1)In these Terms of Trade
a) Intrack Systems Australia means Intrack Systems Australia Pty Ltd (ACN 603 037 921),
b) Goods means the goods sold and the services provided by Intrack Systems to the Customer.
c) GST means the Goods and Services Tax – the tax payable on taxable supplies under the A New Tax System (Goods and Services Tax) Act 1999.
a) Unless otherwise stated, the prices for the Goods sold by Intrack Systems pursuant to a Customer order are expressed on a GST exclusive basis.
b) Where GST is applicable on any supply of Goods made by Intrack Systems to the Customer, then the Customer must pay the GST exclusive price plus GST.
c) The Customer must pay for the Goods without deduction or set-off, whether legal or equitable, by the date stated on the invoice.
d) Interest will be charged to the Customer on any overdue invoice at the rate prescribed under Section 2 of the Penalty Interest Act (VIC) 1983.
3)Retention of Title in the Goods
a) Title in the Goods will not pass to the Customer until Intrack Systems receives full and clear payment by the Customer for the Goods and all other monies owed by the Customer to Intrack Systems on any account whatsoever.
b) Where payment by the Customer for any debt is overdue, Intrack Systems, its employees or agents may, without prior notice, repossess the Goods and enter into any premises upon which the Goods are stored for this purpose.
c) Nothing in this clause will affect Intrack Systems’ entitlement to maintain an action against the Customer in respect of payment for the Goods or prejudice any of Intrack Systems’ other rights and remedies.
4)Limitation of Liability
a) Intrack Systems will not be liable to the Customer for any loss caused wholly or partly by or arising out of any use of the Goods or any defect resulting from normal wear and tear or accident, misuse or other unsuitable or unauthorized use of the Goods, negligence or error in storing, maintaining or handling the Goods, incorrect installation or assembly of the Goods where Intrack Systems has not installed or assembled such Goods, modifications or changes to the Goods without Intrack Systems’ prior written authorization or any other unauthorized act or fault by the Customer or a third party.
b) The liability of Intrack Systems for a breach of condition or warranty implied by Division 2 of Part V of the Trade Practices Act 1974 (or its successor) is limited, at Intrack Systems’ discretion, to the replacement of the Goods or supply of equivalent Goods or the repair of the Goods or payment for the cost of such replacement or repair.
c) To the fullest extent permissible, Intrack Systems and its officers, employees or agents will not be responsible for any claims or demands of any nature whatsoever arising from the supply of Goods to the Customer caused in whole or in part by any acts or omissions of Intrack Systems, its employees or agents including, but not limited to, the injury or death of any person or damage to any property.
5)Recovery of Costs
a) The Customer must pay all costs and expenses (including all legal costs on an indemnity basis) which may be incurred by Intrack Systems or its agents in respect of the Customer in relation to any debt, the enforcement of Intrack Systems’ right to retaining title in the goods, and / or otherwise.
a) Unless otherwise agreed, the Goods will be delivered to the Customer’s premises or other location nominated by the Customer at the Customer’s cost.
b) Where the Customer or its agent is unavailable to sign or does not sign the delivery docket provided by Intrack Systems, then the Intrack Systems driver’s delivery record will be conclusive evidence of the delivery at the time and location specified in that record.
a) In consideration of Intrack Systems supplying Goods to the Customer, we the Directors, jointly and severally guarantee the Customer’s debt to Intrack Systems and any payment made by Intrack Systems to any liquidator of the Customer as an unfair preference whether by way of settlement or judgment and all associated legal costs. The Guarantor’s liability under Clause will not be affected by failure of any Guarantor to sign this Guarantee.
a) Intrack Systems is entitled to revoke or vary any credit terms granted to the Customer at its discretion without prejudice to any of its prior rights or obligations.
b) Intrack Systems reserves the right to cancel an order with the Customer (to the extent such order remains unperformed) in whole or in part without liability to Intrack Systems or stop any delivery of Goods and all amounts due to Intrack Systems will be immediately payable by the Customer.
a) The Customer acknowledges that neither Intrack Systems nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in these Terms of Trade as to the fitness of any Goods for any particular purpose or any other matter whatsoever.
10) Force majeure
a) Intrack Systems will not be liable for any delays or failures in meeting any obligation it has to the Customer due to circumstances beyond the reasonable control of Intrack Systems.
a) These Terms of Trade are governed by and must be construed in accordance with the laws of Victoria and the Customer agrees to submit to the exclusive jurisdiction of its courts.