EagleTra
ack Pty Ltd - Te
erms & Conditiions v2.1
1.
Interpre
etation
1.1 In these terms and conditions:
ans the law as set out in Schedule
S
2 of the Competition and Consumer Acct 2010
Australian Consumer Law mea
(Cth).
ss Day means a day th
hat is not a Saturday, Sunday,
S
bank holiday orr public holiday in Melbbourne,
Busines
Australia
a.
Busines
ss Hours means from 9.0
00am to 5.00pm on a Bu
usiness Day.
Contrac
ct is defined in clause 3.4
4.
Critical Fault means a significa
ant error or failure in the
e Licensed Software wh
hich results in a major oor total
failure off operation of the Licens ed Software to perform in substantial conformity with the Documentation,, so as
to give riise to a major or total inte
erruption to the functionin
ng of the business of the Customer.
Customer means a person who procures (or wishes to procure) any of the Goods
s.
Docume
entation means operattor and user manuals, training materials, guid
des, specifications and other
materials
s created or owned by Ea
agleTrack in relation to th
he use of the Goods.
External Factors is defined in clause 18.2.
Goods means
m
the hardware (inccluding, without limitation, GPS tracking units, datta terminals, sensors andd other
hardware), software and/or services offered by EagleTra
ack to the Customer, as described in a Quotatioon (and
includes any services provided vvia the Website), and in
ncludes any and all acce
essories, tools, parts, maanuals,
and subs
stitute and replacement g
goods.
License
ed Software means any software supplied by Ea
agleTrack under this Contract, including any Updaates or
New Relleases to that software provided to the Customer from time to time.
EagleTrrack means EagleTrack P
Pty Ltd ACN 129 398 296
6.
New Release means a new verssion of Licensed Softwarre which adds new functionality or performance aand for
agleTrack typically charg
ges its customers.
which Ea
Non-Critical Fault means any error or failure in the operation of the Licensed Software which results in a failure
ormity with the Documentation and that is not a C
Critical
of the Licensed Software to perfform in substantial confo
Fault.
Non-Exc
cludable Condition is de
efined in clause 19.1.
PPSA means
m
the Personal Prope
erty Securities Act 2009 (Cth).
Privacy Policy means EagleTra
ack’s privacy policy availa
able on the Website (as may be amended from ttime to
time).
sed Goods means the ha
ardware Goods that the Customer
C
purchases from
m EagleTrack.
Purchas
Quotatio
on means the written or e
electronic quotation provvided by EagleTrack to th
he Customer.
Rented Goods means the hardw
ware Goods that the Customer rents from EagleTrack
Update means each update of L
Licensed Software supplied by EagleTrack the pu
urpose of which is to corrrect an
error or defect
d
in the Licensed So
oftware (but excluding Ne
ew Releases).
Website
e means EagleTrack’s we
ebsite located at www.Ea
agleTrack.com.au.
2.
2.1
2.2
3.
Terms of
o supply
The Goo
ods are supplied by Eagle
eTrack on these terms an
nd conditions.
The Cus
stomer agrees to be boun
nd by and abide by these
e terms and conditions and
a any other terms, connditions
and policies notified by EagleTrrack (including the Priva
acy Policy) in writing in respect
r
of the provision of the
Goods.
(released 5/2012)
10.
10.2
2
10.3
3
10.4
4
10.5
5
10.6
6
10.7
7
10.8
8
10.9
9
11.
11.2
2
Quotatio
ons and orders
30 days from the date of the Quo
otation).
3.4
3.5
4.
Custome
er is making an offer to p
procure the relevant Good
ds on those terms and on
n these terms and condittions.
A contra
act in respect of the provission of Goods (Contractt) is only formed when an
n order placed by the Cusstomer
in accord
dance with clause 3.3 iss received and accepted in writing by EagleTrack (including by the issuee of an
invoice). The Contract comprise
es the terms of the Quo
otation, these terms and conditions, the Privacy Policy,
and any other terms notified to th
he Customer by EagleTra
ack in writing in accordan
nce with clause 2.2.
On paym
ment of an invoice in resp
pect of any Goods, the Buyer agrees to be bound by these terms and connditions
and any
y other terms, conditions and policies notified by the Seller (including the
e Privacy Policy and anyy other
terms, co
onditions and policies ma
ade available on the Web
bsite) in respect of the sa
ale and supply of those G
Goods.
Prices
4.1 All prices and fees displayed onn the Website or provideed by EagleTrack are su
ubject to change without notice
4.2
4.3
4.4
5.
o
are accepted by EagleTrack on condition
n that they will be invoiced at the prices set outt in the
and all orders
Quotatio
on, provided that EagleT
Track reserves the right to correct any typographical and clerical errors in the
prices orr specifications set out in
n the Quotation. If the Cu
ustomer places an order for Goods after a Quotaation in
respect of
o those Goods has expiired, EagleTrack reserve
es the right to issue a new
w Quotation in respect off those
Goods with
w updated pricing.
Unless otherwise
o
stated, prices specified in a Quotatio
on do not include freight, installation, configurattion or
commiss
sioning charges or the co
osts of any special packiing and packing materialls. The Customer must pay all
costs inc
curred by EagleTrack in ffreighting, commissioning
g, configuring and/or spe
ecially packing the Goodss at the
request of
o the Customer.
Any con
nsideration to be paid o
or provided for a supplyy made under or in con
nnection with these term
ms and
condition
ns, unless specifically de
escribed as GST inclusive, does not include an
n amount on account off GST.
Despite any other provision in th
his Contract, if a party (S
Supplier) makes a supp
ply under or in connectioon with
erms and coditions on which GST is imposed
d (not being a supply the consideration for whhich is
these te
specifica
ally described in hese tterms and conditions ass GST inclusive), the co
onsideration payable orr to be
provided
d for that supply but for tthe application of this cla
ause 4.3 (GST exclusiv
ve consideration) is incrreased
by, and the recipient of the sup
pply (Recipient) must allso pay to the Supplier, an amount equal to thee GST
sive consideration is incrreased
payable by the Supplier on that ssupply, and the amount by which the GST exclus
ement for demand, at thee same
must be paid to the Supplier by tthe Recipient without sett off, deduction or require
pplier will provide a tax iinvoice
time as the GST exclusive conssideration is payable or to be provided. The Sup
s
payment of GST
T. Words or expressions used in this clause 4.3 which
w
are defined in the A New
prior to seeking
Tax System (Goods and Services Tax) Act 1999 (Cth) ha
ave the same meaning in this clause.
Unless otherwise
o
stated, and sub
bject to clause 4.3, the prices
p
quoted by EagleTrrack are net of all taxes, tariffs,
duties and levies imposed by an
ny government or statuto
ory authority. All such taxes,
t
tariffs, duties and levies
must be paid by the Customer on
n demand by EagleTrackk.
Terms of
o payment
5.1 Once EaagleTrack has received an order for Goods inn accordance with clausse 3.3, EagleTrack mayy issue
invoices in respect of the Goods on a monthly basis (or such other basis as speciffied in the relevant Quotaation).
5.2 The Cusstomer must pay each invoice issued by EagleeTrack at the time state
ed in the Quotation or, in the
6.
6.4
7.
8.
9.
Licence of Licensed Software
S
Goods, subject to pay
yment by the Customer of the applicable fees as
a set out in the Quotattion, EagleTrack
grants to the Customer a non-exclusive, non
on-transferable, non-subllicensable licence to usse the Licensed
Software on EagleTrack’s network, for the teerm set out in the Quotation (if any), solely forr the purpose of
operating Goods purchased or rented by the Cuustomer from EagleTrack
k.
Where the Quotation provides for the acquisitioon by the Customer of a system licence from Eag
gleTrack, subject
to payment by the Cu
ustomer of the applicabble fees as set out in th
he Quotation, EagleTracck grants to the
Customer a non-exclus
sive, non-transferable, noon-sublicensable licence
e to use the Licensed Sofftware described
in the Quotation, for the
t
term set out in the Quotation (if any), sole
ely for the purpose of operating
o
Goods
purchased or rented by
y the Customer from EaggleTrack.
11.3
3 EagleTrack (and its th
hird party licensors) retaain all rights, title and in
nterest (including all pre
esent and future
copyright and all other intellectual property rightts) in and to the Licensed
d Software.
11.4
4 The Customer:
he Licensed Software inn conjunction with, or fo
or the purpose of opera
ating, any goods
must not use th
acquired from an
ny third party; and
(b)
must only use the Licensed Software withh the in-vehicle equipment approved by EagleTra
ack; and
(c)
(where clause 11
1.2 applies) must only usse the Licensed Software
e at the site approved by EagleTrack.
11.5
5 The Customer must co
omply with all reasonablee directions issued by Ea
agleTrack regarding use
e of the Licensed
Software, must use the Licensed Software in accordance with the Documentation, and must ensure that all
Customer personnel who
w use, install or suppoort the Licensed Software are properly trained in
i the operation,
installation and supportt of the Licensed Softwarre.
11.6
6 The Customer must not use the Licensed Software on equipmen
nt other than equipment approved by
EagleTrack, except tha
at the Customer may, at
at its own risk, use it on alternative equipment iff the designated
equipment is temporarrily inoperable due to maalfunction, maintenance or change of installation site, or with the
consent of EagleTrack.
11.7
7 The Customer must no
ot copy, alter, modify or reproduce the Licensed Software except to the extent otherwise
permitted under this Co
ontract.
11.8
8 The Customer must usse all commercially reaso
sonable efforts to safeguard the Licensed Softwa
are from misuse,
unauthorised use, loss or damage, and will provide an operating environment
e
for the Liccensed Software
(including computer hardware and software, appropriate cabling, telephone lines and mod
dem access and
communications links, and a suitable temperatture controlled, dust and
d smoke free environmen
nt) that complies
with all specifications and requirements providded to the Customer by EagleTrack (including stable
s
spike-free
electricity supply and a standby generator backed-up UPS (uninte
erruptible power supplyy) for all critical
computers and associa
ated equipment).
11.9
9 The Customer must keep
k
accurate records of use, copying, modiffication and disclosure of the Licensed
Software. The Custom
mer must permit EagleTra
rack to inspect such reco
ords at any time during Business Hours
and provide a copy of such
s
records to EagleTraack on EagleTrack’s requ
uest.
11.1
10
The Customer must
m
keep the Licensed S
Software and the Docume
entation confidential, exccept to the extent
that it enters the public domain or the disclossure is required by law, and must take all reassonable steps to
ensure that its personn
nel keep confidential andd do not disclose the Lic
censed Software or Docu
umentation. This
clause 11.10 survives the
t end of the Customer’’s licence in respect of the Licensed Software.
11.1
11
Except to the extent expressly permitted under Division 4A of Pa
art III of the Copyright Acct 1968 (Cth), the
Customer must not mo
odify, alter, adapt, mergee, translate, decode, reve
erse engineer, decompile
e or disassemble
the Licensed Software
e or merge all or any ppart of the Licensed So
oftware with any other software
s
without
EagleTrack’s written pe
ermission. The Customeer assigns to EagleTrack, including by way of futu
ure copyright, all
intellectual property rights in any modifications made by the Customer to the Licensed Software
e. The Customer
indemnifies EagleTrack from and against all cl
claims, suits, actions, demands, costs and expen
nses incurred by
EagleTrack arising out of or in connection w
with any modifications made
m
by the Customer to the Licensed
Software, including any
y claim for infringement oof third party intellectual property
p
rights.
(a)
12.
Location Data
absence
e of any time stated, withiin seven (7) days after th
he date of the invoice.
12.1
1 EagleTrack's systems may store location-relateed data connected with the Customer's use of thhe Goods and/or
Delivery
y
12.2
2 The Customer acknowledges that EagleTrack:
6.1 EagleTraack will not dispatch anyy Goods to, or make anyy Goods available for co
ollection by, the Customeer until
6.2
6.3
security interest is take
en in all Goods previously
ly supplied by EagleTrac
ck to the Customer (if anyy) and all Goods
that may be supplied in
n the future by EagleTracck to the Customer (whe
ether those Goods are Purchased Goods
or Rented Goods) and any proceeds referabble thereto, securing the performance by the Customer of its
obligations to EagleTra
ack under the Contract orr otherwise.
The Customer must no
ot, without EagleTrack's pprior consent, allow:
(a)
the Goods to bec
come mixed or comminggled with any other property;
(b)
the Goods to bec
come an accession to anny other property; or
(c)
any other properrty to become an accessiion to the Goods.
The Customer consents to EagleTrack effectinng and maintaining registrations in respect of security
s
interests
(including purchase money security interests) on the PPSR (as define
ed in the PPSA) contem
mplated by these
Customer must pay all co
osts incurred by EagleTra
ack in connection
terms and conditions and each Contract. The C
with the registration of a financing statement oor financing change state
ement (each as defined in the PPSA) in
respect of a security intterest granted by the Cusstomer in favour of Eagle
eTrack.
The Customer must im
mmediately notify EagleTTrack if any other person attempts to enforce a se
ecurity interest in
the Goods.
The Customer must assist EagleTrack to compplete the registration of any
a financing statement in respect of the
Goods, and will do all things and provide all innformation necessary to enable EagleTrack to pe
erfect its security
interest in the products and complete any financcing change statement.
Unless otherwise agre
eed, payments received bby EagleTrack from or on
n behalf of the Customer must be applied
in accordance with s14
4(6)(c)(i) to (iii) of the PPS
SA.
To the extent permitted by law, to the extent thhey otherwise would have
e applied to the enforcem
ment of a security
s
125, 132(3)(d), 142, 143 and (if
interest in the Goods, the Customer and EagleeTrack contract out of sections
permitted by section 115(7)) Part 4.3 (other thhan sections 123(1), 126, 128, 129(1), 133, 134
4(1), 136(1) and
136(2)) of the PPSA. The Customer irrevocabbly waives any rights und
der sections 95, 121(4), 130, 132(4) and
135 of the PPSA.
The Customer agrees that it irrevocably waivees any rights it may hav
ve to receive a verificatio
on statement (as
defined in the PPSA) in
n respect of a security intterests in the Goods.
The Customer and EagleTrack agree that neeither of them will disclo
ose, or authorise the dissclosure, to any
person of any information of the kind describeed in section 275(1) of the PPSA, except to the extent (if any)
required by law.
11.1
1 Where the Quotation provides
p
for the Customeer to access EagleTrack’s network for use in conjjunction with the
3.1 The price specified in a Quotationn is only valid for the perriod stated in the Quotatio
on (or, if no period is statted, for
3.2 A Quotation issued by EagleTracck constitutes an invitatioon to treat and is not an offer.
o
3.3 By placing an order for Goods oon the basis of the pricinng and payment terms se
et out in a valid Quotatioon, the
PPSA
10.1
1 The Customer acknow
wledges the Contract con
onstitute a security agree
ement for the purposes of the PPSA. A
the Custtomer has paid the depossit, or any other amount that is first due to be paid, under the invoice in re
respect
of the Go
oods.
Any time
e for processing of an ord
der or delivery of the Goo
ods made known to the Customer
C
is an estimate oonly.
Except as
a required by law (includ
ding under any Non-Excludable Condition), Eagle
eTrack is not liable for anny loss,
damage or delay occasioned to the Customer or its em
mployees, contractors or customers arising from late or
very of the Goods.
non-deliv
EagleTra
ack may, at its option, deliver the Goods to the Customer in any number
n
of instalments, unless
otherwis
se agreed in writing betwe
een the parties.
Loss or damage in transit
Although
h EagleTrack appoints ccontractors who are instrructed to use appropriate
e care when delivering G
Goods,
EagleTra
ack is not responsible tto the Customer or anyy person claiming throug
gh the Customer (includding in
negligen
nce) for any loss or dama
age to Goods once those
e Goods have left the pre
emises of EagleTrack (hoowever
caused and
a whether or not EaglleTrack is legally responsible for any person who
o caused or contributed to that
loss or damage),
d
except as requiired by law (including und
der any Non-Excludable Condition).
Shortag
ge
Except as
a required by law (inclu
uding under any Non-Exccludable Condition), Eag
gleTrack excludes all liabbility in
relation to any shortage of an y Goods delivered if a claim for short delivery has not been lodgeed with
ack within seven (7) dayss after the date of receiptt of Goods by the Custom
mer.
EagleTra
the Licensed Software (Location Data).
(a)
(b)
(c)
13.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
title in all Purchased Goods remains with Eagle
eTrack until EagleTrack has been paid in full for all
Pu
urchased Goods;
title in all Rented Goods re
emains with EagleTrack at
a all times; and
d Goods, until title in an
ny Goods passes to the Customer and in the ccase of
In the case of Pruchased
ented Goods at all times ,,the Customer is the baiilee of all Goods and ass
sumes, in favour of EagleeTrack,
Re
all of the duties and liabilitiies of a bailee in respect of the Goods.
In respect of any Goods w
while they remain the prop
perty of EagleTrack, the Customer
C
must:
no
ot dispose of the Goods or create or allow to be
e created any mortgage, lien, charge, pledge, cllaim or
other encumbrance or thirrd party interest over or in respect of the Goods
s, or agree to do any off those
things;
no
ot (without EagleTrack’s prior written consent) supply
s
any of the Goods to any person outsidee of its
orrdinary or usual course off business;
ins
sure the Goods for the
eir full insurable or repla
acement value (whichev
ver is higher) with an iinsurer
lic
censed or authorised to cconduct the business of insurance in the place where
w
the Customer carrries out
bu
usiness; and
no
ot remove, deface or oblitterate any identifying pla
ate, mark or number on any of the Goods.
ME_978067
766_2 (W2007)
Use of the Website
13.1
1 The Customer’s use of
o the Website, includingg to access any service
es purchased by the Cu
ustomer that are
provided via the Website, is governed by thesee terms and conditions. By
B accessing and using the Website, the
Customer agrees to be
e bound by these terms aand conditions. .
13.2
2 The materials displaye
ed on the Website, incluuding without limitation text, photographs, illusttrations, artwork,
13.3
3
13.4
4
Rights in relation to the Goods
s
9.1 EagleTraack and the Customer aggree that:
may be required by law to disclose the Loocation Data;
d
periodically deelete the Location Data; and
a
may, in its sole discretion,
excludes all liab
bility to the Customer (inncluding in negligence) in connection with Eagle
eTracks storage,
disclosure and/or deletion of the Locationn Data.
13.5
5
13.6
6
graphical content, names, logos and trademarkks are the property of Ea
agleTrack or its licensors. The Customer
must not reproduce, retransmit,
r
distribute, diisseminate, sell, publish
h, broadcast or commun
nicate any such
materials to any third party without EagleTrack’s
’s prior written consent.
EagleTrack does not re
epresent or warrant that tthe Website or any linked
d website (or any conten
nt on the Website
or any linked website) is free from computerr viruses or any other defects or errors which
h may affect the
Customer’s software or systems. The Custom
mer is responsible for pro
otecting its own software and systems by
installing and implemen
nting appropriate securityy and system checks.
The Customer must no
ot use the Website or anyy of the services provided
d via the Website:
(a)
for any purpose that is unlawful, breachees any applicable code of
o conduct, infringes a th
hird party’s rights
or is prohibited by
b this Contract; or
(b)
to breach or circumvent or attempt too breach or circumvent the security of the We
ebsite (including
‘hacking’) or engage in any other maliciouus, illegal or damaging behaviour in relation to the Website.
If the Customer purcha
ases any services from E
EagleTrack that are prov
vided via the Website, the
e Customer may
be issued with a user name and password. TThe Customer is respons
sible for maintaining the confidentiality of
c
out under the provvided user name
that user name and password, and is fully respponsible for all conduct carried
and account.
EagleTrack reserves the right to revise and up
update these terms and conditions and its Privaccy Policy, to the
extent that they relate to
t access to and use of thhe Website, as follows:
(a)
if EagleTrack co
onsiders that the change
ge is likely to benefit the
e Customer or have a neutral
n
or minor
detrimental impa
act on the Customer, EaagleTrack may make any changes immediately without notifying
the Customer ex
xcept by publishing the aamended terms and con
nditions or Privacy Policyy (as applicable)
on the Website; and
(b)
if EagleTrack considers that the change iis likely to have a signific
cant detrimental impact on
o the Customer,
EagleTrack will make
m
the change 7 dayss after it has notified the Customer of the change (solely by using
the email addres
ss that the Customer has
as provided) and EagleTrrack will display a notice
e on the Website
describing the change.
c
The Customer may object to the chan
nge and terminate the provision
p
of any
ongoing services
s provided by EagleTrackk with immediate effect during
d
that 7 day period.
The Customer’s continued use of the Website w
will mean that the Custom
mer accepts those changes.
-2-
14.
14.1
14.2
14.3
15.
Software support
EagleTrack will perform the support services that it considers appropriate so that the Licensed Software remains
in substantial conformity with the Documentation. This support may, in EagleTrack’s sole discretion, take the
form of telephone advice, , programming or re-configuration as EagleTrack considers necessary, or such other
services or methods of provision of services as EagleTrack considers appropriate.
The Customer must co-operate fully with EagleTrack’s personnel in the diagnosis of any alleged non-conformity
of the Licensed Software and must provide all such information that EagleTrack determines necessary for it to
perform the support services.
The customer must permit EagleTrack to access any hardware on which the Licensed Software is installed to
the extent necessary to enable EagleTrack to provide the support services.
operation of the Goods (including the Customer’s access to and use of the Website or the provision of any other
services by EagleTrack), is limited to AUD$10,000.
19.7
Without limiting any other provision of this Contract, the Customer:
(a)
Documentation
15.1 The Customer must not copy or reproduce any Documentation provided except to the extent otherwise
(b)
authorised under this Contract.
16.
16.1
16.2
16.3
16.4
16.5
16.6
17.
Term and termination
EagleTrack will rent the Rented Goods to the Customer, and provide the services included with the Customer’s
purchase or rental of hardware, commencing on the date on which the Customer’s order is accepted by
EagleTrack, until this Contract is terminated in accordance with this clause 16.
If the Customer breaches any provision of these terms and conditions (including, without limitation, by failing to
pay any amounts owed to EagleTrack by the applicable payment due date), becomes insolvent or ceases to
carry on business, EagleTrack may, in its sole discretion, either suspend its obligation to provide services
(including suspending the Customer’s access to the Licensed Software) until the breach is rectified, or terminate
this Contract for cause with immediate effect, by giving notice in writing to the Customer.
The Customer may terminate the agreement for provision of ongoing services, the licence of the Licensed
Software and/or the ongoing rental of the Rented Goods under these terms and conditions, or this Contract as a
whole, for convenience, by giving EagleTrack not less than 60 days written notice of that termination, provided
that the Customer must pay to EagleTrack, within 30 days after giving such notice, an early termination charge
equal to 90% of the charges that the Customer would have been required to pay during the remaining period of
the services term, had the agreement not been terminated. After the expiry of the minimum term specified in
the Quotation (if any), EagleTrack may terminate the provision of ongoing services, the licence of the Licensed
Software and/or the ongoing rental of the Rented Goods under this Contract, for convenience, by giving the
Customer not less than 90 days written notice of that termination.
If the Customer gives a notice of termination for convenience under clause 16.3 before the expiry of a minimum
term specified in the Quotation, then the Customer must pay to EagleTrack, within 7 days after giving that
notice, in addition to any other amounts that may be owing to EagleTrack under this Contract, an early
termination charge equal to 90% of the charges that the Customer would have been required to pay during the
remaining period of the minimum services term, licence term and/or rental term (as applicable) had the
termination not occurred.
Immediately upon the termination of the rental or this Contract, the Customer must, at its expense, de-install
and ship the Rented Goods, in good working order, to the address notified by EagleTrack. This shipment should
be insured, as the Customer will bear the risk of loss or damage to the Rented Goods during transit.
EagleTrack may invoice the Customer for any Rented Goods that are not returned to EagleTrack in accordance
with this clause 16.5, and the Customer will be liable for the replacement costs of the Rented Goods.
The Customer must pay to EagleTrack any fees and charges that are payable and outstanding as at the
termination date of this Contract.
Return
21.1 Subject to clause 19, EagleTrack will not accept any Goods returned by the Customer except on terms agreed
in writing with the Customer at EagleTrack’s sole discretion.
21.2 Any Goods returned by the Customer in accordance with this Contract must be returned at the Customer’s
expense to the address notified to the Customer by EagleTrack.
21.3 Any goods returned to the Customer other than in accordance with these terms and conditions (or as permitted
pursuant to the Buyer's Statutory Rights) will be considered an unauthorised return. In this case the Customer
will not receive a credit note or refund for the Goods and EagleTrack will not ship the Goods back to the
Customer unless the Customer pays all handling, shipping and administrative costs incurred by EagleTrack in
doing so.
22.
22.2
23.
18.4
18.5
19.
Limitation of liability
19.1 EagleTrack acknowledges that the Australian Consumer Law may confer certain rights and remedies on the
19.2
19.3
19.4
19.5
19.6
Customer in relation to the provision by EagleTrack of goods or services under this Contract. This Contract
does not exclude, restrict or modify the application of any condition, warranty, guarantee, right or remedy
conferred by or implied under any provision of the Australian Consumer Law or any other statute, where to do
so would:
(a)
contravene the relevant statute; or
(b)
cause any part of this agreement to be void and/or unenforceable.
(Non-Excludable Obligations).
Except in relation to Non-Excludable Obligations, all conditions, warranties, guarantees, rights, remedies,
liabilities or other terms implied or conferred by statute, custom, or the general law that impose any liability or
obligation on EagleTrack are expressly excluded under this Contract.
In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession
conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for
personal, domestic or household use or consumption (in respect of which EagleTrack's liability is not so limited
under this Contract), EagleTrack's liability to the Customer for a failure to comply with any Non excludable
Obligation is limited to:
(a)
in the case of services, the lowest of the cost of supplying the services again and payment of the cost of
having the services supplied again; and
(b)
in the case of goods, the lowest of the cost of replacing the goods, supplying equivalent goods or having
the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having
the goods repaired.
Except in relation to Non-Excludable Obligations, EagleTrack’s liability (including in negligence) for any defect in
any Goods (including in any Licensed Software) is limited to, at EagleTrack’s option, repairing the defect or
replacing the Goods within a period ending twelve (12) calendar months after the Goods have been dispatched
or made available for collection (whichever is earlier), so long as:
(a)
the defect has arisen solely from faulty materials or workmanship;
(b)
the defect has not been caused or contributed to by installation, configuration or commissioning of the
Goods;
(c)
the defect has not been caused or contributed to by the Goods having received maltreatment, inattention
or interference;
(d)
the defect has not been caused or contributed to by accessories of any kind being used by the Customer
with the Goods that were not manufactured or approved by EagleTrack;
(e)
the seals of any kind on the Goods remain unbroken; and
(f)
the defective parts are promptly returned to EagleTrack at the Customer’s cost.
Except in relation to Non-Excludable Obligations, but despite any other provision of this Contract, EagleTrack is
not liable (including in negligence) for any cost, loss, liability or expense arising from death, personal injury or
damage to property (unless the death, personal injury, or damage to property is caused by the negligence or
default of EagleTrack), any loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of or
damage to reputation, loss of capital, downtime costs, loss under or in relation to any other contract, loss of
data, loss of use of data or any indirect, consequential or special loss or damage incurred by the Customer or
any other person arising under or in connection with this Contract or the supply, layout, assembly, installation,
provision or operation of the Goods (including the Customer’s access to or use of the Website or the provision
of any other services by EagleTrack).
Subject to clauses 19.1 and 19.5, but despite any other provision of these terms and conditions, EagleTrack’s
total aggregate liability (including in negligence) for any cost, loss, liability or expense arising, directly or
indirectly, under or in connection with this Contract or the supply, layout, assembly, installation, provision or
ME_97806766_2 (W2007)
delivered personally, by pre-paid registered letter, or by electronic mail addressed to the relevant party as set
out in the Quotation.
Notice will be deemed given on the date of personal delivery, within the three (3) days of mailing, if by facsimile
transmission on receipt by the sender’s facsimile machine of notification from the receiver’s machine that all
pages were successfully transmitted, or if by e-mail upon receipt of a successful delivery notification to the
sender’s inbox.
General
23.1 In these terms and conditions:
(a)
(b)
(c)
the Goods in the Quotation prevails over all other descriptions of the Goods, including the description in any
specification or enquiry of the Customer and in any material provided by EagleTrack.
18.3
Notices
22.1 Any notice required or authorised to be given or served on a party under this Contract must be in writing and
17.3 Where specifications, drawings or other particulars are supplied by the Customer, the price specified in the
18.2
indemnifies EagleTrack and its officers, employees, agents and contractors (those
indemnified), and will hold those indemnified harmless, against all actions, claims, charges,
costs (including legal costs on a full indemnity basis), expenses, losses, damages and other
liability (Loss) that they may sustain or incur, directly or indirectly, as a result or as a
consequence of the Customer's failure to comply with paragraph (a), including Loss arising from
death, personal injury and/or damage to property.
21.
are provided by EagleTrack for information only and, except as required by law (including under any NonExcludable Condition), do not form part of this Contract.
18.1
does not otherwise impede or compromise in any way the safe operation of
the vehicle in which the Goods are installed (including, without limitation, the
operation of airbags and other vehicle systems); and
Customer’s property
Any property of the Customer under EagleTrack’s possession, custody or control is completely at the
Customer’s risk as regards loss or damage caused to the property or by it.
17.2 All Goods to be supplied by EagleTrack to the Customer are as described on the Quotation. The description of
Performance
Any information contained in catalogues, price lists, the Website and other advertising matter is supplied without
warranty, condition or other terms and any performance figures provided by EagleTrack in relation to the Goods
are estimates only. Except as required by law (including under any Non-Excludable Condition), EagleTrack
excludes all liability in relation to any failure of the Goods to perform in accordance with any such information or
figures except to the extent of any performance guarantee provided by EagleTrack to the Customer in writing.
Any such written guarantees are subject to the recognised tolerances applicable to such figures.
The Customer acknowledges that the operation of the Goods (including the Customer’s access to the Website
and its use of any services provided via the Website) is dependent on and affected by a range of matters
outside the control of EagleTrack, including without limitation, mains power disruptions, the communication and
tracking services and coverage provided by third parties, communications infrastructure (such as mobile
GSM/GPRS/3G networks, ISP outages, leased line/ISDN circuit failure, PMR channel or network failure),
weather conditions, magnetic and electronic interference, shielding, terrain, radio emissions, interruptions
caused by those matters and other factors as notified from time to time by EagleTrack to Customer including
notification via the Website, promotional material, Quotations and specifications (External Factors). EagleTrack
does not warrant that operation of the Goods will be continuous, uninterrupted or error-free, or that any outage
notifications will be made in a timely manner, or at all.
To the maximum extent permitted by the law, and subject to clause 19.1, the Customer releases EagleTrack
from all claims, suits, actions and demands which may arise, directly or indirectly, out of or in connection with
the External Factors and the effect of any of them on the operation of the Goods.
Except as required by law (including under any Non-Excludable Condition), EagleTrack gives no warranty or
representation of uninterrupted, continuous or error free operation of, or communication with the Goods.
The Customer must hold EagleTrack harmless, from and against all claims, suits, actions, demands, costs and
expenses incurred by EagleTrack arising out of or in connection with the External Factors and the effect of any
of them on the operation of the Goods.
complies with all applicable laws, regulations, standards and guidelines,
including those relating to driver safety and vehicle safety; and
(ii)
20.
Specifications
Quotation is based on EagleTrack’s estimates of quantities of Goods required by the Customer. If there are any
adjustments in quantities above or below the quantities set out in a Quotation, the price specified in the
Quotation will be increased or decreased accordingly on the basis of the hardware prices set out in the
Quotation.
(i)
19.8
17.1 The descriptions and illustrations contained in catalogues, price lists, the Website and other advertising matter
18.
acknowledges that it is solely responsible for ensuring that the installation of the Goods:
23.2
23.3
23.4
the singular includes the plural and vice versa, and a gender includes other genders;
another grammatical form of a defined word or expression with a corresponding meaning;
a reference to a document or instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time;
(d)
a reference to AU$, AUD or AU dollar or $ is to Australian currency;
(e)
a reference to a person includes a natural person, partnership, body corporate, association, governmental
or local authority or agency or other entity;
(f)
a reference to a statute, ordinance, code or other law includes regulations and other instruments under it
and consolidations, amendments, re-enactments or replacements of any of them; and
(g)
the meaning of general words is not limited by specific examples introduced by including, for example
or similar expressions.
The laws of the State of Victoria, Australia, govern this Contract, and the Customer and EagleTrack irrevocably
and unconditionally submit to the non-exclusive jurisdiction of the courts of that State.
The Contract constitutes the entire agreement between the parties as to its subject matter, and supersedes all
prior or inconsistent statements or representations (including any conditions set out in the Customer’s order or
request for Goods) as to that subject matter.
This Contract may only be waived in writing signed by EagleTrack.