Rampant Technology

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I would like to take the opportunity to thank Matthew Malcolm for his support on Tuesday in helping Harbourside Market resolve a major connectivity issue we were experiencing with the Motorola PDA’s and the commercial wireless installation. Please pass on my thanks to Matthew as his support was very much appreciated.

Merv Williams

Harbourside Market

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Terms and Conditions


Rampant Technology Pty Ltd – Terms & Conditions of Trade – Updated 08/02/2012

1.    Definitions
1.1.    “Seller” shall mean Rampant Technology Pty Ltd and its successors and assigns.
1.2.    “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3.    “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.
1.4.    “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5.    “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6.    “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 5 of this contract.
2.    Acceptance
2.1.    Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2.    Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3.    Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4.    None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5.    The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice).
3.    Goods
3.1.    The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
4.    Advice
4.1.    The Buyer acknowledges that any advice, recommendation, information or service provided by the Seller or its agents or representatives is provided as a helpful suggestion only, without any liability or responsibility on the part of the Seller.  The Buyer acknowledges that, whilst this advice is believed by the Seller to be appropriate and reliable, he acts upon this advice relying solely upon his own skill and judgment.
5.    Price And Payment
5.1.    At the Seller’s sole discretion the Price shall be either;
5.1.1.    as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
5.1.2.    the Seller’s quoted Price (subject to clause 5.2) which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within fourteen (14) days.
5.2.    The Seller may by giving notice to the Buyer (verbally or otherwise) at any time before delivery increase the Price of the Goods to reflect any variation from the plan of scheduled works or specifications beyond the reasonable control of the Seller which increase the cost of the Goods/Services by more than 10% of the quoted Price.
5.3.    The Price shall include any trade-in of parts made obsolete during PC upgrades.
5.4.    Where installation Services are proposed or quoted by the Seller as part of the supply of Goods, but not accepted by the Buyer, subsequent service calls (telephone or onsite) involving the installation or set-up of the Goods will be charged at current Service rates.
5.5.    At the Seller’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
5.6.    Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms.  If no time is stated then payment shall be on delivery of the Goods.
5.7.    The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event payment shall be made before the delivery date.
5.8.    At the Seller’s sole discretion, payment for approved Buyers shall be made by instalments in accordance with the Seller’s delivery/payment schedule.
5.9.    At the Seller’s sole discretion, for certain approved Buyers payment will be due a maximum of thirty (30) days following the date of the invoice.
5.10.    Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by EFTPOS, or by any other method as agreed to between the Buyer and the Seller.
5.11.    The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
6.    Delivery Of Goods / Services
6.1.    Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the Seller’s address.
6.2.    The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
6.3.    The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
7.    Risk
7.1.    If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
7.2.    If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract.  The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
8.    Buyer’s Disclaimer
8.1.    The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement.
9.    Defect/Returns
9.1.    The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way.  If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
9.2.    For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that the Buyer has complied with the provisions of clause 9.1.
10.    Warranty
Warranties specifically exclude damage from computer viruses or other malware however infected.  
Subject to the conditions of warranty set out in Clause 10.1 the Seller warrants that if any defect becomes apparent and is reported to the Seller within the relevant period following the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect or replace the workmanship or the Goods.  The relevant periods of warranty are as follows: Seven (7) days with respect to the Seller’s workmanship, twelve (12) months with respect to Goods, one (1) month with respect to second-hand Goods.
10.1.    The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
10.1.1.    Failure on the part of the Buyer to properly maintain any Goods; or
10.1.2.    Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
10.1.3.    Any use of any Goods otherwise than for any application specified on a quote or order form; or
10.1.4.    The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
10.1.5.    Fair wear and tear, any accident or act of God.
10.2.    The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the Goods are repaired, altered or overhauled without the Seller’s consent.
10.3.    In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
10.4.    Any certificate of warranty or other warranty documentation issued to the Buyer by the Seller in respect of the Goods shall be subject to clauses 10.1, 10.2 and 10.3 above.
10.5.    For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
11.    The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
11.1.    Nothing in this agreement is intended to have the effect of contracting out of   any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12.    Personal Property Securities Act 2009 (“PPSA”)
12.1.    In this clause:
12.1.1.    The Personal Property Securities Act 2009 is hereby referred to as the “PPSA”
12.1.2.    Financing statement has the meaning given to it by the PPSA;
12.1.3.    Financing change statement has the meaning given to it by the PPSA;
12.1.4.    Security agreement means the security agreement under the PPSA created by the Buyer and the Seller by these Terms and Conditions; and
12.1.5.    Security interest has the meaning given to it by the PPSA
12.2.    Security Interest:
12.3.    The Buyer and the Seller hereby acknowledge that the PPSA applies to all transactions pursuant to the Terms and Conditions of Sale or otherwise
12.4.    The Buyer will grant a security interest in all present and future acquired goods as security for all monies now and in the future owing by the Buyer
12.5.    The Buyer will do all such things and sign all such documents as are necessary and reasonably required to enable the Seller to acquire a perfected security interest in all goods and services supplied
12.6.    The Buyer agrees to the Seller affecting a registration on the PPSA Register in relation to any security interest contemplated by this Agreement and the Buyer agrees to provide all assistance reasonably required to facilitate this
12.7.    The Buyer indemnifies the Seller for any liability of any costs of registration, maintenance, enforcement or discharge of security interest and such other costs and expenses as the Seller may incur
12.8.    The Buyer will not, without notice, change its name or initiate any change to any registered documentation, or act in any manner which would impact on the registered security of the Seller
12.9.    The Buyer agrees to waive or exclude such sections of the PPSA as the Seller may require, subject to those sections being capable of exclusion
13.    Default & Consequences Of Default
13.1.    At the seller’s discretion, Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
13.2.    If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
13.3.    Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions.  The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
13.4.    If any account remains unpaid at the end of the second month after supply of the goods or service, at the seller’s discretion s an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
13.5.    In the event that:
13.5.1.    any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
13.5.2.    the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
13.5.3.    a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer;
13.5.4.    then without prejudice to the Seller’s other remedies at law;
13.5.5.    the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
13.5.6.    all amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof.
14.    Title
14.1.    It is the intention of the seller and agreed by the Buyer that property in the Goods shall not pass until:
14.1.1.    The Buyer has paid all amounts owing for the particular Goods, and
14.1.2.    The Buyer has met all other obligations due by the Buyer to the Seller    in respect of all contracts between the Seller and the Buyer, and that where practicable the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.  
14.2.    Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
14.3.    It is further agreed that:
14.3.1.    Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller.  Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
14.3.2.    The Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
14.3.3.    If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods.
14.3.4.    The Buyer is only a bailer of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
14.3.5.    The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
14.3.6.    The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
14.3.7.    The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
14.3.8.    The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
14.3.9.    Until such time that ownership in the Goods passes to the Buyer, if the Goods are so converted, the parties agree that the Seller will be the owner of the end products.
15.    Security And Charge
15.1.    Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
15.1.1.    Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.  
15.1.2.    Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
15.1.3.    To give effect to the provisions of clause [14.1.1 and 14.1.2] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
16.    Cancellation
16.1.    The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice.  The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
17.    Privacy Act 1988
17.1.    The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
17.2.    The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
17.2.1.    To assess an application by Buyer;
17.2.2.    To notify other credit providers of a default by the Buyer;
17.2.3.    To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
17.2.4.    To assess the credit worthiness of Buyer and/or Guarantor/s.
17.3.    The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4.    The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
17.4.1.    provision of Services & Goods;
17.4.2.    marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
17.4.3.    analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
17.4.4.    processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer;  and
17.4.5.    enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
17.5.    The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
17.5.1.    to obtain a consumer credit report about the Buyer; and/or
17.5.2.    allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
18.    Unpaid Seller’s Rights
18.1.    Where the Buyer has left any item with Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have:
18.1.1.    a lien on the item;
18.1.2.    the right to retain the item for the Price while the Seller is in possession of them;
18.1.3.    a right of resale,
18.1.4.    the foregoing right of disposal,
18.1.5.    provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the Price having been obtained.
19.    General
19.1.    If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2.    All Goods supplied by the Seller are subject to the laws of Queensland and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
19.3.    The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
19.4.    In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
19.5.    The Buyer shall not set off against the Price amounts due from the Seller.
19.6.    The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
19.7.    The Seller reserves the right to review these terms and conditions at any time and from time to time.  If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
19.8.    Neither party shall be liable for any default due to any act of a God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9.    Failure by the Seller to insist upon strict performance of any term or condition herein shall not be deemed a waiver thereof of any rights the Seller may have, and shall not be deemed a waiver of any subsequent breach of any term or condition.
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