment, notwithstanding that they may have been attached to other Equipment and not the property of the Seller, and for that purpose the Customer irrevocably licences the Seller to enter such premises and indemnifies the Seller from and against all costs, claims, demands, or actions by any party arising from such action.
- The Seller is entitled to commence legal proceedings to recover any outstanding monies from the Customer regardless of ownership of the Equipment.
- The risk in Equipment and/or services passes to the Customer upon dispatch of the Equipment or the performance of the Services.
- The Customer agrees that the Customer is liable for the cost of delivery of the Equipment, unless otherwise agreed by the Seller.
- The Seller is to arrange delivery of the Equipment at the Customer’s cost and risk and if a delivery date is nominated the Seller will take all reasonable steps to achieved deliver on or about that date. Any date given for delivery is an estimate only and if the Seller is unable to deliver on that date, it shall not be liable for any loss whatsoever (including consequential loss) for any failure or a delay in delivery. The Seller is not liable for any amount payable by the Customer to a third party as a result of a failure or delay in deliver.
- To the extent permitted by law, the Seller does not provide any warranty in the Equipment.
- The Seller expressly denies and excludes any warranties or conditions which would otherwise be implied to the maximum extent possible by law including but not limited to merchantable quality, suitability, fitness of purpose, quality, suitability, or otherwise. The Seller acknowledges that these Terms do not exclude any statutory warranties which may be implied pursuant to the Competition and Consumer Act 2010 (Cth).
- The Seller does not provide any warranty in the equipment supplied; equipment faults are to be taken up with equipment manufacture via the manufactures approved support mechanisms.
10. Defects and Return of Equipment
- Subject to Clause 10.2, The Customer shall inspect the Equipment immediately upon delivery and carry out any tests which a prudent Customer would carry out and use their best endeavours to minimise loss and damage arising from the defect. The Customer shall give written notice to the Seller of any alleged defect, damage or fault within 5 business days from the date of delivery and provide full particulars of the claim made otherwise the Seller is not obliged to accept a return or grant a credit and the Customer is deemed to have accepted the Equipment.
- The Seller shall not be liable for any faulty equipment from the manufacturer and all time and effort in diagnosing, and support for the manufacturer’s equipment if it is not working due to fault of the Equipment, the Seller shall charge this amount at its rate in accordance with its standard price list and payment is due by the Customer on the due date stated for payment in the invoice issued by the Seller.
- The Seller is not obliged to accept returns of non-defective Equipment or to otherwise provide a refund however the Seller may do so in its sole discretion and if the Seller does not agree then the Customer is not entitled to cancel the whole or part of any Order and the Customer shall indemnify the Seller against loss or damage suffered by the Seller.
- Notwithstanding anything contained in this clause 10, if the Seller is required by law to accept a return, then the Seller will accept the return of Equipment on the conditions imposed by law.
11. Release and Indemnity
- The Customer hereby releases and indemnifies and agrees to keep the Seller indemnified from any and all costs, damages, liabilities, expenses or losses including indirect, consequential losses (including but not limited to loss of profit), that the Seller may incur in relation to the Customer or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the Equipment supplied or Services performed or for any other reason.
12. Limitation of Liability
- The Customer agrees, to the fullest extent possible by law, in relation to any cost, damage, liability, expense or loss (including those contributed or cause by the Seller’s negligence or breach of any condition or warranty), if the Customer is not a consumer pursuant to the Competition and Consumer Act 2010 (Cth), to limit any claim made to the Seller, in the Seller’s absolute discretion to:
- The value of any express warranty provided by the Seller to the Customer or any warranty to which the Customer is entitled;
- Replacement of the Equipment or services;
- Repayment of the Price in the event that then payment has been received from the Customer.
In no circumstances shall the Seller be liable for any amount in excess of the Price.
- No other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any extending to, otherwise relating to or binding upon the Seller other than these Terms is made or given by or on behalf of the Seller.
- Notwithstanding anything in this clause 12, a Customer shall not be entitled to make any claim upon the Seller whatsoever if any amounts are outstanding from the Customer to the Seller.
13. Intellectual Property Rights
- The Customer acknowledges and agrees that it does not have any intellectual property rights in the Equipment and that all rights that the Seller holds in the intellectual property associated with the Equipment supplied and has the right to use the intellectual property in the Equipment including where the Seller has developed or designed the Equipment for the Customer, remain the property of the Seller.
- The Customer acknowledges that all designs or other specifications provided by it with respect to the Equipment will not cause the Seller to infringe any intellectual property right in provision of the Equipment and/or services and the Customer indemnifies the Seller against any action taken by a third party against the Seller with respect to any infringement relating to such design or specifications.
- In order to secure the performance by the Customer of its obligations, the Customer, and where the Customer is unincorporated each proprietor of the Customer, hereby charges with payment of the moneys and compliance with all obligations owed by the Customer to the Seller all beneficial interests (freehold and leasehold) in real and personal property held now or in the future by the Customer or proprietor.
- The Customer agrees that this agreement constituted a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) and the Seller is entitled to register its security interest on the Personal Properties Securities Register by registering a financing statement or financing change statement. The Customer specifically waives its rights to receive notification of a verification statement.
- The Customer, and where applicable, each proprietor agrees that if demand is made upon it, him or her by the Seller, the Customer or, if applicable, that proprietor will immediately execute a consent to caveat, or a caveat or mortgage, as required by the Seller to secure the obligations pursuant to this clause 14. The Customer or, if applicable, each proprietor, irrevocably and by way of security appoints the Seller and any director, credit manager or solicitor engaged by the Seller to be its, his or her true and lawful attorney to give effect to this clause 14 including but not limited to execute and register all documents.
- The Customer indemnifies the Seller in relation to all of its costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s right pursuant to this clause 14.
15. STATEMENT OF DEBT
- A certificate signed by a director, secretary, financial controller, credit manager or any other authorised person of the Seller shall be prima facie evidence of the indebtedness of the Customer to the Seller.
16. PRIVACY AND CREDIT INFORMATION
- The Customer irrevocably authorises the Seller to make enquiries, exchange, collect and use a Customer’s personal information including credit information and information relating to property, business or other solvency matter from time to time as the Seller may deem necessary which may include enquiries with persons nominated as trade references, financiers , any other credit provider, credit reporting bodies, any government department and/or any similar or other organisation (Information Provider) for the following purposes:
- Obtaining information on the credit position of the Customer or the director/s or management team of the Customer;
- Investigating the credit worthiness of the Customer in relation to the credit to be provided by the Seller; marketing purposes (unless the Customer has notified the Seller it wishes to opt out of direct marketing);
- To allow the Seller to provide a credit facility for the supply of Equipment and/or services to the Customer; to notify the credit provider of a default by the Customer;
- To a credit reporting body to obtain a credit report or to permit a credit reporting body to maintain or update the Customer’s credit file.
- The Customer acknowledges that the information exchanged under clause 16.1 may include any information in relation to the Customer’s creditworthiness or credit history.
- The Customer consent and irrevocably authorises the Information Provider to disclose any information about the Customer in their possession to the Seller; the Seller may use any information which it holds for the purposes listed in clause 16.1; and may disclose any of the Customers’ personal information to any interested person (including overseas third parties) for any purpose listed in clause 16.1, to the extent permitted by the Privacy Act 1988 (Cth) and the Australian National Privacy Principles (if applicable). To the maximum extent permitted by law, the Customer agrees (unless the Customer otherwise withdraws consent), to waive all rights under the Privacy Act 1988 (Cth).
17. DEFAULT AND TERMINATION
- Without prejudice to any other remedies available to the Seller, if the Customer is in breach of these Terms, including their payment obligations, or if the Customer becomes insolvent or appoints an administrator, receiver, receiver and manager, liquidator or trustee in bankruptcy, all monies become immediately due and owing to the Seller and the Seller may immediately:
- Terminate or suspend supply of Equipment and/or services;
- Retain all monies paid and/or take immediate possession of Equipment which have not been paid for;
- Cease all future deliveries;
- Cancel all or any part of any order unfilled; and/or
- Recover from the Customer any loss of profits arising from the Customer’s default.
- If the Seller exercises its rights pursuant to clause 17.1, it is not liable to the Customer for any consequential loss or damages suffered by the Customer.
18. Customer Restructure
- The Customer shall provide written notice to the Seller of any change to its structure or management (including changes to its name or address). If the Customer fails to comply then the Customer agrees to indemnity the Seller from any resulting loss.
19. Dispute Resolution
- Any dispute in relation to the Services, shall at the option of the Seller, proceed by way of mediation by mediation appointed by the Seller. The Customer is not entitled to commence proceedings unless the Seller elects not to proceed with mediation or the mediator provides consent to do so.
- Force Majeure. The Seller shall not be in breach of any agreement as a result of force majeure. Force Majeure shall include national emergency, war, prohibitive government regulations or any cause beyond the reasonable control of the Seller which means that the Equipment and/or services cannot or are delayed in being provided by the Seller to the Customer.
- A notice, demand, waiver, approval or other document given pursuant to these Terms must be in writing and may be given by of personal service, prepaid post, facsimile transmission or email transmission at the address of the party as provided from time to time.
- If any provision or part of a provision of these Terms cannot be given effect or is declared void for any reason, the provision or part which cannot be given effect shall be severed and the remaining provisions shall remain valid, binding and enforceable on the parties.
- No rights under these Terms will be waived unless agreed in writing and signed by the Seller. The Seller does not waive a right if an extension or other forbearance is given to the Customer. No waiver of a provision of these Terms shall be construed as a continuing waiver of the provision. A waiver by the Seller of any matter does not prejudice its rights in respect of any matter. Any non-exercise or partial exercise of or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
- The Seller may amend these terms and conditions from time to time in its discretion and the Customer agrees it is deemed to have notice of change to these terms and be bound by such variations as they appear on the Seller’s website from time to time, whether or not the Customer has actual notice of any such variation.
- The Customer is not entitled to assign the benefits or obligations under this agreement to any entity without the Seller’s prior written consent, which may be given in the Seller’s absolute discretion. The Seller may assign all or any part of the benefits and obligations under this agreement without the requirement for the Customer’s consent.
- The provisions of the agreement for supply of Equipment and service between the Seller and the Customer shall be governed by the laws of the state of New South Wales each party irrevocably submits to the non-exclusive jurisdiction of the courts of the said state.
- Entire Agreement. These Terms supersede all previous agreements, discussions and representations between the Seller and the Customer and constitute the entire agreement in relation to the agreement for provision of Equipment and/or services between the Seller and the Customer.
- These Terms may be signed in any number of counterparts and each counterpart shall together constitute one agreement. This agreement may be executed and delivered by facsimile, electronically or by way of electronic signature and the receiving party may rely upon same as if it was an original document or signature.
- Enforceable Directors Guarantee. Where a Signed Directors Guarantee has not been received, the Director(s) of the company shall be fully liable for all costs until paid once the Seller is engaged, the delivery of Equipment to site, receipt of a payment to Seller or any form of communication requesting the Seller to commence the supply of services, shall be taken as the company that engages Seller as having accepted this, where correspondence has included specifically an individual director leading up to the engagement of services from the Seller, that individual director shall be held liable as the Director though where that director fails to make good on the guarantee due to death (the Seller may recover funds from deceased estate) or bankruptcy, the Seller will be able to recover all costs from any other directors that have been listed of the company who acquired the service.