Terms and Conditions
YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ORDERING OR USING CYTRACK SOFTWARE OR SUPPORT SERVICES. BY (i) PROCEEDING WITH AN ORDER FOR SOFTWARE, INSTALLATION OR UPGRADE OF THE SOFTWARE, OR OTHER SERVICES, AFTER RECEIVING A COPY OF THIS DOCUMENT; OR (ii) CLICKING “I Accept the Terms of the Licence Agreement,” DURING INSTALLATION OF THE SOFTWARE OR WHEN REGISTERING FOR OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND AND ABIDE BY THEM.
These Terms and Conditions apply to the sale of goods and provision of services by CyTrack Intelligence Systems Pty Ltd (‘CyTrack’) to you (‘you’ or ‘Licensee’), and all offers made by CyTrack in relation to CyTrack’s goods and services, including software provided by CyTrack (‘Software’) and support services relating to Software, unless varied, amended or cancelled by an officer or other duly authorised representative of CyTrack.
CyTrack’s failure to object to any term or condition contained in any communication, whether written or oral, from you, shall not mean those conditions/items are accepted.
- This agreement incorporates by reference the following standard agreements, as applicable:
- CyTrack’s Outright Purchase Software Agreement, if you order or use Outright Purchase Software, which is generally provided for download or on a disc or other media for installation on your hardware;
- CyTrack’s Subscription Service Software Agreement, if you order or use Subscription Service Software, which requires an ongoing subscription to use and generally requires internet access but may also require some setup on your hardware; and
- CyTrack’s Support Services Terms and Conditions, if you order or procure services not provided under the above agreements (‘Support Services’).
- The above standard agreements will prevail to the extent of any inconsistency with these Terms and Conditions.
- Any separate agreement executed by you and CyTrack (by an officer or other duly authorised representative) will prevail to the extent of any inconsistency with these Terms and Conditions or any of the above standard agreements.
- General terms:
- Where an order is paid for electronically, all endeavours shall be made to ensure the confidentiality of such payment details such as name of the user, the amount of the invoice and the credit card number offered.
- CyTrack must be notified in writing of any change of address/or ownership of your company or business.
- Subscription Service Software:
- All payments for Subscription Service Software must be made in advance for each subscription period and must be paid by credit card or direct debit.
- If payment is not received by the start of any subscription period, CyTrack may suspend or terminate access to the Software and the provision of services under the Subscription Service Software Agreement, and no liability for damages caused by such suspension or termination shall be accepted by CyTrack.
- Outright Purchase Software, Support Services and other goods and services (excluding Subscription Service Software):
- All new accounts will operate for at least a period of three (3) months on a ‘cash before delivery’ basis before they will be considered for credit terms. Until CyTrack approves an account for credit terms, any purchase of goods or services (other than Subscription Service Software) made over one thousand Australian dollars (AUD$1,000) must be paid by cash, credit card, bank cheque or direct deposit.
- Your completion of CyTrack’s Application for Credit Terms shall be deemed an authority for CyTrack to check trade references as supplied by you as applicable. A credit account will only be considered after relevant information has been supplied to CyTrack. An application for credit does not necessarily mean a credit account will be granted immediately and all applications are subject to approval by CyTrack at its discretion. Note: Unless otherwise approved, even if you are on credit terms, all orders for goods or services that exceed five thousand Australian dollars (AUD$5,000) dollars will require a payment of 40% on order and 40% on delivery with the balance due in accordance with the credit terms.
- Where credit terms have been extended by CyTrack, CyTrack retains the right to vary or withdraw credit facilities at any time. The company will bear no liability for damage caused by the withdrawal of the credit facility. If accounts are overdue no further goods or services will be supplied on credit until all outstanding accounts are fully paid. Interest of 3% above the Reserve Bank of Australia cash rate per annum will be charged on the balance of all outstanding amounts calculated from the due date. If at any time you are in default of credit terms, CyTrack will cease deliveries and the provision of services and no liability for damages caused by such cessation shall be accepted by CyTrack.
- CyTrack will issue an invoice for any goods or services provided in advance of payment.
- Where any part of an invoice is in dispute the balance not in dispute must be paid in accordance with the account terms. You must immediately identify any disputed amount in writing to CyTrack.
- Unless otherwise stated, any amount specified as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
- If a party (‘Supplier’) makes a taxable supply, then the recipient of the taxable supply (‘Recipient’) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
- Notwithstanding the foregoing, the Recipient is not obliged to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
- If an adjustment event arises in relation to a taxable supply made by a Supplier, the amount paid or payable by the Recipient pursuant to clause 8.2 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
- If a third party makes a taxable supply and these Terms and Conditions require a party to these Terms and Conditions (‘payer’) to pay for, reimburse or contribute to (‘pay’) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
- This clause 8 does not merge on completion and will continue to apply after expiration or termination of this these Terms and Conditions.
- Words or expressions used in this clause 8 that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning given to them in that Act.
- You might provide CyTrack with information about your business activities via CyTrack’s website. CyTrack shall only use that information as part of its business operations and those of its related companies. CyTrack will not pass this information to unrelated companies.
- Your security when using a credit card shall be maintained through encryption standards. If you choose not to pay this way please call, fax or e-mail and we will assist you.
- All prices quoted verbally or written are exclusive of GST unless otherwise stated.
- Unless otherwise specified by CyTrack in writing at the time of providing a quotation:
- all quotations are valid for a period of thirty (30) days from the date issued; and
- a quotation is a mere invitation to treat and not a binding offer.
- By placing an order, you are making an offer to acquire goods or services from CyTrack. Orders for goods and services, and the price charged for same, are only binding once accepted by CyTrack in writing.
- Prices are subject to change without notice. Freight charges shall be additional.
- If you cancel an order after CyTrack has accepted the order, the cancellation must be in writing. In the case of cancelling an order for goods:
- if CyTrack has begun to manufacture or commence services for the goods, you agree to pay a cancellation fee of 20% of the cost of the goods or services (as the case may be) before tax to cover costs and resources; and
- if the goods have already shipped or the services have already been provided, then the full price is payable.
- Any errors in an invoice or in delivery must be notified to CyTrack within 7 days of receiving the invoice or delivery. CyTrack will not grant credits for overcharges or returned stock if CyTrack is not notified within 7 days unless required under the Australian Consumer Law.
- When returning goods, for ease of processing we request that you telephone, email or fax ahead to our Help Desk for a Return Authorisation (RA) number, and return the goods within 14 working days of the RA number being issued (‘Returns Process’).
- CyTrack may accept returns of fault-free goods in return for a credit with CyTrack of the applicable invoice charge, if:
- you comply with the Returns Process above; and
- the goods are received by CyTrack within thirty (30) days of the invoice date; and
- the goods are returned with the original packing and with original accessories.
- CyTrack reserves the right to charge a re-stocking fee of up to 20% of the applicable invoice charge with regard to returns of fault-free goods. CyTrack reserves the right not to accept returns of Software that has been opened.
- With regard to faulty goods, for ease of processing CyTrack requests that you:
- notify CyTrack within 14 days of purchase that the goods are faulty; and
- comply with the Returns Process above; and
- return the goods with the original packing and with original accessories.
- If CyTrack determines the goods are not faulty, they will be returned to you at your expense and there will be an additional service fee of AUD $60. All goods being returned to CyTrack are to be sent at your expense.
- It is the responsibility of the customer to inform CyTrack of any proposed:
- change to the Software;
- change to the computer, machine, device or peripheral the Software is used or to be used on (‘Hardware’), including but not limited to any upgrades, replacements, repairs or change in the location of any Hardware;
- change to the operating system or environment used on the Hardware (‘Environment’), including but not limited to any upgrades or settings changes; or
- work affecting the Software, Hardware or Environment.
- If any work or changes of the kind described in clause 23 are carried out by non-CyTrack approved or trained personnel without CyTrack’s prior agreement:
- CyTrack accepts no responsibility or liability for any disruption in access to the Software or provision of services resulting from such work or changes; and
- the customer will be liable for additional charges for any work required to restore operation of the Software and/or services.
- In these Terms and Conditions:
- “Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 and any equivalent state or territory legislation; and
- “Consumer Guarantee” means a right or guarantee under Part 3-2 (Division 1) of the Australian Consumer Law that cannot lawfully be excluded.
- CyTrack strongly recommends You regularly backup Your data to an independent storage facility to guard against catastrophic loss of data. CyTrack does not warrant or guarantee that any backups maintained by the Software, including those managed by third-party providers, will be failsafe or effective in any given situation. CyTrack shall not be responsible for any costs, loss or damage associated with loss of data, recreating data, substitute equipment or programs, claims by third parties or similar costs.
- CyTrack will not be liable, in any respect, for any claim, liability, cost, loss or damage resulting from or arising directly or indirectly from:
- any disruption to, or limitations of, the Licensee’s internet connection;
- any disruption to CyTrack’s internet connection beyond CyTrack’s reasonable control;
- any disruption to telecommunication networks or the internet generally;
- any changes or works of the kind described in clause 23 carried out without CyTrack’s prior agreement;
- any changes to Software made by or on behalf of the Licensee, whether or not carried out with CyTrack’s prior agreement;
- any breach by the Licensee of these Terms and Conditions or any other agreement with CyTrack; or
- any negligence on the part of the Licensee.
- By using the goods you agree to accept all risk associated with their use and agree to indemnify CyTrack against all and any recourse by any third party. CyTrack and/or its associates, employees and agents will not be held responsible for any loss, whether direct, indirect or consequential, real or imagined, past, present or future, resulting from the use of the goods by the Licensee or by any person or entity related to the Licensee including their customers.
- In no case shall the liability of CyTrack exceed the amount of the purchase price of the goods.
- To the fullest extent permitted by law, CyTrack excludes:
- any term, condition or warranty that may otherwise be implied by custom, law or statute;
- any liability for loss caused by the negligence of CyTrack; and
- any liability for any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of time, loss of interest, damage to credit rating or loss or denial of opportunity.
- Some countries and states do not allow the exclusion of implied warranties, terms or conditions, so the above exclusions may not apply to you.
- To the fullest extent permitted by law and except to the extent that the Consumer Guarantees cannot be excluded as set out under clause 33 or otherwise, CyTrack’s liability to you in connection with these Terms and Conditions and the supply of goods and provision of services by CyTrack (including in respect of any breach of or failure to comply with any applicable Consumer Guarantee) is, limited to any one or more of the following as CyTrack determines in its absolute discretion:
- in relation to goods:
- replacing or repairing the goods;
- supplying an equivalent item of the goods;
- paying the cost of replacing or repairing the goods; or
- paying the cost of acquiring equivalent goods; and
- in relation to services:
- supplying the services again; or
- the payment of the cost of having the services supplied again.
- in relation to goods:
- CyTrack’s liability in respect of a breach of or a failure to comply with an applicable Consumer Guarantee will not be limited in the way set out in clause 32 if:
- the goods and services supplied are ‘of a kind ordinarily acquired for personal, domestic or household use or consumption’, as that expression is used in section 64A of the Australian Consumer Law; or
- it is not ‘fair or reasonable’ for CyTrack to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or
- the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
- CyTrack may from time to time offer advice or assistance in regards to product specification, performance and implementation. CyTrack accepts no liability for the accuracy, currency or completeness of such information, and you rely on this information at your own risk. Whether information is offered through verbal or other media CyTrack accepts no liability.
- The placing of an order with CyTrack shall be deemed as acceptance of these terms and conditions whether the order is placed verbally, through the Internet, fax, mail or other means accepted by CyTrack.
- CyTrack reserves the right to amend, revise or replace these Terms and Conditions from time to time. By:
- placing an order with CyTrack for new, modified or additional goods or services after receiving a copy of the amended Terms and Conditions; or
- expressly accepting the amended Terms and Conditions in writing or via the Software;
- These Terms and Conditions shall be governed and construed in accordance with the laws of Australia and the State of Queensland. Furthermore it is understood that these Terms and Conditions shall be treated as though they were executed in Queensland and the parties agree that any action relating to these terms and conditions shall be instituted and prosecuted in the courts of the competent jurisdiction of the State of Queensland.
- If for any reason, a court of competent jurisdiction finds any provision or portion of these Terms and Conditions unlawful, void, or for any reason unenforceable, it shall be deleted and shall in no way affect the enforceability of any other provisions of these Terms and Conditions.
Payments and accounts
Internet and your privacy
Prices and orders
Limitation of liability
you acknowledge that you have read, understand and agree to be bound by the amended Terms and Conditions effective immediately in relation to all goods and services you acquire or license from CyTrack.