a) ‘Contract’ means any contract pursuant to which Products and/or Services are supplied or to be supplied by N-Able Pty Ltd to the Customer.
b) ‘Customer’ means the person or company whom Products and/or Services are supplied and includes that company’s successors and permitted assigns.
c) “N-Able” means N-Able Pty Ltd, the supplier of Products and/or Services to the customer and includes N-Able’s successors or assigns.
d) ‘Products and/or Services’ means the products and/or services supplied by N-Able to the Customer pursuant to a Contact and specified on the invoice dispatched by N-Able to the Customer.
a) Any Contract between the Customer and N-Able shall be upon these terms and conditions and these terms and conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of the Customer order forms or other documentation shall supersede all prior arrangement, written or oral.
b) The continued operation of these terms and conditions shall not be affected by any repudiation of any contract or transaction relating to the Products and/or Services between N-Able and the Customer.
3) Terms of Payment
a) Unless the Customer is an approved account Customer, payment must be made prior to dispatch of Products and/or Services, either in cash, bank cheque, or on approval, by company cheque or direct deposit. Subject to special arrangements, payment must be made by approved account Customer within agreed terms.
b) Should the Customer elect to purchase the Products and/or Services through lease, the Customer is required to notify N-Able in writing and a copy of the approved finance letter must be sent to N-Able prior to the dispatch of Products.
c) All payment shall be made on or before the due date as a condition precedent to future supplies under the contract pursuant to which the payments are due or under any other Contract (usual payment term is 14 days from date of invoice).
d) N-Able reserves the right to charge interest calculated at 2% per annum above the rate at the time being charges by bankers of N-Able on overdrafts exceeding $20,000 on the balance of the Price due by the Customer but unpaid from the due date until payment is received in full by N-Able.
e) N-Able may at any time and from time to time alter the terms of payment and such altered terms of payment shall apply in respect of all transactions taking place after notification of such alterations.
4) Goods and Services Tax (GST)
a) N-Able is registered for the GST system. All quoted prices show the N-Able sell price, a Goods and services Tax of 10% and/or a combined total which defines the invoice price payable. N-Able agrees to issue tax invoices in accordance with relevant legislation or regulations that apply to the GST from time to time.
a) In consideration of the payment by the Customer, in addition to the price, of N-Able’s freight, handling and insurance charge calculate according to N-Able current prices, N-Able will arrange delivery of Products to the Customer’s nominated location within major metropolitan areas of Australian capital cities.
b) Delivery times quoted by N-Able are estimates only and N-Able may extend delivery times.
c) N-Able may make part delivery of any Products and/or Services ordered by the Customer and any Products and/or Services so delivered shall constitute a separate contract upon these terms and conditions. As such, an invoice on any Products and/or Services part delivered is due in accordance with the agreed terms of payment.
d) Delivery of Products is deemed to take place: at the time the Customer or carrier, whether engaged by N-Able or the Customer, takes possession of the Products; or within 7 days of notification by N-Able to the Customer that the Products are available, whichever occurs first.
6) Cancellation or Variation
An order may be cancelled or varied by the Customer on if such cancellation or variation is accepted by N-Able in writing and any such cancellation or variation shall only occur on terms which will provide for N-Able to be compensated by the Customer against any cost or loss (including but not limited to loss of profit) incurred.
7) Title and License
a) Prior to full payment of the Price and all other sums owning by the Customer to N-Able in relation to any Products, the Customer shall have no right to sell or dispose of any or all of the Products.
b) Until payment for the Products has been made by the Customer the Products are only entrusted to the Customer as a fiduciary, and N-Able remains the legal and beneficial owner of the Products with full power to resell and regain possession in the event of the Customer’s default of payment.
c) The Customer acknowledges and agrees that all rights in all copyright, designs, patents and trademarks existing in relation to the Products or Services are reserved to the owners of those rights.
d) The customer licenses computer software incorporated within any Products or sold to the Customer for the Customer’s use only.
e) The Customer shall ensure that each art and copy of the computer software licenses for the use of the Customer is kept under conditions of strict security and confidentiality.
8) Risk and Insurance
a) The Customer assumes risk of loss or damage upon delivery of the Products to the Customer or collection of the Products by the Customer on by any agent acting on their behalf.
b) N-able will insure Products against such risks that N-Able considers appropriate for the transport of the Products from N-Able’s place of business to that of the Customer.
a) Products may be returned provided the Customer obtains from N-Able a Return Authorisation (RA) Number in advance of returning the Products.
b) Products must be returned complete with all original packaging unmarked within 7 days of supply. Freight is to be paid by the Customer and N-Able accepts no responsibility in respect of returned Products lost or damaged in transit.
N-Able agrees that all warranties as are applicable from time to time will be passed unaltered from the manufacturer of the Products to the Customer. N-Able does not warranty any Products of its own accord and all remedies, repairs or replacements for any Products will be at the ultimate discretion of the manufacturer.
11) Limitation of Liability
a) N-Able shall not be responsible for any misinformation provided to it by the Customer or any third party.
b) N-Able limits its liability for any loss of damages attributed to the provision of its services (“Loss or Damage”), at its option, to the delivery of the relevant services again or payment for the relevant services to be provided again.
c) In particular, N-Able shall not be liable for any direct or consequential Loss or Damage without limitation, direct or indirect damages for personal injury, loss of business profit, business interruption, loss of information or any other pecuniary loss arising out of the use of the recommendations and solutions provided under this agreement.
d) Further, the Customer agrees that it may only take action against N-Able for Loss or Damage, such that if any of: N-Able’s employees, directors, sub-contractors and agents; its sub-contractors’ and agents’ employees, directors, sub-contractors and agents; and so on down the line, would be liable as well as N-Able for any Loss or Damage, action will not be taken by the Customer against such person or entity.
e) The Customer shall indemnify N-Able and hold N-Able harmless from and against any and all third party claims which may be asserted against or suffered or incurred by N-Able that arise during the course of the contract unless such claims result from acts of N-Able which constitute serious and wilful misconduct by N-Able or are outside N-Able’s ordinary performance of this contract.
f) For the purpose of the indemnity above, N-Able includes: N-Able Pty Ltd, its employees, directors, sub-contractors and agents; its subcontractors’ and agents’ employees, directors, sub-contractors and agents; and so on down the line.
a) N-Able, its agents or sub-contractors, shall not divulge confidential Customer information associated with any Services provided to any third party, without the Customer’s consent. However, N-Able shall bear no responsibility for disclosure where such information or data is publicly available, is already in the possession of N-Able, known to N-Able, or is obtained by N-Able from a third party.
b) The document should not be distributed to any organisation without the prior written consent of N-Able Pty Ltd.
13) General Provisions
a) The laws of the State of New South Wales shall govern this Contract.
b) This Contract is the entire agreement between the Customer and N-Able and no representation of statement not expressly contained in this contract or incorporated herein by reference, shall be binding on either party.