1.              ACCEPTANCE

1.1           These Terms and Conditions (Terms) are between On-track Technology Pty Ltd ABN 71 091 980 077, its successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity who uses or purchases any products (Products) or purchases any services (Services) from us described in the Quotation (referred to as “you” or “your”), and collectively the Parties.  These Terms apply to all sales made by us to you.  

1.2           These Terms are also available on our Website, www.on-track.com.au (Site).

1.3           You have requested the Products and/or Services set out in the Quotation.  You accept the Quotation and these Terms by either:

(a)     Issuing a purchase order;  or

(b)     confirming by email or facsimile that you accept the Quotation; or

(c)     instructing us to proceed with the purchase of the Products and/or Services; or

(d)     instructing us to complete design, programming or construction work in respect of the Products; or

(e)     paying any Deposit set out in the Quotation or any Invoice issued by us.

1.4           You agree that these Terms form the agreement under which we will supply Products and/or Services to you.  Please read these Terms carefully.  Please contact us if you have any questions.  Our contact details are at the end of these Terms and in the Quotation.  Purchasing Products and/or Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older.  You must not order or use the Products and/or Services if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older.  If you do not agree to these Terms, you must not use or purchase our Products and/or Services from us.

1.5           We may not commence performing the Services or provide you with the Product until you have paid the Deposit (if any).

2.              CLIENT ACCOUNT

2.1           In order to purchase Products and/or Services from us, you will be required to register for an account (Account).  It is your responsibility to keep the details of your Account confidential.  You are liable for all activity on your Account, including any purchases made using your Account details.

2.2           We may provide you with, at our discretion, a credit account upon your acceptance of our Quotation for the Products and/or Services.  We reserve the right to refuse and/or withdraw a credit account application prior to the delivery of the Products and/or performance of Services.

3.              SERVICES

3.1           We agree to perform the Services with due care and skill.

3.2           We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.

3.3           In order to provide the Services in accordance with your instructions, you agree to provide us promptly with the following information:

(a)     bill of materials;

(b)     pinned circuit board documents; and

(c)     any additional special work instructions required to build your Products and/or perform your Services.

3.4           You acknowledge and agree that we may vary the material or construction specification of the Products provided that the performance specification of the Products is not adversely affected. 

3.5           The estimated lead time for us to perform the Services or provide a Product is set out in the Quotation.  Please note that this is an estimate only and we cannot guarantee we will be able to meet this lead time, particularly where we are relying on you or Third Party Suppliers to provide us with components.

3.6           We may provide the Services to you using our employees, contractors and third party providers, and they are included in these Terms.

3.7           Suppliers of third party services or products who are not our employee or our direct contractor (Third Party Suppliers) will be your responsibility.  We are not responsible for the quality of services or products provided by Third Party Suppliers.

3.8           If you request amended or additional services, including but not limited to changes to the Quotation, scope or variations (Variation), we have discretion as to whether we perform this Variation for you and whether an adjustment to the Fee may be required in respect of the same.  If we are unable to accommodate the Variation, we may request that we be paid for Services performed to date and terminate these Terms.

3.9           If we agree to perform a Variation, then we will inform you of any additional cost (Variation Fee).  You need to approve the Variation and Variation Fee before we commence work.  We will invoice you accordingly for the Variation.

4.              PRODUCTS AND ORDERS

4.1           You may order Products from us.  We may at our discretion accept or reject an order depending on factors including availability of Products, our factory and machinery and our ability to validate payment for the Products.

4.2           It is your responsibility to check the order details, including Product and pricing, before you complete your order with us.

5.              PRICE, INVOICING AND PAYMENT

5.1           You agree to pay us the Fees and Expenses for the Services that you have requested, as set out in the Quotation or on the Site (as applicable), including any Deposit (Price).  All amounts are stated in Australian dollars.  All amounts exclude Australian GST (where applicable).   Any applicable Expenses, such as delivery and insurance charges, will be separately shown on the relevant Invoice.  Where applicable, you will be required to make payment by way of direct funds transfer, credit card, PayPal or other payment options as confirmed by us, and you must provide your credit card, PayPal or other payment details (Payment Details) to us when making a purchase for the Products and/or Services.  We may also charge an additional merchant fee for certain payments.

5.2           Payment options for the Fees in respect of Products and Services may differ.  Some of the Products and Services require a Deposit to be paid upfront; others do not. Fees in respect of a particular Product or Service will be invoiced upon delivery of that Product or Service. Some Services may be performed and delivered in phases and such Services will also be invoiced in phases, upon completion of each phase. Payment options are at our discretion.

5.3           You must not pay, or attempt to pay, the Price through any fraudulent or unlawful means.  If a payment is not able to be successfully processed then your order may be cancelled.

5.4           If you pay by credit card, you warrant that the credit card information you provide to us is true and complete, that you are authorised to use the credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Fees.

5.5           The Price, Products and/or Services may only be varied with our prior written consent, including by email.

5.6           You agree to pay our Invoices within 30 days of the Invoice date.  If an Invoice is unpaid for more than 30 days we may cease to provide the Services and/or Products to you until we receive payment of the Invoice.

5.7           We may charge interest in accordance with our St George Bank overdraft facility rate each month on any amounts unpaid after the expiry of 14 days after the payment date.

5.8           If invoices are unpaid for 14 days after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us.

5.9           We reserve the right to report bad debts to independent credit data agencies.

5.10        If the Quotation states that the Fees and Expenses are an estimate only, you acknowledge that the final Fees and Expenses may be more or less than the estimated amounts.  We will endeavour to inform you of any material variation as it becomes apparent.

5.11        Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion.  The pricing changes will apply to you for Products and/or Services provided to you after the date of the change.  All other changes will apply from the date that the amended or new Terms are provided to you or if you enter into a new Quotation, whichever is earlier.

6.              TURNKEY PRODUCTION

6.1           Where we provide turnkey production Products and/or Services (i.e. component procurement and printed circuit board assembly (PCB Assembly) or PCB Assembly only (i.e. you provide us with complete kits free in aid (FIA)), we will require an upfront Deposit as detailed in the Quotation to enable us to process your order.

6.2           All Deposits received will be credited back onto your final Invoice upon delivery of your Products.

6.3           In circumstances where the total Fees in a Quotation exceed the credit limit, as determined by us at our discretion, we will require an Irrevocable Letter of Credit from your nominated financial institution along with the terms and conditions of such line of credit to assist us in determining, at our full discretion, whether we will agree to provide you with the Products and/or Services in accordance with these Terms.

7.              AVAILABILITY AND CANCELLATION

7.1           All Product purchases made with us are subject to availability.  We will do our best to keep in stock most Products that are advertised by us, and to keep our lists up to date with availability of Products.

7.2           If certain Products are out of stock or discontinued, we may from time to time substitute a Product with another product of similar appearance, value and size following your written approval.  Where an item is substantially different, we will obtain your written approval to substitute the item.  We exclude all liability in the event the alternative Product is found to be incorrect and/or defective for use.

8.              PRODUCT DELIVERY

8.1           Location: We deliver Products worldwide.  At this stage, we do not deliver to certain places where we are unable to find a freight provider. Please refer to the delivery information provided by us to check that you are in our delivery area.  If you are not in our delivery area, please contact us to discuss delivery options.

8.2           Cost: Delivery fees will apply, as set out on our Site.

8.3           Specifications: We can provide you with a list of the components used in the production of the Products upon request.  It is your responsibility to check the Product component list against your required specifications for the Products and/or Services.

8.4           Timing: We will try to dispatch the Product within the time specified in the Quotation.  However, any delivery periods provided in the Quotation are estimates only, based on the information provided by the delivery company, you and any Third Party Suppliers, and our ability to dispatch is generally reliant on you or Third Party Suppliers providing us with components on time.  We will deliver the product to the place of delivery you specify when making your order.

8.5           Change: If you need to change a delivery date or the delivery address, please contact us as soon as possible to see if this is possible.  If you are not available to take delivery on the agreed delivery date, you may be charged a delivery fee for each additional delivery attempt.

8.6           Method: We may deliver the Products via a range of delivery methods.  All deliveries must be signed for.  If neither you nor your authorised representative is at the delivery address to accept delivery you will be notified, generally by the delivery company leaving a card with contact details, so that you can arrange another delivery time and date. 

8.7           Title: Title in the Products will not pass to you until the later of delivery or your payment being processed or otherwise received by us.  If your payment is declined for any reason we reserve the right to reclaim the Products from your possession, custody or control even if they have been delivered to you or moved from the delivery address.  We reserve the right to keep or sell the Products.  Risk of loss, damage or deterioration to any Products will pass to you on delivery.

9.              YOUR OBLIGATIONS AND WARRANTIES

9.1           If you obtain Products and/or Services from us, you warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Products and/or Services to you or the prior 12 month period.

9.2           You warrant that throughout the term of these Terms that:

(a)     there are no legal restrictions preventing you from agreeing to these Terms;

(b)     you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services and provide the Products as requested by us from time to time, and comply with these requests in a timely manner;

(c)     the information you provide to us is true, correct and complete;

(d)     you will not infringe any third party rights in working with us and receiving the Products and/or Services;

(e)     you will inform us if you have reasonable concerns relating to our provision of Products and/or Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;

(f)      you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Products and/or Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;

(g)     you consent to the use of your name and Intellectual Property in relation to the Products and/or Services in a way which may identify you;

(h)     if applicable, you hold a valid ABN which has been advised to us; and

(i)       if applicable, you are registered for GST purposes.

10.           OUR INTELLECTUAL PROPERTY

10.1        The work and materials that we provide to you in providing the Products and/or carrying out the Services contains material which is owned by or licensed to us and is protected by Australian and international laws.  This includes but is not limited to manufacturing process information we have collected and disclosed to you for the improvement in the manufacturing of your Products (Materials).  We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.

10.2        The Materials are provided to you for your exclusive non-commercial use only and for the sole purpose of the improvement of our Design for Manufacturability (DFM) and the design of your Products.  The Materials are not to be shared with any third parties, and if such Materials are disclosed to any third parties without our consent, we reserve the right to terminate your Account and cease providing the Services immediately.

10.3        You agree that, as between you and us, we own all Intellectual Property rights in business, Products, branding and our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in such things, except as stated in these Terms or with our written permission.

10.4        Your use of our Materials does not grant you a licence, or act as a right to use, any of the Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.

10.5        You must not breach our copyright or other Intellectual Property rights by, including but not limited to:

(a)       altering or modifying any of the Materials;

(b)       creating derivative works from the Materials; or

(c)       using our Materials for commercial purposes such as onsale to third parties.

10.6        We will assign ownership of the Products to you, upon full payment of our Invoices.

10.7        We grant you a non-perpetual, non-exclusive, revocable, worldwide and non-transferable licence to use the Material for the agreed purpose in accordance with this clause 10.

10.8        We do not offer a design or trademark search as part of our Service and we are not responsible for any infringement of third party intellectual property rights or liability.

10.9        You are responsible for proofing and approving all manufacturing processes; bill of materials; engineering documents; manufacturing documents; work instructions; and selecting alternative components/raw materials to build your Products.  Upon approval from you, any subsequent errors in publishing are not our responsibility.

11.           YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS

11.1        You agree to provide information including any Intellectual Property to us to enable us to provide the Products and/or Services.  You:

(a)     warrant that you have all necessary rights to provide the Intellectual Property to us;

(b)     grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you; and

(c)     consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.

11.2        If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:

(a)     irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Services to you;

(b)    irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;

(c)     agree that your consent extends to acts and omissions of any of our licensees and successors in title; and

(d)    agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements.

12.           CONFIDENTIAL INFORMATION

12.1        We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary, Third Party Suppliers); to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality Services to you, and not for any other purpose.

12.2        You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.

12.3        These obligations do not apply to Confidential Information that:

(a)     is authorised to be disclosed;

(b)     is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;

(c)     is received from a third party, except where there has been a breach of confidence; or

(d)     must be disclosed by law or by a regulatory authority including under subpoena.

12.4        The obligations under this clause will survive termination of these Terms.

13.           FEEDBACK AND DISPUTE RESOLUTION

13.1        Your feedback is important to us.  We seek to resolve your concerns quickly and effectively.  If you have any feedback or questions about our Services and/or Products, please contact us.

13.2        If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

(a)     The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).

(b)    If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator.  If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator.  The mediator will decide the time and place for mediation.  The Parties must attend the mediation in good faith, to seek to resolve the dispute.

13.3        Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

14.           TERMINATION

14.1        Either Party may terminate these Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.

14.2        We may terminate these Terms and cease to provide the Products and/or Services immediately, at our sole discretion, if:

(a)     we discover that you are sharing our Materials with third parties;

(b)     we consider that a request for a Product or Service is inappropriate, improper or unlawful;

(c)     you fail to provide us with clear or timely instructions to enable us to provide the Services, including the information set out in clause 3.3;

(d)     we consider that our working relationship has broken down including a loss of confidence and trust;

(e)     you post any disparaging or disrespectful comments about us on social media;

(f)      you act in a way which we reasonably believe will bring us into disrepute;

(g)     you provide us with incorrect Payment Details or any other incorrect information;

(h)     for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or

(i)       you fail to pay an Invoice within 14 Business Days of the payment date as set out in the Invoice terms.

14.3        On termination of these Terms you agree that any Fees, and any other payments including any Deposit, are not refundable to you, and you are to pay all Invoices for Products and/or Services rendered to you.  You will also be required to reimburse us for all parts purchased in respect of the Products and/or Services (whether or not they have been rendered to you) and any labour performed in respect of the Products and/or Services.

14.4        If you terminate these Terms prior to the delivery of the Products and/or the performance of the Services in accordance with the Quotation, such termination must first be approved by us in writing and you must pay for all Products and/or Services provided prior to termination, including any Products and/or Services which have been provided and/or performed and have not yet been invoiced to you.  You will also be required to reimburse us for all parts purchased in respect of the Products and/or Services (whether or not they have been rendered to you) and any labour performed in respect of the Products and/or Services.

14.5        On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.

14.6        On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.

14.7        On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements.  Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.

14.8        The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.

15.           TERMINATION OF SALE OF PRODUCTS

15.1        If you purchase our Products, we reserve the right to refuse supply of the Products ordered by you and terminate our contract with you, at our sole discretion, without incurring any liability to you.

16.           CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS

16.1        ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Products and/or Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).   Our liability is governed solely by the ACL and these Terms.

16.2        If you are a consumer as defined in the ACL, the following applies to you:

(a)       Products:  Our Products come with warranties and guarantees that cannot be excluded under the Australian Consumer Law.  You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage.  You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.

(b)       Services: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time.  To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from the Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.

16.3        Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services or provide the Products in the period set out in the Quotation where it is affected by your delay in response, or supply of incomplete or incorrect information.

16.4        Referral: On request by you, we may provide you with contact details of third party specialists.  This is not a recommendation by us for you to seek their advice or to use their

services.  We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.

16.5        Warranties: Manufacturer: The manufacturer’s warranty is in addition to but may overlap with any right and remedies you may have under applicable law, including any Statutory Rights.  If you are not considered a “consumer” within the meaning of the ACL, the manufacturer’s warranty may be your sole remedy.  You should check the manufacturer’s warranty, as many manufacturer’s warranties do not apply in a business or commercial setting.  Please contact manufacturer if you would like to make a claim under the manufacturer’s warranty.  Seller: For all Products manufactured by us in Australia, we warrant for a period of 12 months from the delivery date, that the Products are free from defects caused solely by faulty workmanship by us.  We agree to repair any defective Products manufactured by us in this instance only in accordance with clause 17.1.  To the extent permitted by law, we otherwise exclude all express and implied warranties, and all material and work provided to you is without warranties of any kind, either express or implied.  We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.

16.6        Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Products, the Services and these Terms, except those set out in these Terms, including but not limited to:

(a)     implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;

(b)     the Products and/or the Services being unavailable; and

(c)     any loss arising from the production of Products or performance of Services where the specification, method of construction or design has been provided by you to us and we have complied with such specifications, methods of construction or designs (and normal industry standards) when producing the Products or performing the Services.  For the avoidance of doubt, if a Product has not been tested by us, we are not responsible for and make no guarantee that it will work.

(d)     any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, loss of programs or other data on your information systems or costs of replacement goods, or otherwise, suffered by you or claims made against you, arising out of or in connection with the Products, the Services or your inability to access the Products or the Services, and the late or non-delivery of Products or Services, even if we were expressly advised of the likelihood of such loss or damage.

16.7        Information: While the information and material in the Materials and otherwise provided to you is believed to be accurate and current, it is provided by us in good faith on an “as is” basis, and we and our directors, officers and employees accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy or completeness of such information and materials.  Any reliance you place on the information and materials is at your own risk.

16.8        Limitation for Products: Our total liability arising out of or in connection with a Product, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total price paid by you for the purchase of that Product under these Terms.

16.9        Limitation for Services: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the three (3) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.

16.10    You are solely responsible for determining the suitability of any of our Products and/or Services, and your reliance on any information that is provided to you by us, Services or Materials is at your own risk.

16.11    This clause 16 will survive termination of these Terms.

17.           RETURN, REFUND AND EXCHANGE POLICY

17.1        Repair or replacement or a refund of a Product: If you wish to seek a repair, replacement or a refund for a Product, please contact us and we will explain the requirements to you.  This may include you providing proof of purchase and evidence of the faulty Product to us.

17.2        Refund: To the extent permitted by law, no refund will be provided in respect of a Product or Service.  We do not provide refunds for change of mind.  Due to the nature of our business, once the order has been placed with us, we are unable to provide an exchange or refund for the custom-made Product and/or Services and you will be required to pay the balance of any Invoices in accordance with these Terms.

17.3        Installed: Subject to this clause, we will not accept for return any Product that has been used, connected, installed, attempted to be connected or installed, or if your Product is custom-made or is a special buy Product.

17.4        Packaging: You must adequately package any Product you are returning for our collection to ensure that it is not damaged during return delivery to our warehouse.  

17.5        Collection: We will arrange for any Products you want returned to be collected from your business premises only as detailed in the Quotation, usually within 5 - 10 Business Days.

17.6        Duty of care: You have a duty of care for the Product while it is in your possession.  If you damage a Product, then subsequently return the Product for repair or replacement, you may be liable to pay for the repair/replacement of the Product to its original condition. 

17.7        FIA: Where the components for the Products are provided by you (including by FIA) for the completion of the Services, we exclude all liability for the components and/or Products whatsoever and are not be responsible for the costs associated with them.

18.           INDEMNITY

18.1        You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

(a)     any information that is not accurate, up to date or complete or is misleading or a misrepresentation; 

(b)     any breach of these Terms; and

(c)     any misuse of the Products and/or Services, from or by you, your employees, contractors or agents.

18.2        You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services or our Products including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.

18.3        The obligations under this clause 18 will survive termination of these Terms.

19.           GENERAL

19.1        Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

19.2        Accuracy: While we endeavour to keep the information up to date and correct, we make no representations, warranties or guarantees, expressed or implied, about the completeness, accuracy, reliability, suitability or availability of any information, images, products, services, or related graphics provided by us for any particular purpose.  You hereby acknowledge that such information and materials may contain mistakes, inaccuracies or errors and we expressly exclude any liability for such to the fullest extent permissible by law.  We reserve the right to correct clerical errors at our discretion.

19.3        Publicity: We may use advertising or publicly announce that we have undertaken work for you provided we received your prior written consent.

19.4        Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you.  You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

19.5        GST: If and when applicable, GST payable on any Products and/or Services will be set out on our Invoices.  By accepting these Terms, you agree to pay us an amount equivalent to the GST imposed on these charges.

19.6        Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.

19.7        Assignment: These Terms are personal to the Parties.  A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).

19.8        Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid.  If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.

19.9        Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.  If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 Business Days' notice in writing.

19.10    Notice: Any notice in connection with these Terms will be deemed to have been duly given when made in writing and delivered or sent by email, facsimile or post to the Party to whom such notice is intended to be given or to such other address, email address or facsimile number as may from time to time be notified in writing to the other Party.

19.11    Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.  The Site may be accessed throughout Australia and overseas.  We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside Australia.  If you access the Site from outside Australia you do so at your own risk and are responsible for complying with the laws in the place where you access the Site.

19.12    Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.

20.           DEFINITIONS

20.1        Unless otherwise defined herein or the context otherwise requires, capitalised terms used in these Terms will have the meanings given to them in the Quotation.

20.2        Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia.

20.3        Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement or otherwise.

20.4        Confidential Information includes confidential information about you, your Payment Details, your personal details, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".

20.5        Deposit means, if any, the amount set out in the Quotation.

20.6        Expenses refer to any additional costs which may be charged by us as set out on the Site.  Such amounts may include delivery fees and insurances costs.  Expenses do not include any costs and expenses incurred by any Third Party Suppliers and these will be charged to you by the relevant Third Party Supplier.

20.7        Fees means the total Extended Prices as set out in the Quotation

20.8        GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.

20.9        Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, whether subsisting now or in the future, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs (whether or not registered or registrable), any corresponding property rights under the laws of any jurisdiction, discovery, circuit layouts, trade names, trade secrets, secret process, know-how, concept, idea, information, process, data or formula, business names, company names or internet domain names.

20.10    Invoice means any tax invoice we issue to you.

20.11    Invoice Terms means the payment terms and conditions of the invoice as set out in the Quotation.

20.12    Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).

20.13   Products include the products described in the Quotation.

20.14    Quotation means the written quotation entered into between you and us in relation to the provision of Products and/or Services.

20.15    Services means the services described in the Quotation.

Contact details:

On-track Technology Pty Ltd

ABN 71 091 980 077

12 Works Place, Milperra NSW 2214

+61 2 9700 7000

sales@on-track.com.au

Last update: 19 August 2019

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