Terms and Conditions
Hardware As A Service (HAAS)
The Customer named in the approved Order Form or below acknowledges and accepts these terms and conditions.
Customer: As per the Order Form.
Redcat Pty Ltd (ABN 88 090 409 920) of Level 1, 51 Stephenson Street, Cremorne, Victoria, Australia, 3121 (Redcat) offers a Hardware-as-a-Service (HaaS) solution which it makes available to customers. The Customer wishes to access the HaaS to utilise in the Customer’s business.
These HaaS terms and conditions (Terms), the Order Form and any other documents incorporated by reference into these Terms govern the Customer’s use of the HaaS Solution (defined below).
These Terms are intended to supplement the Order Form and apply in addition to the Redcat Master Services Agreement (MSA) as applicable to the Order Form, which can be found at https://www.redcatht.com/en-au/about-us/mssa. These Terms, the MSA and any executed Order Forms (collectively, the Agreement) set out the terms and conditions which govern the provision of the Hardware, Software and Services by Redcat to the Customer.
In the event of conflict with these Terms and the MSA, the provisions in these Terms shall take precedence and in the event of a conflict with the terms of these Terms and an Order Form, the provisions of the Order Form shall take precedence.
Redcat and the Customer acknowledge and agree that they have read and understand these Terms and, upon execution of the applicable Order, are legally bound to this Agreement.
1. DEFINITIONS
Capitalised terms will have the meanings provided in this clause 1 or as otherwise specified in the body of these Terms.
Claim includes actions, suits, causes of action, proceedings, claims or demands.
Cloud Services includes the online, web-based Point of Sale platform, tools and services offered on the Redcat Website.
Commencement Date means the commencement date of this Agreement, as specified in an Order Form.
Corrective Maintenance means replacing any parts or components of a Device, or the Device itself, as required to restore the Device to Working Order.
Customer means the person or persons named on the Order Form as the Customer and if there is more than one, means each of them jointly and severally and includes their successors and assigns.
Device means any single item of Hardware provided by Redcat to the Customer.
Documentation means any proprietary information or documentation made available to Customer by Redcat for use with a Device.
Excluded Cause is defined in clause 10.4 of these Terms.
GST means any tax, levy, charge or impost implemented under the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act.
Hardware means any device, hardware, equipment and other property listed in the Order Form including all Software, manuals, spare parts and accessories and includes any replacement Hardware.
HaaS Solution means the specific subscription-based HaaS offering identified in the applicable Order Form that Redcat provides to the Customer. Each HaaS Solution comprises the Hardware, Software, and Services (if any) corresponding to the HaaS Solution identified in the applicable Order Form.
Initial Term means the period commencing on the Commencement Date and ending on the date [three (3) months] thereafter unless specified otherwise in the Order Form.
Insolvency Event means the happening of any of the following events:
a. a receiver, controller, administrator, liquidator, provisional liquidator, trustee, inspector, official manager, or similar person is appointed to, or exists in relation to a party's undertaking or any part of its undertaking;
b. an application for winding up or similar process of a party is presented or an order is made or any effective resolution is passed for the winding up of a party;
c. a party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
d. a party is, or states that it is, unable to pay its debts when they fall due;
e. any secured creditor to a party enforces its security; and
f. anything analogous to or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
b. an application for winding up or similar process of a party is presented or an order is made or any effective resolution is passed for the winding up of a party;
c. a party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
d. a party is, or states that it is, unable to pay its debts when they fall due;
e. any secured creditor to a party enforces its security; and
f. anything analogous to or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967, whether or not now existing, and whether or not registered or registrable, and includes any right to apply for the registration of such rights, and includes all renewals and extensions.
Maintenance Services means the repair and maintenance services (if any) outlined in the Order Form, which includes Corrective Maintenance, under the broader category of Services, that Redcat agrees to perform for the Customer during the Subscription Term as part of the HaaS Solution as more fully described in the applicable Order Form.
Non-Excludable Terms mean guarantees, terms, conditions and warranties implied by applicable law into contracts for the supply of goods or services, and which the applicable law expressly provides may not be excluded, restricted or modified or may be excluded, restricted or modified only to a limited extent.
OEM means the original equipment manufacturer of a Device.
Order Form means any proposal, quotation, order form, or online ordering document or process (howsoever named) submitted to Redcat by or on behalf of the Customer for the provision of a HaaS Solution and which sets out the Subscription Fees, the Services and any special terms which are applicable to the HaaS Solution, and which is accepted by Redcat in accordance with clause 2.3.
Personnel in respect of a party, means that party's employees, officers, contractors and agents.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made under it.
PPSR means the Personal Properties Securities Register established pursuant to the PPSA.
Restocking Fee means any fee payable by the Customer to Redcat for removal and/or return of the Hardware at the expiry of the Subscription Term or termination of this Agreement as specified in an Order Form (if any).
Security Interest has the same meaning as in the PPSA.
Services means collectively, Maintenance Services, and any installation, support or other services that Redcat agrees to perform for the Customer during the Subscription Term as part of the HaaS Solution as specified in an Order Form.
Site means the location where the Customer uses the Hardware, as specified in the applicable Order Form or as otherwise approved in advance in writing by Redcat.
Software means any point of sale software and firmware embedded in, installed on, or provided with the Hardware, that Redcat supplies or provides to the Customer during the Subscription Term as part of the HaaS Solution but does not include the Redcat Cloud Services.
Subscription Fees means the recurring charges owed by Customer to Redcat for access to and use of the HaaS Solution specified in the applicable Order Form.
Subscription Term means the time period for the provision of the HaaS Solution, being the Initial Term and each Subsequent Term (if any).
Subsequent Term is defined in clause 4.2.
Ticket means an issue logged through Redcat’s portal (or such other means as notified by Redcat from time to time) reporting a defect or malfunction in a Device covered by the Maintenance Services.
Working Order means operating in accordance with the applicable specification as set out in the Order Form.
2. APPLICATION OF AGREEMENT
2.1 (General) This Agreement shall apply to any Hardware and/or Services provided by Redcat to the Customer as part of the HaaS Solution (and shall be incorporated into any quotation or Order Form for such Hardware and/or Services).
2.2 (Offer) Any acceptance of a quotation or proposal, or the submission of an Order Form by the Customer to Redcat from time to time, will be treated as an offer and Redcat will have the right to reject such offers at any time.
2.3 (Acceptance) A quotation, proposal or Order Form is only accepted if the Customer receives Redcat's confirmation of acceptance via a separate email.
2.4 (Terms prevail) This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
3. HAAS SOLUTION
3.1 (Hardware) In consideration of the promises by the Customer in this Agreement, Redcat will provide the Hardware described in the Order Form to the Customer for the Subscription Term, together with the right to use the Hardware.
3.2 (Services) During the Subscription Term Redcat will also provide the Services to the Customer.
3.3 (Interdependence) The Customer’s access to the HaaS Solution requires a corresponding agreement for Redcat’s Cloud Services. In the event such underlying agreement expires or is terminated for any reason, Customer’s access to the HaaS Solution will also be terminated as per the termination date of the underlying agreement and clause 4 will apply.
4. TERM OF AGREEMENT
4.1 (Initial Term) This Agreement starts on the Commencement Date and continues for the Initial Term unless terminated earlier in accordance with clause 13 (Initial Term).
4.2 (Subsequent Term) At the end of the Initial Term, the term of this Agreement will continue to be automatically extended for successive periods of one (1) calendar month each (each, a Subsequent Term) unless either party gives written notice to the other, not later than thirty (30) days before the end of the Initial Term or the relevant Subsequent Term, to terminate this Agreement.
5. DELIVERY AND INSTALLATION
5.1 (Delivery) Delivery, configuration and installation of the Hardware to the Customer at the Sites will be made by or on behalf of Redcat. Redcat will use its commercially reasonable endeavours to effect delivery and installation of the Hardware as set out under the relevant Order Form but any such dates are estimates only and time of delivery is not of the essence.
5.2 (Costs) The Customer must reimburse Redcat for the cost of transport, shipping and installation as described in the Order Form. If the Customer orders more than one Device, the Devices may be shipped in one delivery or by instalments.
5.3 (Changes) If the Customer changes or cancels the scheduled dates for installation of Hardware this will incur additional fees charged at Redcat’s standard rates from time to time.
6. OWNERSHIP AND RISK
6.1 (Ownership) The Hardware remains Redcat’s property at all times and the Customer has no right, interest or claim in or over the Hardware except the right to use the Hardware as set out in this Agreement
6.2 (Risk) The risk of loss, theft, damage or destruction of the Hardware passes to the Customer at the time of delivery. The Hardware remains at the sole risk of the Customer until the Hardware is returned to Redcat.
6.3 (Location) The Customer must keep the Hardware at the Site at which it was delivered and installed or at such other location as Redcat agrees to in writing.
6.4 (Replacement) Redcat may at any time overhaul, replace or substitute any Device if in its opinion:
a. the Device is identified as "end of life";
b. the Device becomes beyond reasonable repair or spare parts become not readily available;
c. if faults in and/or the Device’s condition are such that overhaul or replacement is necessary;
d. if the Device is no longer economically viable to maintain; or
e. the Device requires upgrading or updating.
b. the Device becomes beyond reasonable repair or spare parts become not readily available;
c. if faults in and/or the Device’s condition are such that overhaul or replacement is necessary;
d. if the Device is no longer economically viable to maintain; or
e. the Device requires upgrading or updating.
PAYMENTS
7.1 (Subscription Fees) The Customer must pay the Subscription Fees as more fully set out in the relevant Order Form. The Subscription Fees are payable each month in advance on the Commencement Date and then monthly thereafter.
7.2 (Changes to Subscription Fees) Redcat may revise the Subscription Fees at any time by providing at least 30 days’ prior written notice to the Customer. If Redcat does so, the Customer is entitled to terminate this Agreement at any time during that notice period by giving Redcat notice in writing.
7.3 (Other Charges) In addition to the Subscription Fee, the Customer must pay any applicable statutory duties (including stamp duty), fees, taxes or charges in connection with this Agreement and/or the Hardware.
7.4 (Payments) All payments due to Redcat must be made in Australian dollars by direct debit using a bank account acceptable to Redcat. The Customer:
7.1 (Subscription Fees) The Customer must pay the Subscription Fees as more fully set out in the relevant Order Form. The Subscription Fees are payable each month in advance on the Commencement Date and then monthly thereafter.
7.2 (Changes to Subscription Fees) Redcat may revise the Subscription Fees at any time by providing at least 30 days’ prior written notice to the Customer. If Redcat does so, the Customer is entitled to terminate this Agreement at any time during that notice period by giving Redcat notice in writing.
7.3 (Other Charges) In addition to the Subscription Fee, the Customer must pay any applicable statutory duties (including stamp duty), fees, taxes or charges in connection with this Agreement and/or the Hardware.
7.4 (Payments) All payments due to Redcat must be made in Australian dollars by direct debit using a bank account acceptable to Redcat. The Customer:
a. is responsible for ensuring sufficient funds availability for each scheduled payment and for promptly notifying Redcat of any changes to payment method information, including account details;
b. authorises Redcat to debit funds from the Customer’s nominated account for any amount payable under this Agreement and any other agreement between the Customer and Redcat; and
c. must pay the invoiced amount, without deduction, set-off or counterclaim of any kind.
7.5 (Late Payments) If any amount due to Redcat (including the Subscription Fees and any other costs and charges that the Customer is liable to pay under this Agreement) is not paid on the due date, the Customer must pay interest on the amount not paid (Overdue Amount). Interest on any Overdue Amount will be calculated monthly, at 10% per annum, from and including the due date to and including the date that payment of the Overdue Amount, plus all accrued interest on it, is paid to Redcat.
b. authorises Redcat to debit funds from the Customer’s nominated account for any amount payable under this Agreement and any other agreement between the Customer and Redcat; and
c. must pay the invoiced amount, without deduction, set-off or counterclaim of any kind.
7.5 (Late Payments) If any amount due to Redcat (including the Subscription Fees and any other costs and charges that the Customer is liable to pay under this Agreement) is not paid on the due date, the Customer must pay interest on the amount not paid (Overdue Amount). Interest on any Overdue Amount will be calculated monthly, at 10% per annum, from and including the due date to and including the date that payment of the Overdue Amount, plus all accrued interest on it, is paid to Redcat.
7.6 (Fundamental Terms) The provisions of this clause 7 are fundamental terms of this Agreement.
8. SOFTWARE
8.1 (Software Licensing). During the Subscription Term, Redcat will provide to the Customer the Software specified in the Order Form as part of the HaaS Solution. Redcat grants the Customer a non-exclusive, non-transferable right to access and use the Software solely for Customer’s internal use by its Personnel during the Subscription Term.
8.2 (Use of Third Party Software) The Customer must not install or use any third party software with the Hardware without Redcat’s prior written consent.
9. WARRANTIES AND SERVICE LEVELS
9.1 (Limited Warranty by Redcat) Redcat warrants that:
a. it will carry out any necessary Maintenance Services relating to Hardware using personnel of the required skill, experience and qualifications and with all due skill, care and diligence in accordance with good industry practice.
b. each Device will substantially conform to its specification as set out in the relevant Order Form.
b. each Device will substantially conform to its specification as set out in the relevant Order Form.
9.2 (Limit of liability) To the fullest extent permitted by law, Redcat’s only liability to the Customer if a Device fails to comply with the warranty set out in clause 1 is as set out in clause 10.
9.3 (OEM Warranty) Redcat does not provide any warranty on finished goods manufactured by an OEM.
9.4 (Non-Excludable Terms) Except as required by any Non-Excludable Terms and any express warranties in the Agreement, all guarantees, conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Redcat’s obligations under, or any other services supplied by Redcat in connection with, this Agreement are excluded to the maximum extent permitted by law.
10. SERVICES
10.1 (Scope) During the Subscription Term, Redcat will perform the Services specified in the Order Form as part of the HaaS Solution.
10.2 (Maintenance Services) The Maintenance Services are an integral part of the HaaS Solution, designed to minimise disruption to the Customer’s business operations. Redcat will perform Maintenance Services on each Device, as more fully set out in the relevant Order Form.
10.3 (Ticket) The Customer may raise a Ticket in the event of a defect, fault or impairment of a Device which must contain reasonably detailed information relating to the relevant defect, fault or impairment and the affected Device(s).
10.4 (Corrective Maintenance) On receipt of a valid Ticket, Redcat must use its commercially reasonable endeavours to complete the Corrective Maintenance as more fully set out in the Order Form and to the extent it reasonably can, provided that:
a. the Customer notifies Redcat of the defect or fault in writing within five (5) Business Days of it occurring or of becoming aware of it;
b. the Customer, at Redcat’s option, either returns the allegedly defective Device to Redcat or permits Redcat to make a full examination of the Device; and
c. the defect, fault or impairment did not materialise as a result of:
- misuse, neglect, alteration or mishandling by the Customer or its Personnel or from unauthorised manipulation by any person other than Redcat’s authorised personnel;
- use of the Device in breach of this Agreement; or
- or directly attributable to, defective material, workmanship or design,
together, the Excluded Causes.
10.5 (Availability) Redcat must use commercially reasonable endeavours to respond promptly, during business hours, by telephone or in writing, as appropriate, to any request from the Customer for information concerning the application and use of the Hardware, or the repair of any defect in or malfunctioning of the Hardware.
10.6 (Remedy) Except where the defect is as a result of an Excluded Cause, and subject always to clause 4, if Redcat is unable to remedy any material defect in any Devices in accordance with clause 10.4, Redcat will, at its sole discretion either:
a. make an appropriate substitution for the defective Device; or
b. accept the return of part or all of the defective Device.
b. accept the return of part or all of the defective Device.
10.7 (Service Fees) Where, at Redcat’s sole discretion, Redcat is performing or has performed the Maintenance Services in circumstances where it is reasonably established that the relevant Device was not in Working Order due to any of the Excluded Causes, Redcat may charge, and the Customer shall pay, any additional fees in respect of that work as set out in the relevant Order Form.
10.8 (Exclusions) The Maintenance Services do not extend or apply to:
a. damage caused by accident, abuse, misuse, failure to take reasonable care, loss of parts, fire, liquid contact, impact or other external cause;
b. damage caused by improper installation or operation of the Hardware outside Redcat’s or the OEM’s published guidelines;
c. a Device that has been modified to alter functionality or capability without the written permission of Redcat;
d. Devices that have been altered or opened contrary to the operating instructions
e. network issues or issues with the Customer’s wi-fi network; and
f. resolving the consequences of security breaches and incompatibilities in hardware and/or software.
11. CUSTOMER’S USE AND CARE OF HARDWARE
11.1 (General Obligations) At all times during the Subscription Term, the Customer must:
a. be responsible for installing the Hardware (unless otherwise agreed in writing with Redcat)
b. take care of the Hardware and except where Redcat is providing Maintenance Services, maintain at its own expense the Hardware in good and substantial repair (fair wear and tear excepted);
c. only use the Hardware in its business operations and for the purpose for which the Hardware was designed;
d. use the Hardware in accordance with any instructions on use supplied by Redcat or the OEM;
e. not disassemble, modify, adapt, alter or otherwise change the Hardware, including by removing any SIM card from the Hardware;
f. not access or use the HaaS Solution in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable laws;
g. put and keep in place adequate security measures and up-to-date firewalls to protect the Hardware and Software from any viruses, harmful code or unauthorised access;
h. ensure that its network and systems comply with the relevant specifications provided by Redcat from time to time and be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems; and
i. only use the Hardware in conjunction with the Software offered, supplied or provided by Redcat from time to time (including by any OEM that may be included as part of the Device).
b. take care of the Hardware and except where Redcat is providing Maintenance Services, maintain at its own expense the Hardware in good and substantial repair (fair wear and tear excepted);
c. only use the Hardware in its business operations and for the purpose for which the Hardware was designed;
d. use the Hardware in accordance with any instructions on use supplied by Redcat or the OEM;
e. not disassemble, modify, adapt, alter or otherwise change the Hardware, including by removing any SIM card from the Hardware;
f. not access or use the HaaS Solution in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable laws;
g. put and keep in place adequate security measures and up-to-date firewalls to protect the Hardware and Software from any viruses, harmful code or unauthorised access;
h. ensure that its network and systems comply with the relevant specifications provided by Redcat from time to time and be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems; and
i. only use the Hardware in conjunction with the Software offered, supplied or provided by Redcat from time to time (including by any OEM that may be included as part of the Device).
11.2 (location and Inspection) The Customer must:
a. keep and store the Hardware securely and in a manner intended to safeguard the Hardware from unauthorised use, theft, loss or damage;
b. not remove or relocate the Hardware from the Sites at which it was delivered and installed by Redcat without prior written consent from Redcat; and
c. permit Redcat and its Personnel at an agreed or pre-arranged time to:
- enter the Sites or other premises at which the Hardware is located;
- inspect the state of repair of the Hardware;
- carry out the Services (if any), as reasonably required by Redcat;
- overhaul, replace or substitute a Device under clause 6.4; and
- do any act, matter or thing that may be required to be done to give proper effect to the terms of this Agreement, or to protect Redcat's rights in the Hardware.
12.LOSS OR DAMAGE TO HARDWARE
12.1 (Loss) The Customer must immediately notify Redcat if any Device is stolen, lost, destroyed, damaged beyond practical or economic repair, or otherwise unrecoverable.
12.2 (Reimbursement) If any event referred to in clause 1 occurs, the Customer must pay Redcat the then-current recommended retail price for a replacement Device.
12.3 (Repairs) If a Device is damaged but not beyond practical or economic repair, the Customer must contact Redcat to arrange for the repairs necessary to restore the Device to Working Order and good repair and condition. The Customer must reimburse Redcat for the cost of those repairs.
12.4 (Responsibility) Redcat is not responsible for any loss of or damage, defect, fault or impairment of any Device arising out of or in connection with the Customer’s negligence, misuse, mishandling of the Device, breach of this Agreement or otherwise caused by the Customer or its Personnel.
13. TERMINATION
13.1 (Termination) This Agreement will terminate on the earlier of:
a. the last day of the Initial Term or, if applicable, any Subsequent Term; or
b. the date on which a party terminates this Agreement pursuant to clause 13.2.
b. the date on which a party terminates this Agreement pursuant to clause 13.2.
13.2 (Termination for cause) Either party may terminate this Agreement by written notice to the other party in the event that the other party commits an Event of Default.
13.3 (Events of Default) A party commits an Event of Default if:
a. In the case of the Customer, the Customer fails to pay to Redcat any amount payable by it under this Agreement or any other agreement the Customer has entered into with Redcat, on the due date and is not remedied within 2 Business Days of the date that Redcat notifies the Customer of the failure;
b. a party fails to perform any obligation under this Agreement or any other agreement between the Customer and Redcat (other than the Customer’s obligation to pay Redcat any amount payable as referred to in clause 13.3(a) above), and does not remedy that failure within 10 Business Days of being given written notice to do so; or
c. an Insolvency event occurs in respect of that party.
b. a party fails to perform any obligation under this Agreement or any other agreement between the Customer and Redcat (other than the Customer’s obligation to pay Redcat any amount payable as referred to in clause 13.3(a) above), and does not remedy that failure within 10 Business Days of being given written notice to do so; or
c. an Insolvency event occurs in respect of that party.
13.4 (Consequences of Termination) Upon expiry of this Agreement, or termination of this Agreement in accordance with this clause 13:
a. the Customer's right to possession of the Hardware immediately ceases and the Customer must return the Hardware to Redcat in accordance with clause 14;
b. all rights, licenses, consents, and authorisations granted by Redcat to the Customer with respect to the HaaS Solution will immediately terminate;
c. where the Customer terminates this Agreement under clause 13.1, or Redcat terminates this Agreement under clause 13.2, the Customer must pay Redcat any applicable Restocking Fee and any other costs or expenses incurred directly under this Agreement or the relevant Order Form, as the case may be, by Redcat as a result of the termination (including any storage, insurance, repair, transport, legal and remarketing costs);
d. it is the Customer’s responsibility to remove and back-up any customer or other personal data from any Device before Redcat retakes possession of the Hardware; and
e. all amounts due and payable to Redcat, whether or not invoiced, including any Subscription Fees, as at the date of termination become a debt due and payable on the effective date of termination.
a. the Customer's right to possession of the Hardware immediately ceases and the Customer must return the Hardware to Redcat in accordance with clause 14;
b. all rights, licenses, consents, and authorisations granted by Redcat to the Customer with respect to the HaaS Solution will immediately terminate;
c. where the Customer terminates this Agreement under clause 13.1, or Redcat terminates this Agreement under clause 13.2, the Customer must pay Redcat any applicable Restocking Fee and any other costs or expenses incurred directly under this Agreement or the relevant Order Form, as the case may be, by Redcat as a result of the termination (including any storage, insurance, repair, transport, legal and remarketing costs);
d. it is the Customer’s responsibility to remove and back-up any customer or other personal data from any Device before Redcat retakes possession of the Hardware; and
e. all amounts due and payable to Redcat, whether or not invoiced, including any Subscription Fees, as at the date of termination become a debt due and payable on the effective date of termination.
13.5 (Rights unaffected) Termination or expiry of this Agreement does not affect the rights of a party which have accrued up to the date of such termination.
14. RETURN OF THE HARDWARE
14.1 (Return) Upon expiration or termination of this Agreement, or when otherwise required under this Agreement, the Customer must return to Redcat the Hardware and/or allow Redcat to immediately repossess the Hardware.
14.2 (Process) Redcat will initiate the return process by sending reasonable instructions to the Customer.
14.3 (Procedures) The Customer must package the Hardware, including all parts and accessories that were included in the original delivery of the Hardware, using the original packaging and return the Hardware at its own cost within ten (10) Business Days after receipt of instructions from Redcat (Return Window).
14.4 (Return Condition) The Customer must return the Hardware in Working Order and otherwise in the same condition it was delivered to the Customer, except for normal wear and tear commensurate with its age (collectively, the Return Condition).
14.5 (Inspection) Redcat will inspect the Hardware and determine if the Customer returned the Hardware in the condition required by clause 4.
14.6 (Restoration Charges) If the Hardware is returned within the Return Window but does not comply with the Return Condition yet can be restored to compliance, Redcat will promptly notify Customer and provide reasonable documentation detailing the necessary repairs or refurbishments. The Customer shall be responsible for the direct costs incurred by Redcat to restore each affected Device to compliance with the Return Conditions (Restoration Charges). Payment of any Restoration Charges by the Customer does not waive or relieve any of Customer’s obligations under this Agreement.
14.7 (Replacement Charges) If the Hardware is not returned within the Return Window or is returned within the Return Window in a condition that does not comply with the Return Condition and, in Redcat’s reasonable judgment, cannot be restored to compliance, the Customer shall be responsible for the fair market replacement value of each affected Device (Replacement Charges). Payment of any Replacement Charges by the Customer does not: (a) waive or relieve any of the Customer’s obligations under this Agreement; or (b) grant the Customer the right to retain possession of the Hardware beyond the expiration or termination of this Agreement.
14.4 (Return Condition) The Customer must return the Hardware in Working Order and otherwise in the same condition it was delivered to the Customer, except for normal wear and tear commensurate with its age (collectively, the Return Condition).
14.5 (Inspection) Redcat will inspect the Hardware and determine if the Customer returned the Hardware in the condition required by clause 4.
14.6 (Restoration Charges) If the Hardware is returned within the Return Window but does not comply with the Return Condition yet can be restored to compliance, Redcat will promptly notify Customer and provide reasonable documentation detailing the necessary repairs or refurbishments. The Customer shall be responsible for the direct costs incurred by Redcat to restore each affected Device to compliance with the Return Conditions (Restoration Charges). Payment of any Restoration Charges by the Customer does not waive or relieve any of Customer’s obligations under this Agreement.
14.7 (Replacement Charges) If the Hardware is not returned within the Return Window or is returned within the Return Window in a condition that does not comply with the Return Condition and, in Redcat’s reasonable judgment, cannot be restored to compliance, the Customer shall be responsible for the fair market replacement value of each affected Device (Replacement Charges). Payment of any Replacement Charges by the Customer does not: (a) waive or relieve any of the Customer’s obligations under this Agreement; or (b) grant the Customer the right to retain possession of the Hardware beyond the expiration or termination of this Agreement.
15. PPSA
15.1 (Security Interest) The Customer acknowledges that Redcat's interest under this Agreement is a Security Interest for the purposes of the PPSA and:
a. that Security Interest relates to the Hardware and all proceeds of any kind; and
b. this Agreement is a security agreement for the purposes of the PPSA.
b. this Agreement is a security agreement for the purposes of the PPSA.
15.2 (Consent) The Customer consents to Redcat effecting a registration on the PPSA (in any manner Redcat considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement.
15.3 (Waiver of Notices) The Customer waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
15.4 (Further assurances) The Customer must do all things (including signing any document) and provide all information necessary to enable Redcat to perfect and maintain the perfection of any and each Security Interest granted to Redcat by the Customer.
15.5 (Enforcement) To the extent the law permits, Redcat need not comply with, and the Customer may not exercise rights under, any provisions of Chapter 4 of the PPSA that can be contracted out of.
15.6 If Redcat exercises a right, power or remedy in connection with this Agreement or a security interest that it provides for, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless Redcat states otherwise in writing at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.
15.7 (Attorney) For the purposes of this clause 15, the Customer irrevocably appoints Redcat to be its attorney with power to do all things necessary or expedient including entering into any documents deemed necessary by it to give effect to the Customer's obligations under this Agreement.
15.4 (Further assurances) The Customer must do all things (including signing any document) and provide all information necessary to enable Redcat to perfect and maintain the perfection of any and each Security Interest granted to Redcat by the Customer.
15.5 (Enforcement) To the extent the law permits, Redcat need not comply with, and the Customer may not exercise rights under, any provisions of Chapter 4 of the PPSA that can be contracted out of.
15.6 If Redcat exercises a right, power or remedy in connection with this Agreement or a security interest that it provides for, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless Redcat states otherwise in writing at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.
15.7 (Attorney) For the purposes of this clause 15, the Customer irrevocably appoints Redcat to be its attorney with power to do all things necessary or expedient including entering into any documents deemed necessary by it to give effect to the Customer's obligations under this Agreement.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 (Redcat Ownership) All right, title, and interest in and to the HaaS Solution, including all Intellectual Property Rights therein, are and will remain with Redcat. The Customer has no right, license, or authorization with respect to any part of the HaaS Solution except as expressly set out in this Agreement. All other rights in and to the HaaS Solution are expressly reserved by Redcat.
17. LIABILITY
17.1 (Limitation on liability) The provisions of clause 9.3 (Limitation of Liability) of the MSA apply so far as they are capable of application, and with the necessary changes, to the Hardware and the Services provided by Redcat under these Terms.
18. INDEMNIFICATION
18.1 Redcat Indemnity Redcat agrees to indemnify and hold the Customer harmless against any Claims, loss, cost, damages, expense or liability the Customer suffers or incurs (Loss) arising out of:
a. Redcat breaching a material obligation under this Agreement; and
b. a Claim by a third party that the Hardware or the Services infringe the Intellectual Property Rights of that third party;
This indemnity does not apply in relation to the quality or performance of the Hardware, which is subject to the relevant manufacturer warranty.
18.2 (Customer Indemnity) The Customer agrees to indemnify and hold Redcat harmless against any Claims, loss, cost, damages, expense or liability Redcat suffers or incurs (Loss) arising out of:
a. the Customer breaching its obligations under this Agreement;
b. any loss, destruction, damage or seizure of the Hardware, including through the Customer’s negligence;
c. a claim by any person that the use of any software installed or used by the Customer on the Hardware infringes that person’s Intellectual Property Rights including without limitation in relation to trade mark, copyright, patent or other intellectual property right;
d. personal injury (including sickness or death) caused by an act or omission of the Customer or its Personnel, including through negligence;
e. negligent or unlawful act or omission, or wilful misconduct, by the Customer or any of its Personnel; and
f. Claims by the Customer or a third party against Redcat arising because of any act or omission of the Customer in connection with this Agreement, except to the extent that the Claim arises because of Redcat's negligence or breach of this Agreement.
b. any loss, destruction, damage or seizure of the Hardware, including through the Customer’s negligence;
c. a claim by any person that the use of any software installed or used by the Customer on the Hardware infringes that person’s Intellectual Property Rights including without limitation in relation to trade mark, copyright, patent or other intellectual property right;
d. personal injury (including sickness or death) caused by an act or omission of the Customer or its Personnel, including through negligence;
e. negligent or unlawful act or omission, or wilful misconduct, by the Customer or any of its Personnel; and
f. Claims by the Customer or a third party against Redcat arising because of any act or omission of the Customer in connection with this Agreement, except to the extent that the Claim arises because of Redcat's negligence or breach of this Agreement.
18.3 Exclusions from liability To the extent permitted by law, Redcat will not be liable for loss (including under a warranty or indemnity) suffered by the Customer, or failure to provide the Services, to the extent caused or contributed to by any of the following:
a. use of the Hardware in combination with firmware, software, materials or services not supplied to the Customer by Redcat;
b. use of the Hardware in breach of this Agreement; or
c. operation or use of any Hardware supplied under the Agreement other than in accordance with the Documentation, or in accordance with normal business use and requirements.
19. INSURANCE
19.1 (Insurances) The Customer must procure and maintain at all times during the Subscription Term the following insurance policies at its own expense:
a. full replacement value of the Hardware, on request by Redcat; and
b. public and product liability insurance, with a limit of $10 million in the aggregate.
19.2 (Nature of insurance) Any insurance effected by the Customer must be satisfactory to Redcat and note Redcat’s interest in the insurance policy as the owner of the Hardware.
19.3 (Certificates) Redcat may reasonably request certificates of insurance as evidence that the Customer is in compliance with clause 1 and that the Customer must provide the relevant certificates within 10 days of receiving such a request
20. GOVERNING LAW & NOTICES
20.1 (Governing Law) This Agreement is governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of Victoria and its appellate courts.
20.2 (Notices) All billings, payments and written notices from either party to the other must be given to the address shown in the Order Form, or to such other address as may be designated in writing by either party to the other.
21. GST
21.1 Unless expressly stated otherwise, all amounts payable under this Agreement exclude GST.
21.2 If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.
21.3 If this Agreement requires a party to pay for, reimburse or contribute to any expense, liability, indemnity or outgoing (reimbursable expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
a. the amount of the reimbursable expense less the input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense; and
b. if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply.
22. GENERAL PROVISIONS
22.1 (Application) All the provisions of clause 13 (General Provisions) in the MSA apply so far as they are capable of application, and with the necessary changes, to this Agreement.